Drivers May Have Apparent Authority to Consent to Search of Passenger’s Bag

State v. Bogges, No. 111,361 (Kan. Aug. 24, 2018)

Issue: If a driver gives permission to search his car, a law enforcement officer can search bags in the car so long as it’s reasonable to believe the driver had authority to consent to the bag’s search. Bogges, a passenger, had a nondescript bag on the extremely cluttered floorboard. When the driver consented to a search of the vehicle, was it reasonable for the officer to believe the driver had authority to consent to the bag’s search?

Answer: Yes. Nothing indicated that the bag belonged to the passenger, so the driver had apparent authority to consent to the search.

Facts: The driver gave the officer permission to search the extremely cluttered car. The officer found a small, nondescript, black bag containing drugs on the passenger floorboard. The bag belonged to the passenger, who neither consented nor objected to the search. Nothing—besides its location—indicated that the bag belonged to the passenger.

Discussion: The court noted that this is a fact-intensive inquiry. If the officer searched a purse in the same location, one might assume that it belonged to the passenger. In that case, it would be unreasonable to think the driver had authority to consent. But a nondescript bag in an extremely messy car—so messy that it looks “lived in”—permits the reasonable believe that the driver had authority to consent to the bag’s search.

If it is reasonable to believe that the driver has authority to consent, an officer has no duty to inquire about the bag’s ownership before searching.