226 F.3d 829 (7th Cir. 2000)
United States of America, Plaintiff-Appellant,v.Joseph N. Basinski, Defendant-Appellee.
No. 99-3933
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 20, 2000Decided September 5, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.  No. 99 CR 196--David H. Coar, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Manion, Rovner, and Williams, Circuit Judges.
Manion, Circuit Judge.


1
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.

2
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.


3
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.


4
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.

5
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

6
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).


7
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.


8
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:


9
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.


10
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).


11
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.


12
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).


13
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


14
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.


15
Id. at 1213-14.


16
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

17
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).


18
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.


19
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.


20
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.


21
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.

22
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,


23
AFFIRMED.



Notes:


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.


