NOT DESIGNATED FOR PUBLICATION. No. 111,361 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellee, ROBIN BOGGESS, Appellant.

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1 NOT DESIGNATED FOR PUBLICATION No. 111,361 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ROBIN BOGGESS, Appellant. MEMORANDUM OPINION Affirmed. Appeal from Butler District Court; JANETTE L. SATTERFIELD, judge. Opinion filed November 18, Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee. Before BUSER, P.J., HILL, J., and WALKER, S.J. BUSER, J.: Robin Boggess appeals her convictions of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Boggess claims the district court committed reversible error when it denied her motion to suppress incriminating evidence. According to Boggess, the search of her small black bag which contained contraband was illegal because the driver of the vehicle in which she was a passenger did not have actual or apparent authority to consent to a search of her belongings. Finding no error in the district court's ruling, we affirm the convictions. 1

2 FACTUAL AND PROCEDURAL BACKGROUND Based upon the search of the vehicle and seizure of contraband, the State charged Boggess with possession of methamphetamine under K.S.A Supp (a), possession of marijuana under K.S.A Supp (b)(3), and possession of drug paraphernalia under K.S.A Supp (b)(2). Prior to trial, Boggess filed a motion to suppress evidence, alleging that law enforcement officers violated her rights under the Fourth Amendment to the United States Constitution when they searched a small black bag on the passenger-side floorboard of the vehicle without inquiring as to its ownership. Boggess argued that based on the bag's location near where she was sitting, the third-party consent to search the vehicle by the driver, Kimberly Motley, did not justify the search and seizure of the bag. Moreover, Boggess claimed the State could not rely upon the apparent authority doctrine because the facts demonstrated that ownership of the bag located on the passenger-side remained ambiguous at best and, as a result, it was not reasonable for the officers to believe the driver's consent extended to the bag. On the other hand, the State contended that Motley had apparent authority to consent to search items within the vehicle because a driver is "assumed to have right of possession and dominion around the interior of that car," and unlike Boggess' purse (which was searched subsequent to the search of the black bag), the bag was not an inherently personal item, which should have put the officers on notice of the need to inquire as to the bag's ownership prior to searching it. At the pretrial hearing on Boggess' motion to suppress, the district court heard testimony from three El Dorado Police Department officers involved in the search, Lieutenant Travis Pierce, Officer Christopher Jones, and Officer Michael Moore. According to the officers, on March 10, 2013, the police department received a "call of 2

3 unknown trouble" at a residence. Officer Jones, who arrived first, observed a Chrysler PT Cruiser, which contained Motley and Boggess and a small child in the rear seat, drive past him and park in the driveway of the residence. While Officer Moore spoke with the occupants of the residence, Officer Jones and Lieutenant Pierce approached the vehicle. Lieutenant Pierce questioned the driver, Motley, and the passenger, Boggess, about their presence at the residence and whether they were aware of any trouble at the premises. While speaking with Boggess, Lieutenant Pierce noted that she exhibited "indications[,] based on [his] training and experience, similar... [to] people who are under the influence of methamphetamine"; specifically, Boggess was "[t]witchy, jumpy[, and] [u]nable to sit still." Similarly, Officer Jones testified that Boggess had trouble locating her identification and her behavior concerned him because she was "being real fidgety, [and]... [j]ust kind of moving around as if there was no means to her motions." Based on their on-scene questioning, the officers determined that no criminal wrongdoing had occurred at the residence. As a result, Lieutenant Pierce advised Motley that she and Boggess were free to leave. Before the pair left, Lieutenant Pierce turned back towards Motley and asked her if she had a moment to speak with him. According to Lieutenant Pierce, although he did not have probable cause to search the vehicle, he wanted to speak with Motley about consenting to a search due to Boggess' odd behavior and the fact that the residence was frequently visited by narcotics users. Motley agreed to speak with Lieutenant Pierce, and at his direction, she stepped out of the vehicle. While Boggess remained in the passenger seat, Motley and Lieutenant Pierce conversed nearby, which resulted in Motley consenting to a search of the vehicle. Although Boggess did not participate in the conversation, Lieutenant Pierce testified the vehicle's windows were down and "[w]hen I spoke with the driver, I spoke loud enough that [Boggess] could hear that... I asked the driver if she would consent to our searching of the vehicle." Although Lieutenant Pierce said he could not testify with "one hundred 3

4 percent certainty" that Boggess knew the vehicle was going to be searched, he stated, "I'm sure we made that clear" because "it's just common practice" to explain the procedure. The officers, however, did not ask Boggess for her consent to search any belongings she had in the vehicle. Upon obtaining Motley's consent to search the vehicle, Boggess was asked to stand near the rear of the vehicle with Officer Moore for safety reasons. Boggess stood about 5 feet behind the back bumper on the passenger side, close enough to observe the search and remain within earshot. Lieutenant Pierce could not recall whether Boggess removed any belongings when she left the vehicle, and he did not recall her asking if she could remove any items. Lieutenant Pierce did testify, however, that Boggess did not "make any statements about any of the items in the vehicle belonging to her," nor did she object to the search of any of the items in the vehicle. Lieutenant Pierce searched the driver's side of the vehicle while Officer Jones searched the passenger's side. According to Lieutenant Pierce, the vehicle was "very cluttered" with trash, such as fast food refuse, and children's toys. Similarly, Officer Jones described the vehicle's interior as "fairly messy." In fact, he testified there was "a lot of clutter and trash" and the vehicle had a "somewhat lived in appearance to it." The passenger-side floorboard was so cluttered that a person could not put their feet on the floorboard without stepping on something. At the beginning of the search, Officer Jones discovered, "[n]early immediately," an open purse on the front passenger-side floorboard; a small, closed, "black zipper type bag" off to the side of the purse next to a console area on the floorboard; and a small, tan "purse type or make-up bag" located on the passenger seat. The black bag was about 3- to 4- inches long and had a rectangular shape. Officer Jones opened the black bag first because it was not buried in clutter and it was easily accessible since it was resting on top of a single boot that was "halfway in between" the console and the dash. Inside the bag, 4

5 Officer Jones found a plastic container with several plastic baggies that held a "white crystally substance" similar to methamphetamine, a glass pipe with burnt residue, a silver spoon with burn marks, Zigzag rolling papers, a lighter, and an Altoids can that appeared to contain marijuana. During the search, Officer Jones placed items removed from the vehicle on the roof of the vehicle. "[A]while into the search," the officer placed a "pink polka dot bag" found inside Boggess' purse on the roof, whereupon Boggess told him "[s]he didn't give authority to search" that bag. Similar to Officer Moore, Lieutenant Pierce also testified that Boggess only voiced her refusal to consent to the search after Officer Jones found the drugs, i.e., when the officer placed the contraband on the roof of the vehicle. For his part, Officer Jones testified that after he finished searching the small black bag, began searching the purse, and started opening the polka-dot bag he found inside the purse, Officer Moore informed him that "Boggess did not want her purse searched." When asked if that may have been the moment Boggess realized the vehicle was being searched, Officer Jones replied, "I can't speak for what she thought. From my viewpoint, two officers leaning down in the vehicle going through things, would be a pretty immediate reaction to me that they were searching the vehicle. And it still took... at least a minute or two before she responded after that." Despite Boggess' protestations, Officer Jones continued searching the purse because he believed he had probable cause based on the drug contraband he initially found in the black bag. Inside the purse, Officer Jones found Boggess' identification and a white and black polka dot pouch that contained a baggie with what appeared to be burnt marijuana and a glass pipe with a burnt botanical substance in it. At the hearing, Lieutenant Pierce testified that he believed Motley's consent to search gave the officer's authority to search any item within the vehicle. With regard to 5

6 the ownership of the items, Lieutenant Pierce and Officer Jones testified that prior to the search, they did not know that the bags found on the passenger side of the vehicle belonged to Boggess. According to Lieutenant Pierce, although the bags were within Boggess' area of control, "[d]ue to the overwhelming[ ] amount of items in the vehicle, [he] wouldn't say that it was probable" the bags belonged to Boggess. Similarly, when Officer Jones was asked if he had any idea who owned the black bag, he replied: "We had no idea who what property belonged to who. I mean, like I said, it was pretty cluttered and things scattered. We didn't know. There was a lot of the things on the floorboard that had obviously been stepped [on], because there was no way they couldn't have been there, because of the amount of clutter. So we didn't know how long things had been in there or who they belonged to or anything..... "... As messy as the vehicle was, I didn't know whose was whose. I made a a pretty good, fair judgement, that the purse was [Boggess']..... "But other than, I as messy as the car was, I didn't know whose stuff was what." After taking the matter under advisement, the district court denied Boggess' motion to suppress. The district court found that while Motley did not have actual authority to consent to a search of Boggess' black bag, she had apparent authority, as the driver, to consent to the search because the officers could have reasonably believed the black bag belonged to Motley. Additionally, the district court found that while Boggess had a heightened expectation of privacy in her purse, the officers had probable cause to search it based upon the contraband initially discovered in the black bag. The district judge explained: "In this Court's view, the officers could have in good faith found that the black bag zipped that contained the evidence of drugs or drug paraphernalia that the driver that it could as well been the driver as the passenger and that the driver had apparent authority to consent to those items in the car. Further, this Court finds that [Boggess] in 6

7 this case could have taken the purse with her as she exited the car. That was her's. And the officers before the searching [of] the purse should have inquired if it was her purse. "However, they didn't search her purse first. They searched another container that then gave them probable cause to search the purse and the other items in there. Especially in light of the fact that the purse had not been removed by [Boggess]. [Boggess] also could have just as easily grabbed that black pouch and put it in her purse and took her purse and the pouch, which would have been encompassed in the purse and would have been protected and required consent from the passenger or a search warrant in the absence of probable cause..... "... Boggess' attempt to retrieve her purse was subsequent to the development of probable cause with regard to the black bag and the Court finds that the search of the black bag was lawful and, therefore, so was the search of the purse." Following a bench trial, the district court convicted Boggess as charged, and on December 12, 2013, she was sentenced to 12 months' probation with an underlying 11- month prison term. Boggess timely appeals. LEGALITY OF THE SEARCH AND SEIZURE BASED ON THE THIRD PARTY'S CONSENT TO SEARCH On appeal, Boggess contends the district court erred when it denied her motion to suppress evidence. When reviewing a district court's ruling on a motion to suppress, we utilize a bifurcated standard. First, we review the district court's factual findings to determine whether they are supported by substantial competent evidence. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). In reviewing the factual findings, we do not reweigh the evidence or assess the credibility of witnesses. Next, we review the district court's ultimate legal conclusion de novo. 304 Kan. at 274. Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth 7

8 Amendment, and 15 of the Kansas Constitution Bill of Rights. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). The exclusionary rule, a judicially created remedy, operates to protect Fourth Amendment rights through deterrence by preventing the use of unconstitutionally obtained evidence against the subject of the illegal search and seizure. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). Any warrantless search is per se unreasonable unless it falls within one of several exceptions to the warrant requirement. 291 Kan. at 496. Relevant to this appeal is the consent exception to the warrant requirement. See State v. Estrada-Vital, 302 Kan. 549, 556, 356 P.3d 1058 (2015). In this case, the State bears the burden of proving the lawfulness of the search and seizure, including the scope and voluntariness of any consent search. See K.S.A (2); Estrada-Vital, 302 Kan. at 556; State v. Kerestessy, 44 Kan. App. 2d 127, 132, 233 P.3d 305 (2010). We begin our analysis with some preliminary considerations. First, Motley's consent was the legal justification for the officers' search of the vehicle and seizure of the black bag within the passenger compartment. Second, the parties do not dispute the scope or voluntariness of Motley's general consent to search the vehicle. Third, the State acknowledges that Boggess has standing to object to the search of the black bag. Finally, on appeal, Motley only contests the district court's denial of the motion to suppress as it relates to the search and seizure of the small black bag and its contents. Other evidence seized by the officers is not a subject of this appeal because Boggess did not raise this as an issue on appeal or brief it. An issue not briefed by the appellant is deemed waived or abandoned. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016). Given these understandings, this case presents the sole question: Did Motley have the authority to consent to the search of the small black bag? 8

9 The constitutional prohibition against warrantless searches does not apply to "situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who possesses, or who reasonably appears to possess, common authority over the premises." (Emphasis added.) State v. Chilson, 38 Kan. App. 2d 338, Syl. 3, 165 P.3d 304 (2007). As a general proposition, "'[c]ommon authority'" has been defined as "'mutual use of the property by persons generally having joint access or control for most purposes, so that it 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.' [Citation omitted.]" Kerestessy, 44 Kan. App. 2d at 132. With particular significance to this appeal, if actual authority did not exist, the consent search may still be deemed constitutionally valid if the consenter had apparent authority to consent to the search. In order for the State to show apparent authority to consent, it is necessary that "the facts available to the officer would warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched. [Citation omitted.]" State v. Porting, 281 Kan. 320, 328, 130 P.3d 1173 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, , 110 S. Ct. 2793, 111 L. Ed. 2d 148 [1990]). In determining whether the apparent authority doctrine applies, courts employ an objective, totality-of-the-circumstances analysis, which is dependent upon the facts presented to the officer at the time he or she commenced the search. United States v. Andrus, 483 F.3d 711, , reh'g denied, 499 F.3d 1162 (10th Cir. 2007), cert denied 552 U.S (2008); Kerestessy, 44 Kan. App. 2d at 133. The apparent authority rule is only applicable in circumstances where the searching officer made a mistake of fact, rather than a mistake of law. Porting, 281 Kan. at 328. "'In other words,... "[the rule] 9

10 applies to situations in which an officer would have had valid consent to search if the facts were as he reasonably believed them to be."'" 281 Kan. at 328. Some situations, however, "'cry out for further inquiry, and when this is the case, it is not reasonable for the police to proceed on the theory that ignorance is bliss.' [Citation omitted.]" United States v. Turner, 23 F. Supp. 3d 290, 312 (S.D.N.Y. 2014). See 4 LaFave, Search & Seizure: A Treatise on the Fourth Amendment 8.3(g) (5th ed. 2015). Accordingly, "[w]here an officer is presented with ambiguous facts related to authority to consent to a search of property, the officer has a duty to investigate further before relying on a consent." Kerestessy, 44 Kan. App. 2d 127, Syl. 7. If "the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property, 'warrantless entry without further inquiry is unlawful[.]'" 44 Kan. App. 2d at (quoting Rodriguez, 497 U.S. at ). In this case, the district court found that Motley lacked actual or common authority to permit the inspection of Boggess' black bag because she did not mutually use the bag or have joint access and control over it for most purposes. Nevertheless, the court determined that Motley's third-party consent was effective because the apparent authority doctrine justified the officers' search. Boggess takes issue with the district court's ruling because she asserts the facts available to Lieutenant Pierce and Officer Jones would not warrant a person of reasonable caution to believe that Motley had authority over the black bag. In particular, Boggess claims the circumstances do not show that Motley had mutual use of the bag because it was found on the passenger-side floorboard. This location, according to Boggess, indicated that the parcel likely belonged to Boggess, and the officers had no information suggesting she and Motley were family or had a relationship that involved the sharing of property. As a result, Boggess insists that because the identity of the black bag's owner remained ambiguous, the officers had a duty to investigate further. 10

11 In support of her argument, Boggess relies upon a premises case, Kerestessy, wherein our court found that Kerestessy's girlfriend, Michelle Konen, did not have actual or apparent authority to consent to the warrantless search of a school bus Kerestessy kept on property the couple shared. The State had argued that it was reasonable for the officers to believe that Konen had the authority to consent to a search of the bus because the officers knew that Konen and Kerestessy were "a 'couple'"; Konen or her friend removed a "puppy and a family pet" that was tethered to the entrance of the bus; Konen was present during the search and did not object or disclaim authority over the bus; and the bus was under the authority of Konen, as a resident, because it was located within the home's curtilage. 44 Kan. App. 2d at Our court concluded that although an officer could have reasonably believed that Konen exercised some level of control over the bus, the circumstances surrounding the search failed to establish apparent authority because the officers neglected to ask any questions to determine whether Konen had a legal interest in or common authority over the bus. 44 Kan. App. 2d at In particular, our court found the facts were ambiguous; therefore, the officers had a duty to investigate further before relying on Konen's consent. 44 Kan. App. 2d at According to our court, the marital-like relationship Konen and Kerestessy shared did not, without further inquiry, show that Konen had mutual use of the bus; Konen's removal of the dog, which arguably weighed in favor of a finding of apparent authority, had limited probative value because the district court considered the dog to be a guard dog; Konen was not obligated to object or voluntarily disclose whether she had authority; and substantial evidence supported the district court's finding that the bus' location on the property weighed against a finding that Kerestessy commonly shared the bus with the other residents. 44 Kan. App. 2d at In the present case, the district court considered Kerestessy but distinguished it as a "residential case," which was distinct from a "search of a vehicle with passengers and... drivers [that] have... reduced expectation of privacy with regard to property that 11

12 they transport." The State adopts the district court's understanding of Kerestessy and in support highlights State v. Pedraza, No. 95,016, 2007 WL (Kan. App. 2007) (unpublished opinion). Pedraza was a passenger in a vehicle that Deputy Chris Rutherford stopped for speeding. While speaking with the driver outside the vehicle, the driver consented to a search, so Deputy Rutherford asked Pedraza to step out of the vehicle and to "'[g]o stand back there with [his] buddy for a second,'" a statement to which Pedraza replied, "'Yeah, go ahead.'" 2007 WL , at *1. Deputy Rutherford proceeded to search the vehicle. Finding no illegal items inside the vehicle's passenger compartment, he took the vehicle's keys, opened the locked trunk, and searched a duffel bag he found therein which contained 10 pounds of marijuana. Based on this discovery, the deputy arrested the driver and Pedraza. After Deputy Rutherford advised Pedraza of his Miranda rights, he admitted the duffel bag and marijuana belonged to him. Pedraza moved to suppress the contraband but the district court denied the motion, finding that "'[c]onsent was given to search the vehicle, and without any further statements or assertions of privacy,... the [D]eputy was entitled to search everything in the trunk, including the bag where the contraband was found.'" 2007 WL , at *2. On appeal, Pedraza asserted that Deputy Rutherford violated his Fourth Amendment rights when he searched the duffel bag without inquiring as to its ownership. Our court, however, found the facts available to the deputy demonstrated that it was reasonable for him to believe that the driver's consent extended to the bag located in the vehicle's trunk. Our court explained: 12

13 "The fact that Pedraza failed to object to the search supports our conclusion.... Here, the deputy testified that he only learned that Pedraza owned the duffle bag after the contraband was found, interviews were conducted, and the subjects were in custody. There was apparent authority here. The district court also relied upon this fact in finding the search proper. Accordingly, because Pedraza did nothing to dissuade the deputy from believing otherwise, the Deputy reasonably believed, under the apparent authority doctrine, that the driver's consent was valid to the search of the duffle bag." 2007 WL , at *6. As the State argues, Pedraza is more analogous to this case than Kerestessy. Pedraza involved a moving vehicle and Kerestessy dealt with a stationary bus that was utilized as an extension of the defendant's house. This is a significant distinction because as the district court aptly found, Boggess, as a passenger in a vehicle, had a reduced expectation of privacy in the belongings she was transporting. In fact, throughout this country's history, "'it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search.' [Citation omitted.]" Wyoming v. Houghton, 526 U.S. 295, 301, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). On this basis, the United States Supreme Court has concluded that police officers with probable cause to search a vehicle may inspect passengers' belongings if such belongings are capable of containing the object of the search: "Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which 'trave[l] public thoroughfares,' [citation omitted], 'seldom serv[e] as... the repository of personal effects,' [citation omitted], are subjected to police stop and examination to enforce 'pervasive' governmental controls '[a]s an everyday occurrence,' [citation omitted], and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny." 526 U.S. at 303. Similarly, in State v. Groshong, 281 Kan. 1050, , 135 P.3d 1186 (2006), our Supreme Court held: 13

14 "[A] law enforcement officer may search a passenger's purse left in the vehicle when the passenger exits, if the passenger makes no effort to retrieve the purse before probable cause to search the vehicle develops. In such a case, the purse is treated the same as any other package or container in the vehicle that could hold or conceal the object of the search." Although it appears that neither the United States Supreme Court nor the Kansas Supreme Court has addressed the legality of searching a motor vehicle passenger's belongings under the apparent authority rule, federal caselaw, in particular from the United States Court of Appeals for the Fifth Circuit, provides helpful guidance in resolving the issue on appeal. In United States v. Jaras, 86 F.3d 383, (5th Cir. 1996), the Fifth Circuit concluded that apparent authority does not exist if the officer is specifically told that an item of property in the vehicle belongs to the passenger. In that case, the driver of a vehicle in which Jose Jaras was a passenger consented to a vehicle search. There was no evidence indicating that Jaras, who remained in the passenger seat, heard the discussion about searching the vehicle. Not finding any contraband inside the passenger compartment, Officer Mitchell searched the trunk which contained a garment bag and two suitcases. The driver informed the officer that the garment bag belonged to him and the suitcases belonged to Jaras. There was no response from Jaras, who was nearby. After informing Jaras that the driver had authorized him to search the vehicle, Officer Mitchell asked him what was inside the suitcases, and Jaras stated that he did not know. The officer opened the suitcases and discovered marijuana. On appeal, the Fifth Circuit held the district court erred when it denied Jaras' motion to suppress the marijuana because it was not objectively reasonable for the officer to believe that the driver's consent extended to the suitcases. 86 F.3d at The court explained: 14

15 "Here, Officer Mitchell did not mistakenly rely on information that, if true, would have justified a belief that [the driver] had actual authority to consent to a search of the luggage putatively belonging to Jaras. Rather, [the driver] clearly informed Officer Mitchell that the two suitcases did not belong to him and that they belonged to [Jaras]. [The driver's] statement that the suitcases were not his placed Officer Mitchell on notice that his consent to search did not extend to the luggage. The statement established that [the driver] did not have authority to consent to a search of the suitcases and any reliance on [the] consent was therefore unreasonable. [Citations omitted.]" 86 F.3d at Similarly, in United States v. Iraheta, 764 F.3d 455, (5th Cir. 2014), the Fifth Circuit determined that a search could not be justified under the apparent authority doctrine if facts available to the searching officer clearly indicated that the property searched did not belong to the consenting driver. In Iraheta, Deputy Seth Cox, a sheriff's deputy in Louisiana, stopped a vehicle driven by William Iraheta for traffic infractions and a suspended California vehicle registration. The vehicle contained two passengers, Christian Miguel Gonzalez and Rodolfo Meraz-Garcia. Deputy Cox questioned Iraheta about his and the passengers' itinerary and their relationship to each other. Iraheta and Gonzalez advised Deputy Cox that they were traveling from California to Miami, but they provided conflicting stories regarding their relationship to one another. Deputy Cox asked for permission to search the vehicle, and Iraheta consented. While no one explained to Iraheta, Gonzalez, or Meraz-Garcia that they could limit or refuse consent to the search, it was unclear whether Gonzalez and Meraz-Garcia "remained in the car with the windows up and could not hear the exchange between [Deputy] Cox and Iraheta." 764 F.3d at 458. Upon obtaining Iraheta's consent, Gonzalez and Meraz-Garcia were asked to stand beside the roadway a short distance behind the vehicle. Deputy Cox observed several unidentified bags in the trunk. None of the vehicle's occupants objected to the search of the bags or claimed ownership of them. Without 15

16 asking for consent to search the bags, Deputy Cox opened a large duffel bag and discovered cocaine and methamphetamine. The vehicle's occupants were ultimately charged with drug crimes. Prior to trial, the district court granted Gonzalez' and Meraz-Garcia's motions to suppress evidence because Iraheta did not have actual or apparent authority to consent to a search of the duffel bag. The district court noted the bag was in the trunk, there was no evidence indicating Iraheta had mutually used or had joint access to the bag, and "it was unreasonable for the officers to assume, given their knowledge of the long distance road trip, that the bag belonged to Iraheta and that his consent to search would extend to the bag." 764 F.3d at 459. The Fifth Circuit agreed with the district court, finding the facts available at the time of the search would put reasonable officers on notice that Iraheta could not consent to a search of all of the bags because the defendants consistently stated that they were traveling from California to Miami, there were three people in the vehicle, and the number of bags supported the notion that the group was making a long distance trip, the deputies' testimony indicated they understood it was unreasonable to believe that Iraheta could consent to a search of all of the bags, and the defendants failure to object or to claim ownership of the luggage was not decisive because it was undisputed that Gonzalez and Meraz-Garcia were never informed of Iraheta's consent to the search. 764 F.3d at Both Jaras and Iraheta identify important factors for courts to consider in determining whether an officer, acting as a person of reasonable caution, would believe that the consenting party had authority over the vehicle and its contents to be searched. Under the circumstances in both Fifth Circuit cases, it was apparent to the officers that some of the containers within the trunk were not the property of the driver but were 16

17 the possessions of one or more passengers. In the present case, however, there was no direct or circumstantial evidence that Motley was transporting any containers other than her own. Another common feature of Jaras and Iraheta, which distinguishes those cases from this case on appeal, is that the offending containers were found in the trunk, not readily accessible to or identified with the driver. There was no indication of common use or shared access by the driver and passenger. In the case on appeal, however, the small black bag containing contraband was in open view and in close proximity to Motley in the passenger compartment. Finally, unlike a piece of luggage which is associated with clothing and personal items carried by individual travelers, in this case, the container was a nondescript small bag, found among numerous random items, with a potential for a myriad of uses by Motley and any other occupant of the vehicle. In sum, while Jaras and Iraheta highlight those circumstances which weigh in favor of a finding that apparent authority does not exist, those facts are not found in this case on appeal. Another Fifth Circuit case highlights those facts that support a finding that a driver had apparent authority to consent to the search of a passenger's property in a motor vehicle. In United States v. Navarro, 169 F.3d 228, (5th Cir. 1999), cert. denied 528 U.S. 845 (1999), officers conducted a vehicle search based on the driver's consent. Salvador Vargas Navarro was a passenger in the vehicle. During the search, methamphetamine was found in a duffel bag on the back seat of the vehicle on which Navarro had been leaning. In Navarro, the Fifth Circuit held the driver had apparent authority to consent to the search of Navarro's bag. 169 F.3d at 232. The court distinguished Jaras because the driver did not advise the officer that the luggage did not belong to him, the bag containing drugs was located in plain view on the back seat of the car, rather than the trunk, and neither the driver nor Navarro objected to the officer's search of the bag

18 F.3d at 232. As is readily apparent, the facts of Navarro share similarities with the case before our court. The weight of federal authority demonstrates that while a driver in possession of a motor vehicle, as a general rule, has apparent authority over containers within the vehicle, law enforcement officers must still act reasonably. See 4 LaFave, Search & Seizure: A Treatise on the Fourth Amendment 8.3(g), p Considered together, the abovereferenced cases provide that a consenting driver has apparent authority over a passenger's belongings provided the facts presented to the officer would not have put a reasonable officer on notice that the driver did not own or have common authority over a particular item or container within the vehicle. In other words, a driver has apparent authority to consent to a search of a passenger's belongings when the officer has received no reliable information suggesting otherwise (such as when the driver or another occupant of the car advised the officer that a particular item belongs to a passenger) and the item itself does not carry any indicia of ownership by someone other than the driver (such as when the item has identifying information on it). If, however, the situation is truly ambiguous, i.e., the facts clearly suggest ownership by someone other than the consenting driver, the officer has a duty to inquire further before relying on the driver's consent. On appeal, Boggess' principal complaint is that the small black bag was found on the passenger-side floorboard near where she was seated at the time of the encounter with the police. According to Boggess, the bag's location, on the passenger-side floorboard and near her purse, suggested that the parcel likely belonged to her, although this argument presumes that the officers knew who possessed the purse. Moreover, as the State asserts and the district court found, the fact that the black bag was discovered on the passenger-side floorboard, does not, by itself, refute the notion that Motley had authority over it. 18

19 Recently, the United States Court of Appeals for the Eleventh Circuit rejected an argument similar to that advanced by Boggess. See United States v. Barber, 777 F.3d 1303 (11th Cir. 2015). In Barber, officers searched a vehicle in which Barber was a passenger after the driver provided consent. During the search, an officer examined a bag he found on the passenger-side floorboard which contained a handgun and personal items related to Barber. The officer did not know to whom the bag belonged at the time he conducted the search. Barber was subsequently charged with possession of a firearm by a convicted felon, and prior to trial, he moved to suppress the evidence of the firearm on Fourth Amendment grounds. The district court denied the motion, finding the "search was constitutional because [the driver] gave 'general consent' that include[d] the consent to search containers within the car,' and 'the officers had no reason to suspect that the bag searched belonged to only [Barber].'" 777 F.3d at The district court further determined that the driver had apparent authority for three reasons: "(1) the ownership of the bag 'was not established until after the search occurred'; (2) the bag 'was in easy reach' of [the driver]; and (3) 'the bag was not secured in any way.'" 777 F.3d at On appeal, Barber challenged the district court's findings on the issue of apparent authority, but the Eleventh Circuit affirmed: "The bag's placement on the passenger-side floorboard, within easy reach of [the driver], coupled with Barber's silence during the search, made it reasonable to believe [the driver] had common authority over the bag. Drivers do not ordinarily place their bags on the driver-side floorboard, but drivers sometimes use the passenger-side floorboard to store their belongings. The officers could have reasonably believed [the driver] had common authority over the bag. And because [the driver] had apparent authority to consent to the search, we need not decide whether he had actual authority to do so. "Barber's reliance on United States v. Jaras, 86 F.3d 383 (5th Cir. 1996), is misplaced. In Jaras, the officers were told that the bag they searched did not belong to 19

20 the consenting party. [The officer in this case] testified that he 'believed' the bag belonged to Barber, but did not 'know' to whom it belonged. No one told [the officer] that the bag did not belong to [the driver]." 777 F.3d at In this case, as in Barber, we are persuaded that, as found by the district court, there is substantial competent evidence that Motley had apparent authority to consent to a search of Boggess' small black bag. We reach this conclusion because several facts available to Lieutenant Pierce and Officer Jones at the time of the search would not have put a reasonable officer on notice that Motley did not own or possess common authority over the bag. First, Boggess made no attempt to claim ownership of the black bag, the purse found on the floorboard, or the small tan purse or make-up bag found on the passenger's seat, either verbally or by removing the items when she left the vehicle prior to the search. In fact, prior to the discovery of the contraband, Boggess made no claims of ownership to any item inside the vehicle. Moreover, there is substantial competent evidence that Boggess was aware the officers were going to search the vehicle and observed the search in progress for a period of time prior to objecting to the search of her purse. As found by the district court, Boggess claimed ownership of her purse not the black bag and objected to the officer's search of the purse only after the search was in progress and the contraband already had been found in the black bag. Second, Motley never informed the officers of Boggess' ownership of or interest in any items, including the black bag, which were contained in the passenger compartment. Third, the black bag, in addition to the purse and makeup bag, were found in the front passenger compartment of the vehicle in plain view and readily accessible to both women. Like Barber, the bag was within easy reach of Motley and, thus, it was not 20

21 unreasonable for the officers to surmise that she had placed the bag on the passenger-side floorboard so it would not impede her ability to drive the vehicle. Fourth, the black bag was found on top of a single boot resting between the console and dash. It had no identifying marks and was nondescript, unlike a handbag or a piece of luggage, which would typically denote individual ownership of personal belongings. Finally, the myriad and assorted items which were found in the passenger compartment (other than the unidentified purse), including miscellaneous papers, children's toys, lottery tickets, food, drinks, footwear, and trash bore no indicia of individual ownership, but the amount of clutter clearly suggested these items had been present in Motley's car for some time and that she had control over them. Accordingly, we find the district court's factual findings were supported by substantial competent evidence. We also find no error in the district court's legal conclusion that Motley had apparent authority to consent to the search of her motor vehicle and the containers within it. In particular, the evidence produced by the State showed that the officers had facts available to them to "warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched. [Citation omitted.]" State v. Porting, 281 Kan. 320, 328, 130 P.3d 1173 (2006) (citing Illinois v. Rodriguez, 497 U.S. 177, , 110 S. Ct. 2793, 111 L. Ed. 2d 148 [1990]). Affirmed. 21