Third Party Consent – The Curse of the Purse

This post is the first entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s Question: Can a driver consent to a police search of a passenger’s purse?

Imagine you catch a ride with a friend. A few miles into the drive, you see flashing red and blue lights in the rear view mirror. Moments later you are parked on the side of the road having a conversation with a police officer.

You start getting nervous when the officer asks both you and the driver to get out of the vehicle. You’re really nervous when you hear your friend give the officer permission to search the vehicle. You realize you’ve left your purse on the passenger seat. You also know there’s a vial of THC oil inside — and in Texas that’s a serious felony offense. What can you do? What rights can you assert? How can you protect yourself?

Let’s break the situation down.

First, has your friend’s consent to search the car totally screwed you over? In order to know the answer to this question, you have to understand Third Party Consent Law. In this scenario the “Third Party” refers to the driver.

The driver’s consent to search would allow law enforcement to search your purse if the driver had actual or apparent control over it.

  1. ACTUAL control means the driver had a legitimate expectation of privacy in the purse or actual permission from you to access the purse (unlikely!);
  2. APPARENT control means that even if the driver doesn’t have permission to access your purse, the police officer can search it if he reasonably believes that the purse belongs to the driver or was subject to the driver’s control.

If the “apparent control” part of this analysis seems strange, just remember that officers always get to make “innocent” mistakes during searches. The legal rationale for this is that we shouldn’t suppress criminal evidence if the officer was acting reasonably, even if it turns out later that he or she was wrong about who owned the purse. So even if the driver didn’t have actual control or authority over your purse, if it was reasonable for the officer to assume he or she did, he (the officer) can still legally search it.

The legal bending-over-backwards-to-help-cops doctrine of “apparent control” has weird ramifications. For example, if matters if your friend is a guy or a girl. If it’s a guy, it’s probably not reasonable for the officer to assume that your friend has authority over what is obviously a girl’s purse, especially if your purse is bright pink, bedazzled with rhinestones, and has “girl power” stitched across the side!  There’s no way the officer could reasonably think that bag belonged to anyone other than you (if it’s just you and guy in the car). But if your friend is female, then it might be reasonable for the officer to just grab the purse and search it, because he could argue he assumed it belonged to your friend (Side Note: can you think of a factual situation where it would still be unreasonable for the officer to search your purse — what if the driver has her own purse slung over her shoulder while talking with the officer . . . )

Because of the apparent authority doctrine, the best thing you can do is speak up and let the officer know the purse is yours! Once you’ve asserted that a bag/purse belongs to you and not the driver, the officer looses the ability to search it based on third-party consent. See the unpublished case State v. Krall for persuasive authority on that.

The example above also points to another strange dynamic — the type of bag you bring along matters. Is the bag distinguishable from the other bags in the car? Is it obviously a “purse” or does it look like a gender-neutral bag that a guy could carry around? Does it have markings or features that would make it unreasonable for the officer to assume it belonged to the driver? A few extra sequins and rhinestones could mean the difference between a felony conviction and a dismissal.

Finally, location doesn’t matter as much as you think.

Just leaving the purse on your seat might seem like a good strategy. It’s where you were sitting, so obviously it’s more likely to belong to you, right? However, this fact alone won’t win the day. Courts are unlikely to say an officer is unreasonable to assume a bag under the passenger seat is okay to search based on the driver’s general consent. There has to be something else about the bag or purse that distinguishes it from everything else in the car or from the owner’s control.

In summary, if you are a passenger in a car that is pulled over and your friend gives permission to the officer to search the vehicle, the officer can search your purse even though the driver had no authority to consent to the search unless:

  1. the purse has some distinguishing characteristic that makes unreasonable for the officer to assume the purse belonged to the driver, or
  2. you tell the officer prior to his initiation of the search that the purse belongs to you.

And remember the rule of thumb for any interaction with the police: your rights are only as strong as your willingness to assert them.