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Drug Charge Dismissed: Car Owner/Driver Cannot Consent to Search of Passenger’s Purse or Bag

driver consent to search of passenger purse ohio

The Fourth Amendment protects individuals from unreasonable searches and seizures.  Generally, for a search to be considered constitutionally reasonable, the officer must have probable cause and a warrant.

There are a few exceptions to the warrant rule.   One is consent.  If you consent to a search by the police, you waive your Fourth Amendment rights.

But there are limits on consenting to the search of someone else’s things.

Specifically, a car owner or driver cannot generally consent to a search of the passenger’s bag or purse unless they both have joint access or control over the purse. 


Police Searches Passenger’s Purse and Finds Drugs and Paraphernalia

An officer was dispatched to a business parking lot regarding a suspicious vehicle.   After speaking with teh occupants, he asked the car owner for permission to search the car.  The owner agreed.  There was no probable cause for the search – the only basis for the search was consent.

The officer then asked the passenger – the defendant in this case – to exit as well. The passenger had a black bag on her lap while she was sitting in the car and she left the bag in the car when she stepped out. The officer said he believed the bag to belong to the passenger and did not ask her permission to search it.

The bag was partially open, and another sealed black bag was inside.  The contents of the sealed black bag were not in plain view.

The officer removed the sealed smaller bag from the larger bag, held it up, and asked the passenger what it was.  He did not read her Miranda rights before asking her.

She replied that it was her “illegal stuff.”  They took her back to the station where they opened the bag.  In it, they found a pipe, needles, and what the officer described as “instruments used for drug abuse.”

Furthermore, Deputy Shelly admitted that he did not read the passenger her Miranda warnings. Regardless, the defendant was charged with possessing drug abuse instruments, a second degree misdemeanor.



The Automobile Exception to the Warrant Requirement Does Not Apply

At the motion to suppress hearing, the issue arose whether the search should be allowed based on the “automobile exception” to the warrant requirement.  This exception allows the search of containers within a vehicle.

This automobile exception allows for a warrantless search of an automobile – including containers and bags inside the car – when “the officer has probable cause to believe that it contains contraband and exigent circumstances necessitate a search.” State v. Laird, 9th Dist. Medina No. 3213-M, 2002 WL 121218, *2 (Jan. 30, 2002).

Moreover,  Ohio courts have recognized that “[t]he scope of the search [pursuant to the automobile exception] extends to a passenger’s belongings in the vehicle, such as a purse.” Laird.

The automobile exception doesn’t apply here because the search was done ONLY pursuant to the owner’s consent – not based on any probable cause or exigent circumstances.



Car Owner’s Consent to Search Does Not Extend to Passenger’s Bags

In another recent Ohio case – State v. Caulfield, 2d Dist. Montgomery No. 25573, 2013-Ohio-3029, deputies obtained a vehicle owner’s consent to search his vehicle.  During the search, the deputies searched the passenger’s purse that was left in the car after she was asked to exit the vehicle.

She did not consent to a search of her purse. After the deputies found drug paraphernalia in the purse,
she was arrested.  The Caulfield court affirmed suppression of the evidence after concluding that the vehicle owner had no authority to consent to a search of the passenger’s belongings. Id. at ¶ 23.

A third party can give consent to search someone else’s things only if they have “common authority over the area sought to be searched.”   They must have “mutual use of the property” including “joint access or control.”

Here, there was no evidence indicating the car owner had mutual use or joint access to the passenger’s bag. Moreover, the State presented no evidence to establish that the officer had a reasonable belief that the vehicle owner had authority to consent to a search of the passenger’s bag.

Thus there was no “common authority” over the bag, so the car owner’s consent did not extend to the passenger’s bag or purse.

State v. Chojnowski, 2015-Ohio-1405.

If you have been charged with marijuana drug possession or other crime stemming from a search of your belongings by police, talk to a Columbus criminal defense attorney about your options.  If the search was not constitutional – as in the case above – the case could be dismissed.  Our attorneys offer free consultations 24/7 at (614) 361-2804.