Keep closed containers closed: Resolving the circuit split in favor of individual privacy

Iowa Law Review

Volumn 97, Issue 1, 2011, Pages 303-325

  Jones, Brian D ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 80955131421     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (181)

1. See Sherry F. Colb, The Qualitative Dimension of Fourth Amendment "Reasonableness," 98 COLUM. L. REV. 1642, 1643 (1998)
2. ("Procedural privacy is a feature of the Fourth Amendment guarantee against 'unreasonable searches and seizures.' Under the [Supreme] Court's precedents, the government must ordinarily have an evidentiary foundation for subjecting people to 'searches.'" (quoting U.S. CONST. amend. IV))
3. ("This [balancing] test usually involves the Court in weighing the utility of a particular kind of search or seizure in serving some 'special law enforcement interest' against the degree of intrusiveness entailed in the particular technique.");
4. DARIEN A. MCWHIRTER, SEARCH, SEIZURE, AND PRIVACY 106 (1994) ("The [Supreme] Court has tried to develop a set of rules that it believes serve the fundamental purposes of the Fourth Amendment without unduly burdening the legitimate needs of law enforcement.").
5. United States v. Taylor, 600 F.3d 678, 686 (6th Cir. 2010) (Kethledge, J., dissenting);
6. Illinois v. Rodriguez, 497 U.S. 177 (1990).
7. Taylor, 600 F.3d 678.
8. United States v. Snype, 441 F.3d 119 (2d Cir. 2006).
9. United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000).
10. U.S. CONST. amend. IV;
11. see also JOSHUA DRESSLER & GEORGE C. THOMAS, III, CRIMINAL PROCEDURE: PROSECUTING CRIME 53 (4th ed. 2010). Dressler and Thomas state: The Fourth Amendment is part of an overall theme in the Bill of Rights that establishes "the people" as a separate entity from the government⋯ . [T]he Fourth Amendment is a statement that the government must not interfere with our daily lives ⋯ absent good cause⋯ . The Fourth Amendment's purpose thus seems to be to limit the power of government to intrude on "the people" in this particular way.
12. U.S. CONST. amend. IV (providing that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized");
13. see also Brinegar v. United States, 338 U.S. 160, 175-76 (1949) ("Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."
14. (alterations in original) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925))).
15. See THOMAS K. CLANCY, THE FOURTH AMENDMENT: ITS HISTORY AND INTERPRETATION 11 (2008)
16. discussing the "reasonableness command" and its "measure of both the permissibility of the initial decision to search and seize and the permissible scope of those intrusions").
17. "The chief enforcement mechanism ⋯ is the exclusionary rule, which prohibits the introduction of illegally obtained evidence in the government's case-in-chief."). However, the exclusionary rule is not constitutionally mandated; rather, it is a "judicially created remedy designed to deter future police misconduct."
18. Indeed, historical analysis, including the "historical abuses the Framers sought to prevent," has "long played a very important role in the [Supreme] Court's interpretation of the Fourth Amendment."
19. See United States v. U.S. Dist. Ct., 407 U.S. 297, 313 (1972)
20. [P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed ⋯ .");
21. see also MCWHIRTER, ("The Fourth Amendment does not say 'home,' it says 'houses,' but the Supreme Court has consistently ruled that a home, whatever shape it takes, is protected from unreasonable invasion by the government.").
22. See Katz v. United States, 389 U.S. 347, 360-62 (1967)
23. (Harlan, J., concurring) (discussing the extension of Fourth Amendment protection to an enclosed telephone booth and laying out the two-part reasonable-expectation-of-privacy test, which, in order for courts to recognize Fourth Amendment protection, requires "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable'");
24. ("Searches are defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation." (emphasis added)). But cf. MCWHIRTER,
25. ("[T]he Court has concluded that the [Fourth] [A]mendment does not protect all property interests or apply to all situations where people might wish to protect their privacy.").
26. See Craig M. Bradley, Two Models of the Fourth Amendment, 83 MICH. L. REV. 1468, 1473- 74 (1985)
27. (listing "over twenty exceptions to the probable cause or the warrant requirement or both"),
28. cited in Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest?, 96 IOWA L. REV. 1125, 1131 n.17 (2011).
29. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)
30. (affirming that "search[es] conducted pursuant to a valid consent" are wholly constitutional);
31. For a critical view of the consent exception and how courts analyze the validity of consent, see Daniel L. Rotenberg, An Essay on Consent(less) Police Searches, 69 WASH. U. L.Q. 175, 193 (1991),
32. who notes: "Perhaps the consent search has not received the attention it deserves because it has such a surface simplicity."
33. Searches conducted pursuant to consent] can get complicated, however, because more than one person may have control over an area the police wish to search."). 21.
34. Schneckloth, 412 U.S. at 223-24.
35. Notably, the fact that a person is unaware of his or her right to refuse consent is merely a factor in and not dispositive on the voluntariness analysis
36. Dsee also Rotenberg, (discussing voluntariness and how courts analyze it in practice).
37. See Schneckloth, 412 U.S. at 222 (affirming that "search[es] conducted pursuant to valid consent" are wholly constitutional).
38. United States v. Matlock, 415 U.S. 164 (1974).
39. ("[I]t is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.").
40. The Court also affirmed that its third-party-consent rationale was distinct from traditional property law.
41. See Stoner v. California, 376 U.S. 483, 490 (1964)
42. (holding that a hotel employee did not have authority to consent to the search of a guest's room);
43. Chapman v. United States, 365 U.S. 610, 617-18 (1961)
44. (holding that despite his ownership of the house, a landlord did not have authority to consent to the search of a tenant's rental house). Though beyond the scope of this Note, the Matlock holding was revisited and revised in Georgia v. Randolph, where the Court held that when multiple cotenants are present and one consents but another refuses consent, any warrantless search of the refusing cotenant's property would be in violation of the Fourth Amendment.
45. Georgia v. Randolph, 547 U.S. 103, 122-23 (2006).
46. See generally Elizabeth A. Wright, Note, Third Party Consent Searches and the Fourth Amendment: Refusal, Consent, and Reasonableness, 62 WASH. & LEE L. REV. 1841, 1862-65 (2005)
47. (discussing the circuit split caused by Matlock that was partially resolved by Randolph).
48. Illinois v. Rodriguez, 497 U.S. 177, 179 (1990)
49. (addressing the issue of "[w]hether a warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not do so" (emphasis added)).
50. For a pithy discussion of Rodriguez (including the dissenters' views), see MCWHIRTER,
51. Rodriguez, 497 U.S. at 186. The defendant's ex-roommate, who still possessed a key to the defendant's apartment but only visited infrequently, led police there and consented to its search while the defendant was asleep inside.
52. ("It is apparent that in order to satisfy the 'reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government ⋯ is not that they always be correct, but that they always be reasonable.").
53. ("Even when the invitation [to enter and search] is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry." (emphasis added)).
54. (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968))
55. (omission in original) (internal quotation mark omitted).
56. For a critical review of the majority's objective test in Rodriguez,
57. see Michael C. Wieber, Comment, The Theory and Practice of Illinois v. Rodriguez: Why an Officer's Reasonable Belief About a Third Party's Authority To Consent Does Not Protect a Criminal Suspect's Rights, 84 J. CRIM. L. & CRIMINOLOGY 604 (1993).
58. (discussing "ambiguity" as the "trigger" for further inquiry).
59. For purposes of this Note, closed-container searches will be liberally construed to encompass any search of a specific item within a given premises, other than an automobile, that requires an independent act to open, whether it be a purse, a suitcase, boxes, sealed paper bags, etc. This definition will not include more general, larger-scale items such as closets or drawers.
60. Rodriguez, 497 U.S. at 188;
61. see also Wieber, (arguing that the Rodriguez test makes defendants unable to "[f]oresee and [p]repare [t]hemselves [f]or [s]earches"). Wieber states that: A defendant may not even know when a search is possible under the Rodriguez rule⋯ . [A] defendant cannot know that a stranger or party in whom no common authority rests may consent to a search⋯ . [A] criminal defendant has no ability to shield his privacy interests because he cannot know when someone who lacks sufficient authority over his property will permit a search. The relationship between a third party who lacks authority and the defendant is, by definition, too attenuated for the defendant to recognize the risk of a search.
62. As one judge put it, regarding a case about the search of a shoebox, "To my knowledge, the Supreme Court has never decided specifically the extent to which a resident's consent to search her premises is effective as to containers within it. The result has been appreciable entropy among the circuits."
63. United States v. Taylor, 600 F.3d 678, 686 (6th Cir. 2010) (Kethledge, J., dissenting).
64. See Rodriguez, 497 U.S. at 185-86
65. ("[In the context] of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government ⋯ is not that they always be correct, but that they always be reasonable.").
66. For example, assuming all other facts to be the same, a person whose house is searched in Kentucky (under Sixth Circuit law) might be afforded more protection than a person in Wisconsin (under Seventh Circuit law), and that person might still be afforded more protection than a New Yorker (under Second Circuit law).
67. Put differently, the circuits interpret the same language of the Fourth Amendment in three different ways.
68. See JAMES R. ACKER & DAVID C. BRODY, CRIMINAL PROCEDURE: A CONTEMPORARY PERSPECTIVE 2 (2d ed. 2004) ("The general public, no less than those who are directly enmeshed in the criminal justice system, have an interest in ensuring that the criminal laws are administered fairly.");
69. see also DRESSLER & THOMAS, ("No one denies that suspects and defendants should be treated fairly. Much debate centers, naturally, on what constitutes 'fair' treatment.").
70. See DRESSLER & THOMAS, (describing the four norms of criminal process).
71. (citing New York v. Belton, 453 U.S. 454, 459- 60 (1981)
72. ("When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.")).
73. Protective is used from the point of view of the individual rather than law enforcement. In other words, the more protective a test is, the harder it is for law enforcement to meet the reasonableness requirement of the Fourth Amendment.
74. United States v. Taylor, 600 F.3d 678, 679 (6th Cir. 2010). Arnett was classified as the "permanent tenant."
75. Although the police did not have a warrant to enter Arnett's apartment to arrest Taylor, Arnett eventually gave the police permission to search her apartment for Taylor
76. ("[T]he purpose of the search was to look for 'any other stuff ⋯ [because] [the police] suspected Taylor might have had some weapons because of his history.'" (middle alterations in original)).
77. The shoebox was for "Nike brand Air Jordan men's basketball shoes, size ten-and-a-half."
78. The court stated: Arnett informed the police that Taylor did not live with her, but that she allowed him to store his belongings in the spare bedroom where the shoebox was found⋯ . The officers never asked Arnett if Taylor had given her permission to look through his personal belongings ⋯[, and] Taylor never granted her permission to look in the shoebox. [Taylor] had been storing his possessions in the spare bedroom for roughly a month when the police arrived ⋯ .
79. The search of the shoebox qualifies as a closed-container search
80. Taylor, 600 F.3d at 679.
81. The court, in dictum, relied on the Tenth Circuit's opinion in United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992).
82. Though Salinas-Cano was not decided on apparent-authority grounds, the court discussed four factors to consider when determining the validity of a search of a closed container pursuant to apparent-authority consent: (1) the type of container and whether that type "historically command[ed] a high degree of privacy,"
83. (2) whether the container's owner took any precautions to protect his privacy, (3) whether the resident at the premises initiated the police involvement, and (4) whether the consenting party disclaimed ownership of the container.
84. Taylor, 600 F.3d at 683
85. (quoting Salinas-Cano, 959 F.2d at 864);
86. (providing a further discussion of Salinas-Cano).
87. Taylor, 600 F.3d at 681
88. (discussing United States v. Waller, 426 F.3d 838, 846 (6th Cir. 2005)).
89. (emphasis added) (quoting Waller, 426 F.3d at 846).
90. The court never specifically discusses an "ambiguity test." However, it relies on Waller for the proposition that ambiguity is an objective judgment, depending upon all of the surrounding circumstances and exists when "the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property."
91. (quoting Waller, 426 F.3d at 846).
92. The court also noted how easy it would have been for the officers in this case to further inquire about the shoebox: "[T]he officers could easily have gone downstairs and asked Arnett 'to clarify her authority over' the shoebox, or asked Taylor if the shoebox was his.
93. (quoting United States v. Purcell, 526 F.3d 953, 964 (6th Cir. 2008)).
94. The court appears to find that the officers acted in bad faith because they "opened the shoebox precisely because ⋯ it likely belonged to Taylor."
95. (quoting United States v. Taylor, No. 1:08 CR 195, 2008 WL 5169641, at *6 (N.D. Ohio Dec. 9, 2008))
96. internal quotation mark omitted). While this strengthened Taylor's argument, a showing of bad faith is not necessary to obtain exclusion.
97. United States v. Melgar, 227 F.3d 1038, 1039-40 (7th Cir. 2000).
98. The police had recently arrested several men for passing counterfeit checks and their investigation suggested that more evidence might be found at the hotel room.
99. In addition to questioning about the underlying criminal conduct, the police asked the individuals for permission to search their wallets or purses and everyone consented.
100. [The officer's] request was a general one; he did not specifically ask [Velasquez] if the police could search particular closed containers within the room, nor did he ask her which of the numerous people then in the room were actually staying there.").
101. Though the identification form bore Melgar's photograph, the name listed was "Diana Lopez," an alias.
102. Melgar did not argue that Velasquez did not have apparent authority to consent to a search of the hotel room;
103. rather, her argument centered around the validity of the search of the closed containers-specifically the floral purse-within the room.
104. ("In a sense, the real question for closed container searches is which way the risk of uncertainty should run.").
105. The court stated: [The police] knew that the room had been rented to Velasquez ⋯ and there were no exterior markings on the purse that should have alerted them to the fact that it belonged to another person.
106. Coupling those facts with the fact that Velasquez knew that they were searching for evidence of counterfeit dividends checks ⋯ we conclude that the scope of Velasquez's consent encompassed their right to look into [the floral purse].
107. (discussing efficiency as a norm of criminal process).
108. Melgar, 227 F.3d at 1041-42.
109. United States v. Snype, 441 F.3d 119, 126 (2d Cir. 2006).
110. Bean was not involved in the bank robbery and claimed she knew Snype only through her boyfriend.
111. The police noticed these items on the floor of the bedroom in Bean's apartment while they were arresting Snype.
112. (quoting United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987)
113. (per curiam)). (emphasis added) (citing Zapata-Tamallo, 833 F.2d at 27).
114. ("[T]he fact that the robbery under investigation had been the object of a conspiracy among several persons, necessarily raised the possibility that various persons in the apartment might share possessory interest in the items searched.").
115. ("To the extent the discovery of these items in the same room where Snype was arrested suggests a connection between him and the bags, such a possibility hardly equates to Snype's obvious, much less exclusive, ownership of the bags.").
116. See CLANCY, supra note 12, at 15 ("The Court has repeatedly emphasized the need for a workable rule to guide the police officer on the street. Thus, the Supreme Court has sometimes utilized bright-line rules ⋯ which do not require case-by-case justification and provide 'clear legal boundaries to police conduct.'" (footnotes omitted)
117. (quoting David A. Harris, Frisking Every Suspect: The Withering of Terry, 28 U.C. DAVIS L. REV. 1, 37 (1994))).
118. (criticizing the Second and Seventh Circuits' tests).
119. (discussing the historical purpose of the Fourth Amendment and the effect it has on interpretation).
120. (discussing the four factors from Salinas-Cano).
121. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990) (emphasis added).
122. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)
123. (affirming that searches pursuant to a valid consent are wholly constitutional).
124. United States v. Taylor, 600 F.3d 678, 685 (6th Cir. 2010)
125. ("[T]he officers could easily have gone downstairs and asked Arnett 'to clarify her authority over' the shoebox, or asked Taylor if the shoebox was his."
126. (quoting United States v. Purcell, 526 F.3d 953, 964 (6th Cir. 2008))).
127. ("Our conclusion is further reinforced by the district court's factual finding that 'the police would likely not have opened the closed shoebox if they believed it belonged to Arnett. Rather, they opened the shoebox precisely because they believed it likely belonged to Taylor.'"
128. (quoting United States v. Taylor, No. 1:08 CR 195, 2008 WL 5169641, at *6 (N.D. Ohio Dec. 9, 2008)),
129. aff'd, 600 F.3d 678 (6th Cir. 2010)).
130. (discussing the tests used by the Second and Seventh Circuits).
131. See Illinois v. Rodriguez, 497 U.S. 177, 188 (1990).
132. Taylor, 600 F.3d at 686
133. (Kethledge, J., dissenting) ("[This] rule ⋯ impose[s] an impossible burden on the police. It ⋯ mean[s] that they [can] never search closed containers within a dwelling (including hotel rooms) without asking the person whose consent is being given ex ante about every item they might encounter."
134. (quoting United States v. Melgar, 227 F.3d 1038, 1042 (7th Cir. 2000)) (internal quotation marks omitted)).
135. (alteration in original) (quoting United States v. Purcell, 526 F.3d 953, 964 (6th Cir. 2008))
136. (internal quotation marks omitted). Purcell involved a situation similar to the facts of Taylor. Purcell's girlfriend consented to a search of a hotel room she shared with Purcell.
137. Purcell, 526 F.3d at 957.
138. When police opened a bag that contained only men's clothing, rather than asking Purcell's girlfriend whether the bag was hers, they proceeded to search it and found incriminating evidence traceable to Purcell. The court held that when the police found the male clothing, "ambiguity clouded [Purcell's girlfriend's] authority to consent to the search of the backpack."
139. The court found that it was improper for the police to proceed with the search when they could have resolved the ambiguity by simply asking Purcell's girlfriend, who was present at the search, which bags were actually hers.
140. Taylor, 600 F.3d at 686
141. (Kethledge, J., dissenting) (quoting Melgar, 227 F.3d at 1042).
142. See DRESSLER & THOMAS, (describing the four norms of criminal process as "(1) the accuracy of verdicts; (2) the fairness of the procedure; (3) honoring the presence of certain limitations on the power of government to find or use evidence; and (4) efficiency").
143. United States v. Snype, 441 F.3d 119, 136 (2d Cir. 2006)
144. ("[Bean's] open-ended consent would permit the search and seizure of any items found in the apartment with the exception of those 'obviously' belonging to another person."
145. (quoting United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d. Cir. 1987)
146. (per curiam))). The court also stated that "Snype was obliged to adduce credible evidence demonstrating that these items were obviously and exclusively his."
147. (emphasis added) (citing Zapata-Tamallo, 833 F.2d at 27). In its analysis, the court relied extensively on the exclusivity requirement that, again, cannot be reconciled with any language in Rodriguez.
148. Melgar, 227 F.3d at 1041. The court stated: Is such a search permissible only if the police have positive knowledge that the closed container is also under the authority of the person who originally consented to the search (Melgar's view), or is it permissible if the police do not have reliable information that the container is not under the authorizer's control. We are not aware of any case that has taken the strict view represented by the first of these possibilities.
149. Like the court in Snype, the Melgar opinion seemingly glosses over the Supreme Court's holding in Rodriguez, mentioning it only in the standard of review. Id.
150. See Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990).
151. ("The Court has tried to develop a set of rules that it believes serve the fundamental purposes of the Fourth Amendment without unduly burdening the legitimate needs of law enforcement.").
152. See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 153 (1968) (defining and discussing two opposing trends in the realm of criminal process). Packer argues that the "Crime-Control Model is based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process."
153. The Crime-Control Model puts a premium on convictions even though a "law-abiding citizen then becomes the victim of all sorts of unjustifiable invasions of his interests."
154. On the other hand, the Due-Process Model "is designed to present formidable impediments to carrying the accused any further along in the process." Id. at 163. The Due-Process Model attempts to elucidate any and all potentially exculpating facts by supporting more "informal, nonadjudicative factfinding that stresses the possibility of error."
155. See generally Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment "Search and Seizure" Doctrine, 100 J. CRIM. L. & CRIMINOLOGY 933, 978-1036 (2010) (describing notable cases that illustrate the Court's pendulum-like Fourth Amendment jurisprudence beginning with the "liberal" Warren Court and ending with the current "conservative" Roberts Court). Interestingly, Professor Davies also assisted with defendant's brief in Rodriguez. Brief for the Respondents, Rodriguez v. Illinois, 497 U.S. 177 (1990) (No. 88-2018), 1990 WL 512432.
156. Melgar, 227 F.3d at 1041.
157. United States v. Snype, 441 F.3d 119, 136 (2d Cir. 2006).
158. (discussing the values and potential dangers of the Crime-Control Model).
159. ("The [Crime-Control] [M]odel ⋯ must produce a high rate of apprehension and conviction ⋯ . There must then be a premium on speed and finality.").
160. The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers ⋯ ."
161. see also Snype, 441 F.3d at 136-37
162. (discussing the test's merits); Melgar,
163. 227 F.3d at 1041-42 (same).
164. ("By 'efficiency' we mean the system's capacity to apprehend, try, convict, and dispose of a high proportion of criminal offenders whose offenses become known.").
165. This Note does not argue that defendants will not continue to file motions to suppress evidence-they will. As the Court has noted, when the exclusionary rule is the applicable remedy, "[t]he cost of entering this lottery [is] small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card." Hudson v. Michigan, 547 U.S. 586, 595 (2006). However, under the Sixth Circuit's test, the motions could be decided more easily based on whether or not the officer further inquired after he was confronted with ambiguity.
166. Efficiency should also be examined in relation to the other asserted goals of criminal process. See DRESSLER & THOMAS,
167. (describing the four norms of criminal process). Even assuming that efficiency is a valid goal in favor of adopting the Second or Seventh Circuit's test, it is hard to see how an expansion of police power will increase accuracy, fairness, or limit the reach of the government into individuals' lives. In fact, it would likely do the opposite. The Sixth Circuit's test is more similar to the Due-Process Model because it presents a small "impediment[]" to the power of the government with the literal requirement of further inquiry. PACKER
168. United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992). Unlike other cases discussed in this Note, Salinas-Cano was not decided on apparent-authority grounds.
169. However, the Tenth Circuit analyzed the search of a closed container using four factors, that are directly relevant and should be incorporated into the Sixth Circuit's test if the Court chooses not to adopt it outright.
170. As the court explained: Mr. Salinas-Cano left his suitcase at his girlfriend's apartment, where he spent several nights each week at her invitation.
171. His girlfriend, Shirley Garcia, was the only tenant named on the lease of the apartment ⋯ . The police observed Mr. Salinas-Cano going in and out of Ms. Garcia's apartment, and after they arrested him following a controlled drug buy, they went to her apartment and asked for permission to search it.
172. They told her they were specifically interested in Mr. Salinas-Cano and his possessions. Ms. Garcia consented and led them to the area where Mr. Salinas-Cano kept his belongings. The police opened and searched Mr. Salinas-Cano's closed but unlocked suitcase, inside of which they discovered a quantity of cocaine.
173. ("Mr. Salinas-Cano has always conceded that Ms. Garcia could consent to the search of the premises, but he contests her authority over his closed suitcase.").
174. ("Common experience of life ⋯ surely teaches ⋯ us that ⋯ 'enclosed spaces'- mankind's valises, suitcases, footlockers, strong boxes, etc.-are frequently the objects of his highest privacy expectations, and that the expectations may well be at their most intense when such effects are deposited temporarily ⋯ in places under the general control of another."
175. (last alteration in original) (quoting United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978))
176. (internal quotation marks omitted)).
177. For example, an owner could manifest an expectation of privacy by "locking the container or explicitly forbidding the host to open it." Id. (citing Block, 590 F.2d 535).
178. (quoting 3 W. LAFAVE, SEARCH AND SEIZURE § 8.5(d), at 306-07 (2d ed. 1987)) (internal quotation marks omitted).
179. The court also suggested that one factor could be dispositive over the other factors as they granted Salinas-Cano's motion to suppress even though he had not locked the suitcase.
180. Although it was unlocked, the suitcase ⋯ was a type of container long associated with privacy expectations ⋯ . Mr. Salinas-Cano testified to his subjective expectation that the suitcase and its contents would remain private, and stated that he never permitted Shirley Garcia to look inside it
181. See DRESSLER & THOMAS