concurring in part and dissenting in part:

I concur in all but Part VII A of the majority opinion. I cannot join in that portion of the opinion because I believe that under the facts of this case the police could not have reasonably believed that Claudia Cosbie had authority to consent to the warrentless search of the motor home.

I

As an initial matter, I disagree with the majority opinion’s implication that the issue of whether Cosbie had sufficient authority under the fourth amendment to consent to a search of a motor home should be reviewed under the clearly erroneous standard. In my view, the question of whether Cosbie’s consent, freely and voluntarily given, was binding on Hamilton for the purposes of the fourth amendment “requires us to consider abstract legal doctrines, to weigh underlying policy considerations, and to balance competing legal interests.” United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101 , 83 L.Ed.2d 46 (1984). It is a question not altogether different from the questions of exigent circumstances and probable cause, questions which this court has already decided warrant de novo review. Id. at 1200 n. 4, 1204-05.

In Frazier v. Cupp, 394 U.S. 731 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969), the police asked the defendant’s cousin during the cousin’s arrest where they could find the cousin’s clothing. The cousin then pointed the police to a duffel bag located within his home. The court concluded that because the cousin had at least joint use of the bag, the police’s search of the bag was proper and that belongings of the defendant seized incident to the lawful search were properly admitted. Id. at 740 , 89 S.Ct. at 1425 . The Court’s decision is best understood as holding that the cousin had authority to consent to a search of the bag as far as his own belongings were concerned and that, this consent being valid, the clothing of the defendant also seized during the lawful search could also be admitted.

While this decision relied upon certain factual findings dealing with the use of the bag, it also made judgments about property of others seized incident to a lawful search. These questions involve a mix of fact and law. The fact that these questions involve the “exercise [of] judgment about the values that animate legal principles” is born out by the Court’s discussion. McConney, 728 F.2d at 1202 . The defendant claimed that he had given his cousin the use of only certain compartments within the bag. While this fact deals with the extent of mutual use, the Court concluded that it was legally irrelevant stating:

Frazier, 394 U.S. at 740 , 89 S.Ct. at 1425 (emphasis added). The Court noted further that the defendant “must be taken to have assumed the risk that Rawls would allow someone else to look inside.” Id. (emphasis added).

United States v. Matlock, 415 U.S. 164 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974) provides an even stronger example of the inherently legal nature of the consent issue. The Court stated that the appropriate inquiry in these consent cases requires a finding that the third party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171 , 94 S.Ct. at 993 (emphasis added). While a trial court may be in the best position to determine the actual extent of mutual use, the question of whether these facts constitute a “sufficient relationship” for the purposes of the fourth amendment is an inherently legal one.

These cases, coupled with the teachings of McConney , lead me to the conclusion that de novo review is appropriate on the *845 consent issue presented here. Because we have expressly reserved this question, Cosbie’s consent is sufficient to support the district court’s decision to admit the articles of clothing only if we would reach the same conclusion as the district court after a de novo review of the record. 1

II

Under a de novo standard of review, I cannot agree with the majority that the agents could reasonably believe that Cosbie had authority to consent to the search.

In United States v. Dubrofsky, 581 F.2d 208 (9th Cir.1978), we held that “[a] party who has a key to the premises and access throughout the residence can also give a valid consent to search.” Id. at 212 . I would concede that, absent an express statement to the contrary, actions consistent with ownership or consensual mutual use of the property are sufficient to justify an officer’s good faith belief that the third party had authority to consent to a search of the premises. Likewise in Matlock , mutual use of the premises without indications to the contrary was also sufficient to support a search.

Suppose, however, that in Dubrofsky the person having the key to the premises had told the law enforcement officers “I have the key, but I do not own the house and I am only supposed to go inside to feed the dog.” I do not think that in this case the police would be justified in having a good faith belief that the person had authority to consent to the search of the premises. Further, the owner of the house would not have “assumed the risk” that law enforcement officers would be admitted.

This case falls in between Dubrofsky and the hypothetical posited above. In my opinion, it falls closer to the latter. The actions taken by Cosbie, taken alone, would justify a conclusion that she had mutual

use of the property and authority to admit the officers. 2 Every action she took was consistent with this mutual use, and the conclusion of the FBI officers that she had authority to consent would have been justified.

The conclusion was not reasonable after Cosbie made an express disclaimer of ownership and after she indicated that she did not know who owned the motor home. The statement called into question her authority to consent based upon mutual use of the property. Cosbie may have had access to the motor home only for narrow and limited purposes, like, for example, moving the motor home so that she could move her vehicle through the driveway. At the very least, the officers should have inquired further about the extent of her access to the motor home.

Further, agents Powers and Flanigan contacted their office before approaching Cosbie at the Van Ness address. They were informed at that time that motor vehicle records showed Frank Crawford as the owner of the motor home, not either Hamilton or Cosbie. The agents made no effort to contact him or to garner his consent to a search of the vehicle. Powers and Flanigan could not have been surprised when Cosbie stated that she did not know who owned the motor home nor could they have been deceived by Cosbie’s statement that she thought the motor home belonged to Hamilton. The agents knew otherwise. In fact, after their conversation with Cosbie, the agents could only have been left with the impression that Cosbie knew little or nothing at all about where the motor home had come from or to whom it belonged. Given how little Cosbie knew, the agents could not have reasonably believed that Cosbie had authority to consent to a search of the vehicle.

*846 Although I do-not agree with Part VII A of the majority opinion, nonetheless I would affirm the conviction in this casé for the reasons set forth in Part VII B of the majority opinion.

. Thompson v. Louisiana, 469 U.S. 17 , 105 S.Ct. 409 , 83 L.Ed.2d 246 (1984) does not compel a different conclusion. In Thompson , the police testified that they received no consent to search. The Court noted that any finding of consent in that case would have to be gauged by the standards articulated in Matlock .

. As the majority opinion notes, Cosbie entered and exited the motor home several times in the presence of the agents.