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THE COURT OF APPEALS OF THE STATE OF ALASKA
VICTORIA A. WATERS, )
) Court of Appeals No. A-5881
Appellant, ) Trial Court No. 4FA-S94-3235CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1483 - October 4, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline and Jay
Hodges, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Eric A. Johnson, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Victoria A. Waters entered a plea of no contest to one
count of third-degree misconduct involving a controlled substance.
AS 11.71.030(a)(1) (possession of cocaine with intent to deliver).
In entering the plea, Waters reserved the right to appeal (EN1)
Superior Court Judge Ralph R. Beistline's denial of her motion to
suppress evidence seized from her purse by officers executing a
search warrant at a residence that Waters was visiting. We affirm.
On August 25, 1994, state and federal officers conducting
a joint investigation into illicit drug trafficking executed a
warrant authorizing them to search the persons of David and Theresa
Edwards, the Edwardses' Fairbanks apartment, and their automobile.
Upon arrival at the apartment, the officers knocked and were
admitted by Mrs. Edwards. Waters, who was visiting the apartment,
was seated on the living room couch. The two women were immediately
ordered to lie down on the living room floor; shortly thereafter,
they were allowed to sit on a love seat. A cursory search of both
women was conducted; both cooperated in providing the officers with
identification. Edwards' identification was located in a purse in
her bedroom; Waters' was in a checkbook-type purse in a shopping bag
on the living room coffee table.
After Edwards and Waters were identified, Fairbanks Police
Investigator Parry Williamson embarked on a search of the living
room. On the couch, toward the opposite end from where Waters had
been sitting when the officers first entered the apartment,
Williamson found a small coin purse. He opened it and saw several
tinfoil slips, which he recognized as a type of packaging commonly
used to wrap crack cocaine. As Williamson emptied the coin purse
onto the couch, Waters said that the purse was hers. The purse
contained twenty-two slips; each had crack cocaine inside.
Waters was charged with possession of cocaine with intent
to deliver. She moved to suppress the cocaine seized from her
purse, arguing that "the officer was on notice that the [coin purse]
belonged to Ms. Waters and he should have at least obtained her
permission prior to searching it." Following an evidentiary
hearing, Judge Beistline denied the motion. Based on the Alaska
Supreme Court's ruling in Carman v. State, 602 P.2d 1255 (Alaska
1979), and this court's subsequent decisions interpreting Carman,
(EN2) Judge Beistline concluded that Waters forfeited her right to
privacy in the coin purse by failing to assert her ownership of it
prior to the search.
On appeal, Waters challenges this ruling, arguing that
Judge Beistline misconstrued the case law when he ruled that Carman
required Waters to claim ownership of her coin purse prior to its
search. Waters urges us to hold that the police were forbidden from
searching any article of personal property that they knew or
reasonably should have known belonged to someone who was a mere
visitor in the apartment.
The rule advocated by Waters is endorsed by LaFave and has
been accepted in many, but not all, jurisdictions. (EN3) However,
even if we assume Waters to be correct in arguing that this rule
should apply in Alaska, her argument for suppression fails on the
facts of her case.
The rule Waters proposes is founded on two potentially
conflicting rules. A warrant authorizing the police to search
specified premises ordinarily encompasses the opening and inspection
of any containers on the premises where the object of the warrant
may be hidden. United States v. Ross, 456 U.S. 798, 820-21 (1982).
This general rule, however, is limited by a second rule, which
prohibits the police from searching visitors who merely happen to
be at the searched premises during the execution of the warrant.
Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In cases of uncer-
tainty, the tension between these principles is resolved in favor
of executing the warrant. As noted by LaFave, "[the] limitation on
the police authority to execute the warrant by searching into
personal effects [of visitors] comes into play only if the police
'knew or should have known' that the effects belonged to a 'mere
visitor.'" LaFave, supra  4.10(b), at 664.
As this passage from LaFave makes clear, the Ybarra
limitation is triggered, not by suspicion, but by knowledge. It is
well settled that officers executing a warrant have no duty to
inquire into ownership. Carman v. State, 602 P.2d 1255, 1262
(Alaska 1979). (EN4) "[W]ithout notice of some sort of ownership
of a belonging, the police are entitled to assume that all objects
within the premises lawfully subject to search under a warrant are
a part of those premises for the purpose of executing the
warrant[.]" State v. Nabarro, 525 P.2d 573, 577 (Haw. 1974).
Waters' proposed rule prohibits searching personal effects
only when officers executing a warrant actually know, or when
existing circumstances would lead a reasonable officer to actually
know, that an article belongs to a mere visitor. A mere showing of
grounds for suspicion -- even a showing of grounds for strong
suspicion or of probable cause to question ownership -- will not
suffice. (EN5)
In the present case, the record is devoid of any evidence
indicating that any officer executing the warrant ever saw Waters
in possession of the disputed coin purse. To the contrary, Judge
Beistline expressly found that Waters "intentionally tried to
dissociate herself from the purse." This factual finding is not
clearly erroneous. The coin purse was found on the couch where
Waters had been sitting, but "toward the other end." By the time
the coin purse was found, Waters had already directed officers to
a wallet, in a different location, that contained her identifica-
tion. Waters made no claim to the coin purse until after it was
opened. (EN6) The premises being searched were occupied by another
woman, Theresa Edwards, and the search warrant expressly authorized
officers to search Edwards' person and her personal effects.
Although the coin purse's location on the couch near the
place where Waters was sitting when officers first entered the
apartment certainly could have raised a reasonable suspicion that
the purse might be hers, the totality of the circumstances fails to
bridge the gap between suspicion and actual knowledge: the record
as a whole contains insufficient evidence to support the conclusion
that the officers actually knew the purse belonged to Waters or that
they reasonably should have known she owned it. (EN7)
In summary, the warrant in this case authorized officers
to open and search all containers in the Edwardses' apartment that
might have contained drugs. We assume for purposes of this decision
that articles of personal property belonging to a mere visitor were
exempt from the scope of the warrant, even without an express claim
of ownership by the visitor, if the officers knew or reasonably
should have known that those articles did not belong on the
premises. Yet the officers had no duty to resolve ambiguity
concerning ownership. Waters' coin purse was a plausible hiding
place for contraband and was found in the Edwardses' apartment;
absent circumstances providing clear notice that the purse actually
belonged to Waters, and not just that it might have, the officers
acted properly in searching it.
The superior court did not err in denying Waters' motion
to suppress. Accordingly, we AFFIRM Waters' conviction.
ENDNOTES:
1. See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
2. See Ingram v. State, 703 P.2d 415, 425-26 n.7 (Alaska App.
1985); Kralick v. State, 647 P.2d 1120, 1125-26 (Alaska App. 1982).
3. See generally 2 Wayne R. LaFave, Search & Seizure  4.10(b)
(1996). Compare United States v. Young, 909 F.2d 442, 444-45 (11th
Cir. 1990), United States v. Branch, 545 F.2d 177, 181-82 (D.C.
Cir. 1976), United States v. Micheli, 487 F.2d 429, 431 (1st Cir.
1973), United States v. Neet, 504 F.Supp. 1220, 1227-29 (D. Colo.
1981), State v. Thomas, 818 S.W.2d 350, 359 (Tenn. App. 1991),
People v. McCabe, 192 Cal. Rptr. 635, 636-37 (Cal. App. 1983), and
State v. Nabarro, 525 P.2d 573, 576-77 (Haw. 1974) with
Commonwealth v. Reese, 549 A.2d 909, 911 (Pa. 1988).
4. As explained in Commonwealth v. Reese, 549 A.2d 909, 911 (Pa.
1988), requiring inquiry into ownership of personal effects is both
impractical and unrealistic when a search warrant is being
executed: "It would not be reasonable to require police officers
executing a warrant to ask individuals located on the premises
whether they own various items of personal property[,] nor . . .
would it be reasonable to expect an appropriate response were they
required to do so."
5. Under Alaska's revised criminal code, for example, when
knowledge of a particular fact is an element of an offense, the
state must prove, at a minimum, that the defendant was aware of "a
substantial probability" of the fact's existence. AS 11.81.900
(a)(2) (emphasis added).
6. Waters has argued that the intimidating conduct of officers
conducting the search chilled her assertion of ownership
in the coin purse. However, Judge Beistline rejected this claim
below, finding that at the outset of the search Waters consciously
attempted to distance herself from the coin purse. Waters'
testimony did not establish that her failure to claim ownership of
the purse before it was opened resulted from intimidation. Judge
Beistline's finding is not clearly erroneous.
7. Accepting Waters' argument that Carman should be limited to
its precise facts and does not stand for a general rule that a pre-
search assertion of ownership is required, the supreme court's
conclusion that officers conducting the search of Carman's
apartment did not have notice that Carman's sister owned the purse
is nonetheless instructive here, since the overall circumstances of
Waters' case seem far less indicative of her ownership of the coin
purse than the circumstances in Carman were of Carman's sister's
ownership of the purse found in Carman's apartment.
