In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3933

United States of America,

Plaintiff-Appellant,

v.

Joseph N. Basinski,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 196--David H. Coar, Judge.


Argued April 20, 2000--Decided September 5, 2000



  Before Manion, Rovner, and Williams, Circuit Judges.

  Manion, Circuit Judge. While investigating
Joseph Basinski for jewelry theft, the government
learned that his friend William Friedman was
storing Basinski’s locked briefcase in a barn in
Wisconsin, and that the briefcase probably
contained incriminating documents. Basinski had
previously instructed Friedman to burn the
briefcase, but never gave him the combination for
the lock nor explicit permission to open it.
Friedman never destroyed the briefcase; instead
he and two FBI agents retrieved it from the barn.
Although the government concedes that it easily
could have obtained a search warrant to open the
case, the agents decided not to and went ahead
and pried open the case with a screwdriver.
Basinski was later charged with obstruction of
justice and retaliating against a witness because
he reportedly attacked Friedman after he learned
that Friedman had given the briefcase to the
government. Basinski moved to suppress the
contents of the briefcase based on the
government’s failure to obtain a warrant and the
lack of any exception to the warrant requirement.
The district court agreed with Basinski that no
exception to the warrant requirement existed and
suppressed the evidence. On appeal, the
government argues that the search was proper due
to either Friedman’s consent or Basinski’s
abandonment of the briefcase. Because neither
theory applies here, we affirm the district
court’s decision to suppress the contents of the
briefcase.

I.

  In August 1997, Joseph Basinski learned that the
FBI was investigating him for jewel thefts and
interstate transportation of stolen goods.
Shortly thereafter, in an effort to keep
incriminating documents from the government,
Basinski entrusted a locked briefcase to William
Friedman, who hid it in a barn at his summer home
in Grand Marsh, Wisconsin. Basinski had every
reason to trust Friedman, as they had grown up in
the same Chicago neighborhood and had been
friends for over thirty years. Their relationship
may also have extended to criminal activity. From
time to time Basinski reportedly gave Friedman
diamonds and pieces of jewelry for Friedman to
sell, and Basinski was always generous with cash
when it came to Friedman. But Basinski’s trust
only went so far. He never told Friedman what was
in the plastic briefcase, never gave him the
combination to the lock, and never gave him
permission to open it. Around March 1998, after
Basinski learned that the FBI had tapped his
telephone, he instructed Friedman to burn the
briefcase so that the FBI could never obtain its
contents. When Friedman suggested that he could
instead sink it in a lake, Basinski rejected that
idea, stating that the FBI could still retrieve
it. Friedman ultimately promised Basinski that he
would burn the case.

  As it turns out, Basinski’s trust in Friedman
was somewhat misplaced. Friedman decided not to
burn the briefcase and instead left it hidden in
the barn. When Basinski called him on several
occasions to make certain that the case and its
contents were destroyed, Friedman assured him
that he had carried out Basinski’s orders. To
reassure himself that Friedman had carried out
his commands, Basinski asked that Friedman tell
him what was left of the briefcase and show him
the remains. Friedman responded that only the
handle and locking mechanism survived the fire,
and that these were in a pile of burnt trash.
When Friedman asked why he had to have the
briefcase burned, Basinski told him he feared the
FBI would otherwise obtain a passport and
documents which contained Basinski’s
fingerprints. Basinski’s fears were justified.
After several interviews with the FBI and a grand
jury subpoena, Friedman told the government about
the briefcase and his belief that it contained
evidence of Basinski’s alleged crimes. On
February 23, 1999, Friedman led FBI Agent Edward
McNamara and Agent Craig Henderson to his locked
barn where they retrieved the briefcase. Although
the government almost certainly could have
obtained a warrant to search the contents of the
briefcase, it elected not to do so, and instead
the agents pried open the briefcase with
screwdrivers and a hammer./1 The briefcase
contained names of wholesale jewelers and
information that would be useful to a jewel
thief, such as combinations for locks belonging
to the jewelers.

  A few days after the search, Friedman
demonstrated his divided loyalties by having his
daughter contact Basinski in Las Vegas to inform
him that the FBI had the briefcase. Apparently
concerned, Basinski then arranged to meet with
Friedman in Chicago. During the meeting Friedman
confirmed that the FBI had the briefcase, at
which Basinski expressed his displeasure.
Subsequently, on March 23, 1999, Basinski and his
friend Leonard Turow allegedly paid a visit to
Friedman’s home in the middle of the night. After
Friedman opened the door Basinski allegedly
attacked him. Basinski fled only when Friedman’s
wife called the police. Based on the attack, a
federal grand jury indicted Basinski for
retaliating against a witness and obstruction of
justice. 18 U.S.C. sec.sec. 1513(b), 1503(a).
Basinski moved to suppress any evidence
concerning the contents of the briefcase based on
his Fourth Amendment rights. The government
argued that suppression would be improper because
although it did not have a warrant for the
search, it had Friedman’s consent and,
alternatively, Basinski had abandoned the
briefcase. In a ruling from the bench, the
district court rejected these arguments and
suppressed the evidence. The government appeals.
We have jurisdiction under 18 U.S.C. sec. 3731.

II.

  The Fourth Amendment protects citizens against
unreasonable searches and seizures. U.S. Const.
amend. IV. A search is generally considered
unreasonable unless the government obtains a
warrant issued upon probable cause. Joy v. Penn-
Harris-Madison Sch. Corp., 212 F.3d 1052, 1058
(7th Cir. 2000); United States v. Strache, 202
F.3d 980, 984 (7th Cir. 2000). There are,
however, a number of exceptions to this general
rule. See, e.g., United States v. Gevedon, 214
F.3d 807, 810 (7th Cir. 2000) (third-party
consent); United States v. Marshall, 157 F.3d
477, 481(7th Cir. 1998) (exigent circumstances).
Where the government obtains evidence in a search
conducted pursuant to one of these exceptions, it
bears the burden of establishing that the
exception applies. United States v. Denberg, 212
F.3d 987, 991 (7th Cir. 2000); Strache, 202 F.3d
at 984. It must do so by a preponderance of the
evidence. Nix v. Williams, 467 U.S. 431, 444 n.5
(1984); United States v. Dickerson, 975 F.2d
1245, 1248 (7th Cir. 1992). Factual findings made
in connection with a decision to suppress
evidence are reviewed for clear error, while
mixed questions of law and fact and pure
questions of law are reviewed de novo. Strache,
202 F.3d at 984; United States v. Faison, 195
F.3d 890, 893 (7th Cir. 1999). When the
government fails to demonstrate an exception to
the warrant requirement, the evidence obtained
through the search must be suppressed. United
States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.
1999); United States v. Legg, 18 F.3d 240, 242
(4th Cir. 1994).

A.   Third-Party Consent

  Because a person may voluntarily waive his
Fourth Amendment rights, no warrant is required
where the defendant consents to a search. United
States v. Matlock, 415 U.S. 164, 171 (1974).
Based on the concept of assumption of risk, this
exception to the warrant requirement extends to
consent legitimately obtained from a third party.
Id.; United States v. Duran, 957 F.2d 499, 504
(7th Cir. 1992). Thus, where a defendant allows a
third party to exercise actual or apparent
authority over the defendant’s property, he is
considered to have assumed the risk that the
third party might permit access to others,
including government agents. Matlock, 415 U.S. at
171 n.7; United States v. Jensen, 169 F.3d 1044,
1049 (7th Cir. 1999). Third-party consent to a
search can legitimately be given whether the
premises to be searched are as expansive as a
house or as minute as a briefcase. The key to
consent is actual or apparent authority over the
area to be searched. See United States v. Aghedo,
159 F.3d 308, 310 (7th Cir. 1998).

  Here, Friedman clearly had no actual authority
over the contents of the briefcase, so that
leaves only the possibility that Friedman had
apparent authority to consent to the search.
Under the apparent authority type of third-party
consent, the government must show that a
reasonable person, with the same knowledge of the
situation as that possessed by the government
agent to whom consent was given, would reasonably
believe that the third party had authority over
the area to be searched. Illinois v. Rodriguez,
497 U.S. 177, 188 (1990); United States v.
Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1990); see
Jenkins, 169 F.3d at 1049. For purposes of
searches of closed containers, mere possession of
the container by a third party does not
necessarily give rise to a reasonable belief that
the third party has authority to consent to a
search of its contents. United States v. Karo,
468 U.S. 705, 726 (1984) (O’Connor, J.,
concurring); United States v. Rodriguez, 888 F.2d
519, 523 (7th Cir. 1989). Rather, apparent
authority turns on the government’s knowledge of
the third party’s use of, control over, and
access to the container to be searched, because
these characteristics are particularly probative
of whether the individual has authority over the
property. Matlock, 415 U.S. at 171 n.7; United
States v. Duran, 957 F.2d at 504; Chaidez, 919
F.2d at 1201.

  This analysis also entails the consideration of
other, related factors. The first one is the
nature of the container. United States v. Welch,
4 F.3d 761, 764 (9th Cir. 1993); United States v.
Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992);
United States v. Block, 590 F.2d 535, 541 (4th
Cir. 1978). Thus, for example, it is less
reasonable for a police officer to believe that a
third party has full access to a defendant’s
purse or a briefcase than, say, an open crate.
Salinas-Cano, 959 F.2d at 864; United States v.
Wilson, 536 F.2d 883, 885 (9th Cir. 1976)
(defendant’s girlfriend had no authority to
consent to the search of suitcases left in her
apartment where she disclaimed ownership of
them). As one court has stated:

  A briefcase is often the repository for more
than business documents. Rather, it is the
extension of one’s clothing because it serves as
a larger "pocket" in which such items as wallets
and credit cards, address books, personal
calendar/diaries, correspondence, and reading
glasses often are carried. Few places outside
one’s home justify a greater expectation of
privacy than does the briefcase.

United States v. Freire, 710 F.2d 1515, 1519
(11th Cir. 1983). Courts also look at external
markings on the container--such as the
defendant’s name or the third party’s name--in an
effort to gauge the reasonableness of an
officer’s belief that the third party had use of
the container. Rodriguez, 888 F.2d at 524-25.
Because a reasonable person would be less likely
to believe that a defendant granted free access
to the contents of locked containers, also
relevant are the precautions taken to ensure
privacy, such as locks or the government’s
knowledge of the defendant’s orders not to open
the container. Salinas-Cano, 959 F.2d at 864;
Block, 590 F.2d at 541. With respect to locking
mechanisms, courts also consider whether the
defendant provided the third party with a
combination or key to the lock. United States v.
Presler, 610 F.2d 1206, 1214 (4th Cir. 1979).

  Analyzing the present case according to these
factors, the government’s attempt to show the
legitimacy of Friedman’s consent falls short of
the mark. It is undisputed that, although the
exterior of the briefcase did not identify
Basinski’s interest in it, he was its sole owner,
and from what Friedman told the agents, they had
no reason to believe otherwise. The government
also doesn’t contest that, while Friedman had
possession of the briefcase, he did not have
access to the contents of the briefcase when he
consented to the search. That is, the government
agents knew that Basinski never gave Friedman the
combination to the lock. They also believed that
Friedman did not have any possessory interest in
any of the contents of the case, and that the
case had been locked from the moment Friedman
received possession of it. Before they opened the
case, the agents learned that Basinski
implicitly, if not explicitly, instructed
Friedman to never open the briefcase and to
destroy its contents rather than allow anyone
else to peer inside. Indeed, the agents knew that
at no time did Friedman ever have access to,
control over, or use of the interior of the case.
The reasonableness of any belief to the contrary
is negated by Friedman’s statement to the agents
that Basinski wouldn’t give Friedman the
combination to the lock even to destroy its
contents. Accordingly, the only possible
conclusion is that Friedman had no authority over
the interior of the briefcase, and no reasonable
agent could have believed otherwise.

  The correctness of our conclusion is confirmed
by the holdings of other courts that have
addressed similar cases. For example, in United
States v. Salinas-Cano, the defendant’s
girlfriend consented to the search of the
defendant’s unlocked suitcase that he had stored
in her apartment. 959 F.2d at 862. The Tenth
Circuit rejected the government’s argument that
the search was properly based on the girlfriend’s
apparent authority. It held that the search was
unreasonable, even though the suitcase was
unlocked, because a reasonable person would have
known that people generally retain a high
expectation in the privacy of closed suitcases,
the searching officer knew that the suitcase
belonged solely to the defendant and all of the
contents of the case belonged solely to him, and
the officer had no reason to believe that the
girlfriend had ever been permitted to use the
suitcase. Id. at 865. Similarly, in United States
v. Welch, the Ninth Circuit held that, in light
of the heightened expectation of privacy people
have in purses and briefcases, security officers
had no reasonable basis to believe that the
defendant’s boyfriend’s control over her purse
meant that he had actual or apparent authority to
consent to a search of the purse. 4 F.3d at 764,
765; compare United States v. Infante-Ruiz, 13
F.3d 498, 504 (1st Cir. 1994) (police could
reasonably believe that the defendant’s friend
had authority to consent to the search of the
defendant’s briefcase where both parties had
access to the contents of the case, the defendant
gave his friend permission to open the case, and
the briefcase contained possessions of both the
defendant and the friend).

  In United States v. Jaras, the Fifth Circuit
held that police officers could not reasonably
believe that the defendant’s friend had authority
to consent to a search of the defendant’s
suitcase where the friend told the officer that
the suitcases belonged to the defendant. 86 F.3d
383, 389 (5th Cir. 1996). And in United States v.
Presler, a case particularly similar to the
present one, the Fourth Circuit held that no
person could reasonably believe that the
defendant’s friend (Houghton) had authority to
consent to the search of the defendant’s two
locked briefcases. 610 F.2d at 1214. As the court
stated:

The very act of locking them and retaining either
the key or the combination to the locks on the
two briefcases was an effective expression of the
defendant’s expectation of privacy. Nor can it be
said that there was any suggestion that Houghton
was given by the defendant any right of "general
access" or of "mutual use" of the briefcases; the
defendant’s failure to give Houghton a key or
combination to the locks was the clearest
evidence that there was no intention on the
defendant’s part to give Houghton or anyone
asserting under him "access" to the locked
briefcases. Nor, as we have said, did Houghton
claim any right of access. * * * By his own
account, he received the briefcases solely for
safekeeping. Such possession gave him no "common
authority" over the contents of the locked
briefcases and vested in him no power to consent
to their search. And this was well known to the
officers, for, as they admitted, Houghton told
them the briefcases were not his but the
defendant’s, that he (Houghton) was merely
entrusted with them for safekeeping, and that he
had no key or combination to the locks on or
right of access to the two locked briefcases.

Id. at 1213-14.

  Based on our analysis and the reasoning of these
similar cases, it is clear that Friedman had no
apparent authority to consent to the search of
Basinski’s briefcase, and no reasonable
government agent could believe that he did. The
lack of any legitimate third-party consent means
that the search of the briefcase was unreasonable
unless the abandonment exception to the warrant
requirement is applicable.

B.   Abandonment

  Abandoned property is not subject to Fourth
Amendment protection. Abel v. United States, 362
U.S. 217, 241 (1960); United States v. McDonald,
100 F.3d 1320, 1327 (7th Cir. 1996). This is
because Fourth Amendment protection only extends
to places and items for which a person has a
reasonable expectation of privacy, and no person
can have a reasonable expectation of privacy in
an item that he has abandoned. Hester v. United
States, 265 U.S. 57, 58 (1924); Bond v. United
States, 77 F.3d 1009, 1013 (7th Cir. 1996). To
demonstrate abandonment, the government must
establish by a preponderance of the evidence that
the defendant’s voluntary words or conduct would
lead a reasonable person in the searching
officer’s position to believe that the defendant
relinquished his property interests in the item
searched or seized. United States v. Stephens,
206 F.3d 914, 917 (9th Cir. 2000); Bond, 77 F.3d
at 1013. Because this is an objective test, it
does not matter whether the defendant harbors a
desire to later reclaim an item; we look solely
to the external manifestations of his intent as
judged by a reasonable person possessing the same
knowledge available to the government agents.
United States v. Rem, 984 F.2d 806, 810 (7th Cir.
1993); United States v. Hedrick, 922 F.2d 396,
397 (7th Cir. 1991); United States v. Liu, 180
F.3d 957, 960 (8th Cir. 1999)./2 We look at the
totality of the circumstances, but pay particular
attention to explicit denials of ownership and to
any physical relinquishment of the property.
United States v. Chandler, 197 F.3d 1198, 1200
(8th Cir. 1999); Liu, 180 F.3d at 960; United
States v. Ramos, 12 F.3d 1019, 1025 (11th Cir.
1994).

  There are three general types of abandonment
cases, which are based on these two indicia of
abandonment. The first type is characterized by
the presence of a fleeing defendant who
relinquishes an object to make his flight easier
or because discarding the item might make it
easier for him to later claim that he never
possessed it. See, e.g., California v. Hodari D.,
499 U.S. 621, 624 (1991); Hester, 265 U.S. at 58.
Because he has disposed of the property in a
location that affords easy access to the public,
a reasonable person would believe that the
defendant’s possessory interest in the property
is so eroded that anyone has a right to retrieve
it. The second type of case is closely related to
the first, for in so-called "garbage cases" the
defendant places material in or near a refuse
receptacle that is readily accessible to the
public, and in which he usually places other
discarded materials. See California v. Greenwood,
486 U.S. 35, 40-41 (1988); United States v.
Redmon, 138 F.3d 1109 (7th Cir. 1998) (en banc);
Hedrick, 922 F.2d at 397. By this conduct and the
location of the receptacle, the defendant leads
reasonable people to believe that he no longer
cares what becomes of his trash, or articles
mistaken for trash. In the third type of case,
the defendant is usually caught red-handed with
or near a container of contraband, whereupon he
denies that the container or its contents are
his. See, e.g., McDonald, 100 F.3d at 1327; Bond,
77 F.3d at 1013. Taken at face value, this denial
makes it reasonable to conclude that the
defendant claims no possessory interest in the
items.

  The fact that this present case does not fit
into any of these three categories strongly
suggests that no abandonment occurred. The
present case stands in stark contrast to the
three scenarios because Basinski never explicitly
disclaimed a privacy interest in the briefcase
and never placed the briefcase in an area readily
accessible to the public, such as an area usually
reserved for abandoned items like trash. The
other relevant facts don’t help the government’s
case either. Rather than manifesting abandonment
of his briefcase, Basinski’s conduct demonstrates
a strong desire to preserve both his possessory
and privacy interests. Specifically, he entrusted
the locked briefcase to a life long friend so
that Friedman might hide it on private property
owned by Friedman, in a locked barn, surrounded
by a locked gate, in a remote part of Wisconsin
which was visited only infrequently by Friedman
and his family. Basinski also exhibited a
continued privacy interest in the briefcase by
specifically asking Friedman to keep the case
hidden in a private place, until the time he
asked him to destroy it. And Basinski allowed
Friedman to retain the case, initially because
Friedman assured him it was secure, and
subsequently only because Friedman told him it
was destroyed beyond recognition. Thus,
Basinski’s conduct could hardly be interpreted as
a statement that he no longer cared what became
of his briefcase.

  This leads us to the government’s argument that
the request to destroy the briefcase necessarily
entailed an abandonment of the case. The
government essentially interprets Basinski’s
order to "burn the briefcase so that nobody will
ever see its contents" to mean "I don’t care if
anyone sees the contents of the briefcase, or
even what happens to it." We disagree with this
interpretation because it is not objectively
reasonable and is completely contrary to the
undisputed facts. By ordering Friedman to destroy
the briefcase, Basinski did not invite all the
world to rummage through the briefcase at will,
as a defendant in abandonment situations
essentially does. Rather, his command manifested
a desire that nobody possess or examine the
contents of the briefcase. And even after he gave
this order, he continued to manifest a desire to
exclude others from seeing its contents. Gudema
v. Nassau County, 163 F.3d 717, 722 (2d Cir.
1998) (defendant retains legitimate expectation
of privacy where he vigilantly protects his right
to exclude others). When Friedman advised
Basinski to submerge it in a lake, Basinski nixed
that suggestion with the reminder that people
(particularly the FBI) could still retrieve the
case. Furthermore, Basinski exhibited his
continued desire to retain a privacy interest in
the case by declining to give Friedman the
combination for the briefcase’s lock. And in
instructing him to burn the case, the implicit
understanding was that it would be accomplished
at the farm in Wisconsin, a remote location far
from the prying eyes of the public. Thus, rather
than indicating to reasonable people that they
were free to do what they wanted with the
briefcase, Basinski’s orders to burn it
unequivocally indicate that he wanted the
contents to remain permanently private.

  Of course, whatever his motives, Friedman did
the legally correct thing by not destroying a
briefcase which he believed contained evidence of
a crime, notwithstanding the lies he may have
told Basinski. But contrary to the government’s
arguments, Friedman’s decision not to burn the
briefcase does not diminish Basinski’s privacy
interest in the case. Whether Friedman is viewed
as a bailee or a converter of property, Basinski
still retained a legitimate expectation of
privacy in the contents of the briefcase,
particularly because it remained locked. Gudema,
163 F.3d at 722 (stolen case containing a police
shield); United States v. Knoll, 16 F.3d 1313,
1321 (2d Cir. 1994) (closed boxes containing
files stolen from attorney’s office); United
States v. Sumlin, 909 F.2d 1218, 1220 (8th Cir.
1990) (stolen purse); United States v. Barry, 853
F.2d 1479, 1481, 1482 (8th Cir. 1988) (locked
suitcase). The FBI agents had no reason to
believe otherwise. Their information about
Friedman’s possession of the case made it clear
that he was either a converter or bailee, and
that Basinski continued to retain a privacy
interest in the case. Although Friedman could
have destroyed Basinski’s expectation of privacy
by, for example, abandoning the briefcase
himself, Friedman could not have effected an
abandonment under the facts of the present case
because the agents knew that the briefcase was
entrusted to his care. See United States v.
O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985).
Accordingly, the abandonment theory will not
insulate the government from the consequences of
its decision not to obtain a warrant.

III.

  Basinski retained a legitimate expectation of
privacy in the locked briefcase that he entrusted
to his lifelong friend, William Friedman. To
search it, the government needed a warrant or an
applicable exception to the warrant requirement.
Friedman did not have actual or apparent
authority to consent to a search of the
briefcase, and no reasonable agent could believe
otherwise. Similarly, no reasonable agent could
have believed that either Basinski or Friedman
abandoned the briefcase, thereby foreclosing that
theory. Because there is no exception to the
warrant requirement applicable to this case, the
search of Basinski’s briefcase violated the
Fourth Amendment, and the evidence obtained
pursuant to the search must be suppressed. The
district court’s suppression order is, therefore,

AFFIRMED.




/1 Agent McNamara stated in an affidavit that he
opened the briefcase to ensure that it was the
right one, as Friedman thought Basinski’s
briefcase was a lighter color. At oral argument,
however, the Assistant United States Attorney
told us that he and other AUSAs were fully aware
of the location and the facts surrounding the
briefcase, and concluded that the law did not
require them to obtain a warrant to open it. They
therefore instructed the agents, before they
retrieved the briefcase, that no warrant was
necessary.

/2 There is also a subjective component to the
abandonment analysis in the sense that a
defendant who is trying to show that he did not
abandon property must also demonstrate that he
actually expected the item to remain private. See
Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring); United States v. Meyer,
157 F.3d 1067 (7th Cir. 1998) (to establish a
reasonable expectation of privacy a defendant
must show an actual, subjective expectation);
United States v. Garzon, 119 F.3d 1446, 1449
(10th Cir. 1997). But because the government
agreed before the district court that the
suppression motion could be decided without a
hearing or further evidence, it has waived any
argument that Basinski did not actually have an
expectation of privacy in the contents of the
briefcase. Regardless, the record indicates that
Basinski had such an expectation and that it was
reasonable.
