                Case: 13-14935       Date Filed: 02/03/2015      Page: 1 of 7


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-14935
                              ________________________

                        D.C. Docket No. 1:13-cr-20240-KMM-1


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,
                                            versus

TYRONE RASHOD BARBER,

                                                                      Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                             _______________________

                                     (February 3, 2015)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER, ∗ District
Judge.

WILLIAM PRYOR, Circuit Judge:




∗
 Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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      This appeal from a conviction for possession of a firearm by a convicted

felon, 18 U.S.C. § 922(g), presents an issue about apparent authority to consent to

a search of a bag in a car. Tyrone Barber was a passenger in a car stopped by

police officers. After the driver consented to a search of the car, the officers

discovered a gun belonging to Barber in a bag placed on the passenger-side

floorboard. Barber was charged with possession of a firearm by a convicted felon.

Barber moved to suppress the gun on the ground that the driver lacked the

authority to consent to the search of his bag. The district court denied the motion

and ruled that the driver had both actual and apparent authority to consent to the

search, and Barber was convicted after a bench trial. We affirm because the driver

had apparent authority to consent to the search.

                                I. BACKGROUND
      On September 6, 2012, Miami-Dade Police Department detectives Anthony

Rodriguez and Robert Gonzalez stopped a car in which Tyrone Barber was a

passenger. The detectives arrested the car’s driver, Geofrey Robinson, for driving

with a suspended license. Robinson consented to a search of the car. Rodriguez

directed Barber, who was sitting in the passenger seat, to exit the car.

      During the search, Rodriguez saw a purple bag on the passenger-side

floorboard. At Barber’s trial, Rodriguez testified that he did not know to whom the

bag belonged at the time of the search. On cross-examination, Rodriguez testified


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that he believed the bag belonged to Barber at the time of the search. Rodriguez

looked inside the bag and saw a handgun, Barber’s business cards, and a photo of

Barber and his children. The officers performed a records check at the scene and

learned that Barber had previously been convicted of a felony. The officers

arrested Barber and read him his rights under Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602 (1966), after which Barber confirmed that the gun belonged to him.

      A federal grand jury indicted Barber on a single count of possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g). Barber later moved to suppress

the gun and his admissions obtained from the traffic stop and search. He argued

that the officers searched his bag without probable cause or consent. The

government argued that Barber lacked standing to challenge the search, and that

even if he had standing, the search was lawful because it was conducted with

Robinson’s consent.

      The district court held that Barber had “sufficient Fourth Amendment

standing to raise an objection to the use of evidence obtained during [the search].”

But the district court also held that the search was constitutional because Robinson

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].”




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      The court held a bench trial and found Barber guilty of the charge in the

indictment. The court sentenced Barber to 33 months of imprisonment.

                             II. STANDARD OF REVIEW

      A denial of a motion to suppress involves mixed questions of fact and law.

United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). We review factual

findings for clear error, and view the evidence in the light most favorable to the

prevailing party. Id. We review de novo the application of the law to the facts. Id.


                                 III. DISCUSSION

      The parties present two issues. First, the parties dispute whether Barber had

standing to challenge the search of his bag. Second, the parties dispute whether

Robinson had authority to consent to the search. We address each issue in turn.

           A. Barber Had Standing to Challenge the Search of His Bag.

      Barber had standing to challenge the search because he had a reasonable

expectation of privacy in his bag. “[I]n order to claim the protection of the Fourth

Amendment, a defendant must demonstrate that he personally has an expectation

of privacy in the place searched, and that his expectation is reasonable.” Minnesota

v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 472 (1998) (citation omitted). The

Supreme Court “has always emphasized the second of these two requirements.”

Hudson v. Palmer, 468 U.S. 517, 525, n.7, 104 S. Ct. 3194, 3199 (1984). Barber

had a subjective expectation of privacy in his bag, which contained his business
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cards, computer flash drives, and photographs of Barber with his children. Barber’s

expectation of privacy was also objectively reasonable. In United States v. Freire,

police found the defendant’s briefcase during a search of a third party’s car. 710

F.2d 1515, 1518 (11th Cir. 1983). The defendant had given the briefcase to the

third party for safekeeping and was not present during the search. Id. This Court

held that the defendant had an objectively reasonable expectation of privacy in his

briefcase and could challenge the search. Id. at 1519. If the defendant in Freire had

a reasonable expectation of privacy in his belongings, so did Barber. Not only was

Barber present during the search of Robinson’s car, but the bag was at his feet

when the officers stopped the car.

      The arguments of the government to the contrary are unpersuasive. The

government relies on decisions holding that a passenger with no possessory interest

in a car has no legitimate expectation of privacy in the car’s interior because he has

no right to exclude others from the car. United States v. Lee, 586 F.3d 859, 864

(11th Cir. 2009); United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008).

But these decisions address a passenger’s expectation of privacy in a car, not a

passenger’s expectation of privacy in a bag within a car. Barber had standing to

challenge the search of his bag, even if he lacked standing to contest the search of

the car.




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  B. Robinson Had Apparent Authority to Consent to the Search of Barber’s Bag.

        The district court concluded that Robinson had apparent authority to consent

to a search of the bag. A third party has apparent authority to consent to a search if

an officer could have reasonably believed the third party had authority over the

area searched. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801

(1990) (“[D]etermination of consent to enter must ‘be judged against an objective

standard: would the facts available to the officer at the moment ... ‘warrant a man

of reasonable caution in the belief’ that the consenting party had authority over the

premises? . . . [I]f so, the search is valid.”) (quoting Terry v. Ohio, 392 U.S. 1, 21-

22, 88 S. Ct. 1868, 1880 (1968)). The district court adduced three reasons why it

was reasonable to believe Robinson had common authority over the bag: (1) the

ownership of the bag “was not established until after the search occurred”; (2) the

bag “was in easy reach” of Robinson; and (3) “the bag was not secured in any

way.”

        The district court did not err when it determined that Robinson had apparent

authority to consent to the search of the bag. The bag’s placement on the

passenger-side floorboard, within easy reach of Robinson, coupled with Barber’s

silence during the search, made it reasonable to believe Robinson 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


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belongings. The officers could have reasonably believed Robinson had common

authority over the bag. And because Robinson 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 the consenting party. Officer Rodriguez testified that he “believed” the

bag belonged to Barber, but did not “know” to whom it belonged. No one told

Officer Rodriguez that the bag did not belong to Robinson.

                               IV. CONCLUSION

      We AFFIRM Barber’s conviction.




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