Mark E. Jones
Batesville, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

James A. Garrard
Deputy Attorney General
Indianapolis, IN

Appellant (Defendant below),

                       v.
                        

                       STATE OF INDIANA,
         Appellee (Plaintiff below  ).

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)    Supreme Court No.
)    16S05-0002-CR-118
)
)    
)    Court of Appeals
)    16A05-9809-CR-460
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    Officer Rick Underhill arrived at the scene to assist in searching the home. While searching the bathroom, Officer Underhill noticed a purse lying on top of the commode. Without the consent of either Tungate or Krise, Officer Underhill opened the purse and found a small leather pouch. Inside the pouch, he discovered a small wooden case holding marijuana and a plastic bag co ntaining white powder, later identified as methamphetamine. Officer Underhill also found Krise’s driver’s license inside the purse. Krise never consented to the search of her purse.
    The State charged Krise with Possession of a Schedule II Controlled Substance within 1,000 Feet of a Public Park, a Class C felony. See footnote Krise filed a motion to suppress all evidence obtained during the search of her home. The trial court denied the motion on January 14, 1998. A jury convicted Krise as charged on June 2, 1998. The trial court sentenced Krise to the presumptive sentence of four years incarceration, with two years suspended to probation.

Krise appealed her conviction and the denial of her motion to suppress all evidence. The Court of Appeals affirmed the trial court’s judgment, finding that a third-party’s consent to a wa rrantless search of a home includes permission to search all containers, and in particular, a purse located inside the home. See Krise v. State, 718 N.E.2d 1136, 1142 (Ind. Ct. App. 1999). Judge Friedlander pointed out in dissent that this decision conflicts with another recent decision of the Court of Appeals. Id. at 1145 (Friedlander, J. dissenting) (citing State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999), transfer not sought).

The twists and turns of Fourth Amendment law are often difficult to negotiate, with variations in fact patterns often determinative of the outcome of cases involving warrantless searches. Here we perceive four variables in the facts that require particular attention. First, as already noted, the wa rrantless search was made pursuant to consent (rather than probable cause as in many reported cases). Second, the search was of a home (rather than a vehicle). Third, the search was of a purse. And fourth, the person consenting to the search was not the owner of the purse.

The United States Supreme Court has not passed on the constitutionality of a warrantless search involving this precise array of variables, but it has decided cases involving some of them. We begin our analysis with a review of those cases. After extracting what guidance we can from them, we apply their teaching to the fact pattern we face here.

In Houghton, an officer stopped a vehicle for speeding and driving with a faulty brake light. 526 U.S. at 297. During the stop, the officer noticed a syringe in the driver’s shirt pocket. Id. at 298. When questioned about the syringe, the driver admitted that he used it to take illegal drugs. Id. The officer ordered the driver and two female passengers out of the car and then conducted a probable cause search of the car for contraband. Id. During the search, the officer found a purse on the back seat, searched it, and discovered drug paraphernalia and methamphetamine. Id. Passenger Houghton admitted the purse belonged to her. Id. In upholding the search of the passenger’s purse, the United States Supreme Court found, “When there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and containers without showing of individualized probable cause for each one.” Id. at 302. The Court refused to distinguish between a passenger’s belongings and the driver’s belongings even though the officer’s suspicion of the driver’s criminal conduct was the basis of the search. Id. at 302-06. The Court reasoned in part that its decision not to distinguish between containers during a probable cause search of a vehicle was based upon the scope of warrantless search principles articulated in United States v. Ross, 456 U.S. 798 (1982). Id. at 302.

Ross had held that where probable cause justified the search of a lawfully stopped vehicle, it justified the search of every part of the vehicle and its contents that may conceal the object of the search. 456 U.S. at 825. Ross determined that “[t]he scope of a warrantless search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause.” Id. at 823. Thus, the Court concluded that the scope of a warrantless search of an automobile is not defined by the nature of the container, but rather is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Id. at 824. For example, probable cause to search for undocumented illegal aliens would not justify opening a suitcase. Id.

Because this case involves a search of a purse within a home rather than a vehicle, it is impo rtant to acknowledge that although both Houghton and Ross involved vehicle searches, they purported to address searches supported by a warrant of fixed premises in general and closed containers discovered therein. The Court in Ross stated:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapons might be found. A warrant to open a footlocker to search for marijuana would also authorize the opening of packages found inside. ... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

This rule applies to all containers, as indeed we believe it must.

Id. at 822-23 (emphasis added) (footnotes omitted). See footnote See also Houghton, 526 U.S. at 302 (describing a search warrant of a premises owned by a person not suspected of a crime: “‘The critical element in a reasonable search is not that the owner of the property is suspected of a crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.’”) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)).
From this, we discern that the lawful scope of a search of a vehicle based on probable cause and the lawful scope of a search of a home based on a warrant are identical. Both are defined by the object of the search without placing extra limitations on the opening of containers. Cf. United States v. Melgar, 227 F.3d 1038, 1042 (7th Cir. 2000) (“Houghton indicates that the container rule rests on general principles of Fourth Amendment law that do not depend on the special attributes of automobile searches.”). But see Houghton, 526 U.S. at 308 (Breyer, J., concurring) (“[T]he rule applies only to containers found within automobiles. And does not extend to the search of a person found in that automobile.”).

However, unlike a probable cause (or warrant) search, the scope of a consent search is mea sured by objective reasonableness. Jimeno, 500 U.S. at 251. Indeed, Jimeno held that while it may be reasonable to conclude that a suspect’s consent to the search of his automobile included authorization to search a paper bag on the floor, it would be unreasonable to conclude that the suspect’s consent authorized the “breaking open of a locked briefcase within the trunk ... .” Id. at 252. Further, unlike a probable cause (or warrant) search, a consent search allows for a suspect to limit or restrict the search as he or she chooses. Id. See also Walter v. United States, 447 U.S. 649, 657 (1980) (ruling that consent searches are limited by the terms of authorization).

These principles indicate that the scope of consent is factually sensitive and does not solely depend on the express object to be searched. In contrast, probable cause to search a vehicle and a warrant to search a home authorizes the search of every part of the vehicle or home and closed co ntainers therein that may conceal the object of the search despite the suspect’s wishes to place limitations and regardless of the officer’s belief as to the type of the container to be searched. Ross, 456 U.S. at 825; California v. Acevedo, 500 U.S. 565, 572 (1991).

In addition, we note two more distinctions between the probable cause exception and the co nsent exception to the warrant requirement. First, a search validated by consent carries with it additional legal requirements that are not imposed for a search justified by probable cause. For instance, a permissible consensual search requires a voluntary consent, see Schneckloth v. Bustamonte, 412 U.S. 218, 223 (1973), and in third-party consent cases, the individual’s authority (actual or apparent) to consent to the search of a non-consenting party’s property must be established, see United States v. Matlock, 415 U.S. 164, 171 (1974); Illinois v. Rodriguez, 497 U.S. 177, 188 (1990). A search justified by probable cause, with or without a warrant, does not implicate any of these factors and therefore is less restricted.

Second, the policies that justify probable cause searches (and warrant searches) differ from those supporting consent searches. Searches validated by probable cause require a reasonable ground to suspect that a person has committed or is committing a crime or that a place contains specific items connected with a crime. See Colorado v. Bertine, 479 U.S. 367, 373 (1987) (“‘The standard of probable cause is peculiarly related to criminal investigations, not routine, non criminal procedures … .’”) (quoting South Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)). The policies underlying consent searches are entirely different. For example, in Schneckloth, the Court articulated the policy underlying consent searches: “[T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.” 412 U.S. at 243.

In short, a consent search differs from a probable cause search, the degree to which depends largely upon the facts presented to the officer conducting a consent search. Further, a third-party consent search encompasses one additional requirement, the authority to consent, indicating that a probable cause search is less restricted. Accordingly, we find Houghton to be inapplicable to this case. See footnote

The Court of Appeals panel in this case came to an opposite conclusion from the Friedel panel. In upholding the search of Krise’s purse, the court determined the following:

[A]lthough the standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness, Jimeno, 500 U.S. at 251, the determination of reasonableness [for scope of consent] pertains to the third person’s authority over the premises in question and not any particular container within a common area of such premises. See Brown, 691 N.E.2d at 443.

Krise, 718 N.E.2d at 1142. The court went on to hold that “it was reasonable for the officers to conclude that Tungate and Krise had mutual use of and joint access to the bathroom, and thus the purse and items therein were under Tungate’s and Krise’s common authority.” Id. at 1143 (citing Brown, 691 N.E.2d at 443-44). The court also found that because Tungate did not place any explicit limitations on the scope of the officer’s search and did not restrict the search by excluding personal items belonging to Krise, it was reasonable for the officers to believe that Tungate’s consent to the home included the search of Krise’s purse. Id.

    To resolve the conflict between Krise and Friedel, we examine the applicability of the scope of a consent search to third-party consent cases. See footnote As discussed in Part I-B, supra, the scope of a consent search is measured by objective reasonableness, the express object to be searched, and the suspect’s imposed limitations. Thus, the scope of a consent search is factually sensitive and does not solely depend on the express object to be searched. If we were to apply the scope of consent rules as outlined in Jimeno to the facts in this case, arguably one could conclude, as the Court of Appeals did here, that Tungate’s consent to search the jointly-occupied home included the search of Krise’s purse simply because Tungate did not limit or restrict the search in any way. Accord Heald v. State, 492 N.E.2d 671, 680 (Ind. 1986) (noting that a defendant’s consent to the search of a handbag operated as a consent to search items found within the handbag), reh’g denied. In addition, Tungate gave the officer permission to search the house for drugs. Since Krise’s purse is a container where contraband could be found, then the scope of the search would have been proper.

On the other hand, the objective reasonableness standard allows for the extent of the suspect’s consent to vary depending on the circumstances. Indeed, the Supreme Court in Jimeno found it unreasonable for an officer to believe the consent to search a trunk would authorize a search of a locked briefcase inside the trunk. See Jimeno, 500 U.S. at 251-52. A locked briefcase is comparable to a purse in that both are closed containers that often hold personal items. Arguably then, it would have been unreasonable for the officer to believe that Tungate’s consent to the general search of the home included the search of a purse that clearly did not belong to him. Under this approach, application of the scope of consent rules could have resulted in an unlawful search of Krise’s purse.

We find it significant that Jimeno did not contemplate a third-party’s authority to consent to a general search, but rather based the scope of consent analysis on a suspect’s own consent to a general search. More specifically, in Jimeno, a driver and two passengers occupied the vehicle. Id. at 249-50. The officer obtained only the driver’s consent to search the car, and then discovered a folded brown paper bag holding incriminating evidence on the passenger-side floorboard. Id. The Court did not engage in a discussion regarding ownership of the paper bag, and left open the question of whether the search would have been appropriate under third-party consent principles.

We conclude that the issue is not only whether the purse was within the scope of the consent search, but also whether the third party had actual or apparent authority to consent to the search of the purse. See Friedel, 714 N.E.2d at 1239. Thus, the essential factors in this case are whether Tungate had the authority to consent to the search of the home, whether he had authority to permit the search of personal items belonging to Krise, and whether he consented to the search of Krise’s purse. As such, we must determine whether Tungate possessed the requisite authority to consent to the search.

United States v. Karo, 468 U.S. 705 (1984) (O’Connor, J., concurring) (quoting Matlock, 415 U.S. at 171); United States v. Rodriguez, 888 F.2d 519, 523-25 (7th Cir. 1989) (requiring separate third-party consent to a general search of a room and consent to search a briefcase located inside the room); see also United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (holding that although the mother had authority to consent to search general areas of the home, this authority did not extend to the interior of her son’s footlocker); but see United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000) (upholding a search of a defendant’s purse where the search resulted from a third-party’s consent to the search of a rented motel room; “Generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container.”).

This Court has addressed cases involving third-party consent searches of a shared home and its contents. See footnote However, none of these cases dealt with a third-party’s authority to consent to search something like a purse, i.e., a closed container that normally holds highly personal items, located within the home. See footnote As stated in Part II, supra, the Court of Appeals in State v. Friedel ruled invalid a warrantless search justified by a third-party’s authority to consent to the search of a purse. 714 N.E.2d at 1240. The court found unreasonable the officer’s belief that the driver’s general consent to the search of his car meant that he had authority to consent to the search of a purse, which by its nature, is not shared by two or more people. Id. at 1240-41. We agree with this analysis of third-party authority principles.

Rather than considering a third-party’s authority to consent to the general search of the home as “all encompassing” to the search of every container found inside the home, we hold that the inspection of closed containers that normally hold highly personal items requires the consent of the owner or a third party who has authority — actual or apparent — to give consent to the search of the container itself.

In reaching this conclusion, we find that the type of container is of great importance in reviewing third-party consent search cases. Absent one of the well-delineated exceptions to the warrant requirement, “[a] container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant.” See footnote United States v. Jacobsen, 466 U.S. 109, 120 n.17 (1984) (citing Ross, 456 U.S. at 809-12); see also Smith v. Ohio, 494 U.S. 541 (1990) (per curiam); Horton v. California, 496 U.S. 128, 141 n.11 (1990); United States v. Place, 462 U.S. 696, 701 (1983); Ex parte Jackson, 96 U.S. 727, 733 (1877); Robles v. State, 510 N.E.2d 660, 664 (Ind. 1987), reh’g denied. An expectation of privacy gives rise to Fourth Amendment protection where the defendant had an actual or subjective expectation of privacy and the claimed expectation is one which society recognizes as reasonable. See Bond v. United States, 529 U.S. 334, 338 (2000); see also State v. Foreman, 662 N.E.2d 929, 933 (Ind. 1996) (citing Blalock v. State, 483 N.E.2d 439, 441 (Ind. 1985) (citing in turn Smith v. Maryland, 442 U.S. 735, 740 (1979), and Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)), reh’g denied.

The first part of the analysis requires a determination that Krise held an actual, subjective expectation of privacy in the area and personal item searched. In making this determination, we look at the steps that Krise took to preserve her privacy. See Bond, 529 U.S. at 338; Foreman, 662 N.E.2d at 933. Here, the purse was located in the bathroom, a common area of the home where Tungate could gain access to it. It was not located in a closet or inside a dresser drawer where Krise could have expected more privacy. But the bathroom is one of the more private areas of a home. Beyond that, the purse was located inside her home and thus was not accessible to the general public. We do not believe that Krise’s expectation of privacy in her home and bathroom in general, and her purse in particular, was diminished simply because it was readily accessible to one joint occupant, Tungate. Accord Foreman, 662 N.E.2d at 934 (“The fact that other employees or entrusted people have a key to one’s office does not defeat that person’s expectation of privacy in his or her commercial premises.”); cf. Trowbridge, 717 N.E.2d at 144 (discussing privacy interest in a tackle box located outside, on the patio, in a common area of a home).

For the second part of the analysis, we must determine whether Krise’s expectation of privacy under these circumstances is one which society is prepared to accept as objectively reasonable. See Bond, 529 U.S. at 338; Foreman, 662 N.E.2d at 934. In the probable cause (not consent as here) case, Wyoming v. Houghton, 526 U.S. 295 (1999), three United States Supreme Court justices agreed that a search of a purse involves a serious intrusion on privacy that is tantamount to the intrusion of a search of one’s person. Id. at 310 (Stevens, J., dissenting). And Justice Breyer in his concurring opinion acknowledged, “Purses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. …” Id. at 308 (Breyer, J., concurring). Most recently, the Supreme Court recognized Fourth Amendment privacy interest in an opaque carry-on luggage located in a bus above the seat of its owner. See Bond, 529 U.S. at 338-39.

Both state and federal courts have found that the nature of a container is significant in dete rmining whether a third-party possessed the requisite authority to consent to its search. See United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (locked briefcase); United States v. Rodriguez, 888 F.2d 525, 524 (7th Cir.1989) (marked briefcase and file box); Welch, 4 F.3d at 764 (passenger’s purse); United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992) (closed but unlocked suitcase); Block, 590 F.2d 535 at 541 (the interior of footlocker); Owens v. State, 589 A.2d 59, 66-67 (Md.) (visitor’s luggage), cert. denied, 502 U.S. 973 (1991). But see Melgar, 227 F.2d at 1042 (unmarked purse); United States v. Sealey, 830 F.2d 1028, 1031 (9th Cir. 1987) (unmarked sealed containers inside garage); People v. Jenkins, 997 P.2d 1044, 1094 (Cal. 2000) (expectation of privacy in suitcase but third-party consent to search was nevertheless valid), cert. denied, __ U.S. __, 121 S. Ct. 1104 (2001). Accordingly, we believe that society accepts as objectively reasonable that persons have a legitimate expectation of privacy their purses and other closed containers that normally hold highly personal items.

We do acknowledge that in cases involving the scope of automobile searches justified by probable cause, the United States Supreme Court has warned against constitutionally distinguishing between “worthy” and “unworthy” containers. See Houghton, 526 U.S. at 302; Ross, 456 U.S. at 822 (citing Robbins v. California, 453 U.S. 420 (1981) (plurality opinion)). However, Ross further explained,“[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view . . . [and] the protection afforded by the Amendment varies in different settings.” 456 U.S. at 822-23 (citation omitted). Moreover, Houghton recognized that individuals have a “reduced expectation of privacy with regard to the property that they transport in cars” traveling on public highways where the property is subject to police examination and is “exposed to traffic accidents that may render all their contents open to public scrutiny.” 526 U.S. at 303; see also Acevedo, 500 U.S. at 578 (“[T]his Court has explained that automobile searches differ from other searches.”). The Supreme Court has suggested that individuals have a higher expectation of privacy in containers and their contents which are located inside the sanctity of their own home — where privacy interests are paramount — than in their vehicles where privacy interests are diminished. Thus, Fourth Amendment protection of personal effects including containers depends upon where the effects are located (an automobile versus a dwelling), see id, at 580; the officer’s justification supporting the search (probable cause versus consent), Ross, 456 U.S. at 822-23; and the type of inspection (physical versus visual), see Bond, 529 U.S. at 338-39.

(R. at 251-53.)