State v. Wynne

ANDERSON, Justice,

dissenting.

I respectfully dissent. The police in this case engaged in a constitutionally permissible search, and the fruits of that search are admissible evidence. To hold otherwise misapplies United States Supreme Court precedent, and now makes it more difficult for law enforcement officers to ensure their safety and the safety of others in the risk-laden circumstances of a legal search for drugs.

The district court found that the search of Andrea Wynne’s (Wynne) purse was similar to a Terry-type search and that the search was necessary to determine if Wynne was in possession of any weapons. The court concluded that this type of search is necessary to ensure the safety of police officers and is appropriate when officers are conducting drug searches.

The majority concedes that the search of Wynne’s purse constituted a search of her person, but sees no reason why the officers could not simply have left Wynne’s purse in the ear. Alternatively, officers might have ordered Wynne herself to remain in the car, or even ordered her and her companion to leave the premises. However, the question before the court is not what the officers might have done, but rather whether what the officers did do was constitutionally permissible.

A search by police officers is permissible only if it does not breach certain constitutional protections. The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures by the government of “persons, houses, papers and effects.” U.S. Const, amend. IV; Minn. Const, art. I, § 10. Warrantless searches are per se unreasonable unless they fall within a limited number of exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). However, as the majority acknowledges, police are justified in detaining a person during the execution of a search warrant when that person is present at the scene. State v. Blacksten, 507 N.W.2d 842, 847 (Minn.1993) (citing Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)). Police may also conduct a protective frisk of persons present during execution of a search warrant. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). An officer may frisk an individual for weapons when the officer can articulate suspicion that an individual he or she is investigating is armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 21-22, 24, 88 S.Ct. 1868, 1879-80, 1881-82, 20 L.Ed.2d 889 (1968) (upholding a protective frisk of an individual in circumstances which indicated criminal activity may be afoot).

The United States Supreme Court in Terry recognized that it is unreasonable to require that police officers take unnecessary risks in the performance of their duties. Id. at 23, 88 S.Ct. at 1881. However, “the ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.” Ybarra, 444 U.S. at 94, 100 S.Ct. at 343. Both Terry and Ybarra require that a search of a person under this less-than-full-probable-cause-to-arrest standard must be justified by specific and articulable facts. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81; Ybarra, 444 U.S. at 93-94, 100 S.Ct. at 343-44. Ybarra involved the patdown search of approximately 12 patrons of a tavern during the execution of a search warrant for narcotics in the tavern. During the protective patdown of Ybarra, officers discovered heroin in a cigarette pack. The Supreme Court held that the search of Ybar-ra violated the Fourth Amendment in that Ybarra had done nothing that indicated he was armed, nor did he act in a threatening manner. Ybarra, 444 U.S. at 93, 100 S.Ct. at 343.

However, the circumstances under which a search warrant is executed may give rise to articulable suspicion that an individual at the scene is armed and presently dangerous. If the suspected criminal activity to which the search warrant relates is fairly serious and *224the person frisked appears to be an acquaintance of the person in possession of the premises, sufficient articulable suspicion may exist to justify a protective frisk for weapons. 2 Wayne R. LaFave, Search and Seizure § 4.9(d) at 639 (3d ed. 1996). LaFave further observes that it is generally known by the police and others that those who traffic in large quantities of narcotics are often armed, and the mere presence of a person or persons in such an environment presents reasonable suspicion and belief, which gives rise to sufficient justification to frisk all present for weapons. Id. (quoting People v. Finn, 73 Misc.2d 266, 340 N.Y.S.2d 807 (1973)).

The Supreme Court has considered the circumstances under which warrants to search for narcotics are executed, and commented:

the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.

Michigan v. Summers, 452 U.S. 692, 702-03, 101 S.Ct. 2587, 2594, 2594, 69 L.Ed.2d 340 (1981). The Eighth Circuit noted that “[t]he possible danger presented by an individual approaching and entering a structure housing a drug operation is obvious. In fact, it would have been foolhardy for an objectively reasonable officer not to conduct a security frisk under the circumstances.” United States v. Patterson, 885 F.2d 483, 485 (8th Cir.1989).

This court previously determined that the circumstances under which a narcotics search warrant is executed implicate a unique risk to police officers, and opined that “[t]he fact that the premises were being searched under a warrant for heroin, a very dangerous drug, gave [the police officer] the knowledge that dangerous people, who commonly carried weapons, were involved.” State v. Bitterman, 304 Minn. 481, 485, 232 N.W.2d 91, 94 (1975) (upholding a Terry search of a person who arrived at an apartment that was being searched for narcotics); see also Johantgen v. Com., 571 S.W.2d 110, 112 (Ky.Ct.App.1978) (“Narcotics investigations are fraught with dangers and the officers had a right and duty to check [a person arriving on the premises] for weapons to protect themselves and others * * *.”). The majority attempts to distinguish Bitterman by stating that somehow officers “knew” that the circumstances of that drug search were more dangerous than the circumstances here. I must disagree.

The fact that a warrant has been issued to search for narcotics at a private residence has a significant bearing on the existence of objective reasonable suspicion that a person present at the execution of the warrant may be armed and presently dangerous. Ybarra involved a search warrant executed in a public place — a tavern — and held the search of an individual present in the tavern invalid. 444 U.S. at 92-93, 100 S.Ct. at 343-44. Summers, which upheld a search of an individual present on the premises, involved a search warrant issued for a private residence. 452 U.S. at 704, 101 S.Ct. at 2595. Federal courts have made a distinction between searches conducted in public versus private places with respect to reasonable suspicion that a person is armed. A Terry search is permissible in a public place only with articu-lable suspicion as to the particular person. In a private place, a person entering establishes a more direct connection to the place and any criminal activity therein. In United States v. Jaramillo, the Second Circuit said:

The difference [in the reasonableness of suspicion regarding whether a person is armed] lies in the fact that while it is obviously reasonable to believe that individuals in a private home or vehicle have some connection with one another, it is not reasonable to assume that all of the persons at a public bar have such a connection. The sole fact that an individual as to whom the officers have no reasonable and articulable factual suspicion of wrongdoing happens to be in a public place where another person possesses a weapon or contraband does not provide a basis for a Terry-type search if the possessor is a person with whom the searched individual has no known connection.

*22525 F.3d 1146, 1152 (2d Cir.1994). It follows, then, that persons arriving at a private residence are more likely to have a connection with the place and any criminal activities therein than persons arriving at a public place, such as a tavern or bar or other legitimate place of business. The Ninth Circuit observed that “[o]ne would anticipate the presence of strangers in the bar. By contrast one would expect that persons in a house or car are there by invitation or consent.” United States v. Vaughan, 718 F.2d 332, 335 n. 6 (9th Cir.1983).

The majority also states that the threat that Wynne’s unsearehed purse represented was one which the officers themselves created by bringing the purse inside the house, and that therefore officers could not search the purse for weapons. If that is so, then the officers also created a threat by bringing Wynne herself into the house. Surely the majority does not believe that officers could not frisk Wynne for weapons because they brought her into the house.1

Because there was reasonable articulable suspicion that Wynne could be armed and presently dangerous, the rationale of Ybarra, Summers, Terry and Bitterman provides justification for detaining Wynne and for searching her for weapons. A protective search of Wynne was necessary in order to protect the officers and others from possible harm during execution of the search warrant. The state cites a number of facts in support of a conclusion that the officers had a reasonable basis to suspect that Wynne may be armed and presently dangerous. A judicial officer had determined that sufficient probable cause existed to justify issuance of a search warrant for controlled substances and related items for the entire premises of Joy Pamela Wynne’s private residence, including the yard and outbuildings. The judicial officer authorized an unannounced entry of the premises in order to protect the officers executing the search. This authorization was in large part founded on Deputy Erickson’s sworn affidavit that, based on his training and experience, persons actively possessing and selling controlled substances often possess firearms and other weapons. The officers were in the process of executing the search warrant when Wynne arrived on the premises. Wynne did have a direct connection to the private premises being searched. The record contains specific and articulable facts which indicate that weapons could be present at the residence, and also that a person arriving during the execution of the search warrant could be armed and presently dangerous. These facts provide sufficient justification for a protective search of Wynne.

The next question is whether the search of Wynne’s purse was within the permissible limits of such a protective search. The state asserts that opening Wynne’s purse did not exceed the permissible scope of a protective search for weapons because a purse is a place one would expect a woman to carry a weapon.

The purpose of a Terry search is not to discover evidence, but to allow a police officer to pursue an investigation without fear of violence. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2135-36, 124 L.Ed.2d 334 (1993). A protective search must be strictly limited to that which is necessary for the discovery of weapons which might harm officers or others nearby. Id. If a protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid and its fruits will be suppressed. Id.

Other courts have observed that the search of a woman’s purse is a reasonable protective measure. The Second Circuit has noted that “[a] lady’s handbag is the most likely place for a woman * * * to conceal a weapon. * * * [p0iice] ¿id no more than ascertain the contents of the place where she would have been most likely to hide a weapon.” United States v. Vigo, 487 F.2d 295, 298 (2d Cir.1973) (citations omitted). With regard to search of a purse separated from its owner, the Second Circuit observed that:

It would have been unwise for agents who lacked handcuffs and had other work to do *226simply to have handed [an individual] her bag and released her or to have left the bag unsearched. So long as the purse remained unopened, it was a source of danger to the agents and to the suspects as well, whose innocent or unintended gesture in the direction of the bag might have resulted in calamitous consequences.

United States v. Barlin, 686 F.2d 81, 87 (2d Cir.1982). These concerns are not unique to a woman’s purse. For example, in North Carolina, the court of appeals determined that, where a residence was being searched for heroin, a limited frisk for weapons of all individuals present was reasonable, and that reaching into the defendant’s boot was permissible, as it was “perhaps the most obvious place a weapon would have been concealed.” State v. Long, 37 N.C.App. 662, 668, 246 S.E.2d 846, 851 (Ct.App.), review denied, appeal dismissed, 295 N.C. 736, 248 S.E.2d 866 (1978).

The key principle underlying Fourth Amendment protection in this context is reasonableness. Dunaway v. New York, 442 U.S. 200, 219, 99 S.Ct. 2248, 2260, 60 L.Ed.2d 824 (1979) (White, J., concurring); see also 2 Wayne R. LaFave, Search and Seizure § 4.9(e), at 305 & n. 80 (2d ed. 1987). Given the circumstances surrounding the execution of this search warrant, the officers, as in Vigo, did no more than ascertain the contents of the place where Wynne would have been most likely to hide a weapon. The search of Wynne’s purse was within the bounds of a permissible search for weapons, and I would so hold.

The incriminating character of the drugs and paraphernalia seized from Wynne’s purse was immediately apparent; thus, their seizure was permissible. If police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. Minnesota v. Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137 (citing Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112 (1990)). Since the officers were justified in conducting a protective search of Wynne, and since they were further justified in opening and searching her purse for weapons, they were permitted to seize the drugs and paraphernalia within the purse because their incriminating character was immediately apparent.

Accordingly, I would hold that the search of Wynne’s purse for weapons was a reasonable protective measure taken during the execution of a valid search warrant for controlled substances at a private residence. The police found contraband readily apparent in Wynne’s purse during a legitimate search for weapons, and therefore were justified in seizing the drugs and drug paraphernalia.

. Wynne’s counsel stated at oral argument that there were documents outside the record before this court which show that police conducted a patdown search of Wynne’s person and also of the driver of the car in which she arrived at the residence.