State v. Wynne

552 N.W.2d 218, 1996 Minn. LEXIS 506, 1996 WL 445135

• Court: Supreme Court of Minnesota
• Decided: August 8, 1996
• Docket: C2-94-2147
• Status: Published

Opinions

OPINION

TOMLJANOVICH, Justice.

On October 18, 1993, at about 3:30 p.m., a search warrant was executed at the home of appellant Andrea Wynne’s mother, Joy Wynne, in Isanti, Minnesota. The warrant authorized the search of, among other things: the person of Joy Pamela Wynne or any other persons located at her residence at the time of the search, the cottage-type house in the process of being painted, the three or four out-buildings, the entire premises encompassed by the legal description of the property, the motor vehicle registered to Andrea Lynn Wynne and all other motor vehicles located on the premises. The property and things sought by the search included various controlled substances, measuring devices, and weapons capable of use in distributing or protecting controlled substances. The warrant did not specifically authorize the search of the person of Andrea Wynne.

After securing the premises, the officers proceeded with the search and seized, among other things: LSD, Darvon, two small bags of amphetamine, a silver pitcher containing amphetamine, marijuana from the kitchen windowsill, prescription Motrin found in the bathroom, and pill boxes, pipes, baggies and scales found under a bed.

At about 4:40 p.m., Andrea Wynne arrived home in a car driven by Micheál Klapak to discover the search in progress. As Wynne got out of the car, officers on the scene questioned her, learning that she was Joy Wynne’s daughter and that she resided in the house being searched. The officers then took Wynne’s purse and escorted her into the house. Once inside officers searched the purse without Wynne’s consent. They discovered a white powdery substance which proved to be amphetamine, a small amount of marijuana, and drug paraphernalia including three marijuana pipes, razor blades, and snorting tubes. Wynne was then arrested.

Wynne was charged with felony possession of a controlled substance in the fifth degree in violation of Minn.Stat. § 152.025, subd. 2(1) (1992); possession of drug paraphernalia in violation of Minn.Stat. § 152.092 (1994); and possession of a small amount of marijuana in violation of Minn.Stat. § 152.027, subd. 4(a) (1994). Wynne filed a motion to dismiss the charges and a motion to suppress the evidence. The district court found the search valid as similar to a Terry search, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and denied both motions. The parties submitted the matter for trial on stipulated facts and the court determined that Andrea Wynne was guilty of all the charges.

Wynne appealed, and the court of appeals affirmed the conviction in an unpublished opinion. It held that the search of Wynne’s purse did not exceed the scope of the warrant to search Joy Wynne’s premises. We granted review and now reverse.

The court of appeals found that the search of Wynne’s purse was justified as coming within the scope of the warrant. The court cited to United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d 572 (1982) to support its conclusion. In Ross the Supreme Court explained in dicta that any container within a residence that is the subject of a valid search warrant may be searched if it is reasonable to believe that the container could conceal items of the kind described in the warrant. Id.

Ross, however, involved the warrantless search of packages contained in the trunk of an automobile. Id. at 801, 102 S.Ct. at 2160. Further, Wynne’s purse was not found in Joy Wynne’s home but brought into the home by officers from an automobile that was driven onto the premises after the search was commenced. Thus, we find Ross inapplicable to the present situation.

The court of appeals also cited to United States v. Micheli, 487 F.2d 429 (1st Cir.1973) to support its conclusion. In Micheli, police obtained a search warrant for a business office. Id. at 430. During the search, police found a briefcase that belonged to a co-owner of the business tucked under a desk. Id. The police searched the briefcase and discovered counterfeit currency. Id. The issue in Micheli was whether the search of a “personal effect not currently worn, but apparently temporarily put down, such as a briefcase, falls outside the scope of a warrant to search the premises.” Id. at 431. The First Circuit held that as co-owner of the business premises searched, the owner of the briefcase:

had a special relation to the place, which meant that it could reasonably be expected that some of his personal belongings would be there. Thus, the showing of probable cause and necessity which was required prior to the initial intrusion into his office reasonably comprehended within its scope those personal articles, such as his briefcase, which might be lying about the office.

Id. at 432. The court concluded that the search did not violate the Fourth Amendment. Id

We, however, find Micheli distinguishable from the present circumstances. In this case, the purse was not “lying about” Joy Wynne’s home. Rather, it was physically taken from Andrea Wynne. Further, Micheli itself states that “a search of clothing currently worn is plainly within the ambit of a personal search and outside the scope of a warrant to search the premises.” Id. at 431. It has been held that, with respect to a police search, a shoulder purse is “so closely associated with the person that [it is] identified with and included within the concept of one’s person.” United States v. Graham, 638 F.2d 1111, 1114 (7th Cir.), cert. denied, 450 U.S. 1034, 101 S.Ct. 1748, 68 L.Ed.2d 231 (1981). Thus, we conclude that the search of Wynne’s purse constituted a search of her person and did not fall within the ambit of the premises search warrant.

The state next argues that the search of Wynne’s purse was valid under the warrant because the officers had probable cause at the time of the search to believe appellant had the objects described in the warrant on her person. In general, “[a] search warrant authorizing the search of a particular building or premises does not give the officers the right to search all persons who may be found in it.” State v. Fox, 283 Minn. 176, 179, 168 N.W.2d 260, 262 (1969). However, the warrant in question in this case was a so called “all persons” warrant. That is, it allowed the search of “any other persons located at the residence at the time of the search.”

A similar situation arose in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra, police obtained a warrant authorizing the search of an Illinois tavern and the person of the bartender at the tavern.for “‘evidence of the offense of possession of a controlled substance.’” Id. at 88, 100 S.Ct. at 341. An Illinois state statute authorized “law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant.” Id. at 87, 100 S.Ct. at 340. While executing the warrant, officers searched Ybarra, a patron in the bar, and found packets of heroin. Id. at 88-89, 100 S.Ct. at 340-41. The Supreme Court held the search unconstitutional stating:

Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.

Id. at 91, 100 S.Ct. at 342.

This court addressed the constitutionality of an “all persons” warrant in State v. Hinkel, 365 N.W.2d 774 (Minn.1985). In Hinkel, an all person warrant was constitutionally permissible in the search of all persons on the premises of an “after hours joint,” where liquor was sold after the legal closing hours of bars. We stated that in order to find such a warrant constitutional:

There must be a sufficient nexus between the criminal activity, the place of the activity, and the persons in the place to show probable cause. This nexus has been described as * * * “whether the information supplied the magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person.”

Id. at 776 (quoting 2 W. LaFave, Search and Seizure § 4.5, at 92 (1978)).

We conclude that a sufficient nexus does not exist in the current situation. By the terms of the search warrant, it was to be executed only during daytime hours. During the day, relatives, guests or hired workpeople could have been present on the residential premises to be searched. Indeed, on the day of the search a house painter was apparently at Joy Wynne’s home. A review of the record revealed no information presented to the magistrate which would give rise to probable cause that any person who might be present during execution of the warrant would be “involved in the criminal activity in such a way as to have evidence thereof on his person.” LaFave, supra, § 4.5 at 92. We therefore conclude that the portion of the warrant allowing the search of “any other persons located at the residence at the time of the search” to be unconstitutional. Thus, the search of Andrea Wynne cannot be justified under this section of the warrant.

The state next argues that the search of Andrea Wynne’s purse could be upheld under exceptions to the warrant requirement. It first argues that the search was valid as incident to a lawful arrest. An arresting officer may search the arrestee and the area within the immediate control of the arrestee in order to prevent destruction of evidence or to remove any weapons that the arrestee might use to resist arrest or effect escape. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). A search may precede arrest so long as the results of the search that precedes arrest are not necessary to support probable cause to arrest. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564-65, 65 L.Ed.2d 633 (1980); State v. White, 489 N.W.2d 792, 795 n. 2 (Minn.1992).

The issue, then, is whether probable cause to arrest Andrea Wynne existed before she was arrested and independent of the items found in her purse. “The test of probable cause to arrest is whether the objective facts are such that under the circumstances ‘a person of ordinary care and prudence [would] entertain an honest and strong suspicion’ that a crime has been committed.” State v. Johnson, 314 N.W.2d 229, 230 (1982) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)).

The state claims that probable cause to arrest Andrea Wynne, rests on the fact that she was a “resident of a house where ongoing, open, and illicit drug activities were being conducted.” The state cites to Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) to support its argument. In Ker, a suspect’s wife was arrested when there was evidence of marijuana sales in plain view in the apartment of which she was in joint possession with her husband, the suspect, accompanied by information that he had been using their apartment as a base of operations for narcotics activities. Id. at 28-29, 83 S.Ct. at 1627-28.

We, however, find Ker distinguishable. In that case, the arrestee was the suspect’s wife. In the present ease, however, Andrea Wynne was Joy Wynne’s 21-year-old daughter who apparently had little income of her own. In Ker, the arrestee’s association with the suspect was certainly more voluntary than in the present situation. As the suspect’s daughter, Andrea Wynne likely had little choice about living at home and there was no evidence that she had any control over her mother’s activities. We conclude that Andrea Wynne’s status as the daughter of Joy Wynne, living in the elder’s home where drugs were found was not enough to form the basis for probable cause to arrest Andrea Wynne. Thus, we hold that the search of Andrea Wynne’s purse cannot be justified as incident to a lawful arrest.

The State’s final argument is that the search of Andrea Wynne’s purse was valid as a protective search of an individual arriving during the execution of a search warrant.

We recognize that ordinarily a search warrant to search for contraband carries with it the limited authority to detain the occupants of the premises while the search is conducted. Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595-96, 69 L.Ed.2d 340 (1981). We have even upheld a protective frisk of a nonoccupant of a dwelling who arrived during the execution of a search warrant. State v. Bitterman, 304 Minn. 481, 232 N.W.2d 91 (1975). However, Bitterman presented a stronger case for a protective search than is present here. In that case, a drug search was in progress when Bitterman and a companion arrived. Id. at 483, 232 N.W.2d at 93. The officer recognized Bitter-man who had been pointed out to him as a heavy user of heroin and the officer had evidence that the companion was a known heroin user. The officer had observed traffic to and from the residence and knew that dangerous people who commonly carried weapons were involved. Id. at 485, 232 N.W.2d at 94. The facts in the instant ease are not so dramatic. Under the circumstances of this case we conclude that the search of Andrea Wynne’s purse violated her constitutional rights.

When Andrea Wynne arrived at her home, officers met her at the car in which she arrived, determined that she was an occupant of the premises being searched, took her purse and walked her and separately her purse, into the house. First, we fail to understand how the purse remained a threat to officers when it had been taken away from its owner. Second, even if we accepted that the purse did remain a threat because Andrea Wynne could somehow have retrieved it from officers inside the house, it was a threat that the officers themselves created by bringing the purse inside the house. The officers then went about remedying the self-generated dangerous situation by invading Andrea Wynne’s privacy. Had Andrea Wynne brought the purse with her into her home or had she asked officers to carry the purse in for her, our decision might be different. However, we see no reason why officers could not simply have left Andrea Wynne’s purse in the car.

We understand that in the excitement, and oftentimes the danger of a drug search, the officers do not have time to reflect on the parameters of Terry. We, however, do have that luxury. We have a duty to the citizens and to law enforcement officers to analyze the law carefully and set out clearly the limits of a search. In our experience law enforcement officers are not anxious to exceed the law, and for that reason we need to carefully define the limits of a search warrant. We thus hold that, under the circumstances of this case, the search of Andrea Wynne’s purse was unconstitutional and any evidence obtained from the search must be suppressed.

Reversed and remanded.