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-ofcounsel 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 thirdparty 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 thirdparty 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. 

3In cases 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 thirdparty 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.” SalinasCano, 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 SalinasCano 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 

tenant5 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 apparentauthority 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

 
71

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 actualauthority 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.

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