4th Amendment Brief

[note] What follows is a brief written in support of a motion to suppress. The argument was won today and I'm now waiting to see if the prosecutor is going to appeal the suppression.
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Facts:

Officers found three persons in a motel room - 2 females and 1-male. The male [who had rented the room] agreed to allow the police to search the room. The police found a bag that was either a purse or makeup kit. The male was dressed in normal male attire and there was no indication that the purse belonged to him. The officers did not ask either female if they could search the bag. [Contraband was found in the bag.]

Upon a motion to dismiss there was some question - because of its age - as to whether the case relied upon by the Defendant. United States v. Block, 590 F.2d 535 (4th Cir. 1978). is still a valid interpretation of the constitution. A brief was ordered to discuss this issue and the 4th Amendment as applied to this case.

Questions:

1) Is Block still a valid interpretation of the 4th Amendment of the federal constitution??

2) What is the proper application of the 4th Amendment in this case?

Analysis:

BLOCK REMAINS A VALID INTERPRETATION OF THE 4th AMENDMENT.

Block continues to be applied in the 4th Circuit Court of Appeals. In 1992 the Court referred to Block when a cotenant became frustrated with police refusal to search and used a key to open a closet and give the officers the firearms within. United States v. Kinney, 953 F .2d 863 (4th Cir. 1992). In 2001 the Court directly applied Block when it ruled that a co-user of a computer could not consent to a search of those computer files to which he had no access. Trulock v Freeh, 275 F.3d 391 (4th Cir. 12/28/2001).

Block is still used around the nation as the case on point in this type of fact pattern. In 2004 the 6th Circuit cited Block for the proposition that permission given by a cotenant to search a residence did not extend to defendant’s private car. United States v. Gillis, 358 F.3d 386 (6th Cir. 2004)(but allowing the search because the car s windows were missing and anyone on the
street could have gotten into it). In 2004 an Illinois appellate court relied on Block in reversing a conviction. People v. Miller, 806 N.E.2d 759 (l1l.App. Dist.2 2004) (cotenant cannot consent to search of zipped duffel bag belonging to defendant). In 2003 the 8th Circuit referred to Block
when it ruled that backup copies of disks kept in a sealed envelope at a 3d party’s residence could not he searched with only that 3d party s consent. United States v. James, 353 F.3d 606 (8th Cir. 2003). In 2003 a Maryland appellate court relied on Block to rule that it was unconstitutional for police to search a car by permission of the mechanic after the work had finished but before it had been retrieved by its owner. Seldon v. State, 824 A.2d 999 (Md.Sp.App. 2003)("Third party consensual searches, however, are [per Block] limited to items that are clearly visible").

APPLICATION OF THE 4th AMENDMENT TO THIS CASE

The principle laid out in Block, that a third party can acquiesce to a search of a generally shared area but not to an object or area not shared, is widely accepted and long standing. See United States v. Wilson, 536 F.2d 883 (9th Cir. 1976)(3d party cannot approve search of defendant’s suitcase), Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955)(3d party could not approve search of a locked cabinet), United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992)(3d party cannot approve search of defendant s suitcase), State v. Miyasato, 805 So.2d 818 (Fla.App. Dist.2 2001 )(parents cannot approve search of adult son's desk in their mutual house). & State v. Grant, 614 N.W.2d 848 (Iowa App. 2000)(homeowner cannot consent to search of guest s jacket). Indeed, a 3d party cotenant cannot agree to a search of other people s luggage in her same motel room. United States v. Bussey, 507 F.2d 1 096 (9th Cir. 1974).

It is clear that the male who agreed to allow the police to search the general area of the motel room had no actual authority over the purse. Should the government try to rely on apparent authority the fact that the contraband was found in a purse makes that assertion very difficult. In fact, "it is less reasonable for a police officer to believe that a third party has full access to a defendant’s purse or a briefcase than, say, an open crate." United States v. Basinski, 226 F.3d 829 (7th Cir. 2000)(one man could not approve the search of another man's briefcase). Perhaps, had the 3d party who had consented to the search been the other female the prosecution could make a credible claim for apparent authority. However, both officers identified the male who allowed them to search as being dressed in a manner which is typically masculine and cited no factors which would indicate he was carrying a purse or makeup kit.

WHEREFORE, the Defendant renews her motion to have the contents of this search suppressed as a violation of her 4th Amendment rights. As well Defendant moves that any evidence gained subsequent to this search which proceeded from the search be suppressed as fruit of the poisonous tree.