State v. Merritt
Decision Date | 28 November 2018 |
Docket Number | No. 04-17-00405-CR,04-17-00405-CR |
Citation | 567 S.W.3d 778 |
Parties | The STATE of Texas, Appellant v. Callie Mae MERRITT, Appellee |
Court | Texas Court of Appeals |
Opinion 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.
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.
"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).
The Texas Court of Criminal Appeals has recognized the following principles applicable to searches of persons present when a search warrant is executed:
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 ( ); 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) ("so long as the individual is found within or immediately outside a residence at the moment the officers execute the warrant") officers may detain individuals incident to the execution of a search 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) (). 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 ( ); see also Thomas v. State , 884 S.W.2d 215, 218 (Tex. App.—El Paso 1994, pet. ref'd) ( ).
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 Ybarra v. Illinois , 444 U.S. 85, 91-92, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ( ). 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. ( ).
"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. ( ).
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...
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...contain the object of the search by holding that the warrant does not authorize the search of a person it does not name," State v. Merritt , 567 S.W.3d 778, 782 (Tex. App.—San Antonio 2018, no pet.) (citing Ybarra , 444 U.S. at 92–93, 100 S.Ct. 338 ), because "searches of a person involve a......