Because the Fourth Amendment protects "people, not places," Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Davis must first demonstrate that he personally had a "legitimate expectation of privacy" in the place searched or the thing seized. Rakas v. Illinois,439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

If the Fourth Amendment does not protect Davis' expectation of privacy in the contents of his bag, stored under the bed in an apartment where he sleeps and keeps his belongings, we find it difficult to imagine what the Fourth Amendment does protect.

Having determined that Davis had a legitimate expectation of privacy in his bag, we must next decide whether Smith had authority to consent to the search. The government has the burden of establishing the effectiveness of Smith's consent. See Welch,4 F.3d at 764 (citing Illinois v. Rodriguez,497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). To meet its burden, the government must demonstrate that Smith had either actual or apparent authority to consent to the search. See Fultz,146 F.3d at 1105; Welch,4 F.3d at 764.

A third party has actual authority to consent to a search of a container if the owner of the container has expressly authorized the third party to give consent or if the third party has mutual use of the container and joint access to or control over the container." Fultz, 146 F.3d at 1105; Welch, 4 F.3d at 764. Because there is nothing in the record to suggest that Smith had express authorization from Davis to consent to a search of the bag, the government must prevail on a mutual use and joint access or control theory in order to demonstrate actual authority.

"Under the apparent authority doctrine, a search is valid if the government proves that the officers who conducted it reasonably believed that the person from whom they obtained consent had the actual authority to grant that consent." Welch, 4 F.3d at 764; Fultz, 146 F.3d at 1105. The government contends that the officers reasonably believed that Smith had authority to consent to a search of the entire apartment. Again, however, we stress that the relevant question is whether the officers reasonably believed that Smith had authority to consent to a search of Davis' bag.

Given the circumstances, to the extent that the officers believed that Smith's consent to search the apartment legally authorized them to search Davis' bag, th

Anton Vialtsin, Esq.
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