WA: Search of visitor’s purse under SW for premises was unjustified

Defendant was on the premises as a visitor at the time the search warrant was executed. It was obvious that her purse and coat were hers, and a search of them was completely unauthorized. She did not have to object to the search at the time to preserve her claim. State v. Lohr, 164 Wn. App. 414, 263 P.3d 1287 (2011):

¶21 Under a premises search warrant, law enforcement officials may search the premises owner’s personal effects, provided those effects are plausible repositories for the objects named in the warrant. Hill, 123 Wn.2d at 643. A premises warrant “merely gives law enforcement officials permission to detain occupants while they conduct the search.” Worth, 37 Wn. App. at 892. But, a premises warrant does not authorize an officer to conduct a personal search of individuals found at the premises or a search of the personal effects that individuals are wearing or holding. Hill, 123 Wn.2d at 643-44; see also Worth, 37 Wn. App. at 892. Furthermore, “Fourth Amendment protections extend to ‘readily recognizable personal effects … which an individual has under his control and seeks to preserve as private.’” Hill, 123 Wn.2d at 647 (alteration in original) (quoting Worth, 37 Wn. App. at 893).

¶22 As we discuss above, Lohr’s purse was readily recognizable as her personal effect. The relevant question in premises searches is whether an item belongs to an individual not named in the warrant and, thus, whether the item is “not just another household item” subject to the warrant. Worth, 37 Wn. App. at 893. Accordingly, if an item is readily recognizable as belonging to an individual not named in the warrant, the item is not within the warrant’s scope.

¶23 Whether the defendant controlled the item and whether the defendant tried to maintain the item’s privacy are factors that aid in determining if an item was readily recognizable as belonging to someone not named in a premises warrant; but these are not independently dispositive factors. Were we to hold otherwise—i.e., that an item was readily recognizable as belonging to someone not named in the warrant, but nonetheless the search was lawful because the unnamed person did not control the item or failed to take further steps to maintain the item’s privacy (including asking the officer to stop the search)—we would turn on its head the concept of requiring consent to a search otherwise unauthorized by law. Accordingly, we hold that because Lohr’s purse was readily recognizable as her personal effect, Clary unlawfully searched her purse.