“[A] warrant authorizing the search of a home also authorizes police to search a purse found there but belonging to a person not named in the warrant.” State v. Gilstrap, 2014 Ariz. LEXIS 142 (August 20, 2014):
P7 The Fourth Amendment guarantees that persons shall be free from unreasonable searches and seizures. U.S. Const. amend. IV. Search warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” Id. The Supreme Court has explained that a valid search warrant authorizes the search of any container found on the premises that might contain the object of the search. United States v. Ross, 456 U.S. 798, 820, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Notwithstanding this general principle, a premises warrant does not authorize the search of a person who is not named therein. See Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).
P8 “[S]pecial concerns arise when the items to be searched belong to visitors, and not occupants, of the premises” because these “searches may become personal searches outside the scope of the premises search warrant.” United States v. Giwa, 831 F.2d 538, 544 (5th Cir. 1987). That is, the search may be subject to Ybarra’s rule that police cannot search the “person” of individuals found on the premises who are not named in the warrant. 444 U.S. at 92-93. Courts determining whether a premises search warrant permits the search of a visitor’s belongings have usually adopted one of three approaches: the possession test, the relationship test, or the actual-notice test.
P9 Under the possession test, officers may search personal items, such as purses or clothing, that are not in their owners’ possession when police find them in executing a premises search warrant. This test was first applied in United States v. Teller, 397 F.2d 494 (7th Cir. 1968), which involved a premises warrant that did not name the defendant. Id. at 496. While officers were executing the warrant, the defendant came home, entered her bedroom, and left her purse on the bed. Id. Officers searched her purse and found drugs. Id. The court upheld the search of the purse, reasoning that once the defendant put the purse on the bed, it was no longer “an extension of her person.” Id. at 497. Under the possession test, the search of a personal item like a purse is not regarded as a search of the person when the item is not in the person’s possession. See id. at 497-98.
P10 Several jurisdictions have adopted the possession test. See United States v. Branch, 545 F.2d 177, 181-82, 178 U.S. App. D.C. 99 (D.C. Cir. 1976) (search of a shoulder bag that was being worn was improper); United States v. Johnson, 475 F.2d 977, 979, 154 U.S. App. D.C. 393 (D.C. Cir. 1973) (search of purse resting separately from its owner, was not “worn” and therefore the search was proper); State v. Reid, 190 Ore. App. 49, 77 P.3d 1134, 1143 (Or. Ct. App. 2003) (search of defendant’s jacket that was near him, but not in his possession was proper); State v. Jackson, 873 P.2d 1166, 1169 (Utah Ct. App. 1994) (search of purse not in possession of visitor was proper).
P11 Other jurisdictions have rejected the possession test, finding that it “suffers from being at once too broad and too narrow.” United States v. Micheli, 487 F.2d 429, 431 (1st Cir. 1973). The court in Micheli chose instead “to examine the relationship between the person and the place.” Id. The court concluded that a search warrant for an office authorized the search of a briefcase belonging to the business’s co-owner because the defendant “was not in the position of a mere visitor or passerby who suddenly found his belongings vulnerable to a search of the premises.” Id. at 432. Rather, because “[h]e had a special relation to the place” the determination of probable cause supporting the issuance of the warrant included personal articles, like a briefcase, that might also be found inside the office. Id.
P12 The relationship test has also found support in other cases. See United States v. Young, 909 F.2d 442 (11th Cir. 1990) (concluding that the relationship test was “more reasonable” than the possession test and holding that officers acted within scope of a premises warrant by searching purse of a person who lived at the premises but fled as officers arrived); United States v. McLaughlin, 851 F.2d 283 (9th Cir. 1988) (finding that the co-owner of business searched with valid warrant had a sufficient relationship to the premises to allow police to search briefcase); Giwa, 831 F.2d at 545 (concluding that the search of defendant’s bag was appropriate because he was sleeping at the residence when police knocked and he opened the door clad in a bathrobe and slacks, factors tending to show he was more “than just a temporary presence in the apartment”).
P13 A few jurisdictions have adopted a third approach, the actual-notice test. See State v. Nabarro, 55 Haw. 583, 525 P.2d 573 (Haw. 1974). This test derives from the relationship test, but instead of focusing on the relationship between the visitor and the premises, it focuses on the notice given to police regarding an item’s ownership before it is searched. Id. at 576-77. This test allows police to search an item that may contain the object of a premises warrant unless they are put on notice that the item belongs to a non-resident. Id. at 577.
P14 This test has also found support in several jurisdictions. See Waters v. State, 924 P.2d 437, 439 (Alaska Ct. App. 1996) (finding search of defendant’s coin purse proper because no “circumstances provid[ed] clear notice that the purse actually belonged to [defendant]”); People v. McCabe, 144 Cal. App. 3d 827, 192 Cal. Rptr. 635, 637 (Cal. Ct. App. 1983) (finding search of purse was proper because police had no facts that “would have put them on notice that the purse belonged to a non-resident”); State v. Lambert, 238 Kan. 444, 710 P.2d 693, 697-98 (Kan. 1985) (finding search of purse improper because officers had no reason to believe that the purse belonged to the person named in the warrant); State v. Thomas, 818 S.W.2d 350, 360 (Tenn. Crim. App. 1991) (finding search improper because officers “knew or should have known” that the purse belonged to a non-resident).
P15 After considering each test, we conclude that the possession test provides the best approach. It aligns with the Supreme Court’s decisions in Ybarra and Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). Ybarra limits the principle that a premises warrant authorizes police to search any item that might contain the object of the search by holding that the warrant does not authorize the search of a person it does not name. 444 U.S. at 92-93. This reflects that searches of a person involve a higher degree of intrusiveness and require justification in addition to that provided by the probable cause that supports a premises warrant. Even though the search of certain personal items, such as a purse, can in some circumstances amount to the search of a person, Houghton recognizes that they are not such a search when the item is not in the owner’s actual possession. Houghton, 526 U.S. at 305-06. Although Houghton is not dispositive because it concerned a vehicle search, “the thrust and tone of the Court’s analysis leaves little doubt that, if faced with the question, the Court would endorse a ‘physical possession’ test for searches of premises.” Reid, 77 P.3d at 1141.
P16 Additionally, the possession test’s simplicity, precision, and the guidance it offers to police and courts make it superior to the relationship and actual-notice tests. See Micheli, 487 F.2d at 431 (1st Cir. 1973) (noting that “[The possession test] has the virtue of precision”); State v. Leiper, 145 N.H. 233, 761 A.2d 458, 462 (N.H. 2000) (finding that the possession test minimizes “the potential for fraud and gamesmanship during the execution of search warrants when parties not named in the warrant are present at the location of a search”); Reid, 77 P.3d at 1140 (observing that courts that have adopted the possession test “have emphasized its simplicity and clarity”). Searches often occur in harried, dangerous circumstances and officers may not be readily able to identify the relationships between persons and the premises or to assess whether items might belong to someone not named in the warrant.
