          United States Court of Appeals
                        For the First Circuit


No. 18-1876

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                             BRYAN MORAN,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Indira Talwani, U.S. District Judge]


                                Before

                      Lynch, Selya, and Barron,
                           Circuit Judges.


     Mary A. Davis, with whom Tisdale & Davis, P.A. was on brief,
for appellant.
     Randall E. Kromm, Assistant United States Attorney, with whom
Andrew E. Lelling, United States Attorney, was on brief, for
appellee.


                          November 27, 2019
            BARRON, Circuit Judge.           Bryan Moran ("Moran") pleaded

guilty on May 9, 2018 to possession with intent to distribute

fentanyl, in violation of 21 U.S.C. § 841(a)(1), in the United

States District Court for the District of Massachusetts.                   He

reserved his right to challenge, on appeal, the denial of his

motion for reconsideration of the denial of his motion to suppress

certain evidence -- specifically, fentanyl obtained from within

closed black garbage bags that were found in his sister's storage

unit during a warrantless search.               He now contends that his

conviction must be vacated because the District Court erred in

denying that motion for reconsideration.           The District Court based

its ruling on the ground that a person with apparent authority to

consent to that search -- namely, Moran's sister -- gave it, even

if she did not have actual authority to do so.              Because we agree

with Moran that the government failed to meet its burden to show

that his sister had either actual or apparent authority to consent

to   that   search,   we   reverse    the     denial   of   his   motion   for

reconsideration, vacate his conviction, and remand the case.

                                      I.

            Just over one week before the search in question, Moran

stored several closed, opaque, black plastic garbage bags that

contained some of his effects in a storage unit that belonged to




                                     - 2 -
his sister, Alysha Moran ("Alysha").1          A week later, after Moran

was arrested and while he was being held at the Middlesex County

Billerica House of Corrections on a separate charge, he learned

that Alysha's storage unit needed to be emptied.           He   asked her -

- on a recorded phone call -- to move his bags.

           A detective from the police department for the Town of

Wilmington, Massachusetts was informed of the call. That detective

and officers from the police department for the Town of North

Reading,   Massachusetts   then   went    to    Alysha's    apartment   and

obtained her oral consent to conduct a search of her apartment.

At some point after she consented to the search of her apartment,

Alysha signed a "Consent For Search" form that the law enforcement

personnel conducting the search had provided to her.             This form

authorized law enforcement authorities to "conduct a search of

[her] premises/vehicle" -- specifically, of her apartment, her

car, and her storage unit -- and "to take possession of any items

found which are relevant to the police investigation."           In signing

the form, Alysha certified that she was consenting to the search

"voluntarily, without threats of promises of any kind."




     1 The facts recited are either undisputed or drawn from the
District Court's initial Memorandum & Order denying Moran's motion
to suppress.    The District Court reconsidered the suppression
motion and issued a subsequent Memorandum & Order, but the District
Court did not modify its initial findings of fact.


                                  - 3 -
          Law enforcement authorities then searched Alysha's car

and her storage unit.     The District Court found that, when the

authorities that conducted the search of Alysha's storage unit

opened it, "Alysha differentiated the contents of the unit, stating

the black bags belonged to Moran while the boxes containing

Christmas decorations belonged to her."        The District Court also

found that "[a]lthough it is unclear whether Alysha gave express

consent to search Moran's bags, it is undisputed that she did not

limit her written consent or object to any portion of the search."

          Before law enforcement authorities searched the contents

of the storage unit, Alysha left the premises to pick up her child.

The law enforcement authorities who conducted the search removed

the closed garbage bags that are at issue from the storage unit.

A police canine was brought to the scene to check for drugs and

did not alert when it sniffed the bags.           (The canine was not

trained to detect fentanyl.)        The authorities proceeded to open

the bags and search their contents, and find fentanyl inside them.

Alysha later stated in an interview with a detective from the Town

of Wilmington and an agent from the United States Drug Enforcement

Administration that she did not know the bags contained fentanyl.

          Moran   was   indicted    for    possession   with   intent   to

distribute fentanyl, in violation of 21 U.S.C. § 841(a)(1).             He

filed a motion to suppress the fentanyl as the fruit of an illegal

search of the bags.      The District Court denied the motion to


                                   - 4 -
suppress on the ground that, although Moran had a reasonable

expectation    of    privacy   in   those       bags,   the   law   enforcement

authorities did not need a warrant to search them because Alysha

had actual authority to consent to their search and voluntarily

had given such consent.

            Moran filed a motion for reconsideration of the District

Court's denial of the motion to suppress.               In denying the motion

for reconsideration, the District Court declined to reach the issue

of whether Alysha had actual authority to consent to the search of

the bags.     The District Court found instead that Alysha had

apparent authority to consent to their search.                      This appeal

followed.

                                     II.

            The     Fourth   Amendment     of    the    federal     Constitution

protects "[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures." U.S. Const. amend. IV. "The Fourth Amendment generally

requires that the government obtain a warrant based on probable

cause before conducting a search."              United States v. Hood, 920

F.3d 87, 90 (1st Cir. 2019) (citing Katz v. United States, 389

U.S. 347, 362 (1967) (Harlan, J., concurring)).                     The warrant

requirement, however, is not absolute; "police need not seek a

warrant where 'voluntary consent has been obtained, either from

the individual whose property is searched, or from a third party


                                    - 5 -
who possesses common authority over the [property].'"        United

States v. Meada, 408 F.3d 14, 20 (1st Cir. 2005) (quoting Illinois

v. Rodriguez, 497 U.S. 177, 181 (1990)).

            The government does not dispute the District Court's

finding that the bags at issue belonged to Moran.   The government

also recognizes that the District Court denied Moran's motion for

reconsideration on the ground that Alysha had apparent authority

to consent to the search of the black garbage bags and not on the

ground on which it had initially relied in denying the motion to

suppress -- namely, that Alysha had actual authority to give such

consent.    Nevertheless, we may affirm the District Court's ruling

on any ground manifest in the record, see United States v. Rivera,

825 F.3d 59, 64 (1st Cir. 2016), and the government first asks us

to do so on the ground that Alysha had actual authority to grant

the necessary consent.    We thus begin with the actual authority

issue.     After explaining why we cannot affirm on that basis, we

then turn to the apparent authority issue.    With respect to both

issues, we review the District Court's legal conclusions de novo

and its findings of fact for clear error.   Meada, 408 F.3d at 20.2


     2 Moran argues that, despite Alysha's authorization for the
police to "take possession" of items relevant to the investigation
and the District Court's finding that Alysha did not limit her
written consent or verbally object during the search, Alysha's
general consent to search the storage unit did not extend to his
bag's stored therein. We assume, without deciding, that Alysha
did consent to a search of Moran's bags and address only whether
she had the actual or apparent authority to do so.


                                - 6 -
                                 A.

          A third party may consent to search another's effects if

the third party "possesse[s] common authority over . . . [the]

effects sought to be inspected."        United States v. Matlock, 415

U.S. 164, 171 (1974).    "Common authority rests 'on mutual use of

the property by persons generally having joint access or control

for most purposes.'"    Meada, 408 F.3d at 21 (quoting Matlock, 415

U.S. at 171 n.7).      Such "mutual use" makes it "reasonable to

recognize that [the third party] has the right to permit the

inspection in [her] own right and that the other[] [party has]

assumed the risk" that the third party will grant that permission.

Matlock, 415 U.S. at 171 n.7.


     Insofar as the government adequately develops the argument
that Moran did not have a reasonable expectation of privacy in his
closed, opaque black bags, see United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."), the argument lacks merit, see Meada, 408
F.3d at 23 (explaining that "a person generally has an expectation
of privacy in items he places in a closed container"); compare
United States v. Infante-Ruiz, 13 F.3d 498, 501-02 (1st Cir. 1994)
(finding that the defendant had a reasonable expectation of privacy
in a closed container that other people placed items within and
that he left in the trunk of a rented car even when he was not a
passenger), and United States v. Basinski, 226 F.3d 829, 836-38
(7th Cir. 2000) (finding that the defendant, who entrusted a
briefcase to a lifelong friend and asked him to store and then
destroy it, maintained a reasonable expectation of privacy in the
briefcase), with United States v. Hershenow, 680 F.2d 847, 854-56
(1st Cir. 1982) (finding that a defendant relinquished his privacy
interest in a closed container when he asked a business's
maintenance employee to store a box in the business's barn, a place
"unoriented to security," and did not inquire about the box during
the four months that it was in the barn).


                                - 7 -
           Thus, as we recently explained, to establish that the

third party had the actual authority to consent to the search of

effects that belong to another, the government must show that the

third party had mutual use of those effects -- here the contents

of the bags -- such that there is a "shared privacy interest" in

them.   United States v. Casey, 825 F.3d 1, 13-14 (1st Cir. 2016);

see also Frazier v. Cupp, 394 U.S. 731, 740 (1969) (finding that

a third party had actual authority to consent to the search of his

cousin's duffel bag when the third party not only stored the bag,

but was also a "joint user" of an interior compartment of the bag).

The government bears the burden of making that showing.        See

Rodriguez, 497 U.S. at 181.

           There is no evidence that, when Moran left his bags at

Alysha's, he told her that she could open the bags and gain access

to what was inside.   And there is no evidence that one could see

through the bags to the contents.      In addition, the fact that

Alysha had access to the bags at issue by virtue of their presence

in her storage unit does not, on its own, establish her mutual use

of whatever they contained.   See United States v. James, 353 F.3d

606, 614 (8th Cir. 2003) (noting that "one does not cede dominion

over an item to another just by putting [another] in possession").

And while the record does show that Moran had authorized Alysha to

move the bags at issue without giving her explicit direction as to

what she should do with them, that fact also fails to establish


                               - 8 -
that she had mutual use of the contents of those closed containers,

notwithstanding that they were in her storage unit.                   See United

States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (finding

that a third party did not have authority to consent to a search

of   a   briefcase   when    the     defendant   gave   the   third   party    the

briefcase and asked him to destroy the case and its contents).

            To fill in the gap in evidence that could show that

Alysha had the requisite mutual use, the government relies on

transcripts of recorded phone calls from November of 2015 that

Moran made from the correctional facility in which he was then

being held.       The government argues that the law enforcement

personnel who conducted the search knew the contents of those

recorded calls and that those recordings reveal a pattern of Alysha

going    into   Moran's     closed    containers   --   including     bags    that

belonged to him.      The government then contends that, in light of

the evidence demonstrating that pattern of behavior, it has met

its burden to show that Alysha had mutual use of the garbage bags

at issue, at least when that pattern is considered along with the

other facts bearing on her potential mutual use of them that we

have just reviewed.       But, we do not agree.

            The recordings came about when, in November of 2015,

Moran was incarcerated on a different charge and had stored his

possessions with his girlfriend, Tina Tomasi.                 According to the

transcript of the first call from the correctional facility in


                                       - 9 -
which he was being held, which occurred on November 5, 2015, Moran

explained to Tomasi how to weigh and price orders for purchases

-- presumably of drugs -- for two customers.                        On a second call

from       later    that   day    between     Moran    and   Alysha,      on   which   the

government also relies, the transcript shows that Moran asked his

sister to "teach" Tomasi "how to do it."                      Alysha responded that

she would "do it for her."

               The third recorded phone call on which the government

relies       occurred      on    the   same   day     from   the   same    correctional

facility.          It was between Moran and Alysha.           The transcript of the

recording of that call shows that Moran told Alysha to "go get all

[his] shit" and "all [his] money" from Tomasi. Moran further said,

according to the transcript, "Alysha, I'm going to trust you as my

sister, and to do things right, and fuckin keep things right, and

that's that."           He then told her that "people are going to be

calling, and [she was] going to have to go see them."                           When she

said during that call that she would keep the stuff in storage, he

responded: "Yeah, but, then, what are you going to do?                         Go to the

storage everyday [sic], every second you have to go get it? . . .

[T]hey come like, like that, like three, four, five times a day

. . . ."3



       3
       The record also includes the transcript of a fourth phone
call, made on November 8, 2015, in which Alysha told Moran that
Tomasi had not brought all of Moran's possessions to Alysha.


                                          - 10 -
               Based on this third phone call, the District Court found

that "[Moran] directed [Alysha] to access his property in order to

supply contraband to two individuals."            But, the District Court

made no finding that the direction that Moran gave Alysha at that

time to access that property also encompassed the bags that Moran

placed in Alysha's storage unit almost five months later, in March

of the following year, and that are at issue here.              Nor did the

District Court make any other finding based on the calls that would

support the conclusion that Alysha enjoyed mutual use of the

particular bags in question on this appeal.            Finally, neither the

evidence of this third call nor of the other two -- nor, for that

matter, any other evidence in the record -- makes manifest, either

on their own or when considered together, that Alysha was an

ongoing participant in Moran's drug business up through the time

of the search of the bags that are at issue in this case.4

               Thus, we do not see how either the evidence of the phone

calls, or the District Court's finding as to what the third phone

call       established,   supplies   a   basis   for   concluding   that   the

government met its burden to show that Alysha had mutual use of

the specific bags whose contents Moran seeks to suppress and thus

that she had actual authority to consent to their search.                   We




       4
       In fact, there is no evidence in the record that Alysha was
involved in Moran's dealing at any point after that November call.


                                     - 11 -
therefore reject the government's actual-authority-based argument

for affirming the District Court's ruling.

                                         B.

               That the government cannot meet its burden to show that

Alysha had actual authority to consent to the search of the closed

black garbage bags found in her storage unit does not, however,

end the matter. The government also asks us to affirm the District

Court on the ground that Alysha had apparent authority to consent

to the search of those items.           We thus now turn to that issue.

               To   resolve    the    apparent    authority     issue,     we   must

determine whether "the facts available to the officer[s] at the

moment [of the search would] warrant a[n] [officer] of reasonable

caution in the belief that the consenting party had authority" to

consent, regardless of whether the consenting party actually did

have    such    authority.       Rodriguez,      497   U.S.    at   188   (internal

quotation marks and alteration omitted).                We consider the facts

available to law enforcement personnel at the time of the search

to     determine     whether    law    enforcement      "had    a   mistaken--but

objectively reasonable--belief [that] the party in fact had the

requisite authority to consent to the search."                 Casey, 825 F.3d at

14 (emphasis added).           In this analysis, we consider whether a

reasonable person would "act upon [the consent] without further

inquiry."      Id. (quoting Rodriguez, 497 U.S. at 188).




                                       - 12 -
           Once again, the government bears the relevant burden of

proof.   See United States v. Davis, 332 F.3d 1163, 1169 (9th Cir.

2003) (citing Rodriguez, 497 U.S. at 181).               We find that law

enforcement     authorities'   belief   that   Alysha    had   authority   to

consent was not objectively reasonable.

           We    held   in   United   States   v.   Infante-Ruiz   that    an

officer's determination that a driver's consent to search the

rented car's trunk constituted consent to search the defendant's

briefcase stored in the trunk was unreasonable.           13 F.3d 498, 504-

05 (1st Cir. 1994).          We based that conclusion on the evident

reasons to doubt that the scope of the driver's consent to the

search of the trunk encompassed the defendant's closed container

located inside the trunk.       Id. at 505.    We explained that the car

driver's "general permission to search the car and its trunk was

qualified by [the driver's] further statement to the officer,

before the [officer] opened and searched the briefcase, that the

briefcase belonged to [the defendant]."         Id.     We emphasized that,

because of that statement regarding the ownership of the briefcase,

"the scope of [the driver's] consent was ambiguous -- an ambiguity

that could have been but was not clarified by further inquiry."

Id.

           Like the putatively consenting party in Infante-Ruiz,

Alysha made statements to the authorities who conducted the search

that clarified that the closed containers that they wished to


                                  - 13 -
search belonged to someone else.       Yet, in the face of that

statement from Alysha, the law enforcement authorities who were

conducting the search, like the law enforcement personnel in

Infante-Ruiz, made no further inquiry to clarify the nature of her

consent.   Thus, while the District Court determined that the

showing of apparent authority had been made, we do not agree, given

that the putatively consenting party claimed that the closed

containers belonged to someone else and the degree of uncertainty

that existed about whether she nonetheless enjoyed the kind of

mutual use of them that would give her actual authority to consent

to their search.   See United States v. Peyton, 745 F.3d 546, 554

(D.C. Cir. 2014) ("[T]he government's burden to establish that a

third party had authority to consent to a search . . . cannot be

met if agents, faced with an ambiguous situation, nevertheless

proceed without making further inquiry." (alteration in original)

(quoting United States v. Whitfield, 939 F.2d 1071, 1075 (D.C.

Cir. 1991))); United States v. Taylor, 600 F.3d 678, 683 (6th Cir.

2010) (finding that a third party lacked apparent authority and

noting that the officers "never questioned [the third party] about

whether she had mutual use or control of the [closed container]");

United States v. Purcell, 526 F.3d 953, 964 (6th Cir. 2008)

(explaining that when officers face ambiguity about a third party's

authority to consent, "either they may get a warrant, or they may

simply ask the would-be-consenter whether he or she possesses the


                              - 14 -
authority to consent to the search of the other items that the

officers wish to explore"); United States v. Kimoana, 383 F.3d

1215, 1222 (10th Cir. 2004) (explaining that "where an officer is

presented with ambiguous facts related to authority, he or she has

a duty to investigate further before relying on the consent");

United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992)

(noting    the    relevance        of   "whether     the   consenter    explicitly

disclaimed ownership" in determining whether it was reasonable for

the officers to believe that a third party had authority to consent

to a search).

            In arguing otherwise, the government relies again on the

phone calls from November of 2015.                 But, just as the evidence of

those calls does not establish a pattern of behavior between Alysha

and Moran that could suffice to show that she had actual authority

to consent to the search of whatever was inside of the bags at

issue,    the    evidence     of    the    calls    also   fails   to   provide   a

supportable      basis   on   which       law   enforcement   authorities    could

reasonably believe that Alysha had such authority.                      As we have

noted, the calls from November were made nearly five months before

the search at issue, and law enforcement authorities had no

evidence that, after those calls, Alysha had anything to do with

advancing her brother's drug dealing.

            The government also relies on a number of precedents in

support of its apparent authority argument, but they are each


                                        - 15 -
readily    distinguishable.        In     two    of   the   cases    on    which    the

government relies, the consenting party did not state that the

closed container at issue belonged to someone else, as Alysha did

here.     See United States v. Ruiz, 428 F.3d 877, 881-82 (9th Cir.

2005); United States v. Marshall, 348 F.3d 281, 288-89 (1st Cir.

2003).      Thus,   based   on    those    circumstances,         law     enforcement

reasonably could have believed, without further questioning, that

the consenting party had mutual use and control of the container.

            In the third case on which the government relies, the

police reasonably believed that the third party had joint access

to closed containers with narcotics inside in large part because

the officers discovered a note that the third party wrote showing

that she recently accessed the defendant's narcotics stash to

assist with the defendant's drug dealing, and the third party

proceeded to tell the officers which containers held drugs.                         See

United States v. Penney, 576 F.3d 297, 309-10 (6th Cir. 2009).

There is no comparable evidence of mutual use present here.

            In the fourth, and final case on which the government

relies, a truck driver was found to have had apparent authority to

consent to the search of the truck trailer, despite the driver

disclaiming ownership, because of a custom specific to the trucking

industry.    See United States v. Jenkins, 92 F.3d 430, 437-38 (6th

Cir. 1996) (finding apparent authority because "[t]he generic

relationship    between     the   owner     of    a   rig   and     its    driver    is


                                    - 16 -
characterized by a considerable grant of authority to the driver,"

as the driver is "typically allowed to enter the trailer . . .

[during] loading, unloading, [for] an inspection after an ominous

noise, or [for] an emergency").             The government identifies no

similar custom that could ground a finding of apparent authority

in   this   case.   Thus,   that   case,     too,   fails   to   support   the

government's position.

                                    III.

            For the foregoing reasons, we reverse the denial of the

motion for reconsideration, vacate the conviction, and remand the

case to the District Court.




                                   - 17 -
