In re Tiffany O.

• Citation: 217 Ariz. 370,174 P.3d 282
• Decision Date: 24 December 2007
• Docket Number: No. 1 CA-JV 06-0094.,1 CA-JV 06-0094.
• Parties: In re TIFFANY O.,
• Court: Court of Appeals of Arizona

174 P.3d 282

217 Ariz. 370

In re TIFFANY O.,

No. 1 CA-JV 06-0094.

Court of Appeals of Arizona, Division 1, Department A.

December 24, 2007.

Terry Goddard, Attorney General and Andrew P. Thomas, Maricopa County Attorney, By Linda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for Appellee.

Sandra L. Massetto, Esq., Phoenix, Attorney for Appellant.

SNOW, Judge.

¶ 1 Tiffany O. ("Appellant") appeals from the juvenile court's finding that she is delinquent based on her possession of a pipe that she used or intended to use to smoke marijuana. We have jurisdiction pursuant to Arizona Revised Statutes section 8-235(A) (2007). Because the juvenile court erred when it admitted the pipe into evidence we vacate the finding and remand to the juvenile court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 During the early afternoon of June 21, 2004, Appellant, then fourteen years old, and her mother got into an argument. When Appellant began to leave the home, Mother told her that if she went "out that door" Mother would phone the police. When Appellant nevertheless left the home Mother called 9-1-1. Mother followed her daughter. Two police officers, Officer Robert Stewart and Officer Brian Lilly, responded to the call. Officer Stewart testified that the call was an emergency high traffic for domestic violence and that the report was that the Appellant wanted to kill herself. After Mother flagged down the officers as they were arriving and pointed out Appellant to them, Officer Stewart approached Appellant on the street and told her to stop. She did so. Appellant was carrying a closed blue purse. Officer Stewart remembered nothing about the purse other than it was blue. He immediately seized and opened Appellant's purse upon the hood of his patrol car. He testified that he was searching the purse for a weapon with which Appellant might harm herself or Officer Stewart.

¶ 3 Although the purse contained no weapon, it did contain a marijuana pipe. Officer Stewart showed it to Appellant's mother, who was present at the scene. He further testified to an ensuing discussion between Appellant and her mother which he overheard. Officer Stewart and Officer Lilly subsequently returned to Appellant's home with Appellant and her mother while Mother searched the home for drugs. None were found. Mother requested that a drug dog be brought to the scene and that Appellant be tested for drugs. The officers indicated this was not possible. A petition for delinquency was subsequently filed against Appellant. She was adjudicated responsible for a class one misdemeanor for the possession of drug paraphernalia.¹ She has appealed. Because the court erred in admitting into evidence the pipe and the police officer's testimony regarding the pipe, we reverse the juvenile court's ruling.

ANALYSIS

¶ 4 The State argues on appeal that Appellant failed to sufficiently object to the introduction of the marijuana pipe to preserve the issue for appeal. It further asserts that even if the issue was preserved for appeal, the search of Appellant's purse was justified by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We disagree.

I. The Objection Was Sufficiently Preserved.

¶ 5 When the State moved to admit the pipe into evidence, Appellant's counsel said only "Objection." The court then stated "Exhibit 1 is admitted," and the hearing proceeded. According to Arizona Rule of Evidence 103, to preserve the issue for appeal, an objection needs to be made with specificity unless the ground for it is apparent from the context. The purpose of the rule "is to allow the adverse party to obviate the objection and to permit the trial court to intelligently rule on the objection and avoid error." Thompson v. Better-Bilt Aluminum Prod. Co., Inc., 187 Ariz. 121, 129, 927 P.2d 781, 789 (App.1996).

¶ 6 In this case, in its direct examination before moving the pipe's admission into evidence, the State only asked the officer about his justification for seizing the purse, not for searching it. But on its own, the court inquired why Officer Stewart had not considered the situation safe once he had taken the purse from Appellant and why he had not given the purse to Mother. We therefore find that the objection in context was sufficient to preserve for appeal the issue of the permissibility of the search of the purse.

II. The Officer's Search Of The Purse Was Not Justified Under Terry Once He Had Seized The Purse.

¶ 7 Appellant does not contest Officer Stewart's right to detain her under the circumstances. She does, however, contest Officer Stewart's right under Terry to search her purse once he had seized it and it was within the officer's control. "`[S]ubject only to a few specifically established and well-delineated exceptions,' a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant." State v. Gant, 216 Ariz. 1, 3, ¶ 8, 162 P.3d 640, 642 (2007) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

¶ 8 Under Terry, an officer making an investigative stop may frisk an individual for weapons if the officer reasonably suspects that the person may be armed and presently dangerous to the officer or others. 392 U.S. at 30, 88 S.Ct. 1868. The operative legal question under Terry is whether "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27, 88 S.Ct. 1868. The scope of a protective search is limited to a search for concealed weapons, and "[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

¶ 9 In applying this standard, we "defer to the trial court's factual findings absent an abuse of discretion," but review the court's "ultimate legal determination that the search complied with the dictates of the Fourth Amendment" de novo. State v. Valle, 196 Ariz. 324, 326, ¶ 6, 996 P.2d 125, 127 (App.2000).

¶ 10 In this case, the facts are not in dispute. Officer Stewart testified to the circumstances, and his testimony was not contested. The facts, as he testified to them, are as follows: (1) the call he was responding to "was an emergency high traffic pertaining to a domestic violence and a female possibly — well, indicating she was trying to kill herself or wanting to kill herself." He also testified that according to the 9-1-1 call Appellant was "completely out of control" and that "the mother had said, she's gonna commit suicide. And she's saying that and domestic violence;" (2) when he responded to the call he "never made it to the apartment complex because the mom waved [him] down;" (3) when he reached Appellant, "she was very agitated, mad, angry, verbal, loud;" (4) when he approached Appellant, he "told her to stop and she did;" (5) he remembers nothing about the purse other than it was blue; (6) he "immediately seized [the] purse due to the totality of the information that she was possibly wanting to commit suicide;" (7) both his partner, Officer Lilly, and Mother were on the scene; (8) he immediately opened the purse and looked in it for "[a]ny type of weapon to harm herself or me;" and (9) the incident took place in the early afternoon.

¶ 11 There is no evidence in the record that the 9-1-1 call mentioned that Appellant had or was threatening anyone with a weapon. There was no sign of a weapon when the officers arrived on the scene, and upon their arrival, they saw no domestic violence or suicide attempt taking place. Officer Stewart testified, however, that the seizure of the purse was justified because when Mother called 9-1-1 she indicated Appellant was suicidal and, therefore, he thought there might be a weapon in the purse with which Appellant might harm either herself or him. We assume, without deciding, that this justifies Officer Stewart's seizure of Appellant's purse.

¶ 12 But the State must also justify the immediate search of the purse after it was in Officer Stewart's control. After the purse's seizure, the danger of Appellant using something in it to harm herself or others was removed. Generally, once a purse is no longer in its owner's possession, a protective search of the purse is not justified pursuant to Terry. See State v. Schellhorn, 95 Or. App. 297, 769 P.2d 221, 223 (1989) ("[O]nce the officer had seized the purse, he no longer had any reason to believe that it still posed an immediate threat to him."); People v. Stewart, 166 Mich.App. 263, 420 N.W.2d 180, 181-82 (1988) (holding that the search of purses could not be justified as a protective search for weapons when police had control of the purses); State v. Wynne, 552 N.W.2d 218, 222 (Minn.1996) ("[W]e fail to understand how the purse remained a threat to officers when it had been taken away from its owner.").

¶ 13 Our supreme court recently made a similar determination when it held that even a warrantless search of a defendant's vehicle incident to his arrest, a normally justified exception to the warrant requirement, did not apply when "based on the totality of the circumstances, an arrestee is secured and thus presents no reasonable risk to officer safety or the preservation of evidence." Gant, 216 Ariz. at 7, ¶ 23, 162 P.3d at 646. In such cases, "a search warrant must be obtained unless some other exception to the warrant requirement applies." Id.; cf. United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (holding that once federal agents had exclusive control of a footlocker, its warrantless search could not be justified by "any other exigency"), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).

¶ 14 Cases in which a search of a seized purse has nevertheless been found justified involve facts...