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First Circuit Vacates Conviction Because Sister had Neither Actual nor Apparent Authority to Consent to Search of Brother’s Bags

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit vacated the conviction of Bryan Moran because his sister, Alysha, had neither actual nor apparent authority to consent to a search of several closed, opaque, black plastic garbage bags he had placed in Alysha’s storage unit. Bryan had put the bags in Alysha’s storage unit a week before he was arrested on a charge unrelated to this appeal.

After his arrest, Bryan was held in the Middlesex County Billerica House of Corrections where he asked Alysha—on a recorded phone call—to move those bags. A detective was informed of the phone call, and the detective—along with several other officers—went to Alysha’s apartment.

The officers persuaded Alysha to sign a form consenting to a search of her apartment, car, and storage unit. When officers conducted the storage unit search, Alysha informed them that the black bags belonged to Bryan. Officers opened the bags and found fentanyl inside. Alysha stated she knew nothing about the fentanyl inside the bags.

Bryan was indicted for possession with intent to distribute fentanyl. He filed a motion to suppress the fentanyl as the fruit of an illegal search. The Government argued Alysha had actual authority to consent to the search.

The argument was based on phone calls that Bryan had made to Alysha nearly five months before the search of the bags. In one of those phone calls, Bryan had instructed Alysha to “go get all [his] shit [presumably drugs]” and told her “people are going to be calling, and [she was] going to have to go see them.” When Alysha said during the call that she would keep the stuff in storage, Bryan replied, “Yeah, but then what are you going to do? Go to the storage every day, every second you have to get it? ... [T]hey come like, like that, like three, four, five times a day....” The prosecution argued that Alysha had had mutual authority over those other bags five months ago, so she had mutual authority over the bags that were the subject of the present search. The district court agreed with the Government and denied the suppression motion. Bryan filed a motion for reconsideration, and the district court denied that motion, this time concluding Alysha had apparent authority to consent to the search. Bryan appealed the denial of the motion for reconsideration.

The First Circuit observed that the Fourth Amendment of the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment generally requires the government to obtain a warrant based on probable cause before conducting a search. Katz v. United States, 389 U.S. 347 (1967). But police need not seek a warrant when voluntary consent has been obtained from the individual whose property is searched or from a third party who possesses common authority over the property. Illinois v. Rodriquez, 497 U.S. 177 (1990). Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes. United States v. Matlock, 415 U.S. 164 (1974).

However, even if the person consenting to the search doesn’t have actual authority over the property to consent to a search, the prosecution may still use the fruits of the search if the police reasonably believed the person had authority to consent to the search. Rodriquez. This is known as “apparent authority.” Id. But if the person granting consent informs officers that the property in question belongs to another, then the consent becomes ambiguous, and officers may no longer reasonably believe the person has authority to consent to the search. United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 1994).

In the instant case, the Court determined that Alysha did not have mutual use of the property inside the bags. Simply because she had had access to alleged drugs inside some other bags nearly five months earlier did not mean she had mutual access to the contents of the current bags. The Government presented no evidence that Alysha knew what was in these bags or that she was assisting her brother in distribution of the fentanyl. Consequently, Alysha did not have actual authority to consent to the search. Nor could the officers claim they acted on Alysha’s apparent authority to consent to the search. She explicitly told the officers the bags belonged to her brother.

The Court concluded the search was unlawful, and the evidence obtained from the black plastic trash bags must be suppressed. Accordingly, the Court reversed the denial of the motion for reconsideration, vacated the conviction, and remanded the case to the district court. See: United States v. Moran, 2019 U.S. App. LEXIS 35574 (1st Cir. 2019). 

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Related legal case

United States v. Moran



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