Dissenting Opinion
dissenting.
{¶ 2} The majority sees this case as straightforward and easily affirmed without opinion on the basis of Wyoming v. Houghton (1999),
{¶ 3} In Houghton, the United States Supreme Court was presented with the question of whether, when there is prоbable cause to search an automobile for contraband, police may search a passenger’s purse found in the back seat of a vehicle. The court, in a six-to-three decision, held that “police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” Id. at 307,
{¶ 4} Unlike in the case before us, in Houghton, the purse was found in the back seat of the car and was not, at the time of the stop, directly cоnnected to its owner. Justice Breyer highlighted this point in his concurring opinion, writing that had the purse been carried by, or otherwise attached to, its owner, the result might have been different. He stated that “the container here at issue, a
{¶ 5} If, as Justice Breyer suggests, a purse that is in the possession of its owner should not be considered a container, but instead should be considered an item in which a person has a heightened expectation of privacy, the result mandated by United States Supreme Court precedent is decidedly different from the one the majority reaches todаy. In United States v. Di Re (1948),
{¶ 6} Thus, the question that we must answer in this case and the question that the majority fails to address is: Was the search of Laura Mercier’s purse more analogous to a search of a container or a search of her person? Based on the facts and circumstances of this case, I would answer that the search of Mercier’s purse constituted an impermissible search оf her person.
{¶ 7} Mercier was a passenger in a car driven by Charles Hagedorn when he was stopped by the police. Immediately before the stop, Hagedorn had sоld marijuana to a police informant. The sale had occurred outside of the car. After completing the sale and returning to the car, Hagedorn had driven off with Mercier. He was then stopped by the police.
{¶ 8} During the stop, the police recovered rolling papers, the money used by the informant to purchase the drugs, and Hagedorn’s remaining supply of marijuana, which he voluntarily turned over when the officers told him that they smelled marijuana. After arresting Hagedorn, the police ordered Mercier, who was holding hеr purse on her lap, to get out of the vehicle and leave her purse behind.
{¶ 9} Although Mercier was ordered out of the vehicle, one of the police officers on the scene testified that he did not consider her to be a suspect in any crime. Nor was she viewed as a security threat, for the officer also testified that
{¶ 10} Although we have not yet considered, in light of Houghton, whether a purse when being worn or held constitutes part of the person or is instead a separate container, several other states have addressed this issue. The Kansas Supreme Court, relying in part on Justice Breyer’s concurrence in Houghton, held that unless there is an arrest or probable cause sufficient to support a search, a woman’s purse in her possession or under her control constitutes part of her person and is not subject to search. State v. Boyd (2003),
{¶ 11} Despite the fact that a majority of state supreme courts that have considered the issue hаve held that a person has a heightened expectation of privacy in a purse being carried or worn, that conclusion is not uniform. In a three-to-two decision, the Sоuth Dakota Supreme Court held that police may order a woman to leave her purse in a vehicle and that officers have the same authority to search the рurse as they would other containers found in the vehicle. State v. Steele,
{¶ 12} Rather than accept the view of the South Dakota Supreme Court, I am persuaded that a woman (or man for that matter) in possession of a purse, either
{¶ 13} This holding would not limit law enforcement officers’ ability to search the person, including a purse, subject to lawful arrest. The rule that police may search a person when probable cause for arrest exists remains unchanged. Officers may also still exercise their authority under Terry v. Ohio (1968),
{¶ 14} In this case, Mercier was not under arrest and was not suspected of any criminal activity. Without any reasonable suspicion that Mercier herself was involved in Hagedorn’s criminal activity, the officers did not have probable cause to arrest and search her. Nor did she pose a threat to officer safety, as is highlighted by the fact that the officers could not recall specifically whether she had been frisked or otherwise chеcked for weapons.
{¶ 15} Our Fourth Amendment jurisprudence is fact-intensive as to the circumstances of reasonableness. Given these facts, I would hold that because the seаrch of her purse violated Mercier’s Fourth Amendment rights, any evidence obtained as a result must be suppressed. I therefore dissent and would reverse the judgment of the court of appeals.
Lead Opinion
{¶ 1} The judgment of the court of appeals is affirmed on the authority of Wyoming v. Houghton (1999),