Summary
holding search of bag during investigatory detention was not in violation of defendant's Fourth Amendment rights where bag was removed from the defendant's person and citing cases for the same
Summary of this case from State v. HillOpinion
No. 3-203 / 02-0279
Filed May 14, 2003
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Parish appeals from the district court's denial of her motion to suppress. AFFIRMED.
Christopher Kragnes and Tiffany Koenig, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, John Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Melissa Gibbel Sanders-Parish challenges the district court's denial of her motion to suppress. We affirm.
I. Background Facts Proceedings
Acting on an anonymous complaint, Des Moines police officers Clark and Hickey went to a house to investigate drug activity. They observed Parish, her husband, their son, and another man inside the garage. Clark identified himself. As he did so, Hickey saw Parish "stand up quickly, jerk her head, look at Officer Clark and then look over at the bench area inside the garage where she was sitting. . . ." She "walked quickly over to the bench, picked something up and then placed it in her purse. . . ."
Officer Hickey asked Parish if he could search the purse. Parish refused. The officers then told Parish she could be arrested for interference if she did not allow them to proceed with the search. Clark placed Parish in handcuffs and Hickey took the purse from her and searched it. The officers discovered methamphetamine and drug-related items.
Parish was arrested and charged with possession of a controlled substance (methamphetamine) with intent to deliver (second offense) and failure to possess a tax stamp. Iowa Code §§ 124.401(1)(c)(6), 124.411, 453B.3, 453B.12 (2001). She moved to suppress evidence obtained from the search. The district court denied the motion. Parish then stipulated to the evidence and the district court found her guilty as charged. This appeal followed.
II. Suppression Ruling
Parish contends the officers' search of her purse violated her constitutional right to be free from unreasonable searches and seizures. SeeU.S. Const. Art. IV, Iowa Const., Art 1 § 8. She specifically maintains that the search was unreasonable because it did not fall within the probable cause/exigent circumstances exception to the warrant requirement. The State responds that the search was justified under the protective search rationale articulated in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 905 (1968). On our de novo review of this constitutional issue, we agree with the State.
Terryauthorizes "a reasonable search for weapons for the protection of the police officer", where the officer has reason to believe a person is armed and dangerous, regardless of whether there is probable cause to arrest the individual for a crime. 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. As the Court in Terry explained:
[S]uch a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. (citation omitted.) The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.
392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.
We believe the officers' search of Parish's purse fell within the parameters of Terry. The officers described Parish's actions and demeanor as furtive and nervous. Officer Clark said he searched Parish's purse [f]or the simple fact that she had ran across the garage and she put something into her purse and we didn't know what it was, and I didn't want to take the chance of there being something in her purse that could be harmful towards us. Officer Hickey similarly stated the purse was searched "[f]or officer safety."
Although Parish was handcuffed before the search was conducted, this fact does not obviate the safety concern. As the United States Supreme Court stated in Michigan v. Long, 463 U.S. 1032, 1051-52,103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201, 1221 (1983), while a suspect might be under "the brief control of a police officer," an officer may nevertheless "remain particularly vulnerable in part because a full custodial arrest has not been effected . . . ." The court noted that, "[i]In such circumstances, we have not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." 463 U.S. at 1052, 103 S.Ct. at 3482, 77 L.Ed.2d at 1222. See also United States v. Williams, 962 F.2d 1218, 1223-4 (rejecting argument that the search of a purse was unreasonable in light of the presence of four officers at the scene).
For the same reason, we are not persuaded by Parish's argument that the safety concern was minimized because the purse was out of Parish's reach. As one court stated, "[m]erely gaining control of the bag did not dissipate the danger and exigent circumstances . . . ." U.S. v. Flippin, 924 F.2d 163, 166-67 (9th Cir. 1991) (upholding search of make-up bag). Cf. State v. Clevidence, 736 P.2d 379, 384 (Az.Ct.App. 1987) (not unreasonable to search wallet even though it was out of suspect's reach). Contrast State v. Schellhorn, 769 P.2d 221, 223 (Or.Ct.App. 1989) (holding officer could seize purse but could not open it absent probable cause); $2067 in U.S. Currency, 3 Handguns and 51 Capsules v. State, 745 S.W.2d 109, 112 (Tex.Ct.App. 1988) (holding officer could take purse to determine if it contained weapons but could not search inner cloth containers).
We conclude the search of Parish's purse did not violate the constitutional proscriptions against unreasonable searches and seizures. Accordingly, suppression of the evidence discovered in the search was not required. In light of our conclusion, we find it unnecessary to address Parish's second argument concerning whether she consented to the search.
AFFIRMED.
Zimmer, J., concurs; Sackett, C.J., dissents.
I respectfully dissent.
Although there is authority supporting the separate propositions that (1) a suspect under the "brief control" of an officer may still pose a security risk, and (2) investigative stops under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), may in some circumstances extend to a suspect's purse, the underlying premise supporting these propositions is that the suspect in fact poses a serious security risk to the officer.
In this case the totality of the circumstances shows there was no such security risk justifying the search of the defendant's purse. The defendant in this case was handcuffed, not merely under the "brief control" of an officer as that phrase is used in Michigan v. Long, 463 U.S. 1032, 1051-52, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201, 1221 (1983).
Furthermore, the factors in U.S. v. Flippen, 924 F.2d 163, 166-67 (9th Cir. 1991), and State v. Clevidence, 736 P.2d 379, 383-84 (Az.Ct.App. 1987), used to justify an expanded search of a suspect's bag during a Terrystop do not apply here. Police in this case were acting on an anonymous tip and had no personal knowledge that the defendant would likely be carrying a weapon. The defendant did not fight with the officers or show any propensity to use force when the officers took her purse. No one else on the scene presented any articulable threat. An additional backup officer was present. There was no evidence that an object resembling a weapon had been felt through the purse, there was no evidence the purse was particularly heavy, and the defendant did not request that the officers handle her purse.
As the exigency of the officer security risk would have been eliminated when the officers handcuffed the defendant and seized her purse, the officers were obligated to obtain a search warrant to examine the purse's contents. See Flippen, 924 F.2d at 166. Because the officers failed to get that warrant before opening the purse, I disagree with the majority's conclusion that the search of the defendant's purse was reasonable.
The search similarly cannot be justified as a consent search in this case, as the State concedes any consent obtained was by Mr. Parish to a search of his home, and it occurred only after the contents of the purse were exposed. I would conclude there was no reasonable justification for the search of the defendant's purse and would accordingly reverse the district court's denial of the motion to suppress.