Ex parte Powers
| Decision Date | 21 January 2022 |
| Docket Number | 1200764 |
| Parties | Ex parte Nancy Catherine Powers v. State of Alabama In re: Nancy Catherine Powers |
| Court | Alabama Supreme Court |
Ex parte Nancy Catherine Powers
In re: Nancy Catherine Powers
v.
State of Alabama
No. 1200764
Supreme Court of Alabama
January 21, 2022
Mobile Circuit Court, CC-19-2058; Court of Criminal Appeals, CR-18-1196
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS
SELLERS, JUSTICE
On November 26, 2018, pursuant to a premises search warrant, police in Mobile searched the residence of Joshua Moyers, seeking evidence of drug activity. Although Moyers was referenced in the affidavit supporting the issuance of the warrant, no individuals were named in the warrant itself. At approximately 8:50 a.m., police entered Moyers's house and discovered Nancy Catherine Powers sleeping on a couch in the first room of the house. Powers's purse was sitting on a table next to the couch. After confirming with Powers that the purse belonged to her, police searched the purse and discovered methamphetamine, a digital scale, and cash. Relevant to these proceedings, Powers was charged with possession of methamphetamine with intent to distribute. See § 13A-12-211(c)(6), Ala. Code 1975.
The Mobile Circuit Court denied Powers's motion to suppress the evidence found in her purse. Thereafter, Powers pleaded guilty and appealed to the Court of Criminal Appeals, challenging the trial court's denial of the motion to suppress. The Court of Criminal Appeals unanimously affirmed the trial court's ruling. Powers v. State, [Ms. CR-18-1196, Feb. 5, 2021] ___ So.3d ___ (Ala.Crim.App.2021). This
Court granted Powers's petition for a writ of certiorari to consider a question of first impression. We affirm the judgment of the Court of Criminal Appeals, although based on slightly different reasoning.
Facts
The Court of Criminal Appeals set forth the following relevant facts:
"On November 16, 2018, Officer Shaun Wood of the Mobile Police Department secured a warrant to search Joshua Moyers's house and to seize
" 'illegal drugs, to wit: methamphetamine, phone bills, cell phone, documents, ledgers, currency, prerecorded U.S. currency, photographs, lock boxes and safes and contents thereof, paraphernalia, weapons that may be used to facilitate in illegal drug transactions, articles of property tending to establish the identity of persons in control of premises, vehicles, storage areas, and containers being searched to include utility receipts, addressed envelopes and keys.'
"(C. 19.) According to Officer Wood, the probable cause supporting the search of Moyers's home was that a confidential informant had purchased methamphetamine from Moyers at Moyers's house
"On the morning of November 26, 2018, Officer Wood and other law-enforcement officers executed the search warrant for Moyers's house. When they entered the house, Powers was the first person they encountered. She was asleep on a couch in the first room inside the front door. Powers's black purse was
sitting next to her on the side table by the couch. No one else was in the room with Powers when police officers entered the house. The officers found Moyers and two other individuals in other areas of the house, each asleep in a separate bedroom. The officers then read Powers her [rights under Miranda v. Arizona, 384 U.S. 436 (1966)], and, after she waived those rights, they asked her if there was anything illegal belonging to her in the house. Powers said that there was not. The officers then asked Powers if the black purse belonged to her, and she said that it did. (C. 43.) The officers then searched the purse, finding in it a digital scale, over $800, and a clear plastic bag containing what they believed to be methamphetamine. (C. 43.) Powers admitted that the substance in her purse was methamphetamine and explained that she had the digital scale to weigh the methamphetamine. Powers was arrested for unlawful possession of methamphetamine with the intent to distribute and possession of drug paraphernalia. She was later indicted for those offenses.
"Powers filed a pretrial motion to suppress the evidence obtained from the search of her purse and her resulting statements, arguing that 'the search and seizure of [Powers's] purse was in violation of the Fourth Amendment ... in that certain acts on the part of the investigating officers constituted an unreasonable search and seizure.' (C. 15.) Specifically, Powers claimed that '[n]o person is specifically named in the search warrant as a person to be specifically searched' and that '[a] search warrant for premises does not permit searches of persons who are not reasonably associated with the premises.' (C. 16.)
"On August 27, 2019, the trial court held a pretrial hearing on Powers's motion. Officer Wood was the only person who testified. At the hearing, Officer Wood said that, although
Powers was not mentioned in the search warrant, he 'knew about her' because the confidential informant had mentioned her 'in the past,' 'that she usually has meth,' and that she does not 'stay [at Moyers's house] full time.' (R. 5.) Officer Wood explained that law-enforcement officers had 'never made a control[led] buy on her' and that he did not know that Powers was going to be in the house when they executed the search warrant. (R. 5, 7.) When asked what led him to believe that Powers had anything illegal in her possession, Officer Wood responded: 'I mean, besides being nervous, I mean, and her mentioning that was her purse, she told me that she didn't have nothing on her or with her.' (R. 6.)
"After the hearing, the trial court denied Powers's motion to suppress. Powers then pleaded guilty and reserved the right to appeal the trial court's decision to deny her motion to suppress.[1] During the guilty-plea colloquy, the State explained that it expected the evidence to show that Powers 'was found to be in possession of approximately [17] grams of suspected methamphetamine that was separated into three clear plastic bags.' (R. 19-20.) The court then sentenced Powers."
___ So.3d at ___ (footnote omitted).
Analysis
To the extent that there are no disputed facts, the Court applies a de novo standard of review to a ruling on a motion to suppress. Ex parte State,
121 So.3d 337, 350-51 (Ala. 2013). To the extent that there are disputed facts, we will apply the ore tenus standard. See Ruiz v. State, [Ms. CR-19-0307, Mar. 12, 2021] ___ So.3d ___, ___ (Ala.Crim.App.2021).[2]
The Fourth Amendment to the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides further that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." See also Art. I, § 5, Ala. Const. 1901 (Off. Recomp.) ("That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizure or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."); Ex parte Caffie, 516 So.2d 831, 837 (Ala. 1987) (opinion on application for rehearing) ("This declaration [in the Alabama Constitution] of the right to be free from unreasonable searches and seizures is clearly analogous to the right afforded under the Fourth Amendment of the Constitution of the United States, and it obviously protects similar, if not identical,
interests."). According to Powers, police improperly searched her purse without a warrant. The State, on the other hand, asserts that Powers's purse was simply a container in Moyers's house that fit within the scope of the premises warrant.
There is precedent from this Court and the United States Supreme Court involving body searches of people who are mere visitors of premises covered by a search warrant. See, e.g., Smith v. State, 292 Ala. 120, 289 So.2d 816 (1974); and Ybarra v. Illinois, 444 U.S. 85 (1979). But, in those cases, the searches clearly were conducted on the "person" of the defendants. In Smith, police searched clothing worn by Johnny Smith, a visitor to an apartment who had arrived while police were executing a premises warrant. Police discovered heroin in Smith's back pocket. This Court held the search unconstitutional:
"A substantial majority of the courts which have considered the question have held that a lawful search of premises does not extend to the person of one who merely comes onto those premises while the search is being conducted. United States v. Festa, 192 F.Supp. 160 (D. Mass. 1960); State v. Bradbury, 109 N.H. 105, 243 A.2d 302 (1968); State v. Carufel, 106 R.I. 739, 263 A.2d 686 (1970); State v. Fox, 283 Minn. 176, 168 N.W.2d 260 (1969); State v. Massie, 95 W.Va. 233, 120 S.E. 514 (1923); People v. Smith, 21 N.Y.2d 698, 287
N.Y.S.2d 425, 234 N.E.2d 460 (1967); Purkey v. Maby, 33 Idaho 281, 193 P. 79 (1920). Additional authority, by way of dictum, is found in United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210 (1948), where it was observed that a search warrant for a residence only would not authorize the search of all persons found in it.
"Most of the cases acknowledge the fact that the search of persons not named or described in the warrant, but found on premises or who come onto premises being searched, is not made lawful simply by their presence; the law requires that there be probable cause to believe that such persons are themselves participants in criminal activity.
"....
"A review of the facts before us...
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