The Volokh Conspiracy

That Your Bag, Ma'am?

Yesterday the U.S. Court of Appeals for the Sixth Circuit handed down an interesting divided opinion in a search-and-seizure case in United States v. Purcell. Here's the summary from Judge Karen Moore's majority opinion.

In this case we are asked whether the discovery of men’s clothing in a bag that a female claimed to own erases for future bags the apparent authority that justified the officers’ warrantless search of the first bag, thereby making a subsequent search illegal. We hold that the discovery of men’s clothing eviscerated any apparent authority, but that the officers could have reestablished apparent authority by asking the supposed bag owner to verify her control over the other bags to be searched. Furthermore, we hold that exigent circumstances did not justify the illegal search. Because the officers in the instant case did not reestablish apparent authority and could not justify proceeding with a warrantless search by claiming an exigency, we hold that district court did not err when it suppressed the firearm that officers discovered after any apparent authority dissipated, and we AFFIRM the district court’s partial grant of the defendant’s motion to suppress.

Judge Gilman joined the majority opinion. Judge Sutton wrote a separate opinion concurring in part and dissenting in part.

PersonFromPorlock:
In what way does the presence of wrong-gender clothing invalidate an assertion of ownership? Cross dressers aside, any couple trying to reduce the number of bags carried might share a bag.
5.30.2008 8:00pm
Redlands (mail):
Forget the merits. My question is, aren't there any classes or books around that give legal writers a hint about writing more simply?
5.30.2008 11:13pm
jccamp (mail):
After reading the decision, I'm with Redlands. But another question for the Constitutional experts: Had the hotel management told the agents "if you're arresting the fellow in Room whatever, take his stuff with you. We don't want it here, and we don't want the arrestee coming back." would the agents have been justified in seizing and inventorying the contents of the luggage apparently controlled by the arrestee?
5.31.2008 9:37am
David M. Nieporent (www):
1) I'm echoing Porlock's comment. The premise of the decision -- that men's clothes in a bag means that it must be his bag -- seems really dubious in the case of a couple. When my wife and I go on vacation, we certainly may shift contents from my suitcase to hers or vice versa as space needs dictate.

2) I'm echoing Redlands' comment. That first paragraph particularly is the one of the worst pieces of writing I've encountered in a while.

3) I want to question something else about the decision: the emphasis on the dangers of meth labs. Is there any real reason to believe that the chemicals used in meth labs are actually dangerous? Not hypothetically dangerous, but actually dangerous? The only place I ever read about these dangers is in drug war propaganda. (And sure enough, as I continue reading the opinion, the "evidence" cited by the court is a DEA "fact sheet"; I'd sooner rely on Soviet-era Pravda.) I'm not questioning the scientific claim that the chemicals could be dangerous; I'm questioning the empirical claim that they actually pose a danger. Has anybody ever heard that innocent bystanders have actually been harmed by a meth lab merely because "chemicals" are used in this lab?

(Sure, google reveals a handful of stories of meth labs "exploding" while being used, but nothing I see about people living or walking nearby suddenly keeling over because there are "chemicals.")
5.31.2008 11:35am
Dave N (mail):
David M. Nieporent,

I agree that unless you are in the contained environment of a meth lab, the odors are no more likely to cause you to keel over than walking by a gas station would. If you are in the "lab" (I put it in scary quotes because it is a "lab" only in the sense that chemical reactions are occurring involving heat) then that is a different matter--much like being around gasoline fumes in a closed garage.

But the chemicals used in cooking meth are highly flamable so the risk of fire and explosion is real--and my understanding is that because of the closed nature of the meth lab, properly cleaning up after one is a HazMat situation.

Oh, and I agree with everyone else. There is no excuse for a 43-word sentence that takes four lines of type. Particularly when it is immediately followed by a 37-word sentnece. Awful. Awful. Awful.

Perhaps Judge Moore should ask Judge Posner for writing tips.
5.31.2008 12:56pm
Dave N (mail):
Are police allowed to search a suitcase containing men's clothing without a warrant when a woman claims ownership? The fact that women do not ordinarily wear men's clothing eliminated her apparent authority over that suitcase. Therefore, the answer is "yes." However, the police should have either inquired further before searching other suitcases or secured a warrant. Because they did neither, we affirm the district court, which properly suppressed the contents of one of the other suitcase.
I think that is clearer than what Judge Moore actually wrote--and conveys the same initial analysis.
5.31.2008 1:15pm
Duffy Pratt (mail):
In its statement of the facts, Crist claims the green brown duffel is hers after they started searching it for the gun. In the analysis section, the court says she claimed ownership of the bag before they started searching. Very bad writing indeed.
5.31.2008 2:53pm
Oren:
David, depends on what you quantify as the level of potential harm that rises to the level of "danger".

Certainly in a lab setting one would require fume hoods any time you use ethyl ether since inhaling it is, well, inhaling ether. You need some base to do reduction so that's highly damaging as well (usually they use lye) -- basic lab equipment would be thick elbow-length gloves.

Realistically, the only danger the lab poses to your average Joe Citizen is that it will light on fire and the fire will spread to his house. If his children wander into an unlocked meth lab and start drinking chemicals maybe that too.

On the other hand, I would highly advise and LEOs to be extra careful barging in, especially if they interrupt the process while the heat is on.
5.31.2008 4:00pm
Duffy Pratt (mail):
Surely the danger that a lab might light on fire is enough of a risk to justify opening up some duffel bags and backpacks, isn't it?
5.31.2008 7:06pm
Kenvee:
Okay, that's a ridiculous decision. There are a half-dozen reasons at least that a woman might have men's clothing in her bag that wouldn't negate her ownership in the bag one iota. Unless the officers discover a "property of Mr. Y" tag in the bag, it's stupid to make them "reaffirm" the owner's ownership.
6.2.2008 9:48am
BZ (mail):
Um, I recall somewhere that women either make or influence the majority of menswear purchases, particularly during relationships. Women make the vast majority of men's underwear purchases. In neither case does it make them cross-dressers. It just reflects reality, sartorially-speaking.
6.2.2008 10:06am
LarryA (mail) (www):
Women don’t wear men’s clothes? Where has this guy been living?
Surely the danger that a lab might light on fire is enough of a risk to justify opening up some duffel bags and backpacks, isn't it?
Or we could do it the easy way. If the labs were legal OSHA could take care of it.
On the other hand, I would highly advise and LEOs to be extra careful barging in, especially if they interrupt the process while the heat is on.
And are shooting firearms.
6.2.2008 10:30am
Justin (mail):
The question isn't whether it's plausible that the bag was owned by the woman claiming authority. The question is whether the officer's reliance on an assertion of ownership is reasonable given the circumstances. In this situation the cops know that a man and a woman are staying in a hotel, that there are two duffel bags, and that one of the duffel bags has men's clothes. From the opinion itself:


The discovery of the men’s clothing inside the bag indicated that it was actually Purcell’s
bag, not Crist’s, as she had claimed. This was not a complete surprise for the agents because they
knew that Purcell owned some of the items in the room even though they did not know initially
which bags were his; “[Crist] definitely said there was [sic] items in that room that belonged to Fred
Purcell.” J.A. at 92 (Rolfsen at 53:15-16). Although Agent Rolfsen realized that Crist had misstated
her ownership of the bag, he did not ask her to verify whether she owned any of the other bags in
the room. Shortly thereafter, another agent found the firearm in a brown-green backpack that was
not sitting near the other closed bags by the door but was instead sitting “on the floor by the bed and
between the bed and the window.” J.A. at 95 (Rolfsen at 58:21-24). After discovering the firearm,
the agents asked Crist who owned the backpack, and Crist noted that she owned the backpack itself,
but she had given it to Purcell for his use.


Note that the facts do not indicate that Crist ever asserted ownership over the bag that the firearm was found in. Moore's position, whether correct, should be debated as to the facts that actually existed in this case. While Moore can be criticized for sloppy writing, if you want to argue against her conclusions, then strawmen or hypothetical facts not relevant to the search HERE cannot support your case.
6.2.2008 11:30am
Toby:
And yet I read this Spring in the NYT fasihion pages that the hot fashion for the Summer Fall is the "BFC" {boy friend's coat}
6.2.2008 12:33pm