State v. Nabarro

• Citation: 55 Haw. 583,525 P.2d 573
• Decision Date: 23 July 1974
• Docket Number: No. 5526,5526
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Sandra NABARRO, Defendant-Appellant.
• Court: Supreme Court of Hawai'i

Page 573

525 P.2d 573

55 Haw. 583

STATE of Hawaii, Plaintiff-Appellee, v. Sandra NABARRO, Defendant-Appellant.

No. 5526.

Supreme Court of Hawai'i.

July 23, 1974.

Syllabus by the Court

1. A lawfully issued warrant to search premises, while it gives in general the authority to search, in a reasonable manner, those objects within the described premises that are plausible repositories for items named in the warrant, does not alone give authority to search the persons of those present at the premises or the identified possessions of individuals who are merely non-resident visitors to the premises at the time the warrant is executed.

John M. A. Burgess, Deputy Public Defender, Hilo, for defendant-appellant.

Andrew P. Wilson, Deputy Pros. Atty., Hilo, (Paul M. De Silva, Pros. Atty., County of Hawaii, of counsel), for plaintiff-appellee.

Before RICHARDSON, C. J., and LEVINSON, KOBAYASHI, OGATA and MENOR, JJ.

LEVINSON, Justice.

This court held, in State v. Davenport, 55 Haw. 90, 100, 516 P.2d 65, 72 (1973), that a lawfully issued warrant to search premises extends to the officers executing it the 'authority to search, in a reasonable manner, whatever spots within the described premises their professional experience indicates may be used as a cache' for the items named in the warrant. The time has come for us to decide whether this general principle sanctions a search, pursuant to the execution of a lawful warrant to search premises only, of an individual or his belongings, when the only connection of the individual to the premises is his presence there at the time of the search. We hold that on the facts of this case it does not.

The parties to this appeal are in substantial agreement as to the facts. During the morning hours of June 1, 1973, Lowell Kuramoto and Randall Kaupu vacated room 222 of the TraveLodge Hotel, located in Hilo on the island of Hawaii, and moved to room 226 of the same hotel. Presumably acting on information from hotel personnel, the police searched room 222 shortly after Kuramoto and Kaupu left it. At various locations in the room they found three marijuana roaches, a roach clip, or 'crutch,' and a single red capsule. Based on the fruits of this search, on the same day the police secured and executed a warrant to search room 226 for marijuana. At approximately 2:40 P.M., the three officers executing the warrant were admitted to the room by Debrah Mae Kepoo-one of three women, including the defendant-appellant Sandra Nabarro, who were present in room 226 with Kuramto and Kaupu at that time. When the police entered the room, Miss Nabarro's purse was on the floor in the immediate vicinity of her person. Shortly thereafter, she picked it up and began walking to the bathroom; she was stopped at the door of the bathroom, however, and was told to surrender her purse to one of the officers. He emptied it on a counter, and, in the course of probing its contents, found one marijuana cigarette, an empty plastic bag containing marijuana residue, a cigarette paper, and a roach clip, or 'crutch.'

On the basis of this evidence, Miss Nabarro was convicted in the district court of Promoting a Detrimental Drug in the Third Degree, HRS § 712-1249, Hawaii Penal Code § 1249, L.1972, ch. 9, § 1249, and was sentenced to probation for one year. In her appeal to this court, she argues an absence of probable cause to support the warrant as well as the unreasonableness of the police searching her purse in their execution of the warrant. Since we find that the search of her purse was unreasonable even assuming that the warrant was properly issued, however, we need treat only her second assignment of error in this opinion. Campare State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974).

We are met in this case with legal principles which, at least on their faces, seem to conflict. The first, already noted in citing State v. Davenport, supra, is that the searching authority conferred by a valid warrant to search premises extends to all objects within the premises likely to contain the things named in the warrant. The second is that an individual is constitutionally entitled to know that wherever he may be 'he will remain free from unreasonable searches,' Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 515, 19 L.Ed.2d 576 (1967), and in particular that the fortuity of his presence at a place named in a search warrant alone will not cause him to forfeit his right to personal privacy. United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210 (1948). From the dynamics of the conflict between these principles has emerged the 'general rule . . . that a warrant for premises only will not authorize a search of persons found thereon.' E. Mascolo, Specificity Requirements for Warrants under the Fourth Amendment: Defining the Zone of Privacy, 73 Dick.L.Rev. 1, 19 (1968), and cases cited therein. Yet in an area as volatile and as dependent on specific factual circumstances as the law of search and seizure, 'general rules' can only provide an analytic starting point.

Almost all courts having occasion to construe the constitutional requirement that a warrant 'particularly describe(e) the place to be searched, and the persons or things to be seized,' U.S.Const. Amend. IV; see Hawaii Const. art. I, § 5, have held that a lawful warrant to search premises only does not by its own force permit a search of the persons-residents or visitors-who chance to be there at the time the warrant is executed. But see Brown v. State, 498 S.W.2d 343 (Tex.Crim.App.1973). On the other hand, this court and most others have held that the possessions of a resident of the premises described in a search warrant, if they are 'plausible repositories' for searched-for items, can be searched under authority of the warrant. State v. Davenport, supra 55 Haw. at 100, 516 P.2d at 72. This is on the theory that a particular description in a warrant of a 'place' to be searched necessarily includes those belongings which the person with control over the place keeps there, and which are capable of holding the 'things' named in the warrant. See United States v. Micheli, 487 F.2d 429 (1st Cir. 1973).

However, there is substantial disagreement on whether a warrant to search premises only also sanctions a search of the possessions of non-residents of the premises present there at the time of the search. For example, the court in United States v. Johnson, 154 U.S.App.D.C. 393, 475 F.2d 977, 978 (1973), framing the question before it to be 'whether the scope of the search warrant embraced an object in the apparent possession of a person not an occupant of the premises searched,' held that a purse, located on a coffee table directly in front of a woman visiting an apartment named in a warrant to search for drugs, was subject to search by officers executing the warrant. The court relied heavily on the reasoning of United States v. Teller, 397 F.2d 494 (7th Cir.) cert. denied, 393 U.S 937, 89 S.Ct. 299, 21 L.Ed.2d 273 (1968), which suggested that the purse of a woman which suggested that the purse of a woman to be searched under a valid warrant retained the woman's personal immunity from search only to the extent that it was being 'worn' by the woman-i. e., in her actual physical possession. Accord, United States v. Riccitelli, 259 F.Supp. 665 (D.Conn.1966).

By contrast, the Colorado Supreme Court held in People v. Lujan, 174 Colo. 554, 560, 484 P.2d 1238, 1242 (1971) that, '(a)s personal property of a guest on the premises, (a) purse was not subject to search under the search warrant,' where the facts suggested that the guest did not have physical possession of the purse at the time the warrant was executed. Similarly, the Pennsylvania Supreme Court refused, in Commonwealth v. Platou, Pa., 312 A.2d 29 (1973), to uphold a search of the suitcases of a visitor to an apartment under search by warrant even though the suitcases were not in the possession of the visitor at the time of police entry or search. The court, emphasizing the fact that the police had notice of the ownership of the suitcases prior to the search, reasoned cogently as follows:

A person does not lose the protection of the Fourth Amendment by entering the apartment of another. Neither do a person's effects. The Fourth Amendment permits no lesser protection for a person's effects, than for his person. So long as a person seeks to preserve his effects as private, even if they are accessible to the public or to others, they are constitutionally protected. Stated differently, a person must maintain the privacy of his possessions in such a fashion that his 'expectations of freedom from intrusion are recognized as reasonable.'

Personal belongings brought by their owner on a visit to a friend's house retain their constitutional protection until their owner meaningfully abdicates control or responsibility. Appellant's placing his suitcases on the floor of Wander's apartment and opening one of them does not amount to an abandonment of his control. Appellant maintained his reasonable expectation of privacy. And therefore the search of his suitcases was unreasonable and constitutionally impermissible.

Id. 312 A.2d at 34 (citations omitted). Accord, United States v. Micheli, supra; United States v. Johnson, supra, 475 F.2d at 980 (Bazelon, C. J., concurring in part and dissenting in part); Commonwealth v. Snow, Mass., 298 N.E.2d 804, 812 (1973) (Kaplan, J., dissenting).

We agree with the Platou court's resolution of the issue. An analysis which focuses entirely on whether a belonging is in the physical possession of a non-resident visitor to premises searchable under a warrant, while it serves to protect the zone of privacy around the visitor's person, ignores the substantial interest the visitor has in the privacy of all his possessions, wherever located. To overcome that interest, the federal and state constitutions require a warrant supported by probable cause. And a warrant to search...