                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                      CONCURRING 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

           The possession test adopted by the majority could undermine the simplicity, precision, and

guidance the Supreme Court of the United States has provided to Texas courts and law

enforcement officers. Because this case can be analyzed and resolved under precedent handed

down by the Supreme Court without adopting any of the tests developed by other jurisdictions, I

respectfully concur in the judgment. 1




1
  Because the State does not challenge the trial court’s suppression of evidence found in appellant’s vehicle, I
understand this court’s judgment as reversing the trial court’s order as to evidence found in appellant’s purse only.
Concurring Opinion                                                                       04-17-00405-CR


                        ADOPTING THE POSSESSION TEST IS UNNECESSARY

        This case involves a question of whether a law enforcement officer, who is conducting a

premises search under a lawfully issued search warrant supported by probable cause, may search

a container on the premises even if the officer has a reason to believe the container belongs to a

non-suspect visitor. Because this is an issue of first impression in Texas courts, the majority

reasonably considers authority from other jurisdictions. The majority notes other jurisdictions have

struggled with this issue and adopted at least three different tests to address the question presented

in this case: the possession test, the relationship test, and the actual-notice test. See generally State

v. Gilstrap, 332 P.3d 43 (Ariz. 2014).

        The majority adopts the possession test, following the reasoning in State v. Gilstrap.

Gilstrap’s reasoning proceeded in two parts. Id. at 46. First, it reasoned that the possession test is

aligned with the Supreme Court’s decisions in Wyoming v. Houghton, 526 U.S. 295 (1999), and

Ybarra v. Illinois, 444 U.S. 85 (1979), which was discussed in Houghton. See Gilstrap, 332 P.3d

at 46. Second, the Gilstrap court explained “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.”

Id. Because the Supreme Court’s decision in Houghton is binding on this court, and the Supreme

Court of Arizona’s decision in Gilstrap is not, I would analyze this issue starting with the former

authority rather than the latter.

        In Wyoming v. Houghton, the Supreme Court of the United States addressed an analogous

situation in which the Court upheld a search of a vehicle and a passenger’s purse when the officer

had probable cause to conclude the driver was transporting drugs and had reason to believe the

purse belonged to a passenger. See generally 526 U.S. 295 (1999). Although before Houghton,

courts throughout the country had developed the three tests discussed by the majority, the Supreme



                                                  -2-
Concurring Opinion                                                                                       04-17-00405-CR


Court decided Houghton without adopting any one of those tests. See id. The Houghton majority

not only rejected the rationale supporting the relationship and actual-notice tests, but also did not

emphasize the passenger’s distance from the purse when it was searched, as did Justice Breyer’s

concurrence. See id. at 308 (Breyer, J., concurring). 2 Instead, the Houghton majority balanced the

passenger’s right of privacy with legitimate governmental interests. See id. 303-07 (majority op.).

That the search did not constitute a “body search” was merely one of several factors the Court

considered in conducting its balancing analysis. See id.

         By following Gilstrap, the majority implicitly balances Callie Mae Merritt’s right of

privacy with the State’s legitimate governmental interests, and implicitly favors the latter. This

implicit balancing is consistent with Houghton. See id. at 303-06. But despite the existence of the

possession test when Houghton was decided, the Supreme Court did not adopt a possession test or

approve Justice Breyer’s emphasis on the passenger’s physical distance from her purse. See id. As

the Supreme Court was able to analyze the analogous facts of that case without adopting any

particular test, so too is this court able to analyze the facts of this case without adopting any

particular test. See id. Thus, adopting the possession test under the facts of this case is unnecessary

and does not strictly follow Houghton.

                                   PROBLEMS WITH THE POSSESSION TEST

         The possession test raises numerous questions both from a practical and jurisprudential

standpoint. Initially, the origin of the possession test has been traced to United States v. Teller, 397

F.2d 494 (7th Cir. 1968). Gilstrap, 332 P.3d at 45; WAYNE LAFAVE, ET AL., 2 SEARCH & SEIZURE

§ 4.10(b) n.69 (5th ed.). But Teller did not involve the search of a visitor’s purse; it involved the

search of a resident’s purse. 397 F.2d at 495-98. It is not clear the Teller court intended to develop


2
 Justice Breyer stated, “[I]n my view also important . . . is the fact that the container here at issue . . . was found at a
considerable distance from its owner, . . . .” Id.

                                                           -3-
Concurring Opinion                                                                                    04-17-00405-CR


a possession test and refused to consider the resident’s relationship to the premises covered by the

search warrant. See id.; but see Gilstrap, 332 P.3d at 45 (explaining the possession test and the

relationship test are two distinct tests). Adopting the possession test would also be inconsistent

with the Fifth Circuit’s rejection of possession as “the sole criterion which should be used to

determine whether a personal item may be searched pursuant to a premises search warrant.” See

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

         Furthermore, in criminal cases, Texas generally recognizes “possession” is a broad

concept. See Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (requiring the exercise of

control, management, or care of an object, and explaining the affirmative links test). While the

Gilstrap court emphasized the possession test’s simplicity and precision compared to the

relationship and actual-notice tests, courts throughout the country have struggled for fifty years

after Teller to provide a simple and precise formulation of the possession test. 3 The lack of

precision in the formulation of this test could lead judges, as well as law enforcement officers, to

disagree on its application. Compare United States v. Johnson, 475 F.2d 977, 978 (D.C. Cir. 1973)

(holding that purse on table immediately in front of visitor was not in visitor’s possession), with

id. at 980 (Bazelon, C.J., concurring and dissenting) (concluding the purse was in the visitor’s

possession). It is also unclear how the possession test should apply when the possessory status of

the container changes from the time the premises search begins to the time the purse is searched.

See LAFAVE, supra, at § 4.10(b) n.69. Given the questions the possession test raises, we should

not adopt the test if the facts of the case do not require doing so.



3
 For example, courts have referred to the possession test as requiring “apparent possession,” United States v. Johnson,
475 F.2d 977, 978 (D.C. Cir. 1973), “physical possession,” State v. Reid, 77 P.3d 1134, 1140 (Or. Ct. App. 2003),
“actual physical possession,” id. at 1143, “actual possession,” State v. Jackson, 873 P.2d 1166, 1169 (Utah Ct. App.
1994) (Orme, J., dissenting), and “immediate possession.” United States v. Robertson, 833 F.2d 777, 784 (9th Cir.
1987). Other courts have referred to the possession test as a “physical proximity” test. See, e.g., State v. Leiper, 761
A.2d 458, 461 (2000).

                                                         -4-
Concurring Opinion                                                                      04-17-00405-CR


                                   ANALYSIS UNDER HOUGHTON

        The facts of this case do not require adopting the possession test. Noting that its prior “cases

turned on the unique, significantly heightened protection afforded against searches of one’s

person,” the Supreme Court in Houghton distinguished a container search from a “body search.”

See 526 U.S. at 303 (distinguishing Ybarra, 444 U.S. 85, Terry v. Ohio, 392 U.S. 1 (1968), and

United States v. Di Re, 332 U.S. 581 (1948)). Here, there is no direct evidence showing the search

of Merritt’s purse constituted a body search. The evidence showing that both Merritt and her purse

were in the apartment’s living room when the purse was searched also does not permit an inference

that the search of Merritt’s purse constituted a body search. Because this case does not involve

“the unique, significantly heightened protection afforded against searches of one’s person,” this

case can be analyzed, like Houghton, without adopting the possession test. See, e.g., Schenk v.

State, No. 05-14-00207-CR, 2015 WL 1243401, at *6 (Tex. App.—Dallas Mar. 16, 2015, pet.

ref’d) (applying Houghton to vehicle search without adopting any other test). The distinction the

Supreme Court drew in Houghton provides “simplicity, precision, and . . . guidance . . . to police

and courts,” cf. Gilstrap, 235 P3d at 46, but the ambiguities of the possession test risks

undermining the virtues of that distinction.

                                            CONCLUSION

        Because the facts of this case can be analyzed under Houghton and do not call for the

adoption of any particular test, especially when the adoption of such test could undermine the

simplicity, precision, and guidance the Supreme Court has provided to Texas courts and law

enforcement officers, I respectfully concur in the judgment only.

                                                        Luz Elena D. Chapa, Justice

PUBLISH



                                                  -5-
