                 IN THE SUPREME COURT OF IOWA
                              No. 14–0067

                          Filed April 29, 2016


STATE OF IOWA,

      Appellee,

vs.

MARVIS LATRELL JACKSON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Johnson County, Robert E.

Sosalla, Judge.



      A defendant requests further review of a court of appeals decision

affirming the denial of a motion to suppress evidence obtained after a

police officer searched a closed backpack.   DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold

(until withdrawal) and Theresa R. Wilson, Assistant Appellate Defenders,

for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Janet M. Lyness, County Attorney, Anne M. Lahey,

Assistant County Attorney, for appellee.
                                     2

WIGGINS, Justice.

      A police officer conducted a warrantless search of a closed

backpack belonging to the defendant. The officer relied on a third party’s

consent in conducting the search.        The third party possessed actual

authority to consent to a search of the bedroom the backpack was in but

lacked actual authority to consent to a search of the backpack itself. The

defendant moved to suppress the evidence found in the backpack and

the fruits of the search on the ground that the third party had neither

actual authority nor apparent authority to consent to the search of the

backpack. He argued the warrantless search violated his rights under

the   Fourth   and   Fourteenth   Amendments      of   the   United   States

Constitution and article I, section 8 of the Iowa Constitution. The district

court denied the motion.

      The defendant now seeks further review of a decision by the court

of appeals affirming his convictions on two counts of robbery in the

second degree. We conclude the warrantless search violated the Fourth

Amendment of the United States Constitution because the third party

who consented to the search of the bedroom lacked apparent authority to

consent to the search of the defendant’s backpack. Therefore, we vacate

the decision of the court of appeals, reverse the judgment of the district

court, and remand the case to the district court for a new trial.

      I. Background Facts.

      On our de novo review, we find the following facts. At 12:35 a.m.

on December 31, 2012, the Iowa City Police Department dispatched

Officer Michael Smithey to Gumby’s Pizza after receiving a report an

armed robbery had just taken place. When Officer Smithey arrived on

the scene, the robbery victim met him outside the restaurant. The victim

reported he had been alone working in the kitchen when two black males
                                     3

entered the restaurant wearing dark clothes, black hats, and black

bandanas over their faces. One of the men had a gun and pointed it at

the victim. The men ordered the victim to open the cash register. The

victim complied and gave the men approximately $125 in small bills.

After the men ran out of the store and headed northbound on Gilbert

Street, the victim locked the door and called the police.

      As Officer Smithey stood outside the restaurant speaking with the

victim, a man approached and asked if there had been a robbery. The

man stated he had just been standing outside smoking a cigarette when

he observed two black males wearing dark clothes walk by. He noted one

of the men appeared to be holding a fistful of cash. He also stated when

the men saw him, they took off running between some houses.

      Officer Smithey drove the witness to the location where he had last

seen the men on foot. There was fresh snow on the ground, and Officer

Smithey saw what appeared to be tracks in the snow. He then requested

backup from a canine unit.

      When the canine unit arrived, the handling officer and the canine

tracked the suspects to the southeast corner of the building on South

Gilbert Street. Officer Smithey followed, joined by Officer Alex Stricker.

The officers observed the lower floor of the building was a retail location,

but the second story contained apartments with outside doors accessed

by a common stairwell in the rear of the building. As the officers visually

surveyed the exterior of the building, they saw the lights were on in one

of the apartments and a tall black male who appeared to be very

interested in what the officers were doing was looking out the window.

The officers noticed the man appeared to match the descriptions of the

suspects and quickly ducked out of sight when he saw the officers look

up at him. The officers decided to approach the apartment. When they
                                   4

arrived at the front door to the apartment, they noticed someone had

turned the lights off inside. As they stood outside the apartment door,

they heard it lock from the inside. Officer Smithey then knocked on the

door and announced the officers’ presence.

      A tall black male named Wesley Turner answered the door. The

officers explained why they were there, and Turner allowed them inside.

The officers entered the living room where they encountered Turner’s

girlfriend, Alyssa Miller, who also lived in the apartment.   Turner and

Miller indicated the only other person in the apartment was their

roommate, Gunner Olson. Turner told the officers Olson was asleep in

his room but agreed to wake him so the officers could speak with him.

After Turner knocked on the bedroom door, Olson, who was also a black

male, emerged from his room.

      The officers decided to speak to the two men separately. Officer

Stricker stepped outside to speak with Turner.        During their brief

conversation, Turner indicated he had remained in the apartment since

arriving home from work around nine and had not seen anything

suspicious.

      Meanwhile, Officer Smithey stepped into the kitchen to speak with

Olson. Olson confirmed he lived in the apartment along with Turner and

Miller. Officer Smithey asked Olson if he could peek inside his bedroom.

Only then did Olson tell Officer Smithey his cousin Marvis was sleeping

in his bed. Olson told Officer Smithey that Marvis arrived sometime after

he went to sleep earlier that evening. When asked, Olson indicated he

did not know Marvis’s last name and explained they were not really

cousins. Officer Smithey did not ask Olson if Marvis had been staying in

the apartment.
                                          5

       Olson then led Officer Smithey back to his bedroom.                     Officer

Stricker      looked   on   from   the   hallway,    having    just     finished   his

conversation with Turner. Inside the room, the officers saw a shirtless

black male in green pajama pants lying on the air mattress in the corner.

The air mattress was the only mattress in the room.                   At the officers’

request, Olson roused the man by shaking him, but the officers noticed

that waking the man appeared to be considerably more difficult than it

should have been.           The officers also noticed the shirtless man was

sweaty, which they thought odd because no one else in the apartment

was sweating.

       The man identified himself as Marvis Jackson. When asked if he

had identification, Jackson indicated he did not. The officers had a brief

conversation with Jackson, during which neither officer asked Jackson if

he had been staying in the apartment, was an overnight guest, or had

any personal belongings in the apartment. When the officers ran a check

on Jackson’s name, they discovered an outstanding warrant for his

arrest for another armed robbery that took place at a gas station in

November. 1      Officer Smithey notified Jackson he was under arrest,

handcuffed him, and walked him out of the room. By that time, other
officers had arrived at the apartment. Officer Smithey passed Jackson

off to another officer for transport before returning to the bedroom.

       While Officer Smithey was outside the bedroom passing Jackson

off for transport, Officer Stricker spoke to Olson. Olson again indicated

Jackson had arrived earlier that night after he had gone to sleep. Officer


       1The  court issued the arrest warrant after the owner received a tip that a man
named “Juicy” had robbed the gas station and the detective in charge of the
investigation learned from multiple sources Jackson went by the nickname “Juicy
Jackson.”
                                    6

Stricker did not ask Olson if Jackson had been staying in the apartment,

but Olson clearly indicated Jackson did not permanently reside in his

bedroom. When asked if there were any guns in the room, he replied

oddly that there should not be or that he did not know of any.

      Officer Stricker then asked to search the bedroom for guns or any

evidence of the robbery, and Olson consented to the search.        Officer

Stricker waited for Officer Smithey to return to the room. When Officer

Smithey arrived, Officer Stricker informed him that Olson had consented

to the search, and Olson confirmed he did not mind if Officer Smithey

conducted the search. Neither officer asked Olson whether any of the

items in the room might belong to Jackson. Officer Stricker then stepped

outside the room with Olson to accompany him to the kitchen to get a

glass of water.

      Officer Smithey began searching Olson’s room. He first searched

the area around the air mattress.    He searched under the sheets and

blankets on top of the air mattress and then under the mattress itself.

He then grabbed a backpack sitting a few feet away on the floor along the

wall next to or partly inside the closet door, which was partially off its

hinges. He placed the backpack on the chair sitting between the closet

and the air mattress.   The backpack was closed and had no obvious

identifying marks or tags on its exterior indicating who owned it. Officer

Smithey opened the backpack. He reached inside and located a wallet,

which he removed and laid on the chair without opening it. When Officer

Smithey reached inside a second time, he located a pair of dark jeans.

He noticed the jeans were wet at the hem along the bottom of each leg,

which led him to believe they had recently been worn outside in the

snow. He then removed the jeans from the backpack. Underneath the

jeans, Officer Smithey saw a black handgun.
                                         7

      After removing the jeans and locating the handgun, Officer

Smithey stopped removing items from the backpack.          He opened the

wallet he had placed on the chair a few moments before and saw that it

contained identification belonging to Marvis Jackson.      Officer Smithey

took a photograph of the handgun inside the backpack to use in an

application for a search warrant.        He then emerged from the bedroom

and informed the sergeant who was the supervising officer on the scene

it was time to lock down the apartment.           The officers conducted a

protective sweep of the apartment and transported Olson, Turner, and

Miller to the station for questioning.

      Back at the station, Officer Smithey completed a statement in

support of an application for a search warrant. Detectives spoke with

Miller, Turner, Olson, and Jackson in a series of interviews conducted

between approximately 2:49 a.m. and 6:00 a.m.          Turner admitted to

committing the armed robbery of the restaurant, and Olson admitted to

cutting up a t-shirt to provide Turner and Jackson with the strips of

fabric they used to cover their faces during the robbery.      After being

informed the police had obtained confessions from Turner and Olson and

retrieved a gun and cash from the apartment, Jackson also confessed to

committing the restaurant robbery.

      In the morning, the detective investigating the gas station robbery

conducted a second round of interviews beginning after 7:00 a.m.

During those interviews, the detective showed Turner and Miller

photographs of the gas station robber captured by a security camera.

Both Turner and Miller indicated the gas station robber looked like

Jackson and recognized the shoes the robber was wearing. Turner also

indicated Jackson had told him he had robbed a gas station, and Miller

recognized the cap the robber was wearing and told the detective where it
                                     8

could be found in the apartment.         When the detective subsequently

interviewed Jackson, he confessed to committing the gas station robbery.

      During the interviews conducted throughout the night and in the

morning, Miller, Turner, and Jackson all confirmed Jackson had been

staying at the apartment for weeks prior to December 31 and

acknowledged he had personal belongings in the apartment. When the

police executed the search warrant on the apartment in the morning,

they recovered $129 in one-dollar bills, $45 in five-dollar bills, and pieces

of the t-shirt described by the men during their interviews the night

before. The police also recovered a black Yankees cap matching the one

worn by the gas station robber.

      II. Prior Proceedings.

      The State charged Jackson with two counts of robbery in the

second degree, including one count for the restaurant robbery and one

count for the gas station robbery. See Iowa Code section 711.3 (2011).

Jackson pled not guilty on both counts and filed a motion to suppress all

evidence obtained as a result of the search of his backpack.          In his

motion to suppress, Jackson argued the warrantless search of his

backpack was unreasonable and violated his rights under the Fourth

and Fourteenth Amendments of the United States Constitution and

article I, section 8 of the Iowa Constitution because Olson had neither

actual authority nor apparent authority to consent to the search of his

backpack. Jackson further asserted the officers had a duty to inquire as

to the ownership of the backpack before searching it because they had

encountered an ambiguous situation that gave them reason to doubt

whether Olson had authority to consent to a search of the backpack.

The State resisted the motion.
                                     9

      Following a hearing, the district court denied the motion to

suppress.    Jackson thereafter waived his right to a jury trial and

stipulated to a trial on the minutes of testimony.      The district court

found Jackson guilty of both counts of second-degree robbery and

sentenced him to two concurrent indeterminate terms of incarceration

not to exceed ten years with a mandatory minimum sentence of seven

years of incarceration.

      Jackson appealed, and we transferred the case to the court of

appeals. The court of appeals concluded Olson had apparent authority,

but not actual authority, to consent to the search of the backpack. The

court of appeals allowed Jackson to pursue his ineffective-assistance-of-

counsel claim in a postconviction relief proceeding because it determined

his trial counsel had not preserved his argument that the Iowa

Constitution requires consent from a person with actual authority to

authorize a warrantless search.

      Jackson filed an application for further review, which we granted.

      III. Issues.

      Jackson claims Officer Smithey violated his rights under the

Fourth Amendment of the United States Constitution because Olson had

neither actual authority nor apparent authority to consent to the search

of his backpack. Alternatively, Jackson claims Officer Smithey violated

his rights under article I, section 8 of the Iowa Constitution because

Olson did not have actual authority to consent to the search of his

backpack. Finally, Jackson claims that if the search did not violate the

federal constitution, his trial counsel was constitutionally ineffective for

failing to argue a different standard determines the constitutionality of

warrantless searches authorized by consent under the state constitution.
                                           10

       IV. Standard of Review.

       Jackson raises constitutional issues in this appeal.                   We review

constitutional issues de novo.          State v. Kooima, 833 N.W.2d 202, 205

(Iowa 2013).

       V. The Federal Doctrine of Consent by Apparent Authority.

       The Fourth Amendment of the United States Constitution provides,

       The right of the people to be secure in their persons, houses,
       papers, and effects, against unreasonable searches and
       seizures, shall not be violated, and no Warrants shall issue,
       but upon probable cause, supported by Oath or affirmation,
       and particularly describing the place to be searched, and the
       persons or things to be seized.

U.S. Const. amend. IV.

       A warrantless search violates the Fourth Amendment unless a

warrant was not required to authorize it.                 See State v. Nitcher, 720

N.W.2d 547, 554 (Iowa 2006). The State bears the burden of proving by

a preponderance of the evidence that a warrant was not needed to

authorize a warrantless search.            See id.     In determining whether the

State has met this burden, we use an objective standard to assess the

conduct of the officer who performed the search. Id.

       Under the Fourth Amendment, a warrant is not required to

authorize a search performed pursuant to voluntary consent. State v.

Pals, 805 N.W.2d 767, 777–82 (Iowa 2011). 2                  An officer may rely on

third-party consent to authorize a warrantless search so long as the

circumstances indicate the third party had actual authority to consent to

a search of the location searched.              See, e.g., State v. Campbell, 326

       2We  have not determined whether voluntary consent authorizes a warrantless
search under article I, section 8 of the Iowa Constitution, or whether article I, section 8
requires a knowing and intelligent waiver of rights to authorize a warrantless search.
See Pals, 805 N.W.2d at 782.
                                   11

N.W.2d 350, 352 (Iowa 1982); State v. Folkens, 281 N.W.2d 1, 3–4 (Iowa

1979). To establish a third party had actual authority to consent to a

search, the government may show the third party “possessed common

authority over or other sufficient relationship to the premises or effects

sought to be inspected.” Campbell, 326 N.W.2d at 352 (quoting United

States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d

242, 250 (1974)). Common authority to consent to a search derives from

“mutual use of the property by persons generally having joint access or

control for most purposes.” Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at

993 n.7, 39 L. Ed. 2d at 250 n.7; see State v. Bakker, 262 N.W.2d 538,

546 (Iowa 1978).

      Under the Fourth Amendment, an officer may also rely on third-

party consent to authorize a warrantless search based on the third

party’s apparent authority to consent to the search. State v. Lowe, 812

N.W.2d 554, 576 (Iowa 2012).      The doctrine of consent by apparent

authority allows the government to demonstrate an officer who

conducted a warrantless search was authorized to do so because the

officer “reasonably (though erroneously)” relied on the apparent authority

of the person who consented to the search.        Id. (quoting Illinois v.

Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148,

160 (1990)).

      The State relies on the doctrine of consent by apparent authority to

justify the officer’s warrantless search of the backpack found in the

bedroom.   The doctrine has its genesis in the United States Supreme

Court’s decision in Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793,

111 L. Ed.2d 148. In that case, an assault victim accompanied police

officers to the defendant’s apartment, unlocked the door with a key she

had, and let the officers into the apartment. Id. at 179–80, 110 S. Ct. at
                                    12

2796–97, 111 L. Ed. 2d at 155–56. The officers did not have an arrest

warrant for the defendant or a search warrant to search the apartment.

Id. at 180, 110 S. Ct. at 2797, 111 L. Ed. 2d at 155–56. As the officers

moved through the premises, they observed drug paraphernalia and

containers filled with white powder later determined to be cocaine in

plain view in the living room. Id. at 180, 110 S. Ct. at 2797, 111 L. Ed.

2d at 156. They found additional containers filled with cocaine in two

open attaché cases in the bedroom. Id. After the officers arrested the

defendant on drug charges, he moved to suppress the evidence seized at

the time of his arrest on the ground that the victim no longer lived in the

apartment and therefore had no authority to consent to the entry and the

search. Id.

      The Supreme Court determined the State failed to prove the victim

had common authority over the premises to consent to the search. Id. at

181–82, 110 S. Ct. at 2797–98, 111 L. Ed. 2d at 156–57. This was not,

however, the end of the Court’s inquiry. The Court stated the question of

whether the officers violated the Fourth Amendment turned on an

objective factual determination as to whether the officers reasonably

believed the woman had authority to consent to the entry.       See id. at

188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161. The Court thus concluded

a warrantless search conducted pursuant to consent by a third party

does not violate the Fourth Amendment so long as the facts available to

the officers at the moment it occurred would “ ‘warrant a man of

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

over the premises.” Id. at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at

161 (quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880, 20

L. Ed. 2d 889, 906 (1968)).       “If not,” the Court explained, “then
                                    13

warrantless entry without further inquiry is unlawful unless authority

actually exists.” Id.

      In concluding searches conducted pursuant to consent by

apparent authority satisfy the Fourth Amendment, the Court reasoned

the Fourth Amendment requires law enforcement to make reasonable,

not perfect, factual determinations concerning the scope of authority

possessed by a person who consents to a search:

      It is apparent that in order to satisfy the “reasonableness”
      requirement of the Fourth Amendment, what is generally
      demanded of the many factual determinations that must
      regularly be made by agents of the government . . . is not
      that they always be correct, but that they always be
      reasonable. . . .

             We see no reason to depart from this general rule with
      respect to facts bearing upon the authority to consent to a
      search. Whether the basis for such authority exists is the
      sort of recurring factual question to which law enforcement
      officials must be expected to apply their judgment; and all
      the Fourth Amendment requires is that they answer it
      reasonably. The Constitution is no more violated when
      officers enter without a warrant because they reasonably
      (though erroneously) believe that the person who has
      consented to their entry is a resident of the premises, than it
      is violated when they enter without a warrant because they
      reasonably (though erroneously) believe they are in pursuit
      of a violent felon who is about to escape.

Id. at 185–86, 110 S. Ct. at 2800, 111 L. Ed. 2d at 159–60.

      However, the Court cautioned that apparent authority does not

necessarily exist merely because a person explicitly asserts a factual

basis suggesting he or she has authority to consent.      Id. at 188, 110

S. Ct. at 2801, 111 L. Ed. 2d at 161. Rather, a person could make such

an assertion and “the surrounding circumstances could conceivably be

such that a reasonable person would doubt its truth and not act upon it

without further inquiry,” in which case “warrantless entry without

further inquiry” would be unlawful unless the consenting party had
                                   14

actual authority. Id. at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.

Thus, the Court emphasized courts must use an objective standard to

determine whether apparent authority exists. Id. at 188, 110 S. Ct. at

2801, 111 L. Ed. 2d at 161. In addition, the Court acknowledged the

government bears the burden of establishing the effectiveness of third-

party consent. Id. at 181, 110 S. Ct. at 2797, 111 L. Ed. 2d at 156. The

Court remanded the case for a determination as to whether the officers

reasonably relied on apparent authority to authorize their entry into the

apartment because the appellate court had not determined whether

officers had reasonably believed the victim had authority to consent. Id.

at 189, 110 S. Ct. 2801, 111 L. Ed. 2d at 161.

      Rodriguez involved a circumstance in which officers discovered

evidence in plain view after they entered a home without a warrant based

on consent given by a person who lacked actual authority to consent to a

search of the home. In contrast, this case requires us to consider how

the doctrine of consent by apparent authority applies to a closed

container found inside a home searched by officers relying on consent

given by a person who had actual authority to consent to the search of

the home but lacked actual authority to consent to a search of the

container. The Supreme Court has yet to apply the doctrine of consent

by apparent authority to a closed container found within a home under

these circumstances. Nor is there agreement among the federal circuit

courts of appeal concerning how the apparent-authority doctrine applies

under such circumstances. See, e.g., United States v. Taylor, 600 F.3d

678, 685 (6th Cir. 2010); United States v. Snype, 441 F.3d 119, 136–37

(2d Cir. 2006); United States v. Waller, 426 F.3d 838, 847–49 (6th Cir.

2005); United States v. Melgar, 227 F.3d 1038, 1041–42 (7th Cir. 2000);

United States v. Salinas-Cano, 959 F.2d 861, 865–66 (10th Cir. 1992).
                                    15

       A. Circuits Concluding Officers Have a Duty to Inquire Before

Searching a Closed Container if a Reasonable Officer Would

Conclude the Authority of the Person Who Consented to a Premises

Search is Ambiguous. The Tenth Circuit applied the apparent-authority

doctrine in the context of a closed-container search in United States v.

Salinas-Cano. After officers arrested the defendant following a drug buy,

they asked his girlfriend for permission to search her apartment and

indicated they were specifically interested in the defendant’s possessions.

Salinas-Cano, 959 F.2d at 862. She consented and led the officers to the

area of the apartment where the defendant kept his belongings. Id. The

officers opened a closed suitcase belonging to the defendant and found

cocaine inside. Id. The district court denied the defendant’s motion to

suppress the evidence, and the defendant appealed. Id. at 863.

       The Tenth Circuit reversed, emphasizing the government bears the

burden of proving the effectiveness of third-party consent.    Id. at 862,

864.   The court concluded the government cannot meet this burden

when officers faced with an ambiguous situation concerning the

authority of the consenting party proceed to search without making

further inquiry. Id. at 864. The court determined a warrantless search

is unlawful without further inquiry “if the circumstances make it unclear

whether the property about to be searched is subject to ‘mutual use’ by

the person giving consent.” See id. (quoting United States v. Whitfield,

939 F.2d 1071, 1075 (D.C. Cir. 1991)). The court reasoned that under

Rodriguez, apparent authority exists only in “situations in which an

officer would have had valid consent to search if the facts were as he

reasonably believed them to be.” Id. at 865 (quoting Whitfield, 939 F.2d

at 1074).   The court therefore concluded the officer’s subjective belief

that the girlfriend had authority to consent to a search of the suitcase
                                     16

was insufficient to legitimize the search under the apparent-authority

doctrine. Id. at 866.

      It is not enough for the officer to testify, as he did here, that
      he thought the consenting party had joint access and control.
      The “apparent authority” doctrine does not empower the
      police to legitimize a search merely by the incantation of the
      phrase.

Id. at 865 (citation omitted).

      Based on Rodriguez, the Tenth Circuit concluded proper analysis

of apparent authority “rests entirely on the reasonableness of the officer’s

belief” that the consenting party had common authority over the

container searched. See id. The officers had not asked any question that

would have permitted them to determine whether the defendant’s

girlfriend had mutual use of his suitcase and authority to consent to a

search of it. Id. at 866. Therefore, because the information known to the

officers was insufficient to support a reasonable belief that the girlfriend

had actual authority to consent to a search of the defendant’s suitcase,

the court concluded she did not have apparent authority to consent to

the search. See id. According to the court, “To hold that an officer may

reasonably find authority to consent solely on the basis of the presence

of a suitcase in the home of another would render meaningless the

Fourth Amendment’s protection of such suitcases.” Id.

      The Tenth Circuit subsequently confirmed officers have a “duty to

investigate” when it is ambiguous whether the person who consents to a

premises search has authority over the location to be searched before

conducting a warrantless search of a closed container:

      Importantly, “where an officer is presented with ambiguous
      facts related to authority, he or she has a duty to investigate
      further before relying on the consent.”            Thus, the
      government cannot meet its burden of demonstrating a third
      party’s apparent authority “if agents, faced with an
                                       17
      ambiguous situation, nevertheless proceed without making
      further inquiry.”

United States v. Cos, 498 F.3d 1115, 1128 (10th Cir. 2007) (citations
omitted) (quoting United States v. Kimoana, 383 F.3d 1215, 1222 (10th

Cir. 2004)).

      The Sixth Circuit Court of Appeals analyzed whether a third party

had apparent authority to consent to a search of a closed container in a

similar manner in United States v. Waller. In Waller, officers arrested the

defendant in the parking lot of an apartment complex where his friend

was a tenant. 426 F.3d at 842. After the officers secured the defendant

and proceeded to the apartment, the tenant told them the defendant had

been storing some property there. Id. The tenant consented to a search

of the apartment. Id. During the search, the officers opened a closed

luggage bag they found in a bedroom closet and discovered a firearm. Id.

The officers asked the tenant and his girlfriend whether the luggage bag

or the firearm belonged to either of them. Id. Both individuals denied

ownership of both the bag and the firearm. Id. The defendant appealed

his conviction for being a felon in possession of a firearm. Id. at 843. He

argued the district court erred in denying his motion to suppress the

firearm evidence by ruling the officers had actual or apparent authority

to search the luggage bag. Id.

      After determining the tenant lacked common authority over the

luggage bag, the Sixth Circuit considered whether the tenant had

apparent authority to consent to the search of the bag. Id. at 844–46.

The court summarized the doctrine of consent by apparent authority

established in Rodriguez as follows:

      “When one person consents to a search of property owned by
      another, the consent is valid if ‘the facts available to the
      officer at the moment . . . warrant a man of reasonable
      caution in the belief that the consenting party had authority
                                     18
       over the premises.’ ” Whether the facts presented at the time
       of the search would “warrant a man of reasonable caution”
       to believe the third party has common authority over the
       property    depends     upon    all  of   the   surrounding
       circumstances. The government cannot establish that its
       agents reasonably relied upon a third party’s apparent
       authority “if agents, faced with an ambiguous situation,
       nevertheless proceed without making further inquiry. If the
       agents do not learn enough, if the circumstances make it
       unclear whether the property about to be searched is subject
       to ‘mutual use’ by the person giving consent, ‘then
       warrantless entry is unlawful without further inquiry.’ ”
       Where 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[.]”

Id. at 846 (alteration in original) (citations omitted) (first quoting United

States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996); then quoting

Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161;

then quoting United States v. McCoy, Nos. 97–6485, 97–6486, 97–6488,

1999 WL 357749, at *10 (6th Cir. May 12, 1999); and then quoting

Rodriguez, 497 U.S. at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161).
The court thus concluded the search of the bag was unlawful because

under the circumstances it was unclear to the officers whether the

tenant had common authority over it. Id. at 847, 849. Based on the
facts known to the officers, the court concluded a reasonable officer

would have found ambiguity existed with respect to the ownership of the

bag and thus with respect to the question of common authority. Id. at

849.

       In arriving at this conclusion, the Sixth Circuit reasoned that in

the context of a closed container, the existence of common authority to

consent derives from “mutual use of the property by persons generally

having joint access or control for most purposes.”      Id. at 845, 848–49

(quoting Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7, 39 L. Ed. 2d
                                    19

at 250 n.7).   Thus, the court emphasized that although officers might

have believed the tenant had some level of control over the bag, in light of

what the government would have had to prove to establish the tenant

had common authority to consent to a search of it, a reasonable officer

would have been “on notice of his obligation to make further inquiry prior

to conducting a search.” Id. at 848–49. In concluding the circumstances

were sufficiently ambiguous to place a reasonable officer on notice that

the tenant might not have had authority to consent to the search, the

court found both the context of the search and its purpose to be relevant:

      The facts in this case are clear: the police never expressed an
      interest in [the tenant’s] belongings in [the tenant’s]
      apartment. The very purpose of the police presence was to
      search for (presumably) illegal possessions of [the
      defendant’s]. Why would the police open the suitcase if they
      reasonably believed it belonged to [the tenant]? The answer
      is that they would not have opened the bag. They opened
      the bag precisely because they believed it likely belonged to
      [the defendant]. The police knew [the defendant] was storing
      belongings at the [the tenant’s] apartment. Most people do
      not keep a packed, closed suitcase in their own apartment.
      Deliberate ignorance of conclusive ownership of the suitcase
      does not excuse the warrantless search of the suitcase,
      especially when actual ownership could easily have been
      confirmed.

Id. at 849 (emphasis omitted).

      The Sixth Circuit concluded the district court erred in denying the

defendant’s motion to suppress and reversed his conviction. See id. It

did so because the officers failed to make inquiry before searching the

bag despite being on notice the tenant might not have had authority to

consent to a search of it. Id. at 848–49. The court thus concluded an

officer has a duty to inquire before relying on consent in circumstances

in which the authority of the consenting person is ambiguous.           Id. at

846–47.    The court stressed its conclusion was consistent with the
                                    20

Supreme Court’s decision in Rodriguez and decisions by other courts to

consider such circumstances. Id. (citing cases).

       The Sixth Circuit revisited this issue in United States v. Taylor.

There, officers arrested the male defendant in the apartment of his

childless female friend. Taylor, 600 F.3d at 679, 682. The officers then

asked the defendant’s friend for permission to search her apartment,

which she granted. Id. at 679. When the officers conducted the search,

they found a closed shoebox for a pair of men’s basketball shoes partially

covered by men’s clothes in the closet of a spare bedroom containing

men’s clothes, children’s clothes, and children’s toys. Id. Though the

defendant’s friend lived alone in the apartment, the officers made no

inquiry to determine whether she had authority to consent to a search of

the closed shoebox before opening it. Id. Inside the shoebox, they found

a handgun and ammunition belonging to the defendant. Id. at 680. The

government charged the defendant with being a felon in possession of a

firearm and ammunition. Id. The district court granted the defendant’s

motion to suppress the evidence, finding the defendant’s friend had

neither common authority nor apparent authority to consent to the

search of the shoebox. Id.

       The Sixth Circuit affirmed the district court decision granting the

defendant’s motion to suppress.     Id. at 679.    In doing so, the court

acknowledged the officers might have begun the search with a

reasonable belief that everything in the apartment was subject to mutual

use by its sole tenant. Id. at 681. But the court concluded “a reasonable

person would have had substantial doubts about whether the box was

subject to mutual use” by the tenant based on both the location where it

was found and the label indicating it was for a pair of men’s shoes. Id. at

682.   The court stated its conclusion was reinforced by the fact the
                                    21

district court found the officers likely would not have opened the shoebox

if they had believed it belonged to the tenant, rather than the defendant.

Id.

      B.   Circuits Concluding the Defendant Bears the Burden of

Demonstrating Officers Had Reason to Question the Authority of the

Person Who Consented to a Premises Search.            The Seventh Circuit

considered apparent authority in the context of a closed-container search

in United States v. Melgar. In Melgar, officers investigating the passing of

counterfeit checks obtained consent to search a motel room from the

woman who had rented it. 227 F.3d at 1039–41. While conducting a

search of the room, the officers found a purse with no identifying marks

under the mattress of one of the beds. Id. at 1040. Though the officers

knew several other women were staying in the room, they opened the

purse without asking any questions to determine whether it belonged to

the woman who rented the room.           See id. at 1039–40.     Inside, they

discovered counterfeit checks and a fake identification bearing a

photograph of the defendant, who was also staying in the room but had

not consented to the search. Id. at 1040. The defendant challenged the

district court’s denial of her motion to suppress the evidence found

inside the purse. Id.

      The Seventh Circuit concluded that because the police had no

reason to know the woman who consented to the search of the room

could not consent to a search of the purse, the district court correctly

denied the defendant’s motion to suppress.        Id. at 1041.     The court

rejected the defendant’s argument the officers should have inquired as to

the owner of the purse because they had matched the other purses in the

room to the other women staying there. Id. at 1040–41.
                                          22

       The Seventh Circuit acknowledged the lack of binding authority

concerning the proper application of the apparent-authority doctrine to

closed-container searches. See id. at 1041. However, the court framed

the question presented as follows:

       In a sense, the real question for closed container searches is
       which way the risk of uncertainty should run. Is such a
       search permissible only if the police have positive knowledge
       that the closed container is also under the authority of the
       person who originally consented to the search . . . , or is it
       permissible if the police do not have reliable information that
       the container is not under the authorizer’s control.

Id.

       In concluding the district court correctly denied the defendant’s

motion to suppress, the Seventh Circuit invoked the general rule that

consent to search a space generally extends to a container within it so

long as “a reasonable officer would construe the consent to extend to the

container” and precedents governing the searches of containers found in

automobiles.      Id. at 1041–42.         The court thus concluded apparent

authority exists so long as the officer who conducts a warrantless search

pursuant to third-party consent has no reliable information indicating

the consenting party has no control over the container being searched.
See id. In other words, the court concluded an officer may reasonably

construe a third party’s consent to search a premises to extend to all

closed containers within that premises unless the officer has “reliable

information” indicating a particular container is not within the third

party’s control. 3 See id. at 1041.

       3Incases decided both before and after Melgar, the Seventh Circuit expressly
acknowledged officers have “a duty to inquire further as to a third party’s authority to
consent to a search” before searching a closed container when “the surrounding
circumstances make that person’s authority questionable.” United States v. Goins, 437
F.3d 644, 648 (7th Cir. 2006); Montville v. Lewis, 87 F.3d 900, 903 (7th Cir. 1996).
Although the court has acknowledged “officers have a duty to inquire further as to a
                                           23

       The Second Circuit came to a similar conclusion in United States v.

Snype. In that case, officers discovered the defendant on the floor in the

bedroom of an apartment belonging to his friend’s girlfriend. Snype, 441

F.3d at 126–27. After the officers arrested the defendant and removed

him from the apartment, they obtained the girlfriend’s consent to search

it. Id. at 127. During the search, the officers opened a closed knapsack

and a closed red plastic bag they found on the floor in the room from

which they had just removed the defendant. Id. The knapsack and the

bag were sitting next to an open teller’s box filled with cash taken from

the bank the defendant was accused of robbing.                   Id.   The defendant

appealed his conviction for conspiracy to commit bank robbery, arguing

the district court improperly admitted the evidence found in the

knapsack and the bag. Id. at 125, 136.

       The    Second      Circuit    concluded      the    district    court   properly

determined the voluntary consent of the host had authorized the

warrantless search of the entire apartment and all items within it,

including the knapsack and the bag belonging to the defendant. Id. at

137. The court dismissed as conclusory the defendant’s argument that

the officers “had no objectively reasonable basis for concluding” the

tenant had any interest in the closed containers found beside him. See

id. at 136–37. Although the court acknowledged the host’s open-ended


________________________
third party’s authority” in some circumstances, it emphasizes “that is only true when
the circumstances make the authority questionable in the first place.” United States v.
Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010). To the extent these decisions
seem inconsistent, that inconsistency may stem from the fact that the Melgar court
concluded ambiguity concerning the authority of a third party exists only when an
officer has “reliable information” a container is not within the control of the person who
consents to a search. See Melgar, 227 F.3d at 1041. It is hard to see how ambiguity
concerning who has authority over a container could exist only when an officer has
“reliable information” concerning the answer to that very question.
                                    24

consent could not authorize a search or seizure of items found within the

apartment that “obviously belonged exclusively” to another person, it

found the district court did not err in admitting the evidence found inside

the knapsack and the red plastic bag.      Id. at 137.   Rather, the court

concluded the search did not violate the Fourth Amendment because the

defendant failed to adduce credible evidence demonstrating the knapsack

and the bag “so obviously belonged exclusively to him that the officers

could not reasonably rely” on the host’s unrestricted consent to search

the premises. See id. at 136–37.

      C.   Determination of the Applicable Test. Under Rodriguez, a

warrantless search of a closed container conducted pursuant to consent

by a third party does not violate the Fourth Amendment so long as the

person who consented had actual or apparent authority to consent to the

search.    See Rodriguez, 497 U.S. at 188–89, 110 S. Ct. at 2801, 111

L. Ed. 2d at 161 (quoting Terry, 392 U.S. at 21–22, 88 S. Ct. at 1880, 20

L. Ed. 2d at 906). The dispute among the federal circuit courts of appeal

concerns the question of who bears the burden of proving third-party

consent did or did not authorize a container search when the third party

had actual authority to consent to a search of a premises but lacked

actual authority to consent to a search of a container on that premises.

The Sixth and Tenth Circuits have concluded the government bears the

burden of demonstrating the officer inquired before searching a closed

container if the circumstances would have alerted a reasonable officer

that the person who consented to a search of the premises might not

have had authority to consent to a search of a closed container.       See

Taylor, 600 F.3d at 681; Salinas-Cano, 959 F.2d at 864. The Second and

Seventh Circuits have concluded the defendant bears the burden of

adducing evidence to show the officer could not have reasonably relied
                                     25

on third-party consent so long as the third party had authority to

consent to a search of the premises. See Snype, 441 F.3d at 136–37;

Melgar, 227 F.3d at 1041.        For the following reasons, we find the

reasoning of the Sixth and Tenth Circuits to be more persuasive than the

reasoning of the Second and Seventh Circuits.

       First, we recognize a privacy interest in a closed container is not

necessarily coextensive with a privacy interest in the surrounding

location in which the container is located:

              A privacy interest in a home itself need not be
       coextensive with a privacy interest in the contents or
       movements of everything situated inside the home. This has
       been recognized before in connection with third-party
       consent to searches. A homeowner’s consent to a search of
       the home may not be effective consent to a search of a closed
       object inside the home. Consent to search a container or a
       place is effective only when given by one with “common
       authority over or other sufficient relationship to the premises
       or effects sought to be inspected.”

United States v. Karo, 468 U.S. 705, 725, 104 S. Ct. 3296, 3308, 82

L. Ed. 2d 530, 548 (1984) (O’Connor, J., concurring) (quoting Matlock,

415 U.S. at 171, 94 S. Ct. at 993, 39 L. Ed. 2d at 250). As the Indiana

Supreme Court has pointed out, the Melgar court did not acknowledge
third-party consent to search a premises may implicate privacy interests

in a closed container that are distinct from those the third party had in

the premises. See Krise v. State, 746 N.E.2d 957, 967–68 (Ind. 2001).

We reject the notion that a guest assumes the risk the government might

unreasonably intrude upon a privacy interest in a closed container

merely by bringing the container into the home of another person. See

id.   As the United States Supreme Court has noted, “what is at issue

when a claim of apparent consent is raised is not whether the right to be

free of searches has been waived, but whether the right to be free of
                                   26

unreasonable searches has been violated.” Rodriguez, 497 U.S. at 187,

110 S. Ct. at 2801, 111 L. Ed. 2d at 161.

      Second, both the Supreme Court and this court have recognized

the home is entitled to special status in the Fourth Amendment context.

See Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041, 150

L. Ed. 2d 94, 100 (2001); State v. Ochoa, 792 N.W.2d 260, 276–77, 287

(Iowa 2010).      It does not square with the Fourth Amendment’s

recognition of the sanctity of the home to suggest bringing an object into

a home might diminish, rather than enhance, a person’s privacy interest

in that object.   See Karo, 468 U.S. at 717, 104 S. Ct. at 3304, 82

L. Ed. 2d at 542 (holding warrantless electronic monitoring of a beeper

inside a drum brought inside a home violated the Fourth Amendment).

      Third, when a defendant moves to suppress evidence obtained

when an officer conducted a warrantless search, the State bears the

burden of proving the search did not violate the Fourth Amendment.

Nitcher, 720 N.W.2d at 554.     The Supreme Court has indicated this

burden remains with the government in the context of third-party

consent. Rodriguez, 497 U.S. at 181, 110 S. Ct. at 2797, 111 L. Ed. 2d

at 156. Rodriguez made clear the government may meet its burden of

proving the effectiveness of third-party consent by two possible means.

Id. at 181, 188–89, 110 S. Ct. at 2798, 2801, 111 L. Ed. 2d at 156, 161.

First, the government may demonstrate the person consenting to the

search had actual authority to consent to a search of the location

searched. Id. at 181, 110 S. Ct. at 2798, 111 L. Ed. 2d at 156. Second,

the government may demonstrate the facts available to the officer when

the officer conducted the search would have warranted a person of

reasonable caution in the belief that the person consenting had authority

to consent to a search of the location searched. Id. at 188–89, 110 S. Ct.
                                    27

at 2801, 111 L. Ed. 2d at 161. It would improperly reverse the burden of

proof to require a defendant to disprove the effectiveness of the consent

relied upon by officers who searched a closed container belonging to the

defendant.

      Finally, to flip the presumption of unreasonableness that generally

applies to warrantless searches merely because a third party explicitly

granted consent to a premises search would be inconsistent with

Rodriguez. As the Supreme Court recognized in Rodriguez, even when a

person makes an assertion he or she has authority to authorize a search,

“the surrounding circumstances could conceivably be such that a

reasonable person would doubt its truth and not act upon it without

further inquiry.” Id. at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.

      The lesson of Rodriguez is that a warrantless search is not

authorized when the circumstances would cause a reasonable officer to

doubt whether the party consenting had authority to consent with

respect to the location to be searched.    The mere fact that an officer

subjectively relied on third-party consent does not render that reliance

reasonable. See id. at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.

Reliance on apparent authority to authorize a search is only reasonable

when the authority of the person consenting is actually apparent with

respect to the location to be searched.    Thus, when the totality of the

circumstances indicates a reasonable officer would have conducted

further inquiry to determine whether the person who consented to a

premises search had authority to consent to a search of a closed

container, the government must demonstrate the officer did just that in

order to establish the search of the container was reasonable.

      The government bears the burden of proving a warrantless search

was reasonable. Therefore, in determining whether a warrantless search
                                          28

of a container was reasonable based on the apparent authority of the

consenting party, the relevant question is not whether the defendant has

adduced enough evidence to prove an officer’s reliance on third-party

consent was unreasonable. 4            Rather, the question is whether the

government has proved by a preponderance of the evidence that

circumstances existing when the container was searched would have

warranted a person of reasonable caution in the belief that the person

who consented to a search of the premises also had authority over the

container. Waller, 426 F.3d at 846 (quoting Rodriguez, 497 U.S. at 188,

110 S. Ct. at 2801, 111 L. Ed. 2d at 161).

       The government cannot demonstrate an officer reasonably relied

on apparent authority to authorize a search if the officer proceeded

without making further inquiry when faced with an ambiguity concerning

the question of whether the container to be searched was subject to

ownership or mutual use by the consenting party.                 See id. at 846–47.

When an officer faced with such ambiguity searches a closed container

without a warrant and without inquiring enough to clarify whether the

person who consented to a premises search had authority to consent to a

search of the container, the search is unlawful. See Rodriguez, 497 U.S.

at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161; Waller, 426 F.3d at

846.

       D. Analysis. As the district court noted, the State presented no

evidence to indicate Olson had actual authority to consent to a search of

Jackson’s     backpack.        In   addition,    the   State    conceded      Jackson

       4
        The defendant may prove it was unreasonable for an officer to rely on third-
party consent by demonstrating the officer had reliable information indicating the
consenting party lacked authority to consent to the search of a closed container or that
it was obvious the container belonged exclusively to the defendant. Cf. Snype, 441 F.3d
at 136–37; Melgar, 227 F.3d at 1041.
                                   29

maintained control over his backpack as a guest in Olson’s bedroom.

Thus, we must determine whether Olson had apparent authority to

consent to the search of Jackson’s backpack.

      The first step in our analysis is to determine whether the State

proved by a preponderance of the evidence the facts and circumstances

known to the officers when Jackson’s backpack was searched would

have warranted a person of reasonable caution in the belief that Olson

had authority over the backpack. If so, Officer Smithey reasonably relied

on apparent authority to authorize the warrantless search without

making further inquiry.    To answer this question, we must consider

whether a reasonable officer would have found Olson’s authority to

consent to a search of the backpack ambiguous based on the facts and

circumstances known to the officers. See Waller, 426 F.3d at 847.

      The evidence shows the officers knew the following facts when

Officer Smithey conducted the search of the closed backpack.          The

officers initiated contact with the occupants of the apartment because

they saw a black male observing them from the window and suspected

he was involved in the robbery. The officers had just responded to a call

about a robbery allegedly committed by two black males and followed

footprints in the snow to the building in which the apartment was

located.    They were not responding to a call originating inside the

apartment. When the officers knocked on the front door, it was nearly

1:00 a.m.    After Turner answered the door and let the officers inside,

Turner and Miller told the officers they lived in the apartment with their

roommate, Olson.

      Turner and Miller indicated Olson was the only other person

present in the apartment, but that turned out to be untrue.         When

Officer Smithey asked Olson if he could peek inside his bedroom, Olson
                                      30

acknowledged Jackson was asleep in his bed.        Olson told the officers

Jackson was not in the apartment when he went to sleep and he awoke

to discover Jackson sleeping beside him, but he did not suggest he was

alarmed to discover Jackson in his bed. No one suggested to the officers

that Jackson had broken into the apartment or had recently arrived, and

no one indicated anything suspicious had occurred that evening.

Rather, Turner indicated he had been home since approximately

9:00 p.m. and nothing suspicious had occurred since that time.         The

officers did not ask Turner, Miller, or Olson if Jackson was staying in the

apartment or if he had any belongings there.        Although the officers

noticed Jackson was sweaty and difficult to rouse from slumber, they

found him to be cooperative once he was awake.

      Before Officer Smithey informed Jackson of the outstanding

warrant for his arrest and escorted him from the room, the officers did

not ask him if he was staying in the apartment or had any belongings

there. When the officers later asked Olson if there were any guns in his

bedroom, he responded that there should not be or there were not any

that he knew of. Olson then consented to a search of the room for guns

or evidence of the robbery, but neither officer asked whether he owned

the backpack or confirmed that everything in the room belonged to him.

The backpack was sitting a few feet from the bed where Jackson had just

been sleeping along the wall next to or partly inside the closet door,

which was partially off its hinges.

      We conclude the circumstances existing when Officer Smithey

conducted the search of the backpack would cause a person of

reasonable caution to question whether the backpack belonged to

Jackson or Olson and whether it was subject to mutual use by Olson.

See id. at 849.    First, although no one in the apartment referred to
                                    31

Jackson as an overnight guest, the circumstances clearly suggested

Jackson was an overnight guest.          When the officers arrived at the

apartment in the middle of the night, Jackson appeared to be asleep in a

bed. Olson stated he was not sure when Jackson arrived, but he was not

alarmed when he awoke to discover Jackson partially clothed beside him

in bed.     Obviously Olson and Jackson were familiar enough that

Jackson’s presence in Olson’s room late at night was not an unusual

occurrence. In fact, there was reason to believe Jackson had a key to the

apartment because Turner and Miller did not appear to know Jackson

was in the apartment and Olson indicated Jackson arrived when he was

asleep.     In other words, the information available to the officers

suggested Jackson arrived at the apartment when no one was home

sometime after Olson went to sleep but before Turner arrived home from

work.

        Second, the circumstances known to the officers were sufficient to

alert them to the fact that Jackson had clothes other than the pajama

pants he was wearing at the apartment. The officers knew it was cold

enough outside that Jackson probably had some sort of warmer apparel

at the apartment, as there was fresh snow on the ground and they had

followed footprints in the snow to the apartment building. The floor plan

of the apartment was such that Jackson would have had to enter it from

outdoors.

        Third, the circumstances indicated it was likely the clothes

Jackson was wearing when he arrived at the apartment were in Olson’s

bedroom. Jackson was asleep on the bed in Olson’s bedroom wearing

pajama pants when the officers arrived. Yet the statements Turner and

Miller made to the officers indicated they did not know Jackson was in

the apartment.     Had Jackson changed into the pajama pants in the
                                     32

bathroom, kitchen, or living room and left his clothes there, Turner and

Miller likely would have seen them and known Jackson was in the

apartment. Thus, the fact that Turner and Miller did not know Jackson

was in the apartment suggested he either changed into the pajama pants

in Olson’s room or moved his clothes to Olson’s room after putting the

pajama pants on. Moreover, a backpack is the sort of container a person

staying overnight in a place other than his or her home might use to hold

clothing and other personal items.

         Fourth, the statements Olson made suggested he knew there were

items in his bedroom that did not belong to him. Olson did not answer

definitively when asked whether there was a gun in the room.         Had

everything in the room that could conceal a gun belonged to Olson, he

could have stated with certainty that there was no gun in the room.

Instead, Olson waffled. His uncertainty in response to a direct question

suggested he knew there were items in the room that did not belong to

him and knew that one of those items might be a container concealing a

gun from plain view.

         Faced with these circumstances, we conclude a reasonable officer

would have doubted whether Jackson owned the backpack and

questioned whether Olson had authority to consent to a search of it. See

id. at 848.     The State does not dispute the officers made no inquiry

concerning who owned the backpack before Officer Smithey searched it.

Nor does the State suggest either officer ever asked anyone whether

Jackson was staying in the apartment or had any personal belongings

there.     Had the officers asked questions intended to clarify whether

Olson had authority to consent to the search of the backpack, Officer

Smithey might have reasonably relied on the answers the officers

received to proceed with a warrantless search based on Olson’s apparent
                                   33

authority to consent. However, the officers asked no questions to clarify

who owned or used the backpack before Officer Smithey searched it even

though the circumstances indicated Olson’s authority to consent to a

search of the backpack was ambiguous. Because the officers asked no

such questions, Officer Smithey’s reliance on Olson’s consent to a search

of his room to authorize a warrantless search of the backpack was

unreasonable.     In short, because the circumstances were unclear and

the officers sought no clarification, Officer Smithey could not reasonably

rely on apparent authority to authorize a warrantless search of the

backpack.

      The district court concluded the officers might have reasonably

believed Jackson likely ran to the apartment after the robbery and

feigned sleep.    We do not disagree.   However, the circumstances also

suggested Jackson was either an overnight guest or staying in the

apartment. The fact the officers might have reasonably thought one of

these scenarios was more likely than the other does not eliminate the

fact the circumstances were ambiguous.      Moreover, if Officer Smithey

reasonably believed Jackson was one of the restaurant robbers when he

searched the backpack, that suggests he did not reasonably believe

Olson had authority over the backpack when he searched it. If the very

purpose of the search was to find evidence linking Jackson to the

robbery, Officer Smithey would have had no motivation to open the

closed backpack unless he believed it might have belonged to Jackson.

See id. at 849.

      Finally, we note apparent authority is only a lawful basis for a

search in “situations in which an officer would have had valid consent to

search if the facts were as he reasonably believed them to be.” Salinas-

Cano, 959 F.2d at 865 (quoting Whitfield, 939 F.2d at 1074). Thus, even
                                   34

if Officer Smithey reasonably believed Jackson had just arrived in the

apartment, he could only reasonably rely on apparent authority to justify

the search of the backpack so long as he reasonably believed Olson

owned it. In light of the facts known to the officers when Officer Smithey

opened the backpack, after realizing it contained a wallet and clothing

recently worn outside, a reasonable officer would have been on notice

that the backpack might not belong to Olson.

      Nonetheless, when Officer Smithey removed the wallet from the

backpack, he initially declined to open it. Instead, he reached into the

backpack again, felt the wet hem on the jeans, and realized they had just

been worn outside in the snow. At that point, if not before, a reasonable

officer would have suspected the backpack likely belonged to Jackson.

However, instead of stopping the search, Officer Smithey removed the

jeans from the backpack and saw the gun beneath them. Only then did

he open the wallet to confirm his suspicion that Jackson owned the

backpack. The fact that he did so confirms he recognized it was unclear

who owned the backpack by the time he removed the jeans from within

it. Because Officer Smithey could not have reasonably believed it was

certain that Olson owned the backpack, yet declined to open the wallet

sooner despite the ambiguous circumstances, his continued reliance on

Olson’s consent to authorize the warrantless search was unreasonable.

      Because   we   conclude    the    circumstances   were   sufficiently

ambiguous to place a reasonable officer on notice of his obligation to

make inquiry as to who had authority to consent to a search of the

closed backpack prior to searching it, we conclude the warrantless

search of the backpack was unlawful under the Fourth Amendment. See

Waller, 426 F.3d at 849.    Thus, the district court erred in failing to

suppress the evidence found in the backpack and the fruits of the
                                      35

unlawful search. See Wong Sun v. United States, 371 U.S. 471, 484–85,

83 S. Ct. 407, 415–16, 9 L. Ed. 2d 441, 453–54 (1963).

      VI. The Defendant’s Claim Under the Iowa Constitution.

      Jackson also claims the State violated his rights under article I,

section 8 of the Iowa Constitution.         Article I, section 8 of the Iowa

Constitution provides that “[t]he right of the people to be secure in their

persons, houses, papers and effects, against unreasonable seizures and

searches shall not be violated.” Iowa Const. art. I, § 8.

      We jealously guard our right to construe a provision of our state

constitution differently than its federal counterpart, though the two

provisions may contain nearly identical language and have the same

general scope, import, and purpose.        Kooima, 833 N.W.2d at 206; see

Varnum v. Brien, 763 N.W.2d 862, 878 n.6 (Iowa 2009). We also reserve

our right to independently apply a federal standard more stringently than

federal    caselaw   when   construing     the   requirements   of    our   state
constitution, whether or not a party has advanced a different standard

applies under the state constitution. Kooima, 833 N.W.2d at 206; see

Varnum, 763 N.W.2d at 879 n.6.

      However, because we conclude the warrantless search violated the

federal constitution, we need not decide whether independent analysis or

a   more    stringent   application   of   the   federal   standard   governing

warrantless searches is required under our state constitution.               See

Ochoa, 792 N.W.2d at 267; cf. Racing Ass’n of Cent. Iowa v. Fitzgerald,

675 N.W.2d 1, 4–7 (Iowa 2004) (describing this court’s obligation to

independently evaluate constitutionality under our state constitution

when conduct does not violate the federal constitution). Thus, we do not

consider whether a warrantless search is valid under our state
                                    36

constitution when the individual who consented to a search of a

premises had apparent authority, but not actual authority, to consent to

a search of a closed container on that premises. See, e.g., State v. Lopez,

896 P.2d 889, 903 (Haw. 1995); State v. McLees, 994 P.2d 683, 690–91

(Mont. 2000); State v. Wright, 893 P.2d 455, 460–61 (N.M. Ct. App.

1995); State v. Will, 885 P.2d 715, 719–20 (Or. Ct. App. 1994). Nor do we

consider whether Jackson’s trial counsel was constitutionally ineffective

for failing to argue the state constitution permits a warrantless search of

a closed container based on consent to a premises search only when the

person who consented to the premises search had actual authority to

consent to a search of the closed container.

      VII. Disposition.

      Because the State failed to prove Olson had apparent authority to

consent to a search of Jackson’s backpack, we conclude the warrantless

search was unlawful under the Fourth Amendment of the United States
Constitution without further inquiry. Because the district court erred in

denying Jackson’s motion to suppress the evidence found in the

backpack and the fruits of the unlawful search, we vacate the decision of

the court of appeals, reverse the judgment of the district court, and

remand the case for a new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Appel, J., who concurs specially, and

Zager, Waterman, and Mansfield, JJ., who dissent.
                                      37

                                                   #14–0067, State v. Jackson

APPEL, Justice (concurring specially).

        I concur in the majority opinion. I would base the decision in this

case, however, on article I, section 8 of the Iowa Constitution.

        First, article I, section 1 declares that men and women have

certain “inalienable rights,” among those being “enjoying and defending

life and liberty . . . .”   The general declaration of inalienable rights is

given further definition in article I, section 8 of the Iowa Constitution,

which provides,

        The right of the people to be secure in their persons, houses,
        papers and effects, against unreasonable seizures and
        searches shall not be violated; and no warrant shall issue
        but on probable cause, supported by oath or affirmation,
        particularly describing the place to be searched, and the
        persons and things to be seized.

The constitutional focus of article I, section 8 is on protecting personal,

inalienable rights at the very heart of freedom, the right to be secure in

one’s    home   and   personal    effects   from   unwarranted     government

invasions. See State v. Young, 863 N.W.2d 249, 278 (Iowa 2015) (“The

bill of rights of the Iowa Constitution embraces the notion of ‘inalienable

rights’ . . . .”); State v. Short, 851 N.W.2d 474, 484 (Iowa 2014) (noting

the role of article I, section 1 in this court’s decision in Coger v. Nw.

Union Packet Co., 37 Iowa 145 (1873), which rejected the notion that

African Americans could be subjected to different treatment in public

transportation); Joseph R. Grodin, Rediscovering the State Constitutional

Right to Happiness and Safety, 25 Hastings Const. L. Q. 1, 22 (1997)

(“[M]ost courts have assumed that the inalienable rights clauses have

some judicially enforceable content.”).

        Second, the United States Supreme Court, in recent innovations,

has undercut its own previous recognition of the traditional and
                                     38

fundamental concept that search and seizure protections are personal

rights. In Stoner v. California, the Court declared that the right to be free

from a warrantless search was “a right . . . which only the petitioner

could waive . . . either directly or through an agent.” 376 U.S. 483, 489,

84 S. Ct. 889, 893, 11 L. Ed. 2d 856, 860 (1964). Consistent with the

personal-rights theory of search and seizure protections, after Stoner, the

Court held that search and seizure rights are personal rights which

cannot be asserted by a third party. Rakas v. Illinois, 439 U.S. 128, 133–

34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387, 391 (1978).         Although the

Court significantly and unworkably undermined the concept of consent

in Schneckloth v. Bustamonte, consent was still described as a situation

“where a person foregoes a constitutional right.” 412 U.S. 218, 245, 93

S. Ct. 2041, 2057, 36 L. Ed. 2d 854, 873 (1973).

      The Court, however, upset the logic and balance of its prior

consent cases in Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 111

L. Ed. 2d 148 (1990). In Rodriguez, the Court abandoned its focus on the

personal nature of search and seizure protections and instead developed

a new test of consent based on the reasonableness of police conduct. Id.

at 184, 110 S. Ct. at 2799, 111 L. Ed. 2d at 158; see Christo Lassiter,

Consent to Search by Ignorant People, 39 Tex. Tech L. Rev. 1171, 1173

(2007) (characterizing Rodriguez as “a new approach”).

      This new approach to consent embraced by the Court in Rodriguez

stands in strong contradiction to its prior caselaw.        We should not

embrace this new approach to consent under the Iowa Constitution,

which protects inalienable rights, including those related to search and

seizure in article I, section 8.          We have rejected “socio-juristic

rationalizations” or “dilution” theories in search and seizure law. State v.

Cullison, 173 N.W.2d 533, 536 (Iowa 1970).
                                            39

        Third, while the United States Supreme Court in Rodriguez and

other later cases has sought to shrink the warrant requirement through

radiations emanating from a highly pliable reasonableness clause, we

have declined to adopt this additional revision of traditional search and

seizure law under article I, section 8 of the Iowa Constitution. Instead,

we have reaffirmed the primacy of the warrant requirement. See State v.

Ochoa, 792 N.W.2d 260, 269 (Iowa 2010).

        We examined these developments at length in State v. Short, 851

N.W.2d 474.       As noted in Short, our constitutional jurisprudence has

long emphasized the primacy of the warrant requirement. Id. at 503. In

Short, we reiterated the traditional view that the constitutional workhorse

of the search and seizure protections under article I, section 8 is the

warrant requirement.         Id. at 506.     As explained in Short, the warrant

requirement mandates not only that searches be approved by a neutral

magistrate, but equally importantly that the scope of the search be well

defined and that probable cause exists to support it.              Id. at 502–03.

Short    firmly   rejected    the    view    that   a   freestanding   concept   of

“reasonableness . . . [was] the touchstone of search and seizure law.” Id.

at 501.     We stated in Short that such an approach eviscerated the

protections available under search and seizure law. Id. at 501–02.

        There are, as recognized in Short, exceptions to the ordinarily

required warrant based largely upon the impracticability of obtaining a

warrant.     Id. at 496–97.         There is no claim in this case that the

warrantless search here was supported by exigent circumstances or a

search incident to arrest. The search is supported solely on the theory of

consent. The question thus is whether the defendant here consented to

forego the constitutional protections offered by the warrant requirement
                                      40

under article I, section 8.    If a person grants consent to a search or

seizure, the protections of article I, section 8 are inapplicable.

      Fourth, in evaluating consent, the sole focus is whether the

individual has elected to forgo personal constitutional protections,

thereby rendering constitutional limitations inapplicable.           The focus

should laser in on the only relevant constitutional issues: Did the

defendant give consent, and was the consent voluntary or coerced?

      We must thus separate the wheat from the chaff.                 Consent

searches have nothing to do with the impracticability of obtaining a

warrant.   Impracticability is beside the point.     Consent searches have

nothing to do with the reasonability of police conduct. Otherwise, the

personal search and seizure protections of article I, section 8 are turned

upside down and subverted from providing personal protections into an

enabling act allowing police to engage in warrantless searches without

consent as long as the search meets some freewheeling post-hoc concept

of reasonableness.      See Thomas Y. Davies, Denying a Right by

Disregarding Doctrine: How Illinois v. Rodriguez Demeans Consent,

Trivializes Fourth Amendment Reasonableness, and Exaggerates the

Excusability of Police Error, 59 Tenn. L. Rev. 1, 6 (1991) [hereinafter

Davies].

      Here, it is clear there was no actual consent.           Further, it is

undisputed that no third party had actual authority to give consent.

Under article I, section 8, a warrant is thus required to conduct the

search, unless some exception to the warrant requirement is present.

Because the State does not claim any other basis to support the search,

the results of the search are based on an unauthorized third-party

consent and must be suppressed.
                                     41

      In this case, counsel for Jackson did not argue that article I,

section 8 of the Iowa Constitution should be construed differently from

its federal counterpart.     In my view, Jackson received ineffective

assistance of counsel because of his failure to raise the issue.    As we

have previously stated, defense lawyers must “take pains to guarantee

that their training is adequate and their knowledge up-to-date in order to

fulfill their duty as advocates.”   State v. Vance, 790 N.W.2d 775, 785

(Iowa 2010) (quoting ABA Standards for Criminal Justice: Prosecution

Function and Defense Function 4-1.2(e) cmt., at 122–23 (3d ed. 1993)).

Further, an effective attorney is one who “diligently devotes him or

herself to scholarly study of the governing legal principles” implicated in

a given case. Id. at 786 (quoting 16 Gregory C. Sisk & Mark S. Cady,

Iowa Practice Series: Lawyer and Judicial Ethics, § 5:1(b), at 140 (2007)).

A lawyer conforming to these standards would have been aware of the

willingness of state courts, including Iowa’s, to depart from United States

Supreme Court precedent in the search and seizure area, of the caselaw

from other jurisdictions where state supreme courts have declined to

follow Rodriguez, and of the academic literature criticizing the consent

doctrine adopted in Rodriguez. See State v. Lopez, 896 P.2d 899, 901–02

(Haw. 1995); State v. McLees, 994 P.2d 683, 691 (Mont. 2000); State v.

Wright, 893 P.2d 455, 461 (N.M. Ct. App. 1995); State v. Will, 885 P.2d

715, 719 (Or. Ct. App. 1994); State v. Morse, 123 P.3d 832, 838 (Wash.

2005); Davies, 59 Tenn. L. Rev. at 8–10.

      For the above reasons, I would thus hold that the search in this

case is constitutionally infirm under article I, section 8 of the Iowa

Constitution.
                                      42

                                                #14–0067, State v. Jackson

ZAGER, Justice (dissenting).

        I respectfully dissent.

        After thoroughly reviewing all of the evidence, the district court

concluded that under the Fourth Amendment, Olson had apparent

authority to consent to the search of the backpack located in his

bedroom. I agree, and I would affirm the decision of the court of appeals

and the judgment of the district court.

        As a preliminary matter, I agree with the conclusion reached by the

majority that this case can be decided under the Fourth Amendment to

the United States Constitution and the cases cited therein. See Illinois v.

Rodriguez, 497 U.S. 177, 186, 110 S. Ct. 2793, 2800, 111 L. Ed. 2d 148,

160 (1990).        However, I also think it is important to recognize the

standard of review that must be utilized. Our review in this case is de

novo. State v. Gaskins, 866 N.W. 2d 1, 5 (Iowa 2015). “Because this

case concerns the constitutional right to be free from unreasonable

searches and seizures, our review of the district court’s suppression

ruling is de novo.”      Id. (quoting State v. Watts, 801 N.W.2d 845, 850

(Iowa    2011)).      “We   independently   evaluate   the   totality   of   the

circumstances found in the record, including the evidence introduced at

both the suppression hearing and at trial.” Id. (quoting State v. Vance,

790 N.W.2d 775, 780 (Iowa 2010)).

        I. General Search and Seizure Principles.

        The Fourth Amendment to the United States Constitution provides:

        The right of the people to be secure in their persons, houses,
        papers, and effects, against unreasonable searches and
        seizures, shall not be violated, and no Warrants shall issue,
        but upon probable cause, supported by Oath or affirmation,
        and particularly describing the place to be searched, and the
        persons or things to be seized.
                                   43

U.S. Const. amend. IV.     Both the Fourth Amendment and article I,

section 8 of the Iowa Constitution protect the right of individuals to be

free from unreasonable searches and seizures.     Id.; Iowa Const. art. I,

§ 8.

       “Warrantless searches are per se unreasonable if they do not fall

within one of the well-recognized exceptions to the warrant requirement.”

State v. Tyler, 867 N.W.2d 136, 169 (Iowa 2015) (quoting State v. Lowe,

812 N.W.2d 554, 568 (Iowa 2012)).       Under the Fourth Amendment, a

warrant is not required to authorize a search performed pursuant to

voluntary consent. See State v. Pals, 805 N.W.2d 767, 777 (Iowa 2011).

Likewise, we have recognized that an officer may rely on the consent of a

third party to authorize a warrantless search, so long as the

circumstances indicate the third party had actual authority to consent to

a search of the location. See, e.g., State v. Campbell, 326 N.W.2d 350,

352 (Iowa 1982).    The State has conceded that there was no actual

authority for the third party—Olson—to consent to the search of the

backpack.

       II. Apparent Authority to Consent to a Search.

       Under the Fourth Amendment, a law enforcement officer is entitled

to rely on the consent of a third party authorizing a warrantless search

based on that third party’s apparent authority to consent to the search in

question. Rodriguez, 497 U.S. at 186, 110 S. Ct. at 2800, 111 L. Ed. 2d

at 160.   The Supreme Court has made it clear that under the Fourth

Amendment, law enforcement officers may conduct a search based on

the consent of a party who does not have actual authority over the

property to be searched, so long as the officers reasonably (though

erroneously) believe that the person who has consented to their entry

had authority over the premises. Id. In Rodriguez, the Court concluded
                                   44

a warrantless search conducted after obtaining the consent of a third

party does not violate the Fourth Amendment so long as the facts

available to the officers at the time of the search occurred would

“ ‘warrant a man of reasonable caution in the belief’ that the consenting

party had authority over the premises.” Id. at 188, 110 S. Ct. at 2801,

111 L. Ed. 2d at 161 (quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct.

1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). If not, “warrantless entry

without further inquiry is unlawful unless authority actually exists.” Id.

at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.              The Court

cautioned that “surrounding circumstances could conceivably be such

that a reasonable person would doubt [an individual’s assertion of

authority] and not act upon it without further inquiry.” Id. at 188, 110

S. Ct. at 2801, 111 L. Ed. 2d at 161. As such, we utilize an objective

standard to determine whether apparent authority existed at the time of

a warrantless search. Id.

      We have adopted these doctrines through our own case law. See,

e.g., Lowe, 812 N.W.2d at 576. Relying on Rodriguez, we confirmed that

the authority to consent includes not only actual authority, but also

apparent authority.   Id.   We also confirmed that apparent authority

validates a search when officers “enter without a warrant because they

reasonably (though erroneously) believe that the person who has

consented to their entry” had the authority to do so.       Id.     (quoting

Rodriguez, 497 U.S. at 186, 110 S. Ct. at 2800, 111 L. Ed. 2d at 160).

We apply an objective standard when analyzing consent and ask,

“[W]ould the facts available to the officer at the moment . . . warrant a

[person] of reasonable caution in the belief that the consenting party had

authority over the premises?” Id. (second alteration in original) (quoting

Rodriguez, 497 U.S. at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161).
                                      45

      A. Apparent Authority Applied to Closed Containers.                As the

majority properly notes, the Supreme Court has yet to apply the doctrine

of consent by a third party to the search of another’s closed container

under the theory of apparent authority. I also recognize that there is a

split of authority as to the application of the doctrine among the federal

circuit courts of appeal. However, what is clear is that any analysis of

the doctrine is highly fact-specific. It is equally clear that it is only in

those circumstances where ambiguity exists that it is reasonable to

require that officers make further inquiry regarding the ownership of the

closed container.      “Even when the invitation is accompanied by an

explicit   assertion   that   the   person   lives   there,   the   surrounding

circumstances could conceivably be such that a reasonable person would

doubt its truth and not act upon it without further inquiry.” Rodriguez,

at 188, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161. While acknowledging a

split of authority, a review of various decisions of the United States

Courts of Appeal confirms several conclusions. First, the facts in those

cases are distinguishable from the facts presented here. Second, there is

no ambiguity relating to the authority of Olson to consent to the search

of the backpack in this case. Therefore, the law enforcement officers had

no duty to make further inquiry before they searched the backpack.

      1. Tenth Circuit Court of Appeals. In United States v. Salinas-Cano,

the defendant was arrested following a controlled drug buy. 959 F.2d

861, 862 (10th Cir. 1992). After his arrest, police went to his girlfriend’s

apartment and asked her for permission to search. Id. The police told

her they were specifically interested in Salinas-Cano’s possessions. Id.

She consented to the search and told the police where Salinas-Cano kept

his belongings at her apartment. Id. The police opened what they had
                                     46

just been advised was Salinas-Cano’s closed but unlocked suitcase,

where they discovered cocaine. Id.

      In addition to the obvious differences between the facts of Salinas-

Cano and the case presently before us, the legal arguments were also

distinct.   In Salinas-Cano, the government primarily relied on the

concepts of actual authority, joint access, and control in arguing for the

admissibility of the evidence.    See id. at 863.    The government also

attempted to utilize the apparent authority doctrine because the officer

testified he thought the consenting party—the girlfriend—had joint access

and control. Id. at 865. As properly concluded by the court, apparent

authority “does not empower the police to legitimize a search merely by

the incantation of the phrase.”    Id.    The analysis should instead rest

entirely upon the reasonableness of the officer’s belief in the apparent

authority. Id.

      There is no logical correlation between the facts in Salinas-Cano

and the facts in the case now before us.         I would agree there may

arguably be ambiguity under the facts presented in Salinas-Cano

regarding actual authority, joint access, and control.       Under those

circumstances, further inquiry by police would appear reasonable. The

failure to make this further inquiry regarding actual authority, joint

access, and control over what the officers knew was someone else’s

property was unreasonable. However, the decision in that case bears no

factual similarity to the facts of our case and does not help inform the

outcome here.

      2. Sixth Circuit Court of Appeals. The case currently before us is

also clearly distinguishable from the facts considered by the Sixth Circuit

in United States v. Waller. 426 F.3d 838 (6th Cir. 2005). After a falling

out with the owners of his previous residence, Waller obtained
                                    47

permission from a friend to store his personal belongings in the friend’s

apartment. Id. at 842. Waller kept a brown luggage bag, garbage bags of

clothing, and food at the friend’s apartment. Id. He also ate, showered,

and changed clothes at the apartment, but he did not sleep there. Id.

Waller was later arrested in the parking lot of the apartment complex

where the friend resided. Id. After arresting Waller in the parking lot,

the arresting officers proceeded to the apartment. Id. Waller’s friend, the

tenant, advised the officers that Waller had been storing some property

in his apartment.     Id.   The friend consented to the search of the

apartment, and the police began searching for personal items belonging

to Waller. Id. One of the officers found the zipped brown luggage bag in

the bedroom closet, opened it, and discovered two handguns. Id.

      Relying on Rodriguez, the court stated, “[W]here 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[.]’ ”   Id. at 846 (alteration in

original) (quoting Rodriguez, 497 U.S. at 188–89, 110 S. Ct. at 2801, 111

L. Ed. 2d at 161). The court concluded that “the circumstances made it

unclear whether Waller’s luggage bag was ‘subject to mutual use by’ [his

friend] and therefore the officers’ warrantless entry into that luggage

without further inquiry was unlawful.” Id. at 847. As will be discussed

below, ambiguous facts related to mutual use and apparent authority are

not present in our case.

      3. Seventh Circuit Court of Appeals. The facts considered by the

Seventh Circuit in United States v. Melgar are most analogous to the

facts before us now.        227 F.3d 1038 (7th Cir. 2000).        In their

investigation of the charges of passing counterfeit checks, officers

obtained consent to search a motel room from the woman who had
                                      48

rented it. Id. at 1039. There were a number of other people in the room

when the officers arrived. Id. While conducting a search of the room, the

officers found a purse with no identifying marks on it under the mattress

of the hotel bed. Id. at 1040. Without inquiring further as to which of

the occupants owned the purse, the officers opened it. Id. The court

rejected the argument that the officers should have inquired further as to

the actual ownership of the purse. Id. at 1041–42. The court concluded

that apparent authority exists so long as the officer who conducts a

warrantless search pursuant to third-party consent has no reliable

information indicating that the consenting party has no authority over

the container being searched. Id.

      The majority rejects the Seventh Circuit’s approach for requiring

such “reliable information.”    However, I believe that requiring some

reliable facts is the most logical approach. The facts are even stronger in

our case. Olson, the sole tenant of the room, provided consent to search

his bedroom.    After being granted consent to search, police had no

reason to believe there was any limitation on the consent unless some

information,   whether    expressed    by   someone   or   clear   from   the

circumstances, alerted the officers that the authority to search a closed

container in his bedroom may be in question. A simple “that purse isn’t

mine” on the facts of Melgar, or a simple “that’s not my backpack” here,

would seem to suffice. Simply standing mute does not.

      4. Second Circuit Court of Appeals.       The facts of the Second

Circuit’s decision in United States v. Snype are so convoluted that even a

full recitation would not, in my opinion, contribute to a principled

resolution of our case.     See 441 F.3d 119, 125–27 (2d Cir. 2006).

However, the one principle that does evolve from this opinion is the

approach to apparent authority taken by the Second Circuit.               The
                                    49

approach taken in Snype is that an open-ended consent to search an

apartment by a lessee permits the search and seizure of any items found

in the apartment with the exception of those that “obviously belonged” to

another person.    Id. at 137.    This is a fact question to be decided

objectively based on a review of the unique facts and circumstances of

each case.

      III. Applicable Test.

      The majority spends a considerable number of pages attempting to

decide who has the burden of proof in a case of apparent authority to

search when consent is given by a third party.         There is really no

question that the government bears the burden of proving that any

search does not violate the Fourth Amendment. Under Rodriguez, when

consent to a warrantless search is given by a third person, such consent

must be based on actual or apparent authority. See Rodriguez, 497 U.S.

at 188–89, 110 S. Ct. at 2801, 111 L. Ed. 2d at 161.         None of the

authorities cited by the majority stand for the proposition that the

defendant must come forward with evidence to show the officer could not

have reasonably relied on the third-party consent. There is no burden

placed on the defendant. Rather, an objective review of the facts of each

case will speak for themselves. Likewise, the various competing interests

discussed by the majority are already subsumed in the standards that

the courts have been utilizing for decades.

      In Rodriguez, the Court clearly established that the government

has two potential avenues for meeting its burden of proving the

effectiveness of third-party consent.         First, the government may

introduce evidence demonstrating that the person who consented to the

search had actual authority to consent. Id. at 181, 110 S. Ct. at 2798,

111 L. Ed. 2d at 155–56.         Second, the government may introduce
                                      50

evidence demonstrating that the facts available to the officer at the time

of the search would have warranted a person of reasonable caution in

the belief that the person whose consent had been obtained had the

authority to consent to the search. Id. at 185–86, 110 S. Ct. at 2801,

111 L. Ed. 2d at 161. Nothing in these standards shifts the burden of

proof to the defendant.

      This brings us to the issue of ambiguity. The majority takes the

position that any time there is a question of ownership of a container, no

matter how remote or how attenuated it may be, an ambiguity exists

which requires further inquiry by police.      Failing to make this further

inquiry makes the search unlawful. However, this is not what the law or

the Constitution requires.

      Rodriguez neither imposes a duty of exhaustive inquiry by
      police before apparent authority will be found to exist, nor
      credits willful ignorance; it requires that the officer’s belief in
      the consenter’s authority over the place or object be
      objectively reasonable.

State v. Westlake, 353 P.3d 438, 442 (Idaho Ct. App. 2015). Police may

not accept an invitation to search if the existing circumstances would

cause a reasonable person to doubt the consenter’s authority, absent

any further inquiry.      Id.   The question here is whether a reasonable

police officer, looking at all the facts available, would doubt that Olson

had the authority to consent to the search of his bedroom and the

contents of his bedroom, including the backpack.          The answer is that

there is no reasonable doubt.        There is also no ambiguity requiring

further inquiry. There was no Fourth Amendment violation here.

      IV. Analysis.

      The parties stipulated Olson did not have actual authority to

consent to the search of Jackson’s backpack.          In addition, the State
                                     51

conceded Jackson maintained control over his backpack located in

Olson’s bedroom. We must therefore determine whether Olson had the

apparent authority to consent to the search of Jackson’s backpack. Any

analysis must begin with a full recitation of the facts.

      A. Facts. On November 13, 2012, Iowa City police officer Michael

McKenna was dispatched to the On the Go BP gas station in Iowa City

after a report of an armed robbery. The store clerk reported that a black

male with a thin build, wearing a black mask and a red coat, entered the

store, pointed a gun at him, and demanded the money in the cash

register and a carton of Newport 100’s cigarettes.         Detective Scott

Stevens of the Iowa City Police Department was the primary investigator

for the On the Go BP robbery.             Detective Stevens watched the

surveillance video of the robbery with the store owner. The video showed

a medium height, black male enter the store wearing a red coat, a black

face mask, and white tennis shoes. On December 13, the store owner

called Detective Stevens and told him that a customer had identified the

robber as a man with the street name “Juicy.” With this information,

Detective Stevens was able to identify “Juicy” as Marvis Latrell Jackson.

After unsuccessful attempts to reach Jackson, Detective Stevens

obtained a warrant for his arrest.

      At 12:35 a.m. on December 31, Iowa City police officer Michael

Smithey was dispatched to Gumby’s Pizza after a report of an armed

robbery.   The Gumby’s employee told Officer Smithey that two black

males had entered the restaurant wearing black hats and had black

bandanas covering their faces. One of the men had pointed a handgun

at him and demanded money from the cash register.           The employee

complied and estimated that the robbers took $125 in one dollar bills,
                                    52

$50 in five dollar bills, and one twenty dollar bill. The men ran out of the

store and headed northbound on Gilbert Street.

      While Officer Smithey met with the employee, another man

approached the officer and asked if there had been a robbery. The man

stated he had just witnessed two black males walking away from the area

and one of the men appeared to be holding a fistful of cash.        He also

stated that when the men saw him, they took off running.             Officer

Smithey drove the witness to the location where he had last seen the

men on foot. Officer Smithey noticed footprints in the fresh snow and

called for a canine unit.    Officer Brandon Faulkcon and his canine

partner arrived and were able to track the scent and the footprints to the

southeast corner of a building located on South Gilbert Street.          Also

present were Officer Smithey and Officer Alex Stricker. The street level of

the building was a retail establishment, while the second story contained

apartments with outside doors accessible by a common stairwell in the

rear of the building.   The officers visually surveyed the exterior of the

building. They saw lights on in one of the apartments and observed a

tall black male looking out of the window inquisitively.          The man

appeared to match the description of one of the robbery suspects. When

he saw the officers looking up at him, he quickly ducked out of sight.

      After this observation, the officers decided to approach the

apartment. When the officers arrived at the front door, they noticed that

the lights in the apartment had been turned off.          While they were

standing outside the front door, they heard the apartment door lock from

the inside. Officer Smithey knocked on the door and announced he was

a police officer.   A tall black male answered the door and identified

himself as Wesley Turner. The officers explained why they were there,

and Turner allowed them inside the apartment. When officers asked who
                                   53

else was present in the apartment, Turner answered that it was only

him, his girlfriend Alyssa Miller, and their roommate Gunnar Olson.

Turner told officers that Olson was asleep in his room, but he agreed to

wake him so officers could speak with him. After Turner knocked on the

bedroom door, Olson, who is also a black male, emerged from his room.

      The officers decided to speak with the men separately.      Officer

Stricker continued to speak with Turner in the living room while Officer

Smithey spoke with Olson in the kitchen. Turner said he had been in

the apartment since he returned home from work at 9:00 p.m.           He

reported he had not seen anything suspicious. When asked who lived in

the apartment, Turner confirmed that he lived in the apartment with only

Olson and Miller.

      In the kitchen, Olson also confirmed that the only residents of the

apartment were himself, Turner, and Miller. Officer Smithey asked Olson

if he could look in his room. Olson told him that he had been sleeping in

his room after work and awoke to find his cousin, Marvis, sleeping next

to him.   Upon further questioning by Officer Smithey, Olson admitted

that he did not know Marvis’s last name and that they were not really

cousins. When Officer Smithey entered Olson’s bedroom, he observed a

black male—who he later identified as Jackson—lying on an air mattress,

shirtless but wearing pajama bottoms.     Officer Smithey observed that

Jackson’s neck and brow were sweaty, which he thought was odd since

the apartment was not warm and no one else was sweating. Olson then

attempted to wake Jackson.        Officer Smithey thought it seemed

considerably more difficult than it should have been to wake him. After

Jackson got up, he was asked for identification. Jackson stated that he

did not have any identification, but identified himself as Marvis Latrell

Jackson. The officers ran Jackson’s name through dispatch and were
                                   54

advised of the outstanding warrant for his arrest.      Officer Smithey

arrested Jackson and turned him over to another officer, who removed

Jackson from the apartment.      Jackson did not indicate he had any

personal possessions in the apartment or ask to retrieve any personal

property.

      After Jackson was taken from the apartment, Officer Stricker

continued to speak with Olson.      Olson repeated that Jackson had

apparently arrived sometime earlier that evening after he had gone to

sleep. He again confirmed that no one else lived in the apartment except

for the three tenants. When Olson was asked whether there were any

guns in the room, he replied that there should not be or that he did not

know of any. Olson repeated that he lived in the bedroom alone. Officer

Stricker asked Olson if he would consent to the search of his bedroom for

guns or any evidence of the robbery.    Olson consented.   When Officer

Smithey arrived, Officer Stricker informed him that Olson had consented

to the search of his bedroom for guns and any evidence of the robbery.

Officer Smithey confirmed with Olson that he consented to the search of

his bedroom.

      Officer Smithey performed the search. He began the search of the

bedroom by searching under and around the air mattress and on a chair.

He then grabbed a backpack that was sitting on the floor in the doorway

of the bedroom closet.   The backpack was closed and had no obvious

identifying marks or tags. Officer Smithey opened the closed backpack

and took out a wallet and placed it, unopened, on a nearby chair. Officer

Smithey reached in a second time and retrieved a pair of dark jeans that

were wet around the cuffs.   Upon removing the jeans, Officer Smithey

saw a black handgun in the backpack. After discovering the handgun,

Officer Smithey discontinued his search.
                                    55

      Officer Smithey then checked the wallet for identification and

found that it contained identification belonging to Jackson.          Officer

Smithey took a photograph of the handgun located inside the backpack

to use in an application for a search warrant. He instructed the other

officers to lock down the apartment so a search warrant could be

obtained. After the officers locked down the apartment, they conducted a

protective sweep. During the sweep, the officers observed a marijuana

grinder and pipe, which they photographed and included in the search

warrant application. Officer Smithey also included the photograph of the

handgun in the application. Investigator Tom Hartshorn of the Iowa City

Police Department applied for and obtained the search warrant for the

apartment.    Investigator Hartshorn executed the warrant and found

clothes matching the description of the Gumby’s robbers, in addition to

money in an amount matching the description of the money taken from

Gumby’s.

      B. Application. The threshold question in this case is whether,

based on all of the facts presented, Officer Smithey reasonably relied on

the apparent authority of Olson to consent to the search of the backpack

located within his bedroom, or whether Officer Smithey reasonably

needed to make further inquiry as to the ownership of the backpack.

Based on the fact-intensive, objective standard that we must utilize, a

reasonable person in Officer Smithey’s position would have concluded

that Olson had the apparent authority to consent to the search of the

backpack located on the floor of his bedroom. We only need to review the

facts presented here to support this conclusion.

      As a starting point, contrary to the position of the majority, there is

nothing ambiguous about Olson’s authority to consent to the search of

his room, including the backpack. The officers initiated contact with the
                                    56

occupants of the apartment as part of their investigation of an armed

robbery that had just occurred. Their investigation revealed a direct path

leading from the site of the robbery to the door of the apartment. This all

occurred between 12:35 a.m. and 1:00 a.m.        There is no dispute that

officers knocked on the door, identified themselves, and explained that

they were investigating a robbery that had just occurred.           Turner

consented to their entry into the apartment. They encountered Turner’s

girlfriend, Miller, who also acknowledged that she lived in the apartment.

Both Turner and Miller told officers that the only other person in the

apartment was their roommate, Olson.

      Turner went to Olson’s bedroom and woke him.            The officers

decided to speak with the two men separately.       Officer Stricker spoke

with Turner. Turner indicated that he had been in the apartment since

he arrived home from work at approximately 9:00 p.m. He had observed

nothing suspicious. Meanwhile, Officer Smithey spoke with Olson in the

kitchen. Olson confirmed he lived alone in the apartment with Turner

and Miller.   Olson told the officer the bedroom was his alone.       Both

Turner and Olson independently confirmed that there were no other

tenants of the apartment, and there was no one else present in the

apartment. Despite repeated affirmations from all three tenants to the

contrary, when Officer Smithey asked Olson if he could peek inside his

bedroom, he learned there was another person in the apartment. Olson

claimed that he had gone to sleep, alone, earlier in the evening. It was

only after he had been awakened by Turner that he realized his cousin

Marvis had slipped into bed with him and was sleeping. When asked,

Olson acknowledged that he did not know Marvis’s last name and they

were not really cousins.
                                          57

       Olson led Officer Smithey to his bedroom while Officer Stricker

looked on. It is at this point that an objective review of the facts becomes

critical.   The majority blindly accepts the statements made by the

Turner, Olson, and Miller, even in the face of their obvious incredibility

and dishonesty.      No one suggested that Jackson had broken into the

apartment, and no one suggested that the tenants were alarmed that

Jackson was found in the apartment. However, these are not facts or

evidence of anything. Likewise, none of the inhabitants—Turner, Miller,

or Olson—even remotely suggested to the officers that Jackson was a

tenant 5 or an overnight guest. 6

       The majority is persuaded by the statements from Turner that he

had been home since 9:00 p.m., that no one had recently arrived at the

apartment, and that he had not observed anything suspicious.                        Of

course, all of these statements defy credibility. Further, the majority fails

to explain the obvious feigned sleep or the sweat observed on Jackson’s

forehead. This apparently does not require an explanation since “they

found him to be cooperative once he was awake.”

       It was at this time that Jackson was informed of the outstanding

warrant for his arrest. While neither officer could specifically remember
telling Jackson to put his shirt back on before exiting the apartment,

they both believe Jackson got dressed since it was the middle of winter.


       5Generally, one cotenant may consent to a search of a shared living area. United
States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242, 249–50
(1974). However, if one of the physically present cotenants does not consent to the
search, the search is rendered “unreasonable and invalid” as to that cotenant. Georgia
v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 1518–19, 164 L. Ed. 2d 208, 217
(2006).
       6Overnight guests may have a legitimate expectation of privacy in a host’s home.
Minnesota v. Olson, 495 U.S. 91, 99–100, 110 S. Ct. 1684, 1689–90, 109 L. Ed. 2d 85,
95 (1990).
                                   58

The officers did not ask Jackson if he was staying in the apartment or if

he had any of his belongings in the apartment.     Nor do I believe they

were required to do so.   The officers were following up on an armed

robbery that had just occurred. The robbers had fled from the scene of

the robbery to the apartment. In an attempt to elude detection, Jackson

threw off his clothes, jumped into Olson’s bed, feigned sleep, and hoped

that the tenants could prevent officers from detecting him. Officers were

repeatedly told by all three tenants that there was no one else in the

apartment and that no one else lived there. There is nothing ambiguous

about this scenario. There is nothing in this record which would alert a

reasonable officer to stop and ask Jackson whether he was staying there

or whether he had any personal property located in the apartment. Of

course, if Jackson wanted to alert officers that some of his property was

located in Olson’s bedroom, he could easily have spoken up.

       Officers then asked Olson for consent to search his bedroom,

which was granted. More importantly, Olson was specifically asked for

consent to search his bedroom to look for guns and any evidence of the

robbery.   When asked if any guns would be found, he replied there

should not be any guns, or at least no guns that he knew of.       Olson

consented to the search, without limitation. Olson also failed to inform

the officers that some of the property in his bedroom might not belong to

him.   Neither officer asked Olson whether he owned the backpack, or

confirmed with Olson that everything in his bedroom belonged to him.

Again, nothing in the record would require such an inquiry. There is no

ambiguity under the facts here.     Nothing would have alerted Officer

Smithey, as a person of reasonable caution, to question whether a

backpack located near or partially in Olson’s bedroom closet actually

belonged to him.
                                     59

      Certainly there were no facts tending to show the backpack

belonged to Jackson. There is simply no evidence to support this. The

majority first asserts that the circumstances clearly suggested that

Jackson was an overnight guest. But let’s look at the facts. The majority

finds significant that it was the middle of the night. However, the armed

robbery the officers were investigating had occurred only minutes before.

Jackson appeared to be asleep—yet the feigned heaviness of the sleep

and the obvious sweat observed on Jackson’s forehead belies that he was

asleep.   Olson told the officers that he did not know when Jackson

disrobed and got into bed with him, but he was not alarmed. After first

lying about Jackson’s mere existence in his bedroom, Olson could not

even tell the officers Jackson’s last name. Under this set of facts, the

majority concludes that “obviously Olson and Jackson are familiar

enough that Jackson’s presence in Olson’s room late at night was not an

unusual occurrence.” I find this incredible.

      The majority then enters into the realm of fantasy by suggesting

that Jackson may have even had a key to the apartment because Turner

and Miller did not appear to know Jackson was in the apartment and

Olson claimed Jackson arrived after he was asleep. Or perhaps Jackson

and someone else committed an armed robbery, Jackson ran to Turner’s

apartment where they were let in, Jackson ran into Olson’s bedroom,

disrobed and pretended to go to sleep, and hoped that Turner and Miller

could hold the authorities at bay.    It is inconceivable that the officers

here would reasonably believe that Jackson simply arrived in Olson’s

bedroom when no one else was home sometime after Olson went to sleep

but before Turner arrived home from work.

      Second, I agree that officers would have reasonably known that

Jackson was probably wearing clothing other than his pajama pants
                                   60

prior to his entering Olson’s bedroom.     However, I do not believe that

adds any cogent facts to our analysis.      His clothing could have been

literally anywhere in the apartment.       The officers had no reason to

assume an overnight guest would stuff their wet pants in a backpack. It

is much more likely the guest would toss their wet pants over a chair, in

the closet, or on the tub in the bathroom.     The officers here were not

looking for wet pants in a backpack, nor would they have any other

reason to assume that the backpack belonged to Jackson. None of the

facts in this record would lead a reasonable officer to question the

ownership of the backpack.

      Similarly, the majority claims that the officers should have

somehow reasonably known that Jackson’s clothes were concealed in an

unmarked backpack located in Olson’s bedroom because he was in his

pajama pants.     To support this inference, the majority repeats the

already discredited story from Turner and Miller that they had no idea

that Jackson was in the apartment. If they had seen his clothes in the

bathroom, kitchen, or living room, then they would have known Jackson

was there. The majority believes this “suggests” Jackson either changed

into pajama pants in Olson’s room or moved the clothing to Olson’s room

after changing. Then Jackson had the courtesy to stuff only his pants

into the backpack, because this is the sort of container a person staying

overnight in a place other than his own home might use to hold clothing

and other personal items. But where is all of Jackson’s other clothing?

Where did he find the clothing that he presumably wore out of the

apartment?    Other than speculation and conjecture, there is simply

nothing in these facts that aid Jackson.

      Last, the qualified statements made by Olson clearly do not alert

officers that he knew there were items in his bedroom that did not belong
                                   61

to him, namely the backpack. Olson did not give the officers a definitive

answer when asked whether there was a gun in his room. This should

not come as a shock based on the lack of honesty by all of the residents

of the apartment up until this time. The majority takes this uncertainty

in response and again suggests Olson knew there were items in the room

that did not belong to him and knew that one of those items might be a

container concealing a gun.     I do not believe that Olson’s avoidant

answer to the question about a gun suggests anything close to this to a

reasonable officer, nor would it suggest anything to a reasonable person.

      C. Conclusion.     Based on all of the above unique facts and

circumstances, the majority concludes a reasonable officer would have

questioned the ownership of the backpack and questioned whether Olson

had the apparent authority to consent to the search of it. However, this

conclusion rests upon the improper application of the Constitution and

case law. Our inquiry under the Federal Constitution is whether it was

reasonable for Officers Smithey and Stricker to believe that Olson had

authority to consent to the search of the bedroom and the backpack

contained therein. See Rodriguez, 497 U.S. at 186, 110 S. Ct. at 2800,

111 L. Ed. 2d at 160 (“Whether the basis for such authority exists is the

sort of recurring factual question to which law enforcement officials must

be expected to apply their judgement; and all the Fourth Amendment

requires is that they answer it reasonably.”). In determining whether it

was reasonable for the officers to conclude Olson had authority to

consent, we apply an objective standard. See Lowe, 812 N.W.2d at 576.

We ask if “the facts available to the officer at the moment . . . [would]

‘warrant a man of reasonable caution in the belief that the consenting

party had authority over the premises.’ ” Rodriguez, 497 U.S. at 188,

110 S. Ct. at 2801, 111 L. Ed. 2d at 161 (quoting Terry, 392 U.S. at 21–
                                    62

22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). All of the facts presented

here would warrant a man of reasonable caution to believe that Olson

had the authority to consent to the search of his room and the contents

therein, including the backpack.

      The majority creates ambiguity in the undisputed facts by

suggesting scenarios I have discounted above.        Nothing in the facts

suggests Jackson was either an overnight guest or staying at the

apartment. There is no reasonable ambiguity here. Importantly, when

officers searched the backpack, they did not know who was involved in

the restaurant robbery. The point of the consent search was an attempt

to find evidence of the robbery.     Jackson had been arrested for an

unrelated robbery that occurred weeks before.      Jackson had not been

arrested for the restaurant robbery that had just occurred.

      The majority then leaps to the conclusion that the very purpose of

the search of the backpack was to find evidence linking Jackson to the

restaurant robbery—rather than Olson, whose bedroom was being

searched. There is nothing in the record to support this statement. And

there is nothing in the record to suggest the backpack even belonged to

Jackson. Then the majority imputes to Officer Smithey that “he would

have no motivation to open the closed backpack unless he believed it

might belong to Jackson.” Nothing in the record even remotely suggests

this. In fact, the only evidence in the record is that officers did not know

who might be involved in the restaurant robbery.

      Officers were investigating a robbery and were interested in trying

to find the gun that was used and any other evidence of the robbery.

Olson repeatedly and unqualifiedly consented to the search of his

bedroom. Nothing in the record suggests an alternative, improper motive
                                   63

by officers in their search of the backpack in Olson’s bedroom—certainly

nothing targeting Jackson or his personal property.

      Finally, the majority concludes that Officer Smithey could not

reasonably rely on the apparent authority doctrine to search the

backpack because it was not reasonable to believe that Olson owned it.

But what evidence suggests Officer Smithey would not reasonably believe

Olson owned the backpack?       Officers were repeatedly told by all the

occupants that only the three tenants lived there. Olson confirmed that

he lived in his bedroom by himself. Olson originally denied that there

was anyone else in his bedroom. When caught, he did not even know

Jackson’s last name.

      After Olson roused him, Jackson told the officers his name, but he

also told them he had no identification. Jackson did not tell officers his

identification was in his wallet in his backpack located a few feet away.

After being arrested on the outstanding warrant, Jackson did not alert

officers that he had a backpack located nearby.       The backpack was

located on the floor near or in Olson’s bedroom closet.       During the

search, Officer Smithey opened the backpack, discovered a wallet, and

set it aside. According to the majority, this should somehow have alerted

Officer Smithey that the backpack may belong to someone other than

Olson. How does this raise that inference? We have no idea where Olson

may have kept his billfold.    This is not as unusual as the majority

suggests, and it does not point to the backpack belonging to someone

other than Olson. Many people carry their wallet in a separate bag or

backpack. Further, officers had just been explicitly told by Jackson that

he had no identification.

      Officer Smithey reached into the backpack and discovered the

jeans with the wet hem.     Again, officers did not know who the jeans
                                    64

belonged to, but it was easy to conclude the jeans may have been related

to the robbery. The majority then concludes a reasonable officer should

have suspected the backpack belonged to Jackson. I disagree. This is

only evidence that someone recently came in from the outdoors—which

was exactly what the officers were investigating.    At this point, it was

more likely for a reasonable officer to believe that the pants belonged to

Olson than to someone else.      The majority then faults the officers for

removing the jeans from the backpack, which lead to the discovery of the

gun. After this discovery, and only then, was it reasonable to determine

the ownership of the backpack. It was not, as stated by the majority, to

clear up any ambiguity that officers reasonably had as to the ownership

of the backpack.    Nothing in the record would have led a reasonable

officer to doubt that Olson owned the backpack or would have put in

doubt Olson’s ability to consent to its search.

      The facts and circumstances here were not ambiguous. Nothing in

the record would put a reasonable officer on notice of any duty to make

additional inquiry as to who had the authority to consent to the search of

the closed backpack located in or around the closet of Olson’s bedroom.

There was repeated, unqualified consent to search authorized by Olson.

Olson clearly had the apparent authority to consent to the search of his

bedroom and the contents of his bedroom. Nothing in the record shows

any ambiguity in the facts requiring officers to inquire further as to the

ownership of the backpack. Consent here was valid and lawful under

the Fourth Amendment and supported by numerous authorities.           See,

e.g., id. The district court was correct in denying the motion to suppress.

      V. The Defendant’s Claim Under the Iowa Constitution.

      Jackson also argues that the State violated his rights under article

I, section 8 of the Iowa Constitution.     Article I, section 8 of the Iowa
                                      65

Constitution provides that “[t]he right of the people to be secure in their

persons, houses, papers and effects, against unreasonable seizures and

searches shall not be violated.” Iowa Const. art. I, § 8. Because I would

conclude that there was no violation of the Fourth Amendment to the

Federal Constitution in the search conducted here, I also address

Jackson’s claim under the Iowa Constitution. See Pals, 805 N.W.2d at

772 (“When, as here, a defendant raises both federal and state

constitutional claims, the court has discretion to consider either claim

first or consider the claims simultaneously.”).

      Jackson argues this court should adopt a more stringent standard

of actual authority under the Iowa Constitution than that provided by

the Federal Constitution.       However, the State argues that Jackson’s

claim under the Iowa Constitution was not preserved because he did not

specifically argue that there should be a more stringent actual-authority

standard under the Iowa Constitution.        Jackson argues that error is

preserved for appellate review when a defendant’s pretrial motion to

suppress is overruled. In the alternative, Jackson argues that, to the

extent error was not preserved, his counsel was ineffective for failing to

adequately argue for the adoption of an actual-authority standard under

the Iowa Constitution.

      Jackson’s motion to suppress states that “the search and evidence

subsequently obtained violated the defendant’s rights under the 4th and

14th amendments to the United States Constitution and Article I, Section

8 of the Iowa Constitution.” The motion to suppress does not argue for

any other specific application or interpretation of the Iowa Constitution

that would be different than under the United States Constitution.

Notably, Jackson’s motion to suppress did not specifically argue that the

standard   for   consent   to   a   warrantless   search   under   the   Iowa
                                        66

Constitution should be actual authority rather than the federal apparent-

authority standard.     For purposes of this dissent, I assume without

deciding that error was preserved because I find Jackson’s claim that we

should adopt an actual-authority standard under the Iowa Constitution

to be without merit. See State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015).

      1. Iowa law.      Jackson argues that we should adopt a more

stringent standard under the Iowa Constitution than that afforded under

the United States Constitution and federal case law.           He urges us to

adopt a standard that would require a third party to have actual

authority in order to consent to a search of a closed container.

      Article I, section 8 of the Iowa Constitution is the “nearly identical

[provision] to the Fourth Amendment to the United States Constitution.”

State v. Short, 851 N.W.2d 474, 500–01 (Iowa 2014) (discussing the

differences in punctuation between the state constitution and the Federal

Constitution and how members of this court have interpreted said

differences). It provides,

      The right of the people to be secure in their persons, houses,
      papers and effects, against unreasonable seizures and
      searches shall not be violated; and no warrant shall issue
      but on probable cause, supported by oath or affirmation,
      particularly describing the place to be searched, and the
      persons and things to be seized.

Iowa Const. art. I, § 8.        Even when we hear “cases in which no

substantive distinction had been made between state and federal

constitutional provisions, we reserve the right to apply the principles

differently   under   the    state   constitution   compared   to   its   federal

counterpart.” King v. State, 797 N.W.2d 565, 571 (Iowa 2011). “Further,

even where a party has not advanced a different standard for interpreting

a state constitutional provision, we may apply the standard more
                                      67

stringently than federal caselaw.” State v. Kooima, 833 N.W.2d 202, 206

(Iowa 2013). However,

      our independent authority to construe the Iowa Constitution
      does not mean that we generally refuse to follow the United
      States Supreme Court decisions. . . . What is required under
      the Iowa Constitution, in each and every case that comes
      before us, is not mere identification of a potentially
      analogous federal precedent, but exercise of our best,
      independent judgment of the proper parameters of state
      constitutional commands.

Short, 851 N.W.2d at 490.

      Only a few states have chosen to require an actual-authority

standard under their own constitutions that is more stringent than the

federal apparent-authority standard. See State v. Lopez, 896 P.2d 889,

903 (Haw. 1995) (holding that the individual giving consent to a search

must possess actual authority to do so under the Hawaii Constitution);

State v. McLees, 994 P.2d 683, 691 (Mont. 2000) (finding that under the

Montana Constitution, “for third-party consent to be valid as against the
defendant, the consenting party must have actual authority to do so”);

State v. Will, 885 P.2d 715, 719 (Or. Ct. App. 1994) (finding that it was

consistent with the Oregon Supreme Court precedent to require actual

authority to consent to a search under the Oregon Constitution). Both

Hawaii and Montana, two states that have adopted this more stringent

standard, have a search and seizure provision in their state constitution

that specifically grants their citizens the right to privacy—a right not

contained in the Iowa search and seizure provision. Each of those cases

was decided under the concept of “invasions of privacy.” No comparable

provision is contained in the Iowa Constitution. Compare Haw. Const.

art. I, § 7, and Mont. Const. art. II, § 10, with Iowa Const. art. I, § 8.

      Jackson also relies on the New Mexico case of State v. Wright for

the proposition that actual authority is required under the New Mexico
                                             68

Constitution. See 893 P.2d 455, 460–61 (N.M. Ct. App. 1995). However,

the facts of that case are clearly distinguishable from the facts presented

here. In that case, officers went to a trailer after receiving a tip about

possible drug dealing activity. Id. at 457. They were met at the door by a

woman. Id. While there was some dispute in the record as to exactly

when the consent was given by the woman to look into the bedroom

occupied by the defendant, there is no dispute that prior to their entry

she told the officers, “Oh, it’s not my place, but go ahead.” Id. Officers

proceeded to open the door to the bedroom, where they discovered the

defendant and drug paraphernalia. Id. at 457–58. The State attempted

to argue the woman who answered the door had apparent authority to

consent to the search. Id. at 460. One of the officers testified that he did

not believe what the woman told him about the trailer not being hers. Id.

However, he also stated he thought that she might have been a

babysitter.       Id.   Relying on these facts, the State argued the officer

reasonably believed that she possessed common authority over the

premises.      Id. 7    The court concluded that the State’s reliance on the

officers’ subjective belief the woman had apparent authority to consent to

the search of the residence and bedroom occupied by the defendant ran
counter to the provisions of article II, section 10 of the New Mexico

Constitution. Id. at 460–61. 8

       7I note that our case does not involve a claim of common authority, which also
distinguishes this case.
       8Article   II, section 10 of the New Mexico Constitution provides,
       The people shall be secure in their persons, papers, homes and effects,
       from unreasonable searches and seizures, and no warrant to search any
       place, or seize any person or thing, shall issue without describing the
       place to be searched, or the persons or things to be seized, nor without a
       written showing of probable cause, supported by oath or affirmation.
N.M. Const. art. II, § 10.
                                    69

      I agree with this resolution and would have reached the same

result under our own Constitution. But the facts in Wright are a far cry

from the facts in our case and warrant a different conclusion.        New

Mexico accepts the minority approach under its own constitution.        Id.

Consent to conduct a search may also be given by someone who is

clothed with common authority or possesses some other sufficient

relationship concerning the premises in question. Id. at 461. In Wright,

the problem was there were no additional facts that indicated the woman

granting the consent had a “sufficient relationship to the premises,” and

therefore, it was unreasonable for the officers to rely on her consent. Id.

(quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993,

39 L. Ed. 2d 242, 250 (1974)). I suggest that, given the facts of our case,

and even utilizing the standards adopted by the New Mexico court, that

court would have had no problem with the consent provided by Olson.

      Jackson argues that Oregon has also rejected the concept of

apparent authority to the consent to a search.        The Oregon Court of

Appeals rejected the concept of apparent authority but stated actual

authority is still required under the state constitution. Will, 885 P.2d at

719. The Oregon courts have stated that, “[b]efore police can enter or

search without a warrant in reliance on third-party consent, they must

inquire and ascertain whether the consenting party has common

authority; they cannot rely on subjective good faith.” Id. at 719–20. This

approach is inapplicable to the facts of our case, and we have never

adopted it.   The Oregon case Jackson relies on deals with a minor’s

authority to consent to the search of a parent’s home, a situation entirely

different than the one we decide today. Id. at 720.

      However, the vast majority of states continue to apply the federal

apparent-authority standard for third-party consent to a search, and
                                           70

many have done so under their own state constitutions. See Nix v. State,

621 P.2d 1347, 1349 (Alaska 1981); State v. Girdler, 675 P.2d 1301,

1305 (Ariz. 1983) (en banc); Bruce v. State, 241 S.W.3d 728, 731 (Ark.

2006); Petersen v. People, 939 P.2d 824, 831 (Colo. 1997) (en banc); State

v. Buie, 94 A.3d 608, 609 (Conn. 2014) (per curiam); Westlake, 353 P. 3d

at 441; People v. Pitman, 813 N.E.2d 93, 107 (Ill. 2004); State v. Porting,

130 P.3d 1173, 1178–79 (Kan. 2006); Commonwealth v. Nourse, 177

S.W.3d 691, 696 (Ky. 2005); Commonwealth v. Porter P., 923 N.E.2d 36,

52 (Mass. 2010); State v. Taylor, 968 P.2d 315, 322 (Nev. 1998) (per

curiam); State v. Maristany, 627 A.2d 1066, 1069 (N.J. 1993); State v.

Gatlin, 851 N.W.2d 178, 183 (N.D. 2014); State v. Linde, 876 A.2d 1115,

1125 (R.I. 2005); State v. Laux, 544 S.E.2d 276, 277–78 (S.C. 2001);

Glenn v. Commonwealth, 654 S.E.2d 910, 915 (Va. 2008); State v.

Tomlinson, 648 N.W.2d 367, 375 (Wis. 2002); Smallfoot v. State, 272 P.3d

314, 318 (Wyo. 2012).

         The Pennsylvania Supreme Court has held that it is not

inconsistent with the Pennsylvania Constitution to only require apparent

authority for a third party to consent to a search.               Commonwealth v.

Hughes, 836 A.2d 893, 902–03 (Pa. 2003).                     Unlike the Hawaii and

Montana        constitutional      provisions     noted      above,   Pennsylvania’s

constitutional provision on search and seizure does not include a right to

privacy. Compare Haw. Const. art. I, § 7, and Mont. Const. art. II, § 10

with Pa. Const. art. I, § 8.        Rather, Pennsylvania’s search and seizure

provision is more similar in content to our own search and seizure

provision. Compare Pa. Const. art. I, § 8, with Iowa Const. art. I, § 8. 9

9The   Pennsylvania searches and seizures provision reads:
         The people shall be secure in their persons, houses, papers and
         possessions from unreasonable searches and seizures, and no warrant to
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        I agree with the states that continue to apply the apparent

authority doctrine for third-party consent to a search, which is

consistent with its federal constitutional counterpart. I would not find

that the Iowa Constitution should be applied more stringently, as none of

the authorities cited by Jackson are similar.                Nor are Jackson’s

authorities persuasive enough to urge the court to hold that this state

should diverge from the well-established precedent under the Federal

Constitution. See State v. Jorgensen, 785 N.W.2d 708, 713 (Iowa 2009)

(noting that even when a party does advance a standard for interpreting

the Iowa Constitution differently, we may still interpret it using the

federal analysis if we find that the defendant did not offer “sound

reasons” for the distinction).

        VI. Conclusion.

        For all of the reasons set forth above, I would find that it was

reasonable for the officers to conclude that Olson had the apparent

authority to consent to the search of the bedroom and the backpack

under the federal constitution.         I would decline to adopt an actual-

authority standard under the Iowa Constitution as urged by Jackson. I

would affirm the decision of the court of appeals, the district court ruling

on the motion to suppress, and Jackson’s convictions.

        Waterman and Mansfield, JJ., join this dissent.




________________________
        search any place or to seize any person or things shall issue without
        describing them as nearly as may be, nor without probable cause,
        supported by oath or affirmation subscribed to by the affiant.
Pa. Const. art. I, § 8.
