State v. Jackson

JACKSON, Defendant Jodee BENCH, ORME, Before JACKSON Appellant. JJ.

No. 930264-CA. Appeals Utah. BENCH, Court Judge: April appeals Defendant con- Jodee Jackson possession

viction for of a controlled sub- stance, misdemeanor, B class violation of (Supp.1993). § Utah Code Ann. 58-37-8 affirm.

FACTS 15,1993, January On officers execut- ed a search at a residence in Orem. The search authorized the persons living all in the residence and all areas on the where controlled sub- stances concealed. could be home, Upon entering officers saw females, defendant, including standing three lying the kitchen. A warrant, kitchen counter. Pursuant purse. Upon an officer searched the search- plastic bag the officer saw a containing marijuana and then found items identifying purse’s defendant as owner. marijuana The officer found the before deter- mining purse belonged defendant and that did not live at defendant the resi- dence. charged possession

Defendant was substance, B a controlled a class misdemean- or, § in violation of Code Ann. Utah 58-37-8 trial, (Supp.1993). At the court denied de- suppress fendant’s motion to evidence ob- tained from the search of her “purse court found [was] within the residence, something [it was] just any- much [was] thing appeal else within the residence.” This followed. OF REVIEW

STANDARD findings underlying ‘We review the factual suppress the denial of a motion to standard, ‘clearly erroneous’ and re- husband. Teller was not when under a home the initiated, court’s conclusions of law based view the trial was but search entered the house Brooks, thereon for correctness.” the search still in progress while was (Utah (citation 640, App.1993) 643 849 P.2d placed purse her on a bed. The seized omitted). purse they it the and searched where discov- vials ered two of heroin. Teller was convict- ANALYSIS purchasing, selling, ed of dispensing, and dis- argues that the Defendant tributing appealed, arguing heroin. Teller purse pursuant obtained to the of her purse per- that her was an extension her sup her is inadmissible and that motion to son and therefore the officers violated press granted. dispos- should have been The rights her Fourth Amendment when issue, therefore, itive is whether the appellate up- searched her The court was within the of the search of the court, ruling stating held the of the trial premises.1 personal Teller’s immuni- retained ty personal from case, the extent In war the instant the search was that it worn her. Id. at 497. rant of all authorized the search areas on premises where could The controlled substances court concluded since Teller was not “[A]ny be wearing purse, placed concealed. container situated instead it but had within which bed, [is] residential merely on it “was another household subject validly-issued may be item to the lawful execution of the searched if it is reasonable to believe that the search warrant....” Id. could kind container conceal items of the developed basic The doctrine in Teller has portrayed United v. warrant.” States applied jurisdictions. been in several other 49, Cir.1987); Gray, 814 F.2d 51 also see Johnson, In F.2d 977 United 475 (Utah Hansen, State v. 732 131 (D.C.Cir.1973), executing police, 1987) (“lawful premises gen fixed apartment, an found erally area in extends entire Johnson, nonresident, found”). seated on couch reasonably contraband could be However, with her the table in belong on front her. searches of items known to visitors, Despite rather the fact than residents of officers knew John premises, personal visitor, result searches son was a search of the scope of that are outside the within the the war search warrant. United States v. 831 rant. court reasoned that (5th Cir.1987). An individual’s not [defendant] “was Vorn’ presence mere at a named in a search not thus did constitute extension her automatically subject does person so as to make search one to a individual search. United person.” 979; Id. at see also United Re, 581, 587, States v. Di S.Ct. (D.Conn. Riccitelli, F.Supp. v. (1948). 222, 225, 92 L.Ed. 210 (evidence 1966) from seized visitor’s held admissible not wear must therefore decide whether ing purse, surrendering was not into coerced found on the kitchen it, ownership did not declare until after counter was a search of defendant. search); State, Carman In 397 F.2d 494 (in (Aaska 1979) upholding search of Cir.), 393 U.S. S.Ct. fact that (1968), court focused on officers execut L.Ed.2d visitor, being worn in visitor’s was not ed search warrant on Teller’s house order and arrest her of search could have been concealed argues appeal. State 1. Defendant also that the search warrant dress Webb, for first time on sufficiently (Utah (matters to be does not describe residence App.1990) city because the was not listed searched placed in trial cannot raised for issue at the warrant. Defendant failed raise address in appeal). first time on trial; therefore, argument ad- this we do not “clearly rea- tionsMp approach is the more no claimed purse, and one within dissent, approach.”3 sonable Neither purse). cites, any guid- authorities it offer nor the Pa. In Commonwealth v. application ance in the Pennsylvania Supreme A.2d 909 Presumably, approach. police officers serv- involving the a similar issue Court addressed ing premises would be a valid search warrant search, war- pursuant premises to a search required to ascertain the of each jacket by being of a visitor’s worn in The offi- item or container The at the of the search. the visitor time required then be to cers would determine court stated: of the owner the item or container whether prohibited Clearly, are not merely a “transient or whether visitor” searching personal proper- a visitor’s from greater to the there was some connection (not person) prem- ty located on the premises. The not define the dissent does a in which search warrant ises a point at which a visitor more than becomes part of the property when that executed Pennsylvania Su- transient visitor. The premises and is a general content appropriately re- preme Court criticized the object of the plausible repository for the lationship approach it inef- because would be Otherwise, impossible it be search. would require fective and unworkable to officers effectively premises to a search serving a warrant they present because where visitors are items, clothing and would not know which to make the which arti- distinction between clothing and which personal property containers could be searched cles of be- long belong not be to to could searched. the resident and which beginning visitor before the search. It A.2d at 911. court Id. 549 The require police would not be to reasonable of the because it “was executing a to ask individ- officers part general the room and of the content of they premises uals located on the object” plausible repository for the property own various items of 912.2 the search warrant. Id. at nor, expect it be would reasonable to approach adopt the out in set response appropriate they required were Johnson, and Reese. to do so. dissent, however, adopt urges us to Reese, ap- “relationship it refers to 549 A.2d at what as the 911.4 The court went proach.” argues practical The dissent that the rela- to discuss one of fundamental argues "way represents "relationship 2.The dissent that because of the 3. The dissent carry approach" by majority jurisdic- society” their valu- is followed men and women ables, our majority approach fact will fall more tions. The mere that a definitive number of However, jurisdictions harshly follow does not on women the doc- certain than men. ipso grant any special adopt today, facto status of correctness trine we as well as the cases cited event, doctrine, approach. any appears In equal to that apply of that force jurisdictions question any possession, have addressed container not in the visitor's evenly split. object might which the be con- wallet, cealed, whether the container is Nabarro, Similarly, in State v. 55 Haw. briefcase, bag, clothing, shoulder article of etc. Supreme the Hawaii See, e.g., 549 A.2d Commonwealth recognized problems Court inherent associat- (Pa.1988) jacket upheld of visitor’s approach. with the ed dissent’s premises object where under jacket); realistically expected [P]olice search could have been concealed in cannot Snow, searching property Mass. avoid of a mere visitor Commonwealth (1973) (search N.E.2d customer's unless are aware of hanging shop upheld ownership. requirement coat on rack in barber Absent a of such awareness, under valid warrant where ob- of a warrant effective execution ject place impossible of search could been concealed within to search a since have would be coat); Or.App. plausible could that a never be sure (1980) (upholding repository of visitor’s for items in the warrant be- named resident, searchable, daypack longs worn and hence is non-resident, day- of search could have been concealed within to a and hence is not searchable. this, pack). sort of Because without notice some

H69 relationship approach by presumably keep dangers of stat- a stable of transient visi- who, search, merely that: tors the event will proclaim their status and then declare owner- visitors to the could frustrate the contraband, ship placing in the thus police by placing contraband ob- efforts of among jects beyond effects or their unworn of the warrant announcing ownership of articles of cited, various search. In view of the authorities clothing and containers order practical problems application, we re- beyond those items of the war- ject relationship approach un- any rant. We cannot sanction rule that reasonable and unworkable. through gamesmanship fraud and erects case, present In the the officers did not legitimate barriers to the effective and ex- nonresident; know that defendant was nor ecution of warrants. purse did know who owned the when it at 911. Id. See also State v. Or. was searched. Because the was not (1980) (ex App. 751-52 physical possession defendant’s when was pressly rejecting relationship approach); searched, and the because could have Carman, (“we 602 P.2d at 1262 do not think contained items in the search war- police duty the had a [who solicit scope the fell within the of the specific objects]”). owned Therefore, premises search warrant. defen- Micheli, Similarly, in United States v. subject dant’s to search as much (1st Cir.1973), Judge Campbell F.2d anything as else within the residence. relationship approach im- criticized the practical. CONCLUSION may necessary lengthy inquiry It make police subjective denying

into the officer’s knowl- The trial court did not err in edge at the suppress time of search. Since the defendant’s motion to evidence ob- quantum “relationship” nature and can- tained from the search of her defined, readily not officers and courts therefore affirm.

may uncertainty be bedevilled with in a certainty especially field where desir- JACKSON, J., concur. may “test[”] able. The dissolve into a ORME, Judge (dissenting): protracted guidelines hunt so faint as unrecognizable. to be And it invites a host disagree majority’s I with the insistence of other niceties: such as whether purse, that a mere visitor’s when not police knew or should have known possession, actual recently had been [item container] where a warrant names someone; brought premises by how premises not and its residents but does name bag near the must be to its owner before ruling contrary to the visitor. Its is both inquire need to its owner before against weight prece- and the clear reason inquire into the latter’s need majority opinion primarily dent. The relies “relationship” premises; and other opinion on a 1973 from the District of Colum- society refinements which I think has no Appeals, bia Circuit Court of which focused pursuing. vital stake analysis its on whether or not a visitor’s J., (Campbell, concurring). at Id. physical possession. inwas Unit- Johnson, relationship approach espoused ed States v. 475 F.2d Under the (D.C.Cir.1973).1 dissent, by an astute dealer could Since the visitor was vicinity" belonging, and the of a are in the "immediate of the visitor picked purse, declaring up thus own- objects prem- entitled to that all within assume ership. Id. 577-78. lawfully subject ises to search under a warrant part purpose of those for the single 1. Aside from the trial court executing the warrant. other cases cited fail to Id. 525 P.2d at 576-77. The court went on to pronouncement that a visitor’s is sub- hold inadmissible evidence that was seized in the physical posses- ject to search if it is out of her search of visitor’s because plausible objects container of sion and is a be assumed that whatever is “wearing” [i]t court concluded should not found on the described in the longer no of her that it was “extension necessarily proper falls within the person,” thus was within of the and search; rather, necessary it is warrant which authorized search why person’s belongings hap- to examine name but did not the visitor. Id. pen ‘[T]he Fourth be on the physical proximity Significantly, the test places,’ protects people, Amendment has announced Johnson been criticized States, 347, 352, Katz v. 389 U.S. United First, Fifth, rejected and Elev 507, 511, L.Ed.2d 576 S.Ct. Appeal. enth Courts of See United Circuit protective boundary established re- (11th Young, 909 F.2d 444-45 quiring should a search warrant encom- — Cir.1990), —, pass those extensions of a which he (1991); private, L.Ed.2d 62 reasonably preserve S.Ct. United seeks regardless of where he be. 544-45 Micheli, Cir.1987); Using at 432. “rela Cir.1973). Wayne R. also formula, tionship” occupant the “usual Seizure, 4.10(b) LaFave, § Search building being lose a searched would (2d 1987) (physical proximity approach ed. there; belongings interest located his how criticized”). According “rightly ever, to the courts a transient visitor would retain his ex test, physical proximity rejecting the “in de pectation of or not privacy, whether his be termining longings whether a search of ef held him or have been scope ‘premises’ temporarily Young, 909 put fects violates war down.” F.2d at (“[a] 445. See 487 F.2d at 432 relationship must consider the be visi one private in in object, tor home stands person different tween the and the position ‘shooting gal searched,” from a habitue of focusing rather than exclu Neet, ”); lery' F.Supp. v. 504 United States sively of on whether the the search is 1220, (D.Colo.1981) (distinguishing 1227 person’s physical possession. actual “polar” occupant two of an eases a mere Young, 909 F.2d at 445. Accord United visitor). 49, (1st Cir.1987); Gray, F.2d 51 814 544-45; Micheli, F.2d at 831 Appeals While Court of the Tenth Circuit support analysis, matter, at its apparently 431. In of the First has not ruled on the other addressing courts in Circuit noted the western states factors, including warrant. not in in the search The cited cases visitor's perplexingly possession). are either mischaracterized majority, based on different than those facts majority's analysis The selectiveness of the here, present unnecessarily analysis. broad exemplified by lengthy quotation best its of State 494, 397 See United States v. F.2d 495-96 Nabarro, (Haw.1974). v. 525 P.2d 573 While 937, Cir.), 393 89 S.Ct. competing policies Nabarro does comment on the 299, (concerned (1968) 21 L.Ed.2d 273 search of determining scope involved of purse rather than that resident's of a mere visitor particular premises directed at State, premises); to Carman v. should include a visitor’s one of side (court 1255, (Alaska 1979) 1262 held defen majority recites in expectation privacy in dant had no reasonable of opinion actually goes to hold Nabarro Snow, visiting purse); sister’s Commonwealth v. "beyond search of the visitor's 806, 804, (Mass.1973) (upheld 298 812 N.E.2d allowable the warrant to jacket of visitor's where autho room.” Id. at 577. present persons public rized arrest of all blush, which, appear Other at cases first to 749, place); (Or.App. State v. 752 majority's opinion actually 1980) do not. (upheld day pack search of visitor’s found Martinez-Zayas, arrest); See United v. 857 following visitor’s basement lawful 122, (concerned (3rd Cir.1988) 909, 133-34 n. Commonwealth A.2d 909-10 visitor’s); (Pa.1988) (search search of rather than upheld resident's of visitor's Coleman, 124, People v. 436 Mich. N.W.2d named visitor and him described 615, 1990) (search (Mich. drug premis user’’ and visitor's a "known associate of Riccitelli, resident). special relationship es’ But where she "had a see (D.Conn.1966) F.Supp. (upheld in the search warrant and to named searched”). purse given the home visitor's search of combination

H71 use). Accordingly, issue have followed the “relation test Neet, ship” approach. F.Supp. rights preserves See better individuals un- test, (rejecting physical proximity 1227-28 suspected connected with the criminal activi- finding ty, search of mere visitor’s unrea underlying described in the affidavit sonable); People Lujan, 174 warrant, Colo. giving (1971) (same); P.2d State v. Bul leeway necessary effectively search the gin, 120 Idaho P.2d premises.2 (App.1991) test, (adopting “relationship” conclud hand, In the case at defendant was a mere that mere visitor’s Her was on Lambert, search); 238 Kan. the kitchen counter near which she was (1985) 697-98 standing. clearly She had a reasonable ex- though physi unreasonable even not in pectation in the contents of her possession). District cal -Even the of Colum purse.3 nor Neither she be- physical bia Circuit itself has modified its longings were within of the search proximity approach some extent. warrant, therefore, special absent cir- Branch, United States v. here,4 cumstances found the search clear- (D.C.Cir.1976) (ruling that combination of ly violated the Fourth Amendment. Accord- factors, including fact that defendant was a ingly, the trial suppressed court should have visitor, bag mere made search of his unrea the evidence of the contents defendant’s sonable). I would reverse. “relationship” clearly test the more deciding reasonable what premises warrant,

be searched incident to

because it takes into account the See, e.g.,

facts each case. United States v. (1st Cir.1987)

Gray, (upheld deal had Micheli,

just place); taken 487 F.2d at 431- briefcase where defen- premises); Bulgin,

dant co-owner of (visitor’s

P.2d at 1237 overnight guest,

where visitor was was de- affidavit, suspected

scribed and was majority adopting way society claims that the "rela ences in the and women in our men tionship” supposed test would allow “visitors” to traditionally pri- have their valuables and carried purpose by simply thwart the effects, of a search warrant approach majority vate favored in the claiming ownership of "the contraband.” While matter, practical harshly as a falls more reality test in avoids such absurd expectation privacy on women. A woman's flexibility, results due to its the blanket great expectation her is as a man's opinion truly embraced in the "would privacy in his wallet. The fact that a wallet fits incriminating facilitate the insulation of easily pocket, purse may into a be of a through simple from lawful searches act of shape temporary placement requiring size or off stuffing ing pockets” upon it in one’s hear sake, body one's should for comfort's not dictate Young, arrive. recognize society whether will the existence of a - Cir.1990), F.2d U.S. -, expectation similar in each such item. (1991). 112 S.Ct. L.Ed.2d 62 majority's As for the statement that the rela 4.Such include: where the circumstances indi tionship approach is "unworkable” since it does search; vidual consents to a where the item rule, not constitute an absolute it need view, plain is in albeit on his or pointed analysis, out that Fourth Amendment possession; or in his or her where the which focuses on or not a arrest; reasonable, by requires valid search is its nature many search is incident to a and where search, inquiry probable coupled fact-sensitive contexts. See there is cause United States exigent circumstances excuse the usual Cir.1973). Lambert, requirement of a warrant. State v. (Kan.1985). jacket, 3. This case involves a suit- —not case, golfbag, jar. or cookie Because of differ-

Case Details

Case Name: State v. Jackson

Court Name: Court of Appeals of Utah

Date Published: Apr 19, 1994

Citation: 873 P.2d 1166

Docket Number: 930264-CA

Court Abbreviation: Utah Ct. App.