would not have been unreasonable to conclude that Mrs. Rodriguez's actions in the apartment demonstrated her authority to grant them access to her husband's personal effects.
On the question of her consent, what transpired in the apartment is further evidence that Mrs. Rodriguez was aware that the agents specifically wanted to search Rodriguez's personal effects. Given the nature of the search of the apartment, we find it unlikely that she did not understand the extent of the search that the agents wanted to and would conduct in the janitor's room in the event that she consented to their entry. Indeed, the testimony shows that Mrs. Rodriguez ultimately consented to the search of the room after she informed the agents that it was a place where her husband worked, sometimes slept, and stored some of his effects, and thus she knew that the agents were interested in searching the storage room because of what she told them. Her only expressed concern in hesitating to open the door to the storage area was that the Union might not like it; there was no indication that she was hesitant because she feared she lacked authority to grant them access to her husband's personal effects. By granting access to the room and her husband's effects, including his box and briefcase, she effectively consented to their search.
Although we are mindful that to say that Mrs. Rodriguez consented to a search of the janitor's room "is not necessarily to say that she consented to a search of the items it contained," id. at 523, under the circumstances here we find that her consent extended at least as far as allowing entry into the room and a search of her husband's personal effects, which from all appearances is something she herself possessed authority to do.
This is not to say that Mrs. Rodriguez possessed apparent authority to consent to the search of any items with another person's name emblazoned on them or of the closed boxes containing union records. Mrs. Rodriguez's position with respect to those items would in such an instance be identical to that of United Airlines in the analogy posed by Judge Easterbrook, in which he points out that although United may "consent to a search of its baggage handling facilities . . . no one thinks that United could consent to a search of all luggage in its possession."
Id. at 523. However, surely the consent to search the baggage handling facility, absent express limitation to the contrary, would extend into all areas that the official granting consent would have had apparent authority to enter.
Thus, it is not enough simply to argue, as Rodriguez does, that he possessed an additional privacy interest in the box and briefcase and therefore the evidence gained from them should be suppressed. By placing his name on the box and briefcase he may have adequately ensured a privacy interest in the items such that persons other than his wife would clearly not possess an apparent right of access. However, there is no evidence that suggests that the placement of his name on these items was further intended to bar access by his wife. For example, there is no evidence that the box or briefcase contained a lock, or even if they did that Rodriguez had kept them locked and possessed the only key. To the contrary, the briefcase was open at the top and the plastic box was not sealed in any way. Nor is there evidence that Rodriguez ever told his wife that the briefcase and box were off limits to her. Cf., United States v. Sealey, 830 F.2d 1028 (9th Cir. 1987) (wife told officers that she needed her husband's permission to go into the garage). Mrs. Rodriguez's apparent authority and consent overcomes the privacy interest.
Therefore, we conclude that the evidence obtained from a search of the box and the briefcase should not be suppressed.
We now turn to the propriety of the search of the remaining containers. At the supplemental hearing Magistrate Balog found that Rodriguez did not possess any reasonable expectation of privacy in the contents of closed, unmarked boxes found in the storage area. January 19, 1990 Trans. of Procs. at 42. Nevertheless, in his Report and Recommendation, Magistrate Balog recommended that the evidence contained in the closed, unmarked boxes should be suppressed because the additional testimony did not show that "Mrs. Rodriguez had apparent authority to consent to the opening of these containers, and did so . . ." As stated above, however, that showing pertained only to the question as to whether Mrs. Rodriguez had apparent authority and consented to the search only of the containers clearly marked with Rodriguez's name -- i.e. those containers in which he possessed an additional and demonstrable privacy interest. If no reasonable expectation of privacy existed with respect to the unmarked boxes, then so long as the consent to be in the room conducting a search was valid (which the Seventh Circuit held it was), Rodriguez has no grounds to challenge the examination of the unmarked boxes. The boxes were not marked in any way to indicate Rodriguez's ownership, Mrs. Rodriguez did not object to the search of the boxes or disclaim an interest in them, and, even if some of them were sealed, the boxes "were not the type of 'enclosed spaces' -- such as suitcases, strongboxes, footlockers, etc., commonly used to preserve privacy." See United States v. Sealey, 830 F.2d 1028, 1031 (9th Cir. 1987). Cf. Rodriguez, slip op. at 7-8, n. 2. Therefore, we conclude that Rodriguez's lack of a demonstrable privacy interest in these unmarked boxes deprives Rodriguez of any grounds to object to their search. Accordingly we deny the motion to suppress the evidence found in these boxes.
Finally, we adopt the Magistrate's recommendation that the motion to suppress should be denied as to evidence obtained from the boxes clearly marked with the "union address" or the "union records" on the outside. Here, it is even more evident that Rodriguez could have possessed no reasonable expectation of privacy as to the contents of those boxes.
Pursuant to the Seventh Circuit's opinion, we vacate the conviction and order a new trial. We grant Rodriguez's motion to suppress the statements taken from him by the FBI agents following Rodriguez's initial appearance on February 5, 1988, because the statements were obtained in violation of Rodriguez's Sixth Amendment right to counsel. Based on our review of the entire record, including the additional proceedings, and having made the additional findings required of us by the Seventh Circuit on remand, we deny Rodriguez's motion to suppress the evidence found by the FBI in the various containers located in the basement storage room. A status hearing will be held on March 23, 1990, at 11:00 a.m. It is so ordered.
Dated March 7, 1990