When a mere visitor is encountered during execution of a search warrant on the premises, her purse cannot be searched without independent cause linking her to the premises other than mere presence. State v. Brown, 2018 Iowa Sup. LEXIS 1 (Jan. 5, 2018) (4-3) (applying state constitution):
In this case, we are called upon to determine whether law enforcement officers executing a search warrant may search a purse belonging to a visitor who is present at the premises to be searched but who is not named in the warrant. Under the facts and circumstances of this case, we conclude that the search of the purse belonging to the visitor was unlawful under article I, section 8 of the Iowa Constitution. As a result, the district court in this case erred when it refused to suppress the results of the search in an underlying criminal proceeding against the visitor.
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On appeal, however, the State does not defend the search on the basis of the theory employed by the district court order. This was no doubt a wise decision because probable cause with respect to Brown was only established by the unlawful search of her purse. Instead of relying on grounds independent of the warrant, the State asks this court to do what the district court declined to do, namely, notwithstanding Jamison, Fleming, and Cline, provide the State with an avenue to escape the warrant requirement. It cannot be done.
In any event, the State cannot succeed in any of its warrant-evading tests. For one thing, the Jamison and Fleming cases plainly reject a relationship test. Indeed, in Fleming, there was a clear and undisputed relationship between the defendant and the residence being searched. 790 N.W.2d at 562. He lived there. Id. Fleming was not one of those difficult cases where someone was using a shower in the residence subject to search and the court is asked to determine whether the facts are sufficient to show the third party was not “a mere visitor.” Fleming was incontestably not a mere visitor under the applicable caselaw employing the relationship test. See id. Yet, notwithstanding the direct and undisputed relationship between Fleming and the residence subject to the search under the duly issued warrant, we declared the search of his room invalid because there was no warrant issued based on probable cause. Id. at 568-69. Clearly, under our applicable caselaw, the search of Brown’s purse in this case cannot be supported based on a relationship test.
We now turn to the actual-possession test, the approach advocated by the State. As noted by an often cited federal case, the actual-possession test rests on an unrealistic assumption about human behavior, namely, that a visitor to the premises has no expectation of privacy in “wallets, purses, cases, or overcoats, which are often set down upon chairs or counters, hung on racks, or checked for convenient storage.” Micheli, 487 F.2d at 431; see also Nabarro, 525 P.2d at 576 (noting possession test ignores substantial interest the visitor has in possession, no matter where located); Platou, 312 A.2d at 34 (holding personal belongings brought by visitor retain constitutional protection until owner meaningfully abandons them). A holding of this court that a visitor loses all reasonable expectations of privacy when visiting a premises by hanging a coat on a rack or placing a purse on a chair or on the floor, simply does not comport with reality. A visitor who placed her purse on a sofa would be shocked to learn that her host, let alone government agents, was free to rummage around the purse looking for interesting or entertaining items while the visitor was in the other room. Micheli, 487 F.2d at 431 (“The rudest of government intrusions into someone’s private domain may occur by way of a search of a personal belonging which had been entrusted to a nearby hook or shelf.”).
It has been argued that a strict actual-physical-possession rule has the benefit of “clarity.” We are not so sure. In this case, the purse is right next to Brown. Does she have actual possession? She is not clutching it with her hands, but her hands are handcuffed. Is that, nonetheless, actual possession? Is the test really one of physical proximity?
In any event, a rule allowing the admission of evidence whenever authorities find drugs also has undeniable “clarity,” but would be plainly unconstitutionally overbroad. Even the United States Supreme Court has recognized that mere clarity in a rule is an insufficient basis to adopt it if the rule trenches on legitimate expectations of privacy protected by the Fourth Amendment. As noted by Justice Stewart, “The privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S. Ct. 2408, 2414, 57 L. Ed. 2d 290 (1978).
Plainly, a rule based on actual possession—which would require a visitor who seeks to maintain privacy to clutch a purse, physically hang on to a coat, or shoulder a computer bag during the entire course of a social visit to another person’s home—is completely unrealistic and cuts well to the bone of legitimate expectations of privacy and denies security to papers and effects. Such a rule cannot possibly pass constitutional muster under article I, section 8 of the Iowa Constitution. In order to avoid unconstitutionality, any test based on possession must, at a minimum, also include within its scope property that is not in the actual possession of the unnamed person but is constructively possessed by the person. See, e.g., Childers, 281 S.E.2d at 350-52 (holding visitor retained constitutional protection for purse placed on table in trailer); Lambert, 710 P.2d at 697-98 (suppressing evidence from search of purse sitting on table near defendant).
Our court has recently considered the doctrine of constructive possession in a number of cases in which the question was whether a jury could find a defendant who did not actually possess contraband could nonetheless be convicted on a theory of constructive possession. See, e.g., State v. Reed, 875 N.W.2d 693, 706-08 (Iowa 2016); State v. Thomas, 847 N.W.2d 438, 447 (Iowa 2014); State v. Kern, 831 N.W.2d 149, 162 (Iowa 2013); State v. Dewitt, 811 N.W.2d 460, 477 (Iowa 2012). Our court has been sharply divided on the scope of constructive possession in these cases. In our most recent cases, a minority of the court has argued we have adopted an overly expansive approach to the constructive-possession concept. See Reed, 875 N.W.2d at 711 (Hecht, J., concurring specially); Thomas, 847 N.W.2d at 448 (Hecht, J., dissenting).
What is crystal clear, however, is at a minimum the same expansive approach to constructive possession found in our recent caselaw upholding the convictions of criminal defendants must be applied in the context of search and seizure law. Indeed, it would be unprincipled in the extreme to fashion an expansive conception of constructive possession for purposes of upholding criminal convictions, but then apply a narrow view of constructive possession for the purpose of defeating search and seizure rights asserted by a suspect. Further, such an approach would be inconsistent with our robust protection of individual rights under the Iowa Constitution.
If we were to apply the constructive-possession doctrine of our recent cases, it is clear the motion to suppress should have been granted. The SWAT team stormed the residence, secured it in short order, and immediately handcuffed the persons in the bedroom. It was a shock-and-awe scenario where the occupants were immediately secured. This is not the kind of situation where persons present in the bedroom could rationally plan to hide contraband in the visitor’s purse or pass the purse around because of the presence of the SWAT team. After the occupants of the bedroom were secure, the purse was located right next to the kneeling Brown, who was handcuffed from behind. The close proximity of the purse under the circumstances was sufficient to establish possession. See People v. Lujan, 174 Colo. 554, 484 P.2d 1238, 1240, 1242 (Colo. 1971) (en banc) (suppressing the search of a guest’s purse, even though the guest did not have physical possession of the purse); Childers, 281 S.E.2d at 351-52 (suppressing results of search of purse located in close proximity to guest under a warrant for the premises); Nabarro, 525 P.2d at 577 (holding search of purse which was in guest’s “immediate vicinity,” on the floor near her, was not supported by the warrant on the premises); Lambert, 710 P.2d at 698 (holding purse lying on kitchen table next to defendant not searchable under a premises warrant not describing defendant). Applying the standards of our constructive-possession doctrine applicable in determining whether a defendant had possession of a controlled substance, Brown was in constructive, if not actual possession, of the purse.
Finally, we consider the possibility the State might prevail if we embraced a notice test. See McCabe, 192 Cal. Rptr. at 637 (noting police may not search property or possessions of a person they actually know is a nonresident); Nabarro, 525 P.2d at 576 (“[W]ithout notice of some sort of the ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for purpose of executing the warrant.”); Thomas v. State, 818 S.W.2d 350, 360-61 (Tenn. Crim. App. 1991) (finding search of purse officers knew or should have known belonged to nonresident unlawful). The State’s argument has even less merit under the notice test than under a possession test with a constructive-possession element. There is no question the State was on at least constructive notice that the purse belonged to Brown in light of the proximity of the purse to the handcuffed Brown. The search warrant in this case established probable cause only with respect to Jeffrey Sickles, and the police were on notice that it was unlikely the purse belonged to Sickles. See Lambert, 710 P.2d at 697-98. Further, when the purse was opened, officers discovered Brown’s ID and other identifying items in the bag. Although the record is not clear, one can infer these identifying items were discovered prior to the more intensive process of opening a container within the purse, discovering baggies within the container, and opening the baggies to discover traces of marijuana.