RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0103p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

MARK TAYLOR,

 Defendant-Appellee.

X

-

-

-

-

>

,

-

-

-

N

No. 09-3019

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 08-00195—Solomon Oliver, Jr., District Judge.

Argued: March 9, 2010

Decided and Filed: April 13, 2010 

Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: David M. Toepfer, ASSISTANT UNITED STATES ATTORNEY,

Youngstown, Ohio, for Appellant. Anthony J. Vegh, LAW OFFICES, Cleveland, Ohio, for

Appellee. ON BRIEF: David M. Toepfer, ASSISTANT UNITED STATES ATTORNEY,

Youngstown, Ohio, for Appellant. Anthony J. Vegh, LAW OFFICES, Cleveland, Ohio, for

Appellee.

GILMAN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.

KETHLEDGE, J. (pp. 12-13), delivered a separate dissenting opinion.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. After apprehending Mark Taylor on a

state warrant for his arrest, law enforcement officers received permission from the female

tenant of the apartment where he was found to search the premises. They discovered a

closed shoebox labeled for a pair of men’s basketball shoes. The shoebox was surrounded

1
No. 09-3019 United States v. Taylor Page 2

and partially covered by men’s clothing and lay in the corner of a closet in a spare bedroom

that contained additional men’s clothes. Acting without a search warrant and without

making further inquiry, the officers opened the shoebox. The shoebox contained a handgun

and ammunition that belonged to Taylor.

Upon being charged with being a felon in possession of a firearm and ammunition,

Taylor moved to suppress the contents of the shoebox. The district court, after conducting

an evidentiary hearing, granted Taylor’s motion and suppressed evidence of the gun and the

ammunition. For the reasons set forth below, we AFFIRM the judgment of the district

court.

I. BACKGROUND

In March 2008, members of the Northern Ohio Violent Fugitive Task Force received

information that Taylor was at an apartment in Elyria, Ohio. The task-force officers had an

outstanding warrant for Taylor’s arrest based on a state offense, but did not have a search

warrant for the apartment. Arriving at the apartment, the officers were met by Sabrina

Arnett, the permanent tenant. The officers informed Arnett that they were looking for

Taylor. Arnett initially denied that Taylor was in the apartment, but she gave the officers

permission to search for him inside. She then admitted that Taylor was, in fact, in the

apartment. The officers found Taylor on the second floor in the master bedroom, clad only

in his underwear.

After arresting and handcuffing Taylor, the officers brought him down to the first

floor, where Arnett had remained. The officers then asked Arnett for permission to search

the apartment. She gave both verbal and written permission for the search. As described by

one of the officers, the purpose of the search was to look for “any other stuff . . . [because]

we suspected Taylor might have had some weapons because of his history.” This

suspicion—that Taylor might have a firearm—may explain why the task-force members at

the scene included agents from the Bureau of Alcohol, Tabacco, Firearms and Explosives.

In any event, the officers did not ask for Arnett’s permission to search Taylor’s belongings,

nor did they ask Taylor for such permission.
No. 09-3019 United States v. Taylor Page 3

When the officers had been on the second floor earlier to arrest Taylor, they had

noticed men’s clothes lying about in a spare bedroom. The officers returned to the spare

bedroom during the subsequent search of the apartment and discovered that it contained a

closet. This closet was strewn with men’s clothes, children’s clothes, and toys. On the floor

of the closet, in a corner, the officers found a closed shoebox with a label indicating that it

was for a pair of Nike brand Air Jordan men’s basketball shoes, size ten-and-a-half. The

shoebox was partially covered by a piece of men’s clothing. Inside the shoebox, the officers

discovered a handgun and ammunition, as well as a jail-identification bracelet belonging to

Taylor.

After discovering the shoebox containing the handgun and ammunition, the officers

interviewed Arnett, asking if anyone lived with her in the apartment. Arnett informed the

police that Taylor did not live with her, but that she allowed him to store his belongings in

the spare bedroom where the shoebox was found. No one else stored things in her apartment

besides Taylor. Arnett stated that she “didn’t really use the closet” where the shoebox was

found; she used it only to store “stuff she had when [she] was a kid.” The officers never

asked Arnett if Taylor had given her permission to look through his personal belongings.

According to Arnett, Taylor never granted her permission to look in the shoebox. He had

been storing his possessions in the spare bedroom for roughly a month when the police

arrived and had, at least initially, paid Arnett for allowing him to store his possessions there.

Taylor was subsequently indicted by a federal grand jury for being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

His counsel filed a motion to suppress the incriminating items found in the shoebox, arguing

that the evidence was the product of an illegal search. The district court conducted an

evidentiary hearing on the motion. Three members of the task force testified, along with

Arnett. After taking the matter under advisement, the district court issued an order granting

the motion to suppress.

The district court made several key findings in its order. First, the court determined

that Arnett did not have actual or common authority to consent to a search of Taylor’s

belongings because Taylor had not granted Arnett access to his property. Next, the court

held that Arnett did not have apparent authority to consent to a search of the shoebox. The
No. 09-3019 United States v. Taylor Page 4

court reasoned that because the spare bedroom and the closet contained men’s clothes and

because the shoebox was partially covered with a piece of men’s clothing, the ownership of

the shoebox was ambiguous. In reaching this conclusion, the court found that the task-force

officers in fact believed that the shoebox belonged to Taylor when they opened it.

The government now appeals the grant of the motion to suppress.

II. ANALYSIS

A. Standard of review

We review a district court’s factual findings on a motion to suppress under the clearerror standard and review its legal conclusions de novo. United States v. Blair, 524 F.3d

740, 747 (6th Cir. 2008). When reviewing these factual findings, we consider “the evidence

in the light most likely to support the district court’s decision.” United States v. Keith, 559

F.3d 499, 503 (6th Cir. 2009).

B. Apparent authority

Taylor concedes that Arnett, as the apartment’s tenant, gave permission to the law

enforcement officers to search the premises. In the spare bedroom, the officers found a

closed but unsealed shoebox belonging to Taylor, which they opened and thereby discovered

the incriminating evidence. Such searches are constitutionally permissible if the government

can “show that permission to search was obtained from a third party who possessed common

authority over or other sufficient relationship to the . . . effects sought to be inspected.”

United States v. Matlock, 415 U.S. 164, 171-72 (1974).

In the district court, the government argued that Arnett had actual or common

authority over Taylor’s shoebox. The court rejected the government’s claim, finding that

Taylor exercised exclusive control over the shoebox and never gave Arnett permission to

open it.

On appeal, the government has dropped its argument that Arnett had any such actual

or common authority. Instead, the sole argument it now asserts is that Arnett had apparent

authority to consent to a search of the shoebox. The apparent-authority doctrine excuses

otherwise impermissible searches where the officers conducting the search “reasonably
No. 09-3019 United States v. Taylor Page 5

(though erroneously) believe that the person who has consented” to the search had the

authority to do so. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). This court’s decision

in United States v. Waller, 426 F.3d 838 (6th Cir. 2005), a case that both parties and the

district court discuss in detail, further explains the apparent-authority doctrine:

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 [to believe] that the consenting party had

authority 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 (alterations, citations, and internal quotation marks omitted). Moreover, “[t]he

government bears the burden of establishing the effectiveness of a third party’s consent.”

Id. at 845 (citing Rodriguez, 497 U.S. at 181).

The government in the present case argues that Arnett had apparent authority to

consent to a search of the shoebox because a shoebox is not the type of container that

commands a “high degree of privacy,” unlike luggage and footlockers. Furthermore, the

government emphasizes that other items besides men’s clothes were in the closet, including

children’s clothes and toys. Taylor responds that there is no per se rule that certain

containers provide no expectation of privacy. He argues that the circumstances as a whole

demonstrate that the ownership of the shoebox was at the very least ambiguous, and that the

officers made no inquiry to resolve the ambiguity.

Utilizing the standard in Waller, we find Taylor’s and the district court’s analysis

more compelling than the government’s. Concededly, the officers began the search with the

reasonable belief that most items within the apartment were subject to Arnett’s mutual use,

given that she was the sole tenant of the apartment. The officers, however, had noticed
No. 09-3019 United States v. Taylor Page 6

men’s clothes in the spare bedroom when they arrested Taylor. This would indicate to a

reasonable officer that the clothing might belong to a visitor or a guest like Taylor.

Upon conducting a full search of the apartment, the officers found more men’s

clothes in the spare bedroom’s closet. This again indicated that someone besides Arnett was

using this space—most likely Taylor because he was found in a nearby bedroom in his

underwear. Although Arnett had no children, the closet in the spare bedroom contained a

mix of children’s clothes, toys, and men’s clothes. Underneath an item of men’s clothing

lay the closed shoebox. In short, nothing in the closet indicated that the items within it

belonged to Arnett or were regularly used by her. Under these circumstances, when the

officers discovered and were considering whether to open the shoebox, a reasonable person

would have had substantial doubts about whether the box was subject to mutual use by

Arnett.

Our conclusion is further reinforced by the district court’s factual finding that “the

police would likely not have opened the closed shoebox if they believed it belonged to

Arnett. Rather, they opened the shoebox precisely because they believed it likely belonged

to Taylor.” Such a factual finding—that the officers believed the shoebox belonged to

Taylor before they opened it—further strengthens Taylor’s argument that a reasonable

officer in these circumstances would have had substantial doubts about whether the shoebox

was mutually used by both Taylor and Arnett. Although many items that belong to a

houseguest like Taylor might also be used by the dwelling’s resident (such as books,

compact discs, magazines, or a portable stereo), a shoebox that is surrounded by the guest’s

clothes and that sits in the corner of a closet in a little-used room is not likely to be such an

item. We review the above factual finding under the clear-error standard, see United States

v. Blair, 524 F.3d 740, 747 (6th Cir. 2008), and the government has, in fact, not contested

that finding.

Comparing the facts of the present case to those in Waller solidifies our conclusion.

In that case, Waller stored a suitcase and several filled garbage bags at a friend’s apartment.

Waller, 426 F.3d at 842. His friend had never looked in the luggage or the garbage bags and

did not know what Waller was storing in them. Id. After Waller was arrested for violating

the conditions of his bail bond, his friend gave the police permission to search the apartment.
No. 09-3019 United States v. Taylor Page 7

Id. The police found Waller’s suitcase in a closet, opened it, and discovered two guns inside.

Id. Waller’s motion to suppress was denied by the district court, but this court reversed,

holding that whether Waller’s suitcase was “subject to mutual use” by Waller’s friend was

unclear under the circumstances. Id. at 847 (internal quotation marks omitted). As a result,

Waller’s friend did not have apparent authority to consent to the search of the suitcase. Id.

at 847-49.

The case before us presented the officers with even more ambiguities than did

Waller. There, the main argument for ambiguity was that the police found a packed suitcase

and were told that Waller was storing items in his friend’s apartment. But there is no

description in Waller of where the suitcase was found, other than in “a closet,” or whether

the suitcase was next to other items that obviously belonged to Waller or whose ownership

was unclear. Here, the appearance of the shoebox itself and the items in the room where the

shoebox was found indicated that the box did not belong to Arnett. There were apparently

no such surrounding items in Waller, yet this court still suppressed the contents of Waller’s

suitcase.

Furthermore, this court in Waller noted that “[t]he expectation of privacy in one’s

luggage is not lessened by storing it on the premises of a third-party. Rather, the

‘expectations may well be at their most intense when such effects are deposited temporarily

or kept semi-permanently . . . in places under the general control of another.’” Id. at 848

(alteration in original) (quoting United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978)).

A shoebox is concededly not “luggage,” but it is an often-used storage container, and Taylor

unquestionably had stored his shoebox in Arnett’s apartment. Arnett also testified that she

had never looked in the shoebox and did not have permission from Taylor to do so.

Additional support for the district court’s conclusion that there was ambiguity about

mutual use of the shoebox is found in Waller’s discussion of the Tenth Circuit’s decision in

United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992). The Tenth Circuit in SalinasCano suppressed the results of a search of luggage that the defendant had left at his

girlfriend’s apartment, even though she had given the police specific consent to search the

luggage. Salinas-Cano, 959 F.2d at 862. In its analysis, the Tenth Circuit noted several

factors that it took into consideration: (1) the type of container and whether that type
No. 09-3019 United States v. Taylor Page 8

“historically command[ed] a high degree of privacy,” (2) whether the container’s owner took

any precautions to protect his privacy, (3) whether the resident at the premises initiated the

police involvement, and (4) whether the consenting party disclaimed ownership of the

container. Id. at 864. Applying these factors,

[t]he Tenth Circuit held the search of the suitcase unlawful because it was

a type of container long associated with privacy expectations, the defendant

had . . . never permitted his girlfriend to look inside the suitcase, he had not

abandoned the suitcase but instead maintained a periodic presence in the

apartment, and the agents had not questioned his girlfriend in a manner

sufficient to determine whether she had mutual use of the defendant’s

suitcase.

Waller, 426 F.3d at 848 (citations and internal quotation marks omitted).

An analysis of these factors leads us to the same conclusion in the present case.

Although shoeboxes do not “historically command a high degree of privacy,” see

Salinas-Cano, 959 F.2d at 864, they are often used to store private items, such as letters and

photographs. Taylor took precautions to manifest his expectations of privacy by closing the

shoebox, putting it in the corner of a closet in a little-used room, partially covering it with

an item of his clothing, and not granting Arnett permission to look inside. Like the

defendant in Salinas-Cano, Taylor had not abandoned the shoebox, and in fact appeared to

be staying at Arnett’s apartment, at least temporarily. See id. at 865. Nor did Arnett initiate

the involvement by the police in any way. See id. at 864 (explaining that “courts have

generally been more forgiving of searches” that are conducted upon the initiative of the

dwelling’s permanent resident). Finally, similar to the facts in Salinas-Cano, the officers

here never questioned Arnett about whether she had mutual use or control of the shoebox.

See id. at 866.

The government responds by insisting that the present case compares favorably to

this court’s unpublished opinion in United States v. Cork, 18 F. App’x 376 (6th Cir. 2001).

But the facts of Cork are inapposite. In that case, law enforcement officers received

permission to search the home where Cork was staying from the home’s owner, Cork’s aunt.

Id. at 378-79. Cork was sharing a bedroom with his cousin, his aunt’s 16-year-old son. Id.

at 379. Officers searched the bedroom, including the contents of numerous shoeboxes
No. 09-3019 United States v. Taylor Page 9

underneath the cousin’s bed. Id. One of those shoeboxes contained evidence that

incriminated Cork. Id.

Beginning with the most obvious factual distinction, the shoebox in Cork that

contained the incriminating evidence was found underneath the bed of Cork’s cousin, not

his own. Given the perfectly reasonable assumption that items stored underneath a person’s

bed usually belong to that person, this fact alone strongly distinguishes Cork. Circumstances

in the present case indicated that the shoebox belonged to Taylor and, in fact, the district

court found that the officers believed that the shoebox was Taylor’s before they opened it.

In Cork, however, the shoebox’s location alone strongly indicated that it belonged to Cork’s

cousin, not Cork himself.

Another key distinction is that Cork’s aunt had apparent authority to grant

permission for the officers to search the unlocked bedroom and unsecured possessions of her

minor son. See United States v. Clutter, 914 F.2d 775, 777-78 (6th Cir. 1990) (explaining

that “mature family members possess the authority to admit police to look about the family

residence,” although this excludes areas where a family member “has clearly manifested an

expectation of exclusivity”). This strongly contrasts with the present case because Taylor

was storing his belongings in an unrelated person’s apartment, where expectations of privacy

are much greater. See Waller, 426 F.3d at 848 (“[E]xpectations [of privacy] may well be at

their most intense when such effects are deposited temporarily or kept semi-permanently . . .

in places under the general control of another.” (citation and internal quotation marks

omitted)).

The closest Cork comes to supporting the government’s argument is the decision’s

observation that “[w]hile a sealed container or locked suitcase may be entitled to a

heightened expectation of privacy, here Cork did not seal, tape, or lock the shoebox.” Cork,

18 F. App’x at 383 (internal citation omitted). Likewise, Taylor’s shoebox was not sealed,

and a shoebox is not a container that historically has enjoyed heightened expectations of

privacy. See United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978). But this does not

equate to a per se rule that shoeboxes are never entitled to expectations of privacy in the

Fourth Amendment context. Rather, we must consider the entirety of “the facts available to

the officer at the moment” of his decision. See Waller, 426 F.3d at 846 (internal quotation
No. 09-3019 United States v. Taylor Page 10

marks omitted). Here, those facts demonstrate that there was ambiguity as to whether Arnett

had mutual use or control of the shoebox found in the closet.

The parties also compare the present case to this court’s decision in United States v.

Purcell, 526 F.3d 953 (6th Cir. 2008). In that case, law enforcement officers arrested Purcell

outside of a hotel room that he had rented with his girlfriend. Id. at 957. After the girlfriend

gave consent for the officers to search the room, they opened a bag that she had said was

hers. Id. at 957-58. That bag, however, contained only men’s clothes. Id. at 958. The

agents nevertheless continued to search through the various bags in the room, finally

discovering a firearm in a backpack. Id. Purcell was the sole user of the backpack. Id. This

court held that, after the officers discovered that the girlfriend had wrongly asserted that the

first bag was hers, “ambiguity clouded [her] authority to consent to a search of the

backpack.” Id. at 964.

The facts of Purcell are comparable to those in the present case because the officers

here found Taylor’s clothes on and around the shoebox, like the officer who found that the

bag that Purcell’s girlfriend had claimed was hers in fact contained Purcell’s clothes. In

Purcell, the discovery of his clothes created ambiguity about the girlfriend’s authority to

consent to a search of any further bags. Id. The discovery of Taylor’s clothes in the spare

bedroom and in the closet created a similar ambiguity regarding Arnett’s ability to consent

to the search of the shoebox.

This court noted in Purcell that “[o]nce ambiguity erases any apparent authority, it

is not difficult for searching officers to reestablish the would-be-consenter’s authority,”

explaining that the officers could have resolved the ambiguity by simply asking the

girlfriend, who was standing outside, what bags she was using. Id. A similar situation

existed in the present case. While the officers were searching the spare bedroom, Arnett and

Taylor were within easy reach downstairs. Upon finding the closed shoebox in the closet

of an unused room with men’s clothes on and around it, and believing that the shoebox was

likely Taylor’s, the officers could easily have gone downstairs and asked Arnett “to clarify

her authority over” the shoebox, or asked Taylor if the shoebox was his. See id. But they

chose not to do so. Nor, of course, did they pause to obtain a proper search warrant.
No. 09-3019 United States v. Taylor Page 11

In sum, given all of the circumstances surrounding the search of the shoebox, the

district court’s factual finding that the officers believed that the shoebox likely belonged to

Taylor, the favorable comparison to this court’s decisions in Waller and Purcell and to the

Tenth Circuit’s decision in Salinas-Cano, and the factual contrast with Cork, we conclude

that there was ambiguity over whether Arnett had mutual use or control of the shoebox. The

officers failed to cure this ambiguity by asking either Arnett or Taylor to clarify the situation.

See Waller, 426 F.3d at 846. As a result, Arnett lacked apparent authority to consent to the

search of the shoebox.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.
No. 09-3019 United States v. Taylor Page 12

____________________

DISSENT

____________________

KETHLEDGE, Circuit Judge, dissenting. The majority today extends to shoeboxes

a degree of Fourth Amendment protection that our court has previously afforded to luggage.

I agree that our precedents permit this extension, but I do not think they compel it. I dissent

because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that

consent ought to be effective as to an unsecured container on the premises, absent a clear

indication that some other person exclusively controls the container. Luggage might

routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance

not present here. It should take more than a shoebox to vitiate a resident’s consent to search

the premises.

I am not alone in this general view. Writing for the court in United States v. Melgar,

227 F.3d 1038 (7th Cir. 2000), Judge Wood observed:

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 (Melgar’s view), or is

it permissible if the police do not have reliable information that the container

is not under the authorizer’s control. We are not aware of any case that has

taken the strict view represented by the first of these possibilities.

Id. at 1041 (emphasis in original). Judge Wood chose the second approach, observing that

“[a] contrary rule would impose an impossible burden on the police. It would mean that they

could never search closed containers within a dwelling (including hotel rooms) without

asking the person whose consent is being given ex ante about every item they might

encounter.” Id. at 1042 (emphasis in original). I too would follow Judge Wood’s second

approach. Our court today follows something much like the first.

The circuits are split on this issue. In addition to the Seventh Circuit, the Second has

followed more or less the rule I advocate here. See United States v. Snype, 441 F.3d 119,

136 (2d Cir. 2006) (upholding search of defendant’s knapsack, because the apartment
No. 09-3019 United States v. Taylor Page 13

owner’s “open-ended consent would permit the search and seizure of any items found in the

apartment with the exception of those obviously belonging to another person” (internal

quotation marks omitted)). Even our court has come out the other way in another shoebox

case that I think materially indistinguishable from this one. See United States v. Cork,

18 F. App’x 376, 383 (6th Cir. 2001). Cases in still other circuits are admittedly to the

contrary. To my knowledge, the Supreme Court has never decided specifically the extent

to which a resident’s consent to search her premises is effective as to containers within it.

The result has been appreciable entropy among the circuits.

I respectfully dissent.