                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                  MAR 2 2001
                                  TENTH CIRCUIT
                             __________________________                      PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellant,

 v.                                                            No. 99-1583
                                                                (D. Colo.)
 ROCKY VOGL; KAREN VOGL,                                  (D.Ct. No. 98-CR-257)

           Defendants-Appellees.
                         ____________________________

                              ORDER AND JUDGMENT *


Before BRORBY, PORFILIO, and BALDOCK, Circuit Judges.



       The government appeals the district court’s grant of Karen Vogl’s motion

to suppress the padlock key removed from inside her purse. We have jurisdiction

pursuant to 18 U.S.C. § 3731. We affirm the district court’s decision, but for

reasons slightly different than those relied upon by the district court.        See United

States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994).




       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                     BACKGROUND

      On June 2, 1998, federal Drug Enforcement Agency agents and task force

officers (collectively “officers”) observed a man, later identified as Rocky Vogl,

carrying several unmarked boxes out of a hydroponics store in Boulder,

Colorado.   1
                The officers ran Mr. Vogl’s license plate number through the

Department of Motor Vehicles records and followed him to his residence at 17945

Steeplechase Drive in Peyton, Colorado. At this time, the officers did not know

Karen Vogl existed, was married to Mr. Vogl, or lived at that residence.



      Approximately one week later, the officers returned to the residence to

conduct visual surveillance and determine whether they could smell growing

marijuana plants. The officers smelled growing marijuana as they walked toward

the house. The agents did not observe Karen Vogl during their surveillance.



      After the surveillance, the agents administratively subpoenaed the electrical

bills for the Steeplechase Drive residence in order to determine whether the

wattage levels for the house were unusually high, which is a fact consistent with

the indoor growth of marijuana plants. The electrical bills were in Mr. Vogl’s


      1
           Hydroponic equipment is used to grow plants, including marijuana plants,
indoors.


                                            -2-
name exclusively.



        On June 12, 1998, Officer Scott Schacht obtained a federal search warrant

for the residence described as 17945 Steeplechase Drive, Peyton, Colorado. The

search warrant authorized the officers to search for, among other things,

“[a]rtifacts of personal property tending to establish the identify [sic] of the

person or persons in control of premises where marijuana is under cultivation, ...

which include but not limited to: ...keys.” However, the warrant did not

authorize the officers to search persons found at the premises.   The search warrant

and Officer Schacht’s seven-page affidavit supporting it do not mention Karen

Vogl.



        On June 15, 1998, the officers executed the search warrant. When the

officers arrived at the residence, Karen Vogl and her children were standing in the

driveway near her car. She wore her purse and held bags of groceries in her

hands. An officer approached Karen Vogl, identified himself as an officer, and

informed her the officers intended to execute the search warrant at the residence.

There is no evidence suggesting the officers ascertained Karen Vogl’s identity or

relationship to the premises when they encountered her in the driveway.




                                            -3-
      Karen Vogl initially agreed to open the door of the residence for the

officers, but she requested time to read the search warrant before doing so.

Because the officers were concerned about securing the premises, an officer

forcibly moved her from the entrance in order to gain access to the residence.

Another officer grabbed her keys from her hand and unsuccessfully attempted to

find a key that would open the door. The officer returned the keys to Karen Vogl

once she indicated she would open the door for the officers. With the search

warrant and keys in her hand, she approached the door but did not open it.

Instead, she held the keys to her chest and stated she wanted to read the search

warrant first.



      An officer moved Karen Vogl away from the door and placed her under

arrest for “obstructing, not letting [the officers] into the doorway, standing in the

doorway and clutching the keys and obstructing the agent.” During the arrest, the

officer handcuffed her, removed her purse from her person, and placed the purse

on the porch. She remained handcuffed for over an hour while the officers

searched the residence. There is no evidence in the record suggesting that during

her arrest or the subsequent search of the residence the officers determined her

relationship to the premises.




                                         -4-
         In order to effect entry into the home officers broke the back door lock.

Once inside the residence, an officer found a hidden trapdoor secured by a locked

padlock. He cut the lock and discovered over 350 growing marijuana plants in an

underground room. After this discovery, an officer decided to search Karen

Vogl’s purse, which was still located on the porch where the arresting officer had

placed it. The officer removed a keychain with keys from her purse, and matched

a key from the keychain to the padlock that secured the underground marijuana

growing room.    2
                     The padlock key is at issue in this case. After the officers

conducted their search of the residence and Karen Vogl’s purse, they removed her

handcuffs and left her at the premises with the children, the groceries, and her

purse.



         Karen Vogl filed a motion to suppress the padlock key found in her purse.

In response, the government advanced alternative theories why the key should not

be suppressed: (1) the officers legally detained Karen Vogl pursuant to          Michigan

v. Summers , 452 U.S. 692 (1981), they arrested her after the search of the home

provided them probable cause, and they searched her purse pursuant to the search




        We do not know whether the keys removed from her purse are the same keys
         2

Karen Vogl clutched to her chest before the officers arrested her. However, it is clear the
keys were in her purse after she was arrested and prior to the officer’s search of the purse.


                                             -5-
incident to arrest exception to the warrant requirement; and (2) the purse rested

within the curtilage of the house and fell within the scope of the premises search

warrant. After an evidentiary hearing, the district court granted Karen Vogl’s

motion to suppress the padlock key. The district court held: (1) Karen Vogl was

not permissibly detained, her arrest was illegal and not supported by probable

cause, and the officer’s search of her purse was not a valid search incident to

lawful arrest; and (2) the seizure and search of her purse was not authorized by

the premises search warrant. The court denied the government’s motion to

reconsider and affirmed its suppression order.



       “In reviewing the district court's grant of a suppression motion, we accept

the district court's factual findings absent clear error and review de novo the

district court's determination of reasonableness under the Fourth Amendment to

suppress the ... evidence.”   United States v. Olguin-Rivera   , 168 F.3d 1203, 1204

(10th Cir. 1999). Because the government appeals an adverse ruling on a motion

to suppress, we construe the facts in the light most favorable to Karen Vogl.

United States v. Lin Lyn Trading, Ltd.   , 149 F.3d 1112, 1113 n.1 (10th Cir. 1998).



                                     DISCUSSION

       The Fourth Amendment protects people from unreasonable searches and


                                           -6-
seizures.   3
                U.S. Const. amend. IV. Absent certain exceptions, “[t]he Fourth

Amendment normally requires that law enforcement officers obtain a warrant,

based on probable cause, before conducting a search.”         United States v.

Anchondo , 156 F.3d 1043, 1045 (10th Cir. 1998). “This means that before an

officer may search one's premises or seize one's property he must have a search

and seizure warrant.”      Pearson v. United States , 150 F.2d 219, 220 (10th Cir.

1945). However, the probable cause that supported the issuance of a premises

search warrant “does not, without more, support the search of [defendant’s

person].” United States v. Sporleder , 635 F.2d 809, 813 (10th Cir. 1980).



       The government raises one issue in this appeal.    4
                                                              The government asserts

the officers legally searched Karen Vogl’s purse, pursuant to the premises search

warrant, because the purse was on the premises and could contain items listed in


       3
         Neither Karen Vogl nor the government raises the issue, but we will assume
without deciding Karen Vogl possesses a reasonable subjective and objective expectation
of privacy in the contents of her purse. United States v. Anderson, 154 F.3d 1225, 1229
(10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999).

       4
          Karen Vogl focuses her response to the government’s appeal argument on the
fact the evidence seized from her purse “was the result of an illegal arrest not supported
by probable cause.” We note the district court held the officers improperly arrested Karen
Vogl, and the government does not appeal the issue, but we find it unnecessary to further
discuss appellee Vogl’s contentions because we affirm the district court’s decision on
other grounds. See Sandoval, 29 F.3d at 542 n.6.


                                            -7-
the warrant. In other words, the government suggests the purse fell within the

scope of the premises search warrant.   5




1. Wyoming v. Houghton

      The government claims     Wyoming v. Houghton , a Supreme Court case

addressing a container search pursuant to the automobile exception to the warrant

requirement, controls the scope of a container search pursuant to a premises

search warrant. 526 U.S. 295 (1999). Specifically, the government cites footnote

one of the majority opinion for its proposition the scope of a warrantless

automobile search supported by probable cause is no broader or narrower than the

scope of a premises search supported by a search warrant.         See id. at 303 n.1.

Thus, the government suggests the fact that         Houghton involved a search of a

purse pursuant to the automobile exception is immaterial – so long as the officers

do not conduct a search of property contained in clothing worn by that person, the

context, or place, where the property is found no longer matters. In other words,

the government attempts to diminish the significance of context by arguing

Houghton controls our analysis.




      5
        For purposes of this appeal, we will assume without deciding the porch is within
the home’s curtilage, and is covered by the premises search warrant.


                                              -8-
       In Houghton , an officer conducted a routine traffic stop of an automobile,

and searched a passenger’s purse found, detached from her person, on the back

seat of the car.   Id. at 298. The Supreme Court adopted a bright-line rule specific

to vehicle searches pursuant to the automobile exception to the warrant

requirement. 3 Wayne R. LaFave, Search and Seizure, § 7.2, at 67, 75 (3d ed.

Supp. 2001). The Court held that “police officers with probable cause to search a

car may inspect passengers’ belongings found in the car that are capable of

concealing the object of the search” without a warrant.    Id. at 307.



       In footnote one, the   Houghton majority defends its distinction between the

search of a person and search of property, and asserts the distinction is rooted in

the Court’s precedent.    Id. at 303 n.1. The majority inquires,

              Does the dissent really believe that Justice Jackson [in United
       States v. Di Re , 332 U.S. 581, 587 (1948)] was saying that a house-
       search could not inspect property belonging to persons found in the
       house – say a large standing safe or violin case belonging to the
       owner’s visiting godfather? Of course that is not what Justice
       Jackson meant at all. He was referring precisely to that “distinction
       between property contained in clothing worn by a passenger and
       property contained in a passenger’s briefcase or purse.”

Id. (quoting the dissent at 309-10.) We conclude this footnote in no way

undermines the underlying command of the Fourth Amendment that searches and

seizures be reasonable. “What is reasonable depends on the context within which

a search takes place.”    New Jersey v. T.L.O. , 469 U.S. 325, 337 (1985) (quotation

                                           -9-
marks and citation omitted).



       Focusing as we must on context, we are unwilling to extend the Court’s

Houghton automobile search analysis to a premises search for three reasons.

First, the Court expressly limited its holding to “passengers’ belongings found in

the car that are capable of concealing the object of the search.”        Houghton , 526

U.S. at 307. The holding makes no mention of belongings found attached to the

person, or property found on a premises. The         Houghton holding is uniquely

“grounded on a balancing of interests including a passenger’s reduced expectation

of privacy in containers placed in vehicles which ‘trave[l] public thoroughfares.’”

LaFave, supra , § 7.2, at 75 (quoting    Houghton , 526 U.S. at 303).



       Second, the majority’s purpose in footnote one is to explain that its

distinction “between searches of the person and searches of property” is not

“‘newly minted.’”    Id. at 303 n.1 (quoting the dissent at 310). This distinction,

rather than the Houghton dissent’s passenger versus driver differentiation, is

grounded in precedent and is the same one Justice Jackson relied on in         United

States v. Di Re , 332 U.S. 581 (1948).    6
                                              Houghton , 527 U.S. at 303 n.1). When


       6
        In Di Re, the Court explained it was “not convinced that a person, by mere
presence in a suspected car, loses immunities from search of his person to which he
would otherwise be entitled.” 332 U.S. at 587 (emphasis added).

                                              -10-
reading the footnote in the context of the paragraph it supplements, the Court is

merely differentiating between a search of personal property found in a car and a

search of one’s person, which is afforded heightened protection.   See id. at 303.

Therefore, we do not believe the Court is equating the scope of a container search

in a vehicle to the scope of a container search in a home, particularly when the

container is worn by an individual.



       Finally, both the Houghton holding and footnote one do not address

whether a purse worn by an individual constitutes part of the “‘outer clothing,’”

and thus a search of the person.   See id. at 308 (Breyer, J., concurring) (quoting

Terry v. Ohio , 392 U.S. 1, 24 (1968) (noting the facts indicated the woman’s

purse “was found at a considerable distance from its owner” and detached from

her person)).



       Accordingly, we hold    Houghton does not apply in this instance because its

holding, footnote one, and facts are rooted in and inseparable from the context of

the automobile exception, do not extend to a premises search, and are factually

distinguishable from this case.




                                          -11-
2. Physical Possession and Relationship Analyses

      Having decided Houghton is inapplicable to this appeal, we must now

analyze the particular context of the search at issue. The government suggests we

limit our analysis to the premises search warrant that authorized the officers to

search for keys, and the fact an officer could reasonably believe a purse could

contain keys. See United States v. Gray , 814 F.2d 49, 51 (1st Cir. 1987) (“[A]ny

container situated within residential premises which [is] the subject of a validly

issued warrant may be searched if it is reasonable to believe that the container

could conceal items of the kind portrayed in the warrant.”). The government cites

United States v. Gentry , 642 F.2d 385, 387 (10th Cir. 1981), as support for its

argument that a premises search warrant authorizes the opening of a container

found on the premises where it is reasonable to believe the container could hold

the object of the search.



      In Gentry , we reasoned documentary evidence seized from an accomplice’s

briefcase was admissible because “[i]t is logical and reasonable that the drug, the

object of the search, could be concealed in the briefcase situated on the premises.

A search of the briefcase would normally be appropriate under the warrant’s

authority.” 642 F.2d at 387. However, the facts in   Gentry do not suggest the

defendant, or even the accomplice, held the briefcase before, during, or after the


                                          -12-
officers searched the premises. The briefcase was merely “situated on the

premises.” Id. Additionally, the officers in      Gentry understood the accomplice’s

relationship to the defendant and knew that the accomplice who owned the

briefcase was more than a mere visitor to the methamphetamine laboratory

searched. Thus, the officer in    Gentry did not improperly “assume[] that whatever

is found on the premises described in the warrant necessarily falls within the

proper scope of the search.”     United States v. Micheli , 487 F.2d 429, 431 (1st Cir.

1973). In this case, the government erroneously asks us to ignore that: (1) Karen

Vogl was wearing her purse when the officers seized her and the purse; and (2)

the officers did not know her relationship to the premises.



      An examination of how other circuits resolve whether the container at issue

is considered on the premises or an extension of a person reveals two different

approaches. The first approach is a “physical possession” analysis. Under this

inquiry, the reviewing court focuses on the physical location of the container and

whether the individual wore the container at the time it was searched in order to

determine whether the container was an extension of the person or part of the

premises. See United States v. Johnson      , 475 F.2d 977, 979 (D.C. Cir. 1973). For

example, in United States v. Teller , the Seventh Circuit held the search of a purse

was within the scope of the premises search warrant where the woman had placed


                                           -13-
her purse on a bed and left the room during the search. 397 F.2d 494, 497-98 (7th

Cir.), cert. denied , 393 U.S. 937 (1968).    The court concluded a purse that is

temporarily put down cannot be considered an “extension of her person,” and its

search did not constitute a search of the person.       Id. It logically follows that a

purse within the individual’s physical possession is considered an appendage of

the body and, therefore, a search of the person.        See Johnson , 475 F.2d at 979

(noting the purse was not worn by defendant “and thus did not constitute an

extension of her person so as to make the search one of her person”);         but see

United States v. Branch , 545 F.2d 177, 182 (D.C. Cir. 1976) (ruling the search of

a bag worn by the defendant upon entering the premises was not permissible

where the owner was unknown to police, entered the premises during the course

of the premises search, and was not given an opportunity to leave).



       Critics suggest this approach is both too broad and too narrow. The rule

provides blanket protection to those seeking to hide incriminating evidence

because those individuals could avoid detection from lawful searches “through the

simple act of stuffing it in one’s purse or pockets.”      See United States v. Young     ,

909 F.2d 442, 445 (11th Cir. 1990),      cert. denied , 502 U.S. 825 (1991). Similarly,

the approach is too constrictive because “it would leave vulnerable many personal

effects, such as wallets, purses, cases, or overcoats, which are often set down


                                             -14-
upon chairs or counters, hung on racks, or checked for convenient storage.”

Micheli, 487 F.2d at 431.



       The second approach to determine whether the individual’s container may

be searched pursuant to a premises search warrant focuses on the officers’

knowledge or understanding of the person’s “relationship” to the premises

searched at the time the officers executed the search warrant.        See United States v.

Giwa , 831 F.2d 538, 544 (5th Cir. 1987). In       United States v. Micheli , the First

Circuit rejected the “physical possession” test in favor of examining the

relationship between the person and the place being searched.         Id. at 431-32.

Using this principle, the court concluded the usual occupant or owner of a

premises being searched loses her privacy interest in the belongings located there;

however, a “mere visitor” retains her legitimate expectation of privacy regardless

of whether the visitor is currently holding or has temporarily put down her

belongings. Id. at 432. Thus, the court upheld the search of the defendant’s

briefcase found under a desk because, as the co-owner of the business premises

subject to the search warrant, he was not a mere visitor.        Id. As a co-owner the

defendant bore

       a special relation to the place, which meant that it could reasonably
       be expected that some of his personal belongings would be there.
       Thus, the showing of probable cause and necessity which was
       required prior to the initial intrusion into his office reasonably

                                            -15-
       comprehended within its scope those personal articles, such as his
       briefcase, which might be lying about the office. The search of the
       briefcase, under these circumstances, was properly carried out within
       the scope of the warrant.

Id.



       In United States v. Giwa , the Fifth Circuit focused its inquiry on the

officers’ perception of the defendant’s relationship to the place being searched.            7



831 F.2d at 544-45. Under this analysis the officers’ search of the flight bag was

upheld because the defendant was an overnight visitor, he answered the door clad

only in pants and a bathrobe, and was alone in the residence.        Id. at 545.

According to the court, these facts suggested defendant had “more than just a

temporary presence in the apartment,” and “the agents could reasonably believe

his flight bag contained evidence” of the kind portrayed in the warrant.            Id. at

544-45.



       Critics suggest the “relationship” inquiry promotes inefficiency and

uncertainty because it requires law enforcement officers to know the status of the


       7
         The Giwa court suggested physical possession should not be the “sole criterion”
in determining whether a personal item may be searched pursuant to a premises search
warrant. 831 F.2d at 544. However, the court did not discuss how actual possession of
the container factors into their analysis because the flight bag in question was located
away from the defendant in a closet. Id. at 539-40, 545.


                                            -16-
individual and who owns the container.      See Micheli , 487 F.2d at 434 (Campbell,

J., concurring). Such an approach obligates a court to inquire into the officer’s

subjective knowledge at the time of the search.        See id . Additionally, because

“the nature and quantum of ‘relationship’ cannot readily be defined, officers and

courts may be bedeviled with uncertainty in a field where certainty is especially

desirable.” Id.



       In this case, we find it unnecessary to decide which approach to adopt in

order to resolve the issue on appeal because our conclusion is the same under

either the “physical possession” or “relationship” inquiry. We begin with the

physical possession analysis. The government disingenuously argues in its brief

that Karen Vogl was not wearing or even holding her purse at the time the

officers searched it. The government suggests the facts in this case are

comparable to other “physical possession” cases that upheld searches when the

purse was not worn by the defendant, because Karen Vogl’s purse was situated on

the porch floor rather than her shoulder.        See, e.g., Teller , 397 F.2d at 497.

However, the facts of this case are distinguishable from those cases because

Karen Vogl did not voluntarily remove the purse from her person or abandon her

interest in the purse by walking away from it.        Cf. Teller , 397 F.2d at 497

(reasoning the purse is not an extension of the person when the individual, who is


                                            -17-
not under arrest, puts the purse down and voluntarily walks away from it). Karen

Vogl was wearing the purse when the officers seized it from her. We agree with

the government’s later contention in oral argument that the officer’s action in

dispossessing Karen Vogl of her purse is the “functional equivalent” of the purse

being in her physical possession at the time of the search. Therefore, applying the

“physical possession” test, we hold the officer’s search of the purse in her

physical possession was an unreasonable search in violation of the Fourth

Amendment.



      We turn our attention to the “relationship” inquiry to examine whether the

officers knew, or inferred, Karen Vogl’s relationship to the premises when they

executed the search warrant.   See Giwa , 831 F.2d at 544-45. The government

recommends this court apply a “relationship” analysis, claiming “the agents

executing the warrant knew that Karen Vogl was the wife of the principal target

and that she lived in the house to be searched.” Notably, however, the

government offers nothing more than this conclusory statement to support its

position. Absent a citation to record evidence in suppport of its claim, the

government’s bald assertion is factually insufficient in light of Agent Schacht’s

admission the officers did not know Karen Vogl existed on the date the search

warrant was executed. In fact, she was not listed on the search warrant affidavit


                                        -18-
or the subpoenaed electrical bills, the officers never observed her during their

surveillance of the residence, and the officers’ collective information referred

only to Mr. Vogl. Moreover, Karen Vogl was not located within the residence at

the time the officers encountered her; instead, she arrived immediately before or

at the same time the officers arrived at the house, and was standing outside the

premises in the driveway.   Cf. Giwa , 831 F.2d at 545 (holding the defendant was

more than a “casual visitor” because the officers found him inside the apartment

alone and wearing only a bathrobe and pants).



      The government also offers no evidence suggesting the officers inferred she

occupied the premises. After reviewing the entire record, we believe the only

evidence that could intimate the officers understood Karen Vogl’s relationship to

the premises is: (1) the officers’ “contact[]” with her in the driveway as she stood

holding the bags of groceries; (2) her possession of a large ring of keys which

allegedly contained a key to open the door of the residence; and (3) her statement

she wanted to read the search warrant before the officers entered.



      First, the officers’ “contact” with Karen Vogl consisted of approaching her,

identifying themselves as officers, and explaining they possessed a federal search

warrant for the premises. This one-sided communication does not establish the


                                        -19-
officers inferred her relationship to the premises. DEA Special Agent Daniel

Reuter suggested the officers “later identified” the woman in the driveway as Mrs.

Vogl, but the government does not argue, and we find no mention in the record,

that this identification occurred before or during the execution of the search

warrant. Second, her possession of a reputed house key and agreement to open

the door do not confirm the officers inferred she occupied the residence. The

officer who took the keys from her could not find a key to open the door, she

never opened the door, and the officers gained entry only by breaking the lock on

the back door. Finally, her desire to read the search warrant and her possession of

groceries fail to create an inference she lived at the residence, and we are

unwilling to assume the officers perceived her as an occupant based on these

actions. Her conduct would be typical for a casual visitor, including a neighbor,

babysitter, or housekeeper. For the reasons stated, we hold the officers did not

know, or infer, Karen Vogl’s relationship to the premises when executing the

premises search warrant, and we will avoid any attempt at judicial clairvoyance.

See Branch , 545 F.2d at 182 (“[Defendant] was apparently a mere visitor; his

relationship to the premises was not known, but was at best the subject of

speculation.”). Thus, the officer’s search of Karen Vogl’s purse was not

authorized by the premises search warrant, and is therefore in violation of the

Fourth Amendment.


                                         -20-
      We hold the officer’s search of Karen Vogl’s purse, when viewed under

either the “physical possession” or the “relationship” analysis, violated the Fourth

Amendment. We AFFIRM the district court’s grant of Karen Vogl’s motion to

suppress the key.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                        -21-
