`
`================================================================
`
`In The
`Supreme Court of the United States
`--------------------------------- ---------------------------------
`
`STATE OF IOWA,
`
`Petitioner,
`
`v.
`
`MARVIS LATRELL JACKSON,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The Iowa Supreme Court
`
`--------------------------------- ---------------------------------
`
`PETITION FOR WRIT OF CERTIORARI
`
`--------------------------------- ---------------------------------
`
`THOMAS J. MILLER
`Attorney General of Iowa
`JEFFREY THOMPSON
`Solicitor General
`KEVIN CMELIK
`Division Director, Criminal Appeals
`Counsel of Record
`Hoover Bldg., 2nd Floor
`1305 E. Walnut
`Des Moines, Iowa 50319
`(515) 281-5976
`kevin.cmelik@iowa.gov
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTION PRESENTED
`
`
` When an individual consents to the search of a
`room he occupies, when may a law enforcement officer,
`consistent with the Fourth Amendment, search a
`closed container found within that room?
`
`
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`Question Presented .............................................
`i
`Table of Contents .................................................
`ii
`Table of Authorities .............................................
`iv
`Opinions Below ....................................................
`1
`Jurisdiction ..........................................................
`1
`Constitutional and Statutory Provisions ............
`1
`Statement of the Case .........................................
`1
` A. Factual Background ..................................
`3
`1. The Crimes ..........................................
`3
` B. The Search .................................................
`5
` C. Procedural Background .............................
`6
`Reasons for Granting the Writ ............................ 10
`
`I. The Courts are Deeply Divided on Whether
`Officers, Consistent with the Fourth Amend-
`ment, May Search Closed Containers Lo-
`cated in Areas to Which Consent to Search
`has been Given ............................................. 12
` II. The Question Presented is Recurring and
`Important ..................................................... 20
` III. This Case is an Ideal Vehicle to Resolve the
`Question Presented ...................................... 24
` IV. The Iowa Supreme Court’s Decision was
`Incorrect ....................................................... 25
`Conclusion ............................................................ 29
`
`
`
`
`
`
`iii
`
`TABLE OF CONTENTS – Continued
`
`Page
`
`APPENDIX
`Supreme Court Opinion, filed April 29, 2016 ..... App. 1
`Court of Appeals Opinion, filed May 6, 2015 .... App. 87
`District Court Ruling on Motion to Suppress,
`filed July 5, 2013 ............................................ App. 98
`District Court Findings of Fact, Conclusions
`of Law and Verdicts, filed November 20,
`2013 .............................................................. App. 122
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Commonwealth v. Brooks, 388 S.W.3d 131 (Ky.
`Ct. App. 2012) .......................................................... 19
`Fernandez v. California, 134 S.Ct. 1126 (2014) ..... 12, 20
`Florida v. Jimeno, 500 U.S. 248 (1991) ................ 13, 14
`Georgia v. Randolph, 547 U.S. 103 (2006) .................. 24
`Glenn v. Commonwealth, 654 S.E.2d 910 (Va.
`2008) ........................................................................ 17
`Illinois v. Rodriguez, 497 U.S. 177 (1990) .......... passim
`Katz v. United States, 389 U.S. 347 (1967) ................. 12
`Norris v. State, 732 N.E.2d 185 (Ind. Ct. App.
`2000) ........................................................................ 19
`Pennington v. State, 913 P.2d 1356 (Okla. Crim.
`App. 1995) ................................................................ 17
`People v. Adams, 422 N.E.2d 537 (N.Y. Ct. App.
`1981) ........................................................................ 20
`People v. Gonzalez, 667 N.E.2d 323 (1996) ................. 19
`People v. James, 645 N.E.2d 195 (Ill. 1994) ................ 20
`People v. McKinstrey, 852 P.2d 467 (Colo. 1993) ........ 20
`People v. Trevino, 2011 WL 9692696 (Ill. Ct. App.
`May 27, 2011) .............................................. 15, 16, 25
`Schneckloth v. Bustamonte, 412 U.S. 218, 93
`S.Ct. 2041, 36 L.Ed.2d 854 (1973) .......................... 20
`State v. Edwards, 570 A.2d 193 (1990) ...................... 19
`
`
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`State v. Frank, 650 N.W.2d 213 (Minn. Ct. App.
`2002) .................................................................. 17, 18
`State v. Jackson, 878 N.W.2d 422 (Iowa 2016) ............. 1
`State v. Jones, 589 S.E.2d 374 (N.C. Ct. App.
`2003) ........................................................................ 17
`State v. Maristany, 627 A.2d 1066 (N.J. 1993) ...... 16, 17
`State v. Odom, 722 N.W.2d 370 (N.D. 2006) ............... 17
`State v. Sawyer, 784 A.2d 1208 (N.H. 2001) ... 16, 21, 22
`State v. Westlake, 353 P.3d 438 (Idaho Ct. App.
`2015) .................................................................. 18, 19
`United States v. Arreguin, 735 F.3d 1168 (9th
`Cir. 2013) ................................................................. 15
`United States v. Melgar, 227 F.3d 1038 (2000) .... passim
`United States v. Purcell, 526 F.3d 953 (6th Cir.
`2008) ........................................................................ 14
`United States v. Snype, 441 F.3d 119 (2d Cir.
`2006) ................................................ 14, 18, 20, 21, 25
`United States v. Taylor, 600 F.3d 678 (6th Cir.
`2010) .................................................................. 14, 15
`United States v. Waller, 426 F.3d 838 (6th Cir.
`2005) ........................................................................ 14
`
`
`CONSTITUTIONAL PROVISIONS
`United States Constitution, Amendment 4 ....... passim
`
`
`
`
`
`
`
`
`vi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`STATUTES
`28 U.S.C. §§ 1257(a), 2101(c) ........................................ 1
`Iowa Code § 711.2 (2013) .............................................. 6
`
`OTHER AUTHORITIES
`3 Wayne R. LaFave, Search and Seizure § 8.3
`(1993 Supp.) ............................................................ 20
`Derek Thompson, Homeownership in America
`Has Collapsed – Don’t Blame Millennials, The
`Atlantic (Oct. 28, 2014) ........................................... 23
`Don Lee, Why Millenials Are Staying Away from
`Homeownership Despite an Improving Econ-
`omy, L.A. Times (Mar. 1, 2016) ............................... 22
`Frank J. Stretz, An Objective Solution to an Am-
`biguous Problem: Determining the Ownership
`of Closed Containers, 61 DePaul L. Rev. 203
`(2011) ....................................................................... 11
`Tamar Lewin, Millennials’ Roommates Now
`More Likely to Be Parents Than Partners, N.Y.
`Times (May 24, 2016) .............................................. 23
`
`
`
`
`
`1
`
`OPINIONS BELOW
`The opinion of the Iowa Supreme Court is pub-
`
`lished at State v. Jackson, 878 N.W.2d 422 (Iowa 2016).
`Pet. App. 1. The Iowa Court of Appeals decision is un-
`published and can be found at 867 N.W.2d 195 (Table)
`2015 WL 2089357 (Iowa Ct. App. filed May 6, 2015).
`Pet. App. 87. The relevant suppression order is also un-
`published, but attached at Pet. App. 98.
`
`--------------------------------- ---------------------------------
`
`JURISDICTION
`The judgment of the Iowa Supreme Court was en-
`
`tered on April 29, 2016. Pet. App. 1. This Court has ju-
`risdiction. 28 U.S.C. §§ 1257(a), 2101(c).
`
`--------------------------------- ---------------------------------
`
`CONSTITUTIONAL AND
`STATUTORY PROVISIONS
`I. United States Constitution, Amendment 4.
`The right of the people to be secure in their
`persons, houses, papers, and effects, against
`unreasonable searches and seizures, shall not
`be violated. . . .
`
`--------------------------------- ---------------------------------
`
`STATEMENT OF THE CASE
`This case presents a common issue of criminal pro-
`
`cedure: whether it is reasonable under the Fourth
`Amendment for police to search closed containers
`
`
`
`
`
`2
`
`within a residence to which they have been given per-
`mission to search by one of its tenants. A recognized
`split of authority has emerged. Some courts have held
`that the search of closed containers requires more than
`consent to search the place in which the containers
`have been found. Because others might possess an in-
`terest in that property, these courts hold that no rea-
`sonable officer would search a closed container without
`additional inquiry of the consenting party as long as
`there is any uncertainty as to who owns the container.
`Other courts have held that a person’s consent to the
`search of a place over which he or she has apparent
`authority presumptively provides consent to search
`closed containers within that room unless it is obvious
`from the particular circumstances that the container
`is owned by someone else.
`
`The Iowa Supreme Court divided 4-3 over whether
`
`it was reasonable for an officer to search a backpack in
`a bedroom after the bedroom’s occupant had given per-
`mission to search that room. The majority concluded
`that the officer was required to inquire further. The
`dissent disagreed, finding that the officer acted reason-
`ably in searching the closed container based on the in-
`itial consent to search the room. This case presents an
`ideal vehicle to resolve the conflict over when officers
`may search closed containers found during consensual
`searches.
`
`
`
`
`
`
`
`
`3
`
`A. Factual Background
`1. The Crimes
`The facts are largely undisputed and were sum-
`
`marized by the district court in ruling on the motion to
`suppress.
`
`Jackson is charged with two separate robberies in
`
`the first degree. In the first instance, Iowa City Officer
`Michael McKenna was dispatched to the On the Go BP
`gas station in Iowa City at 9:39 p.m. on November 13,
`2012, to investigate a reported armed robbery. Pet.
`App. 100. On The Go BP employee March Schumacher,
`the store clerk during the robbery, explained to Officer
`McKenna that a black male with a thin build wearing
`a black mask and a red coat had come into the store,
`pointed a gun at Schumacher, and demanded the
`money in the cash register and a carton of Newport
`100’s cigarettes. Pet. App. 100. Schumacher reported
`that $476.00 in cash and $62.00 worth of cigarettes
`were stolen. Pet. App. 101.
`
`A few days later, Detective Scott Stevens watched
`
`the surveillance video and observed that “the robber
`was a medium-height, black male, wearing a red
`coat, a black face mask, and black and white tennis
`shoes.” Pet. App. 101. The robber pointed “a black semi-
`automatic pistol” at Schumacher demanding money
`and cigarettes. Pet. App. 101.
`
`On December 13, 2012, a customer told Schu-
`
`macher that the robber’s uncle identified the robber as
`“Juicy,” using his street name. Pet. App. 101. Detective
`
`
`
`
`
`4
`
`Stevens thereafter identified Juicy as Marvis Latrell
`Jackson but was unsuccessful in locating him on a pre-
`existing warrant. Pet. App. 101
`
`In the second case, directly leading to the search
`
`in question, an armed robbery was reported at 12:35
`a.m. on December 31, 2012. Pet. App. 102. Iowa City
`Police Officer Michael Smithey was dispatched to
`Gumby’s Pizza in Iowa City to investigate. Gumby’s
`Pizza employee Adam Carlson was working on that
`night. Pet. App. 101. He reported to Officer Smithey
`that two black males had entered the restaurant and
`demanded money. Pet. App. 102. One of the men had a
`black handgun and pointed it at Carlson when he
`made the demand. Pet. App. 102. Carlson estimated
`that the robbers took $125 in one-dollar bills, $50 in
`five-dollar bills, and one twenty-dollar bill.
`
` Matthew Smith was outside when the robbers ran
`away from the restaurant and relayed that infor-
`mation to the officers who called for a canine unit to
`help locate the two men. Pet. App. 102. Using shoe-
`prints in the snow, officers tracked the men to an
`apartment building on South Gilbert Street. Pet. App.
`102. There, “Officer Smithey noticed a tall black male
`looking intently at them out of a window from a sec-
`ond-floor apartment,” and when officers approached
`the door of that apartment, the lights went off and they
`heard the door lock from inside. Pet. App. 102-03. When
`“Officer Smithey knocked on the door and announced
`that he was a police officer,” Wesley Turner answered
`the door. Pet. App. 103.
`
`
`
`
`
`
`
`
`5
`
`B. The Search
`Officers explained they were investigating a rob-
`
`bery. Pet. App. 103. When asked who else was present,
`Turner said he, his girlfriend Allyssa Miller, and Gun-
`nar Olson lived there. Pet. App. 103. Turner said Olson
`was sleeping in his room. Pet. App. 103. Officers asked
`to speak to Olson, who came out of one bedroom to
`speak to Officer Smithey. Pet. App. 103. Olson said he
`lived there with Turner and Miller. Pet. App. 103.
`
` When Officer Smithey asked to look in Olson’s
`room, Olson first said his cousin was sleeping in there,
`but then could not provide a last name. Pet. App. 103-
`04. Olson then admitted the person was not a cousin
`and said he was surprised to find Jackson sleeping
`next to him when he was woken up. Pet. App. 103-04.
`Jackson was shirtless and lying on the only bed, which
`was an air mattress on the floor. Pet. App. 104. Both
`officers observed that Jackson had sweat on the back
`of his neck and brow. Pet. App. 104. Olson attempted to
`rouse Jackson, which seemed more difficult “than it
`should have been.” Pet. App. 104. When Jackson iden-
`tified himself, officers discovered the outstanding ar-
`rest warrant and placed him into custody without
`incident before handing him over to another officer.
`Pet. App. 104.
`
`At that point, Olson said he did not know when
`
`Jackson had arrived, that “he [Olson] lives in that bed-
`room alone,” and he did not know of any guns in the
`room. When asked, Olson gave Smithey consent to
`
`
`
`
`
`6
`
`search his bedroom to look for evidence of guns and the
`robbery. Pet. App. 104.
`
` When Officer Smithey began searching Olson’s
`bedroom he noticed a closed backpack on the floor at
`the edge of the closet without visible identification. Pet.
`App. 104. Officer Smithey opened the backpack and
`saw a wallet, dark jeans that were wet around the an-
`kles, and a black handgun underneath the jeans. Pet.
`App. 104. Inside the wallet, Smithey found identifica-
`tion belonging to Jackson. At that point, he stopped
`searching and took a photograph of the gun to use in a
`search warrant application for the apartment. Pet.
`App. 104-05.
`
`
`
`C. Procedural Background
`Jackson was charged in Johnson County District
`
`Court with two counts of robbery in the first degree.
`Iowa Code § 711.2 (2013). Pet. App. 123. He moved to
`suppress, contending the search of a backpack violated
`his rights under the Fourth Amendment. Pet. App. 98-
`99. The district court denied the motion. Pet. App. 121.
`Following a bench trial, the court convicted Jackson of
`both counts of second-degree robbery. Pet. App. 142.
`
`The court of appeals affirmed in a unanimous
`
`opinion, concluding that nothing about the circum-
`stances should have caused the officers to question
`Olson about the ownership of the backpack. Pet. App.
`87-88, 94. Although not citing any federal cases, the
`
`
`
`
`
`
`
`7
`
`court of appeals recognized that it was reasonable for
`the officer to conclude that Olson, the occupant of the
`bedroom, consented to the search of closed containers
`in the bedroom that might contain the gun they were
`seeking.
`
`The Iowa Supreme Court reversed in a 4-3 opin-
`
`ion. The court concluded that the State had not proven
`that the officer obtaining the consent and conducting
`the search had a reasonable belief that the scope of the
`search included the backpack in the bedroom. That
`was so, found the court, even though the bedroom was
`the consenting party’s bedroom and a second person’s
`presence in the bedroom was unexplained. To resolve
`the case, the court adopted the general rule that offic-
`ers cannot search closed containers in an area to which
`the occupant has given consent without further in-
`quiry of others in the dwelling that might have a pos-
`sessory interest in that item. Pet. App. 42.
`
`The court recognized that the question begins
`
`with an analysis of Illinois v. Rodriguez, 497 U.S. 177,
`186 (1990), that held apparent authority exists when
`objectively the officer possessed a reasonable belief
`that the individual consenting to a search had au-
`thority over the place. Pet. App. 14, 17. However, the
`court noted that Rodriguez did not resolve the case at
`bar because “[t]he Supreme Court has yet to apply the
`doctrine of consent by apparent authority to a closed
`container found within the home under these circum-
`stances.” Pet. App. 17. The court then found that, ab-
`sent definitive guidance from this Court, the federal
`
`
`
`
`
`
`
`8
`
`courts of appeals are divided over how the apparent-
`authority doctrine is applied when closed container
`searches are at issue. Pet. App. 18-30.
`
` More specifically, the court noted that some courts
`impose a duty of additional inquiry after consent is
`given if the authority of the person giving consent is
`ambiguous as to any closed containers. By contrast,
`other jurisdictions have determined that absent some
`reliable information obvious to the officer that indi-
`cates the person does not have authority to consent to
`a search of a closed container within their residence, a
`search of those containers is reasonable based upon
`the original consent. Pet. App. 18, 25. The court identi-
`fied the Sixth and Tenth Circuits as subscribing to the
`first position while the Second and Seventh Circuits
`subscribe to the second. Pet. App. 18-30. Ultimately,
`the Iowa Supreme Court majority sided with the Sixth
`and Tenth Circuits, concluding that “to flip the pre-
`sumption of reasonableness that generally applies to
`warrantless searches merely because a third party ex-
`plicitly granted consent to a premises search would be
`inconsistent with Rodriguez.” Pet. App. 33. Because
`the officer did not make any additional inquiries of the
`resident about the backpack in his room, the officer, ac-
`cording to the majority, violated the Fourth Amend-
`ment by searching it pursuant to the consent. Pet. App.
`42.
`
`Three justices dissented. The dissent noted that
`
`the officers were following tracks from a robbery that
`had just occurred and those tracks led to the apart-
`ment building where this apartment was located. Pet.
`
`
`
`
`
`9
`
`App. 63, 67. Turner, an apartment resident, consented
`to the officer’s entry into the apartment. Pet. App. 63,
`67. Miller, Turner’s girlfriend and an apartment resi-
`dent, was also in the apartment. Pet. App. 63, 67. Turner
`and Miller told the officers no one else but Olson was
`present. Pet. App. 63, 67. Turner claimed to have been
`in the apartment since 9:00 p.m. and claimed to have
`seen nothing suspicious. Pet. App. 64, 67. Roused from
`his supposed sleep, Olson, like Turner and Miller
`claimed no one else was in that apartment. Pet. App.
`64, 67. The dissenting justice recognized that all three
`were obviously lying to the police at this time because
`Jackson was obviously there. Pet. App. 68. In fact, Ol-
`son admitted his cousin Marvis had arrived suppos-
`edly sometime after he had fallen asleep, but almost
`immediately conceded that Marvis was not his cousin
`and he did not, in fact, know the individual’s last name.
`None of the three residents suggested that Jackson
`broke in to the apartment, nor did they suggest he was
`a tenant, or an overnight guest. Based upon these
`facts, the dissent was unwilling to accept the majority
`opinion that Turner had been home since 9:00, that no
`one had arrived at the apartment recently, and that
`Turner had not seen anything suspicious. The dissent
`concluded that the statements accepted by the major-
`ity “defy credibility.” The majority also found no expla-
`nation of the defendant’s feigned sleep and obvious
`sweating necessary, because he was cooperative “once
`he was awake.” Pet. App. 69. The dissent found this
`conclusion equally incredible. Pet. App. 69. While the
`majority believed the lack of concern shown by the ten-
`ants indicated that Jackson was a regular presence in
`
`
`
`
`
`10
`
`the apartment, it was more probable that the tenants
`were simply maintaining a ruse to lead police away
`from Jackson.
`
`Finally, the dissent characterized the majority’s
`
`opinion as entering “into the realm of fantasy” because
`it suggested that the individual who had likely just
`fled a robbery, arrived at the apartment minutes be-
`fore, threw his clothes off and jumped into bed to feign
`sleep had a key to the apartment. Pet. App. 71. The dis-
`sent noted that Turner, Miller, and Olson had all tried
`to conceal Jackson’s presence and never explained it
`after their original lies. The majority opinion con-
`cluded that he must have had a key, but the dissent
`thought it much more likely that Jackson had just ar-
`rived barely evading police pursuit and Turner, Miller,
`and Olson were hiding him hoping to avoid capture.
`Pet. App. 71-72.
`
`--------------------------------- ---------------------------------
`
`REASONS FOR GRANTING THE WRIT
`In Illinois v. Rodriguez, the Court reiterated that
`
`the Fourth Amendment does not demand that an of-
`ficer be correct when executing a search or seizure; it
`requires only that he or she act reasonably. Rodriguez,
`497 U.S. at 184. When explicit consent is given to a re-
`quested search, the surrounding circumstances define
`whether a reasonable person would doubt the asser-
`tion being made by the individual and not act upon
`it without further inquiry. As with other factual
`
`
`
`
`
`11
`
`determinations bearing upon search and seizure, de-
`termination of consent to enter and search must “be
`judged against an objective standard: would the facts
`available to the officer at the moment . . . ‘warrant a
`man of reasonable caution in the belief ’ that the con-
`senting party had authority over the premises?” Id. at
`188. Lower courts have struggled, however, in applying
`that test to closed containers found during consensual
`searches.
`
`Some courts have modified the Rodriguez test to
`
`require officers to inquire further concerning owner-
`ship of closed containers before they may search those
`items – even where consent to search that location has
`been given and the evidence being sought could be con-
`tained therein. Other courts have concluded that con-
`tainers that might contain the evidence sought are
`included within the scope of consent to search the area
`unless it is obvious that the person consenting lacked
`authority over the specific containers. An open and per-
`sistent split among the lower courts now exists. See
`Frank J. Stretz, An Objective Solution to an Ambiguous
`Problem: Determining the Ownership of Closed Con-
`tainers, 61 DePaul L. Rev. 203, 214 (2011) (noting the
`circuit split and labeling it the Obviousness/Ambiguity
`split). The Court should use this case to resolve the
`split.
`
`
`
`
`
`
`
`
`12
`
`I. The Courts are Deeply Divided on Whether
`Officers, Consistent with the Fourth Amend-
`ment, May Search Closed Containers Lo-
`cated in Areas to Which Consent to Search
`has been Given.
`
`In Illinois v. Rodriguez, 497 U.S. at 181, the court
`found law enforcement may rely on a person’s appar-
`ent authority, as determined by an objective, totality-
`of-the-circumstances test to consent to the search of a
`place. Courts have split over how to apply the apparent
`authority concept when the individual has apparent
`authority over a room (or other area), but might not
`have authority over the effects within that room. This
`case asks the question whether it is reasonable for an
`officer to rely upon the apparent authority of a person
`consenting to the search of a room to search closed con-
`tainers within that room.
`
`The Fourth Amendment protects against unrea-
`
`sonable search and seizures. U.S. Const. amend. IV. As
`a general rule, searches conducted without a warrant
`are presumptively unreasonable. Katz v. United States,
`389 U.S. 347, 357 (1967). Yet, because the touchstone of
`the Fourth Amendment is reasonableness, there are
`certain exceptions to the general principle, one of those
`exceptions being consent. Id. A search may be con-
`ducted by law enforcement officers, even without prob-
`able cause, as long as the consent is voluntary and
`given by someone with apparent authority to consent.
`Fernandez v. California, 134 S.Ct. 1126, 1129-30
`(2014). The apparent authority of the person consent-
`ing should allow officers to search both the place to
`
`
`
`
`
`13
`
`which the person consents and the closed containers
`within that room absent some obvious concern that the
`person consenting lacks the authority to consent to the
`search of those containers.
`
`1. The federal courts of appeals are divided 2-2
`
`over the proper approach. The Second and Seventh Cir-
`cuits have held that a person’s consent to search a
`place, like a room, includes containers in that place un-
`less it is obvious to the police that the containers be-
`long to somebody else. For instance, in United States v.
`Melgar, 227 F.3d 1038, 1041 (2000), the Seventh Cir-
`cuit held that when police obtain consent from some-
`one in possession of the place to be searched that
`person’s consent to search includes containers in that
`place as long as police have no reliable information
`that the containers belong to somebody else. Relying in
`part on Florida v. Jimeno, 500 U.S. 248 (1991), the
`court decided that consent to search a place, whether
`automobile, apartment, or house, ordinarily includes
`the effects within that place capable of hiding the arti-
`cle for which the search is being conducted. Id. Jimeno
`held that any “superstructure” such as separate per-
`mission to search each container within a space is not
`supported by the Fourth Amendment. Jimeno, 500 U.S.
`at 252. Melgar refused to draw a distinction between
`the search of a hotel room (at issue there) and the
`search of a car (at issue in Jimeno). Melgar, 227 F.3d
`at 1041. The court of appeals therefore upheld a search
`of a purse in a hotel room rented by Rita Velasquez. Id.
`at 1039. When police arrived at the hotel room to
`investigate a counterfeit check scheme, they found
`
`
`
`
`
`14
`
`four people present. Id. Three others, including Rita
`Velasquez, arrived shortly thereafter. Id. Velasquez
`then consented to the search of the room she had
`rented. Id. Police searched a purse and discovered evi-
`dence implicating Melgar who had arrived with Ve-
`lasquez. Id. The circuit court held that the officer had
`no reason to believe that the purse belonged to anyone
`other than Velasquez, rendering the officer’s conduct
`reasonable.
`
`The Second Circuit adopted essentially the same
`
`rule in United States v. Snype, 441 F.3d 119 (2d Cir.
`2006), when it held that consent to search an apart-
`ment includes consent to search the effects in the
`apartment absent things obviously belonging to some-
`one else. In Snype, the apartment owner, Bean, had
`consented to a search of his entire apartment in which
`the defendant, Snype, had left a knapsack and a red
`plastic bag. Id. at 136. Without credible evidence that
`the two items were obviously and exclusively Snype’s,
`the court did not find the officer’s decision to search
`those items unreasonable. Id.
`
`2. On the other side of the conflict are the Sixth
`
`and Ninth Circuits, which adopted the rule embraced
`by the Iowa Supreme Court here. In a series of cases,
`the Sixth Circuit added the “superstructure” rejected
`in Jimeno, holding that consent does not extend to
`closed containers where there is some ambiguity as to
`their ownership. See United States v. Taylor, 600 F.3d
`678 (6th Cir. 2010); United States v. Purcell, 526 F.3d
`953 (6th Cir. 2008); United States v. Waller, 426 F.3d
`838 (6th Cir. 2005). In Taylor, for example, in a search
`
`
`
`
`
`15
`
`for a gun, police obtained consent from a female tenant
`to search the apartment. Taylor, 600 F.3d at 679. Be-
`cause the shoebox in which the gun was found was un-
`der men’s clothing in a spare bedroom, the court held
`that ownership of the box was ambiguous and that the
`officer therefore had to make further inquiry before
`searching it. Id. at 682. The dissenting judge in Taylor
`acknowledged a circuit split, found that requiring ad-
`ditional inquiry was the wrong approach, and com-
`mented that the lack of Supreme Court guidance had
`resulted in appreciable disorder and unpredictability
`among the circuits. Id. at 686 (Kethledge, J., dissent-
`ing).
`
`The Ninth Circuit echoed the decisions of the
`
`Sixth Circuit, in the related context of the search of
`specific rooms within an apartment. In United States
`v. Arreguin, 735 F.3d 1168 (9th Cir. 2013), the court
`held that “a reasonable person would not presume,
`without further inquiry” that a third party had control
`of a bedroom within an apartment in which she was a
`resident. Id. at 1178. If the Ninth Circuit was unwill-
`ing to accept the apparent authority of a resident to
`consent to a search of a room within the apartment, it
`is exceedingly unlikely the court would accept that the
`same individual could consent to a search of closed con-
`tainers in any room.
`
`3. State courts have split along the same lines as
`
`the federal courts of appeals. Illustrative of courts fol-
`lowing the Seventh Circuit is People v. Trevino, 2011
`WL 9692696 (Ill. Ct. App. May 27, 2011). The Trevino
`court noted that the rule followed by the Sixth and
`
`
`
`
`
`16
`
`Ninth Circuits would essentially prevent closed con-
`tainer searches unless the consenting individual gives
`ex ante consent to each and every item in a room. This
`concern convinced the Illinois court that the Melgar
`approach was the most consistent with Fourth Amend-
`ment precedent. Id. Where an officer has no reason to
`know that an item may belong to a different individual,
`the individual giving consent has apparent authority
`to allow a search of that item. Id.
`
`Similarly, the New Hampshire Supreme Court rec-
`
`ognized that an ambiguity does not defeat the consent
`to search given by one of the occupants of a vehicle,
`even when the object searched is just as likely to have
`belonged to either person. State v. Sawyer, 784 A.2d
`1208, 1211 (N.H. 2001). Significant in Sawyer was the
`failure of the second party to object to the search or
`even identify items belonging to him when seized –
`which was so in this case as well. The Sawyer decision
`found that it was reasonable for an officer to search a
`container discovered during a consent search espe-
`cially where the other person, later identified as the
`owner of the container, did not object despite knowing
`that a search would take place or that the driver had
`consented to a search of the item. Id. While Jackson
`was not present when the consent was obtained, he did
`not request the bag when leaving or ask that it be se-
`cured.
`
`Sawyer, in turn, relied upon State v. Maristany,
`
`627 A.2d 1066, 1070 (N.J. 1993). Maristany held that
`where there was nothing to alert the officer to the
`ownership of a gym bag and a suitcase found in a car,
`
`
`
`
`
`17
`
`consent to search by the driver of the vehicle would not
`be undermined by the presence of other persons. Id.
`Specifically, the officer in Maristany asked the driver’s
`consent to search a car and it was granted. The bags in
`the trunk had no identification and there was nothing
`about them that indicated who in the car owned either
`bag. Id. When the consent was requested, the driver
`did not indicate either container was not his. Id. Under
`those circumstances, the court found it was reasonable
`for the officer to believe the driver had authority to
`consent to the search.
`
`Although the disparate facts and imprecise lan-
`
`guage makes a direct comparison sometimes difficult,
`the states of North Carolina, North Dakota, Oklahoma,
`and Virginia have followed the Melgar approach. See
`Glenn v. Commonwealth, 654 S.E.2d 910, 915 (Va.
`2008) (grandfather’s consent included grandson’s
`backpack under apparent authority doctrine); State v.
`Odom, 722 N.W.2d 370, 373 (N.D. 2006) (consent to
`search hote