United States v. Moran, 944 F.3d 1 (1st Cir. 2019)
Bryan Moran stored several closed, opaque, black plastic garbage bags in his sister’s storage unit. A week later, Moran was arrested. Moran learned his sister’s storage unit needed to be cleaned out. He called his sister from the jail on a recorded phone call and asked her to move his garbage bags. When a detective learned of the call, officers approached Moran’s sister and obtained written consent to search her apartment, car and storage unit.
Moran’s sister opened the storage unit and pointed out her belongings and Moran’s items. When the officers opened Moran’s garbage bags, they found fentanyl. Moran challenged the search of the bags. The trial court ruled that, though Moran had a reasonable expectation of privacy in his garbage bags, officers did not need a warrant to search them because his sister had actual authority to consent to their search and she had voluntarily consented to the search. Moran appealed.
A third party may consent to search another person’s effects if the third party holds common authority over the effects.
A third party may consent to search another person’s effects if the third party holds common authority over the effects. To measure common authority, the court looks to the “mutual use of the property by persons generally having joint access or control for most purposes.” The court considers whether both persons hold a shared privacy interest in the effects.
The court of appeals held Moran’s sister did not have actual authority to consent to the search. “There is no evidence that, when Moran left his bags [in the sister’s storage unit], he told her that she could open the bags and gain access to what was inside.” The mere fact the sister could access the bags in the storage unit did not establish mutual use or common authority.
The prosecution alternatively argued the sister had apparent authority to consent to the search of the bags and the officers reasonably relied on that apparent authority. The appellate court held the officers could not rely on the sister’s apparent authority, keying on the sister’s identification of the garbage bags as Moran’s property. The court was critical that the officers proceeded to search the garbage bags without further questioning of the sister about the scope of her consent in the face of what the court termed “an ambiguous situation.” The court suggested the officers could have asked the sister whether she had authority to consent to a search of Moran’s items.
Not all judicial opinions offer clear guidance to officers. No doubt many officers would do just what these officers did in the face of the sister’s express consent to search her home, her car and her storage area. If it seems this was a close call, perhaps it is. Asking the sister to clarify her belief about her authority to grant consent may well have changed the outcome. Or not.