The STATE of Texas, Appellant v. Callie Mae MERRITT, Appellee

No. 04-17-00405-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: November 28, 2018

*779Opinion by: Karen Angelini, Justice

The State of Texas appeals the trial court's order granting a motion to suppress filed by Callie Mae Merritt. The State contends the trial court erred in granting Merritt's motion because Merritt's "purse, in which the controlled substance was located, was subject to search under a search warrant." We agree with the State and reverse the trial court's order.

**PROCEDURAL BACKGROUND**

A magistrate issued a search warrant to search a residential apartment for marijuana. The warrant stated the apartment was in the control of two suspected parties who were listed by name and authorized the search of "all vehicles and places on the Property under the control of the suspected party on and at said Property where the evidence described in the attached complaint is alleged to be kept and concealed."

Merritt does not dispute the validity of the search warrant. Instead, Merritt filed a motion to suppress claiming she was a visitor at the apartment when the search warrant was executed, and the search warrant did not authorize the officers to search her purse. The trial court held two hearings on the motion to suppress filed by Merritt.

At the first hearing, Merritt was represented by appointed counsel. The affidavit for search warrant, the search warrant, the return and inventory, and the offense report prepared by Detective Tim Bobo, the lead investigator on the case, were admitted into evidence. After hearing the argument of counsel and reviewing the additional case law submitted by the attorneys, the trial court signed an order denying the motion.

After Merritt retained new counsel, additional motions to suppress were filed, and the trial court reconsidered Merritt's motion. In addition to the evidence admitted at the first hearing, the trial court also heard testimony from Detective Kris Kammlah, who was present when the search warrant was executed, and reviewed photographs taken during the execution of the search warrant. After considering the evidence and the argument of counsel regarding the applicable law, the trial court signed an order granting Merritt's motion. The State appeals.

**STANDARD OF REVIEW**

"An appellate court applies a bifurcated standard of review to a trial court's ruling on a motion to suppress." *Ramirez-Tamayo v. State* , 537 S.W.3d 29, 35 (Tex. Crim. App. 2017). "We afford almost complete deference to the trial court's determination of historical facts, especially when those determinations are based on assessments of credibility and demeanor." *Id.* "On the other hand, we apply a de novo standard of review to the legal significance of the facts as found by the trial court." *Id.* "When findings of fact are not entered, as here, we must view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." *Id.*at 35-36 (internal quotations omitted).

*780**APPLICABLE LAW**

The Texas Court of Criminal Appeals has recognized the following principles applicable to searches of persons present when a search warrant is executed:

> "(1) a warrant to search a premises and to arrest and search specific individuals does not carry with it the right to detain, search or frisk persons found on the premises but not directly associated with the premises and not named or specifically described in the warrant;

> (2) to justify the detention and search of a person, other than an occupant, present at the scene of a valid execution of a search warrant, there must be some independent factors, other than mere presence, tying the person to the unlawful activities in the premises;

> (3) a frisk of a person merely present at the scene must be justified under *Terry v. Ohio* , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968]."

*Worthey v. State* , 805 S.W.2d 435, 438 n.5 (Tex. Crim. App. 1991) (quoting *Conner v. State* , 712 S.W.2d 259, 260 (Tex. App.-Austin 1986, pet. ref'd) ). The ongoing validity of these principles is questionable as they pertain to the ***detention*** of a visitor present on the premises when a search warrant is executed. *See, e.g.,* *Michigan v. Summers* , 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (holding "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted"); *Montez v. State* , No. 02-13-00069-CR, 2014 WL 3536804, at *4 (Tex. App.-Fort Worth July 17, 2014, no pet.) (not designated for publication) (noting officers may detain individuals incident to the execution of a search warrant "so long as the individual is found within or immediately outside a residence at the moment the officers execute the warrant"); *Mottley v. State* , 841 S.W.2d 550, 551 (Tex. App.-Houston [1st Dist.] 1992, no pet.) ("Appellant's presence on the premises was a specific and articulable fact which gave rise to a rational inference that appellant was an occupant of the premises, and sufficed to permit the police officers to detain appellant briefly to ascertain whether appellant was indeed an occupant of the premises."); *but see* *Martin v. State* , 761 S.W.2d 26, 29 (Tex. App.-Beaumont 1988), *remanded for harm analysis* , 764 S.W.2d 562 (Tex. Crim. App. 1989) ("It is also clear that the word 'occupant' as used by the Supreme Court in *Summers* does not include a mere visitor."). However, we have found no cases questioning the principles as they pertain to the ***search*** of a visitor. Instead, we have found cases relying on the principles to determine whether a search of a visitor was justified. *See* *Bell v. State* , 845 S.W.2d 454, 457-59 (Tex. App.-Austin 1993, no pet.) (applying principles to search of person on front porch of premises to be searched); *Martin* , 761 S.W.2d at 28-30 (applying principles to search of person officers knew was a visitor); *see also* *Thomas v. State* , 884 S.W.2d 215, 218 (Tex. App.-El Paso 1994, pet. ref'd) (applying principles to person hiding in closet).

Although the Texas Court of Criminal Appeals has not recently addressed these principles, the Supreme Court of Arizona provided an excellent analysis of the current state of the law in *State v. Gilstrap* , 235 Ariz. 296, 332 P.3d 43 (2014). Quoting Fifth Circuit precedent, the court first noted, " '[S]pecial concerns arise when the items to be searched belong to visitors, and not occupants, of the premises' because these 'searches may become personal searches outside the scope of the premises search warrant.' " *Id.* at 44 (quoting *United States v. Giwa* , 831 F.2d 538, 544 (5th Cir. 1987) ); *see also* *781*Ybarra v. Illinois* , 444 U.S. 85, 91-92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (asserting that although a search warrant gave officers authority to search tavern and suspect named in the warrant "it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers" because "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person"). The court further noted, "Courts determining whether a premises search warrant permits the search of a visitor's belongings have usually adopted one of three approaches: the possession test, the relationship test, or the actual-notice test." *Gilstrap* , 332 P.3d at 44.

"Under the possession test, officers may search personal items, such as purses or clothing, that are not in their owners' possession when police find them in executing a premises search warrant." *Id.* at 44-45. Under this test, "the search of a personal item like a purse is not regarded as a search of the person when the item is not in the person's possession." *Id.* at 45. "Several jurisdictions have adopted the possession test." *Id.* (citing *United States v. Branch* , 545 F.2d 177, 181-82 (D.C. Cir. 1976) (search of a shoulder bag that was being worn was improper); *United States v. Johnson* , 475 F.2d 977, 979 (D.C. Cir. 1973) (search of purse resting separately from its owner, was not "worn" and therefore the search was proper); *State v. Reid* , 190 Or. App. 49, 77 P.3d 1134, 1143 (2003) (search of defendant's jacket that was near him, but not in his possession was proper); *State v. Jackson* , 873 P.2d 1166, 1169 (Utah Ct. App. 1994) (search of purse not in possession of visitor was proper) ).

"Other jurisdictions have rejected the possession test" and choose " 'to examine the relationship between the person and the place.' " *Id.* (quoting *United States v. Micheli* , 487 F.2d 429, 431 (1st Cir. 1973) ). Those cases look to whether the person being searched had a "special relation" to the premises for which the search warrant was issued. *See* *id.* (citing *United States v. Young* , 909 F.2d 442 (11th Cir. 1990) (concluding that the relationship test was "more reasonable" than the possession test and holding that officers acted within scope of a premises warrant by searching purse of a person who lived at the premises but fled as officers arrived); *United States v. McLaughlin* , 851 F.2d 283 (9th Cir. 1988) (finding that the co-owner of business searched with valid warrant had a sufficient relationship to the premises to allow police to search briefcase); *Giwa* , 831 F.2d at 545 (concluding that the search of defendant's bag was appropriate because he was sleeping at the residence when police knocked and he opened the door clad in a bathrobe and slacks, factors tending to show he was more "than just a temporary presence in the apartment") ).

Finally, the Arizona Supreme Court noted "a few jurisdictions have adopted a third approach, the actual-notice test." *Id.* "This test derives from the relationship test, but instead of focusing on the relationship between the visitor and the premises, it focuses on the notice given to police regarding an item's ownership before it is searched." *Id.* "This test allows police to search an item that may contain the object of a premises warrant unless they are put on notice that the item belongs to a non-resident." *Id.* (citing *Waters v. State* , 924 P.2d 437, 439 (Alaska Ct. App. 1996) (finding search of defendant's coin purse proper because no "circumstances provid[ed] clear notice that the purse actually belonged to [defendant]"); *People v. McCabe* , 144 Cal. App. 3d 827, 192 Cal.Rptr. 635, 637 (1983) (finding search of purse was proper because police had no facts that "would have put them on notice that the purse belonged to a non-resident");

*782*State v. Lambert* , 238 Kan. 444, 710 P.2d 693, 697-98 (1985) (finding search of purse improper because officers had no reason to believe that the purse belonged to the person named in the warrant); *State v. Thomas* , 818 S.W.2d 350, 360 (Tenn. Crim. App. 1991) (finding search improper because officers "knew or should have known" that the purse belonged to a non-resident) ).

After discussing the three tests, the Arizona Supreme Court adopted the possession test reasoning:

> After considering each test, we conclude that the possession test provides the best approach. It aligns with the Supreme Court's decisions in *Ybarra* and *Wyoming v. Houghton* , 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). Ybarra limits the principle that a premises warrant authorizes police to search any item that might contain the object of the search by holding that the warrant does not authorize the search of a person it does not name. 444 U.S. at 92-93, 100 S.Ct. 338. This reflects that searches of a person involve a higher degree of intrusiveness and require justification in addition to that provided by the probable cause that supports a premises warrant. Even though the search of certain personal items, such as a purse, can in some circumstances amount to the search of a person, *Houghton* recognizes that they are not such a search when the item is not in the owner's actual possession. *Houghton* , 526 U.S. at 305-06, 119 S.Ct. 1297. Although *Houghton* is not dispositive because it concerned a vehicle search, "the thrust and tone of the Court's analysis leaves little doubt that, if faced with the question, the Court would endorse a 'physical possession' test for searches of premises." *Reid* , 77 P.3d at 1141.

> Additionally, the possession test's simplicity, precision, and the guidance it offers to police and courts make it superior to the relationship and actual-notice tests. *See* *Micheli* , 487 F.2d at 431 (1st Cir. 1973) (noting that "[The possession test] has the virtue of precision"); *State v. Leiper* , 145 N.H. 233, 761 A.2d 458, 462 (2000) (finding that the possession test minimizes "the potential for fraud and gamesmanship during the execution of search warrants when parties not named in the warrant are present at the location of a search"); *Reid* , 77 P.3d at 1140 (observing that courts that have adopted the possession test "have emphasized its simplicity and clarity"). Searches often occur in harried, dangerous circumstances and officers may not be readily able to identify the relationships between persons and the premises or to assess whether items might belong to someone not named in the warrant.

> The relationship and actual-notice tests are more difficult for police to navigate and for courts to administer. *See* *Leiper* , 761 A.2d at 462 (concluding that "the relationship/notice test is so nebulous it provides little guidance to police officers or trial courts"); *Commonwealth v. Reese* , 520 Pa. 29, 549 A.2d 909, 911 (1988) (explaining that the relationship test would make it "impossible for police to effectively search a premises where visitors are present because they would not know which items, clothing and containers could be searched and which could not be searched"); *Jackson* , 873 P.2d at 1168 (explaining that the relationship test would require officers "to ascertain the ownership of each item or container in the premises ... [then] determine whether the owner of the item or container was merely a 'transient visitor' or whether there was some greater connection to the premises").

*783We agree with the Arizona Supreme Court that the possession test provides the best approach for determining whether a premises search warrant permits the search of a visitor's belongings. Therefore, we next apply the possession test to the facts in the instant case to determine whether the search warrant permitted the search of Merritt's purse.

**DISCUSSION**

The evidence presented to the trial court regarding the location of Merritt's purse was conflicting. The officer's return stated Merritt was detained in the living room, and further stated:

> The small black purse located in the living room was determined to belong to Merritt after her Texas driver's license was located inside of it. Merritt also identified the purse as belonging to her and informed me she was only visiting and did not live in the apartment. Since Merritt did not have custody of the purse when Police entered it was subject to search under the search warrant.

Detective Kammlah testified when the officers entered the apartment Merritt was with one of the named suspects in a bathroom where the named suspect was attempting to destroy evidence by flushing it down the toilet. Detective Kammlah also testified Merritt complied with the officers' commands to exit the bathroom and walk toward the living room. Finally, Detective Kammlah testified Merritt's purse was on the kitchen table.

Although the trial court could choose to disbelieve Detective Kammlah's testimony, the only implied finding supported by the record was that Merritt was detained in the living room, and her purse was also present in the living room. *Ramirez-Tamayo* , 537 S.W.3d at 35-36 (noting we must "assume that the trial court made implicit findings of fact that support its ruling ***as long as those findings are supported by the record*** ") (emphasis added). The record does not support an implied finding that Merritt was in possession of her purse because the offense report states Merritt did not have custody of her purse.

Having adopted the possession test for determining whether a premises search warrant permits the search of a visitor's belongings, we hold the search warrant in this case authorized the officers to search Merritt's purse because the record does not support an implied finding that the purse was in her possession. Accordingly, we hold the trial court erred in granting Merritt's motion to suppress.

**CONCLUSION**

The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings.

Luz Elena D. Chapa, Justice

**CONCURRING OPINION**

Concurring Opinion by: Luz Elena D. Chapa, Justice

The possession test adopted by the majority could undermine the simplicity, precision, and guidance the Supreme Court of the United States has provided to Texas courts and law enforcement officers. Because this case can be analyzed and resolved under precedent handed down by the Supreme Court without adopting any of the tests developed by other jurisdictions, I respectfully concur in the judgment.1

*784**ADOPTING THE POSSESSION TEST IS UNNECESSARY**

This case involves a question of whether a law enforcement officer, who is conducting a premises search under a lawfully issued search warrant supported by probable cause, may search a container on the premises even if the officer has a reason to believe the container belongs to a non-suspect visitor. Because this is an issue of first impression in Texas courts, the majority reasonably considers authority from other jurisdictions. The majority notes other jurisdictions have struggled with this issue and adopted at least three different tests to address the question presented in this case: the possession test, the relationship test, and the actual-notice test. *See generally* *State v. Gilstrap* , 235 Ariz. 296, 332 P.3d 43 (2014).

The majority adopts the possession test, following the reasoning in *State v. Gilstrap.* *Gilstrap* 's reasoning proceeded in two parts. *Id.* at 46. First, it reasoned that the possession test is aligned with the Supreme Court's decisions in *Wyoming v. Houghton* , 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), and *Ybarra v. Illinois* , 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), which was discussed in *Houghton. See* *Gilstrap* , 332 P.3d at 46. Second, the *Gilstrap* court explained "the possession test's simplicity, precision, and the guidance it offers to police and courts make it superior to the relationship and actual-notice tests." *Id.* Because the Supreme Court's decision in *Houghton* is binding on this court, and the Supreme Court of Arizona's decision in *Gilstrap* is not, I would analyze this issue starting with the former authority rather than the latter.

In *Wyoming v. Houghton* , the Supreme Court of the United States addressed an analogous situation in which the Court upheld a search of a vehicle and a passenger's purse when the officer had probable cause to conclude the driver was transporting drugs and had reason to believe the purse belonged to a passenger. *See generally* 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). Although before *Houghton* , courts throughout the country had developed the three tests discussed by the majority, the Supreme Court decided *Houghton* without adopting any one of those tests. *See id.* The *Houghton* majority not only rejected the rationale supporting the relationship and actual-notice tests, but also did not emphasize the passenger's distance from the purse when it was searched, as did Justice Breyer's concurrence. *See* *id.*at 308, 119 S.Ct. 1297 (Breyer, J., concurring).2 Instead, the *Houghton* majority balanced the passenger's right of privacy with legitimate governmental interests. *See* *id.*at 303-07, 119 S.Ct. 1297 (majority op.). That the search did not constitute a "body search" was merely one of several factors the Court considered in conducting its balancing analysis. *See id.*

By following *Gilstrap* , the majority implicitly balances Callie Mae Merritt's right of privacy with the State's legitimate governmental interests, and implicitly favors the latter. This implicit balancing is consistent with *Houghton* *. See* *id.*at 303-06, 119 S.Ct. 1297. But despite the existence of the possession test when *Houghton* was decided, the Supreme Court did not adopt a possession test or approve Justice Breyer's emphasis on the passenger's physical distance from her purse. *See id.* As the Supreme Court was able to analyze the analogous *785facts of that case without adopting any particular test, so too is this court able to analyze the facts of this case without adopting any particular test. *See id.* Thus, adopting the possession test under the facts of this case is unnecessary and does not strictly follow *Houghton.*

**PROBLEMS WITH THE POSSESSION TEST**

The possession test raises numerous questions both from a practical and jurisprudential standpoint. Initially, the origin of the possession test has been traced to *United States v. Teller* , 397 F.2d 494 (7th Cir. 1968). *Gilstrap* , 332 P.3d at45 ; WAYNE LAFAVE , ET AL ., 2 SEARCH & SEIZURE § 4.10(b) n.69 (5th ed.). But *Teller* did not involve the search of a visitor's purse; it involved the search of a resident's purse. 397 F.2d at 495-98. It is not clear the *Teller* court intended to develop a possession test and refused to consider the resident's relationship to the premises covered by the search warrant. *See id.* ; *but see* *Gilstrap* , 332 P.3d at 45 (explaining the possession test and the relationship test are two distinct tests). Adopting the possession test would also be inconsistent with the Fifth Circuit's rejection of possession as "the sole criterion which should be used to determine whether a personal item may be searched pursuant to a premises search warrant." *See* *United States v. Giwa* , 831 F.2d 538, 544 (5th Cir. 1987).

Furthermore, in criminal cases, Texas generally recognizes "possession" is a broad concept. *See* *Tate v. State* , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (requiring the exercise of control, management, or care of an object, and explaining the affirmative links test). While the *Gilstrap* court emphasized the possession test's simplicity and precision compared to the relationship and actual-notice tests, courts throughout the country have struggled for fifty years after *Teller* to provide a simple and precise formulation of the possession test.3 The lack of precision in the formulation of this test could lead judges, as well as law enforcement officers, to disagree on its application. *Compare* *United States v. Johnson* , 475 F.2d 977, 978 (D.C. Cir. 1973) (holding that purse on table immediately in front of visitor was not in visitor's possession), *with* *id.*at 980 (Bazelon, C.J., concurring and dissenting) (concluding the purse was in the visitor's possession). It is also unclear how the possession test should apply when the possessory status of the container changes from the time the premises search begins to the time the purse is searched. *See* LAFAVE , *supra* , at § 4.10(b) n.69. Given the questions the possession test raises, we should not adopt the test if the facts of the case do not require doing so.

**ANALYSIS UNDER *HOUGHTON***

The facts of this case do not require adopting the possession test. Noting that its prior "cases turned on the unique, significantly heightened protection afforded against searches of one's person," the Supreme Court in *Houghton* distinguished a container search from a "body search." *See* 526 U.S. at 303, 119 S.Ct. 1297 (distinguishing *Ybarra* , 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238, *Terry v. Ohio* , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and *786*United States v. Di Re* , 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ). Here, there is no direct evidence showing the search of Merritt's purse constituted a body search. The evidence showing that both Merritt and her purse were in the apartment's living room when the purse was searched also does not permit an inference that the search of Merritt's purse constituted a body search. Because this case does not involve "the unique, significantly heightened protection afforded against searches of one's person," this case can be analyzed, like *Houghton* , without adopting the possession test. *See, e.g.* , *Schenk v. State* , No. 05-14-00207-CR, 2015 WL 1243401, at *6 (Tex. App.-Dallas Mar. 16, 2015, pet. ref'd) (applying *Houghton* to vehicle search without adopting any other test). The distinction the Supreme Court drew in *Houghton* provides "simplicity, precision, and ... guidance ... to police and courts," *cf.* *Gilstrap* , 332 P.3d at 46, but the ambiguities of the possession test risks undermining the virtues of that distinction.

**CONCLUSION**

Because the facts of this case can be analyzed under *Houghton* and do not call for the adoption of any particular test, especially when the adoption of such test could undermine the simplicity, precision, and guidance the Supreme Court has provided to Texas courts and law enforcement officers, I respectfully concur in the judgment only.

Because the State does not challenge the trial court's suppression of evidence found in appellant's vehicle, I understand this court's judgment as reversing the trial court's order as to evidence found in appellant's purse only.

Justice Breyer stated, "[I]n my view also important ... is the fact that the container here at issue ... was found at a considerable distance from its owner, ...." *Id.*

For example, courts have referred to the possession test as requiring "apparent possession," *United States v. Johnson* , 475 F.2d 977, 978 (D.C. Cir. 1973), "physical possession," *State v. Reid* , 190 Or.App. 49, 77 P.3d 1134, 1140 (2003), "actual physical possession," *id.* at 1143, "actual possession," *State v. Jackson* , 873 P.2d 1166, 1169 (Utah Ct. App. 1994) (Orme, J., dissenting), and "immediate possession." *United States v. Robertson* , 833 F.2d 777, 784 (9th Cir. 1987). Other courts have referred to the possession test as a "physical proximity" test. *See, e.g.* , *State v. Leiper* , 145 N.H. 233, 761 A.2d 458, 461 (2000).