                               Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION

                                         No. 04-17-00405-CR

                                        The STATE of Texas,
                                             Appellant

                                                  v.

                                       Callie Mae MERRITT,
                                              Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                        Trial Court No. 6014
                           Honorable N. Keith Williams, Judge Presiding

Opinion by: Karen Angelini, Justice
Concurring Opinion by: Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: November 28, 2018

REVERSED AND REMANDED

           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.

                                     PROCEDURAL BACKGROUND

           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
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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.

                                     STANDARD OF REVIEW

       “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
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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).

                                          APPLICABLE LAW

       The Texas Court of Criminal Appeals has recognized the following principles applicable

to searches of persons present when a search warrant is executed:

          “(1) a warrant to search a premises and to arrest and search specific individuals
       does not carry with it the right to detain, search or frisk persons found on the
       premises but not directly associated with the premises and not named or specifically
       described in the warrant;

           (2) to justify the detention and search of a person, other than an occupant,
       present at the scene of a valid execution of a search warrant, there must be some
       independent factors, other than mere presence, tying the person to the unlawful
       activities in the premises;

           (3) a frisk of a person merely present at the scene must be justified under Terry
       v. Ohio, 392 U.S. 1 [1968].”

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 (holding “a warrant to

search for contraband founded on probable cause implicitly carries with it the limited authority to

detain the occupants of the premises while a proper search is conducted”); 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) (noting officers may detain individuals incident to the execution of a

search warrant “so long as the individual is found within or immediately outside a residence at the

moment the officers execute the warrant”); Mottley v. State, 841 S.W.2d 550, 551 (Tex. App.—


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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) (“It is also clear that the word ‘occupant’ as used by the Supreme Court in Summers does

not include a mere visitor.”). 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 (applying principles to search of person

officers knew was a visitor); see also Thomas v. State, 884 S.W.2d 215, 218 (Tex. App.—El Paso

1994, pet. ref’d) (applying principles to person hiding in closet).

       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, 332 P.3d 43 (Ariz. 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 (1979) (asserting that although a search

warrant gave officers authority to search tavern and suspect named in the warrant “it gave them no

authority whatever to invade the constitutional protections possessed individually by the tavern’s

customers” because “a person’s mere propinquity to others independently suspected of criminal

activity does not, without more, give rise to probable cause to search that person”). The court
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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. (citing United States v. Branch, 545 F.2d 177,

181-82 (D.C. Cir.1976) (search of a shoulder bag that was being worn was improper); United

States v. Johnson, 475 F.2d 977, 979 (D.C. Cir. 1973) (search of purse resting separately from its

owner, was not “worn” and therefore the search was proper); State v. Reid, 190 Or. App. 49, 77

P.3d 1134, 1143 (2003) (search of defendant’s jacket that was near him, but not in his possession

was proper); State v. Jackson, 873 P.2d 1166, 1169 (Utah Ct. App.1994) (search of purse not in

possession of visitor was proper)).

       “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. (citing United States v.

Young, 909 F.2d 442 (11th Cir. 1990) (concluding that the relationship test was “more reasonable”

than the possession test and holding that officers acted within scope of a premises warrant by

searching purse of a person who lived at the premises but fled as officers arrived); United States

v. McLaughlin, 851 F.2d 283 (9th Cir.1988) (finding that the co-owner of business searched with

valid warrant had a sufficient relationship to the premises to allow police to search briefcase);

Giwa, 831 F.2d at 545 (concluding that the search of defendant’s bag was appropriate because he
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was sleeping at the residence when police knocked and he opened the door clad in a bathrobe and

slacks, factors tending to show he was more “than just a temporary presence in the apartment”)).

       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 focuses on the notice given to

police regarding an item’s ownership before it is searched.” Id. “This test allows police to search

an item that may contain the object of a premises warrant unless they are put on notice that the

item belongs to a non-resident.” Id. (citing Waters v. State, 924 P.2d 437, 439 (Alaska Ct. App.

1996) (finding search of defendant’s coin purse proper because no “circumstances provid[ed] clear

notice that the purse actually belonged to [defendant]”); People v. McCabe, 144 Cal. App. 3d 827,

192 Cal. Rptr. 635, 637 (1983) (finding search of purse was proper because police had no facts

that “would have put them on notice that the purse belonged to a non-resident”); State v. Lambert,

238 Kan. 444, 710 P.2d 693, 697-98 (1985) (finding search of purse improper because officers had

no reason to believe that the purse belonged to the person named in the warrant); State v. Thomas,

818 S.W.2d 350, 360 (Tenn. Crim. App. 1991) (finding search improper because officers “knew

or should have known” that the purse belonged to a non-resident)).

       After discussing the three tests, the Arizona Supreme Court adopted the possession test

reasoning:

           After considering each test, we conclude that the possession test provides the
       best approach. It aligns with the Supreme Court’s decisions in Ybarra and
       Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
       Ybarra limits the principle that a premises warrant authorizes police to search any
       item that might contain the object of the search by holding that the warrant does not
       authorize the search of a person it does not name. 444 U.S. at 92–93, 100 S.Ct.
       338. This reflects that searches of a person involve a higher degree of intrusiveness
       and require justification in addition to that provided by the probable cause that
       supports a premises warrant. Even though the search of certain personal items,
       such as a purse, can in some circumstances amount to the search of a person,
       Houghton recognizes that they are not such a search when the item is not in the
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       owner’s actual possession. Houghton, 526 U.S. at 305–06, 119 S.Ct. 1297.
       Although Houghton is not dispositive because it concerned a vehicle search, “the
       thrust and tone of the Court’s analysis leaves little doubt that, if faced with the
       question, the Court would endorse a ‘physical possession’ test for searches of
       premises.” Reid, 77 P.3d at 1141.
            Additionally, the possession test’s simplicity, precision, and the guidance it
       offers to police and courts make it superior to the relationship and actual-notice
       tests. See Micheli, 487 F.2d at 431 (1st Cir.1973) (noting that “[The possession
       test] has the virtue of precision”); State v. Leiper, 145 N.H. 233, 761 A.2d 458, 462
       (2000) (finding that the possession test minimizes “the potential for fraud and
       gamesmanship during the execution of search warrants when parties not named in
       the warrant are present at the location of a search”); Reid, 77 P.3d at 1140
       (observing that courts that have adopted the possession test “have emphasized its
       simplicity and clarity”). Searches often occur in harried, dangerous circumstances
       and officers may not be readily able to identify the relationships between persons
       and the premises or to assess whether items might belong to someone not named in
       the warrant.
            The relationship and actual-notice tests are more difficult for police to navigate
       and for courts to administer. See Leiper, 761 A.2d at 462 (concluding that “the
       relationship/notice test is so nebulous it provides little guidance to police officers
       or trial courts”); Commonwealth v. Reese, 520 Pa. 29, 549 A.2d 909, 911 (1988)
       (explaining that the relationship test would make it “impossible for police to
       effectively search a premises where visitors are present because they would not
       know which items, clothing and containers could be searched and which could not
       be searched”); Jackson, 873 P.2d at 1168 (explaining that the relationship test
       would require officers “to ascertain the ownership of each item or container in the
       premises ... [then] determine whether the owner of the item or container was merely
       a ‘transient visitor’ or whether there was some greater connection to the premises”).

We agree with the Arizona Supreme Court that the possession test provides the best approach for

determining whether a premises search warrant permits the search of a visitor’s belongings.

Therefore, we next apply the possession test to the facts in the instant case to determine whether

the search warrant permitted the search of Merritt’s purse.

                                            DISCUSSION

       The evidence presented to the trial court regarding the location of Merritt’s purse was

conflicting. The officer’s return stated Merritt was detained in the living room, and further stated:

           The small black purse located in the living room was determined to belong to
       Merritt after her Texas driver’s license was located inside of it. Merritt also
       identified the purse as belonging to her and informed me she was only visiting and


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       did not live in the apartment. Since Merritt did not have custody of the purse when
       Police entered it was subject to search under the search warrant.

       Detective Kammlah testified when the officers entered the apartment Merritt was with one

of the named suspects in a bathroom where the named suspect was attempting to destroy evidence

by flushing it down the toilet. Detective Kammlah also testified Merritt complied with the officers’

commands to exit the bathroom and walk toward the living room. Finally, Detective Kammlah

testified Merritt’s purse was on the kitchen table.

       Although the trial court could choose to disbelieve Detective Kammlah’s testimony, the

only implied finding supported by the record was that Merritt was detained in the living room, and

her purse was also present in the living room. Ramirez-Tamayo, 537 S.W.3d at 35-36 (noting we

must “assume that the trial court made implicit findings of fact that support its ruling as long as

those findings are supported by the record”) (emphasis added). The record does not support an

implied finding that Merritt was in possession of her purse because the offense report states Merritt

did not have custody of her purse.

       Having adopted the possession test for determining whether a premises search warrant

permits the search of a visitor’s belongings, we hold the search warrant in this case authorized the

officers to search Merritt’s purse because the record does not support an implied finding that the

purse was in her possession. Accordingly, we hold the trial court erred in granting Merritt’s motion

to suppress.

                                           CONCLUSION

       The trial court’s order is reversed, and the cause is remanded to the trial court for further

proceedings.

                                                  Karen Angelini, Justice

PUBLISH


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