Bonds v. State

Beasley, Judge.

Frances Bonds was indicted in three counts, of possession and control, with intent to distribute, of over an ounce of marijuana (OCGA § 16-13-30 (j)); trafficking in cocaine by being in actual possession of more than 28 grams thereof (OCGA § 16-13-31 (a)); and possession and control of cocaine, with intent to distribute it (OCGA § 16-13-30 (b)). She was convicted of the latter two charges and of possession of less than an ounce of marijuana (OCGA § 16-13-2 (b)), a misdemeanor.

Appellant’s first and second enumerated errors are that the trial court erred in denying appellant’s motion to suppress and in overruling appellant’s objection to the introduction into evidence of items seized from appellant’s purse.

The following general principles of law apply: (a) this court cannot consider factual allegations in the briefs of the parties which are not supported by evidence contained in the record, Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438); (b) in reviewing a suppression motion or an objection made at trial to the admission of evidence, which was the result of an alleged illegal search or seizure, this court can consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial, Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768); (c) the burden of proving that search and seizure were lawful rests with the State, see e.g., OCGA § 17-5-30 (b).

Certain items were found in Mrs. Bonds’ purse when it was searched in execution of a search warrant. The warrant was issued, with a “no-knock” provision, when the magistrate was satisfied by the detective’s affidavit that he had reason to believe that on Lenny Bonds “and any other persons on the (residential) premises who might reasonably be involved in” violations of the controlled substances act, there was presently being concealed marijuana and hashish. Challenged is the execution of the warrant, OCGA § 17-5-28, (not its issuance or its provisions) in terms of the Fourth and Fourteenth Amendments. No state constitutional claim is advanced so such will not be addressed. See State v. Camp, 175 Ga. App. 591, 592 (1) (333 SE2d 896) (1985).

The affidavit for the warrant spelled out that an informant gave information that he had recently observed marijuana and hashish being stored at Lenny Bonds’ residence and that Lenny receives drugs from his father Linzie Bonds. The officer affiant stated that he and the informant saw a white Cadillac at the premises, which the informant said was Linzie’s. The officer also stated that he knew Linzie, that Linzie was known to be armed at times, and that the informant told him that Linzie keeps a pistol with him.

After the warrant was issued and before it was executed, the police watched Lenny Bonds’ home for several days. An unspecified number of people was observed visiting the premises, staying for a short time and leaving. One of the cars observed was a white Cadillac. It was reported that appellant and her husband would visit their son’s home several times a week.

When the police entered the residence after announcing their identity, Mrs. Bonds was sitting on the couch alone, with the purse a few inches away directly next to her. Since it was in her immediate area, it was seized to prevent her access to what was in it. It was not immediately searched because the officers first secured the premises by accounting for all occupants. In securing the premises so as to assure control of it and the occupants and in commencement of the warrant’s execution, it was then searched while the officer was just “a few feet, five or six” from her, so that the purse could be returned to her if its contents were innocent. In it, however, were a makeup-type bag which contained three plastic bags of white powder, one of them containing twelve smaller plastic bags of white powder and another containing ten plastic bags of white powder, and a hand-rolled cigarette; scales with white powder residue; a .38 caliber revolver; a digital beeper; and Mrs. Bonds’ driver’s license. The white powder was found to be constituted of about 50 percent cocaine and to weigh over 64 grams.

At the time the police entered, two teenage girls were also in the living room occupied by Mrs. Bonds, and her husband, Linzie Bonds, was in the hallway. Although the officer did not yet know at the moment of the purse search that she was Linzie’s wife, it was reasonable to believe that she had come with him since his white Cadillac was parked outside.

The officer testified that the purse was searched because it was in the premises to be searched and because of the nature of what was being searched for (marijuana and hashish); that is, it could be holding such items, since it was believed that contraband was being repeatedly brought into the premises by a man who was right then present. It was reasonable to believe that some of the drugs were concealed in the purse for transport to the premises. As a matter of fact, that is exactly what Linzie testified had been done, demonstrating that it was not an unreasonable belief.

The very reason for the no-knock allowance, that is, easy concealment or destruction, gave reason as well for a search of the purse, because of the nature of what was sought by the warrant. The warrant sought evidence of illegal drug activities which, based on the affidavit regarding “storage,” perforce and as a matter of logic necessitated bringing drugs into the residence. This is similar to the relationship between information about ongoing sales at the premises and the “other persons” authorization upheld in Jenkins v. State, 184 Ga. App. 844 (363 SE2d 35) (1987). Thus a container then on the premises, capable of holding the evidence sought and having been brought by a person reasonably believed to be connected with the named source, had a nexus with the targeted criminal activities. See Blount v. State, 181 Ga. App. 330, 335 (4) (352 SE2d 220) (1986). The purse’s owner was not a “mere” visitor, as in Childers v. State, 158 Ga. App. 613 (281 SE2d 349) (1981), and Hawkins v. State, 165 Ga. App. 278 (300 SE2d 224) (1983). Importantly, the warrants in Childers v. State, supra, and Hawkins v. State, supra, did not contain language authorizing the search of other persons present on the premises who might reasonably be involved in the subject criminal activity.

During surveillance before the warrant was obtained, cars were seen coming and leaving the residence after short stops, and on this occasion, a person came to the door while the police were inside; he was searched and a controlled substance found. The officer knew there had been traffic to the residence that very day, and the police were particularly watching for Linzie Bonds’ white Cadillac, which was there when they went in. The reason they were watching for it and him was that they had information that he was taking contraband drugs to his son and they were stored at the residence.

There was a second, independent reason given by the officer for the search: to fully secure the people found on the premises and the things near the people, for the officers’ safety. The officer who searched the purse had information that there were weapons at the location.

This physical inquiry was less invasive than searching her person, which likely would not normally be done in the absence of a female officer, and it would be reasonable to believe that if a woman with a purse had a weapon it would be in the purse rather than on her person. Patting down a person, moreover, would reveal a weapon to touch. Merely patting down a purse, even if it was pliable, would not do so as the nature of the objects felt would not necessarily identify them as non-weapons. The search for weapons must only “be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Wyatt v. State, 151 Ga. App. 207, 210 (1) (a) (259 SE2d 199) (1979), quoting earlier cases.

With regard to the weapons aspect, this was nothing more nor less, at the least, than a Terry-type search of the purse to which Mrs. Bonds had access when the police arrived and of which would again have control when the officer left the room. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). That is, it was an authorized protective search for weapons. See also Gumina v. State, 166 Ga. App. 592, 595 (305 SE2d 37) (1983) regarding the applicability of OCGA § 17-5-28 and the search for weapons. As repeated and discussed in Michigan v. Long, 463 U. S. 1032, 1050 (103 SC 3469, 77 LE2d 1201) (1983), “ ‘(t)he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” The officer’s prudence does not amount to unconstitutional intrusion on Frances Bonds’ Fourth and Fourteenth Amendment right against unreasonable searches and seizures.

Checking this purse was not more invasive or less reasonable than checking all purses before allowing persons with public business to enter courthouses or allowing persons with private business to enter airplane departure areas of airports, which are common. Here there was at least a search warrant for the premises, a private residence, in which this purse was by its nature a holding object and one capable of concealment of such items as drugs or weapons. And the neutral and detached magistrate had found probable cause to believe that “other persons” present, under the circumstances existing when the warrant would be executed, would be in possession.

In this case, the discovery of the very items, sought tends to show that the pre-discovery belief aroused by the environment was not an unreasonable basis for the cautionary action.

Had the gun and the contraband not been secured quickly and before the officer left Mrs. Bonds to participate in the further search of the premises, she would have been able to remove and secrete or destroy the concealed contraband and use the gun. What was he supposed to do, leave the purse at the end of the couch where he had removed it to from her immediate reach, and allow her access to its contents when he turned his back to leave the room? Moving it out of her reach did not extinguish the right to search it because 1) she would have access to it as soon as he left the room and 2) even if he seized it and took it out of the room, he would have to return it at some point and would still not be secure.

We have found no authority under the aegis of the Fourth and Fourteenth Amendments, which is appellant’s ground, to compel excluding from the search, authorized by the scope of the warrant, the purse which was at the hand of one of the persons in the premises when the police executed the warrant. See United States v. Giwa, 831 F2d 538, 543 (B) (5th Cir. 1987). Wood v. State, 224 Ga. 121 (1) (160 SE2d 368) (1968), holds that the statute meets Fourth Amendment requirements because it does not allow the search of other persons based on their “mere presence” but authorizes only searches of such other persons as will serve one of two express limited purposes.

Until the contents of the purse were disclosed, it posed a possible danger and constituted a possible container of the very items sought. Under the circumstances, it was not within a zone of Mrs. Bonds’ privacy excluded from the confines of the warrant just because it apparently, and actually, belonged to a person whose name was not on the warrant and who was at the time occupying her son’s residence along with her husband, daughter, and the latter’s two friends. She was not visiting her son, because he was not at home. Her status as a visitor does not remove her purse from examination, because there were indicators that she was not an innocent visitor but rather a person involved in the type of criminal activity underlying the warrant. See Willis v. State, 122 Ga. App. 455, 457 (177 SE2d 487) (1970). There was a nexus between her and the criminal activity which gave rise to the warrant. See State v. Hawkins, 187 Ga. App. 826 (_SE2d_) (1988), which, although it is nonbinding, discusses this relationship. Drugs being stored must be brought in, and here the information was that they were periodically being brought in by a visitor then present, with whom it appeared this visitor had come with her purse. Just as in Willis v. State, supra, it was possible that this visitor was concealing contraband sought.

This case is not controlled by Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979), because Ybarra involved a public tavern rather than a private residence, and it did not involve the search of a container which could contain contraband or weapons. Furthermore, there was no evidence of a connection between the tavern customer there and the targeted bartender, whereas here the female occupant obviously had a personal connection with the resident or with the suspected Linzie Bonds who was present at the same time, in the absence of the resident, or else she was an intruder.

Judgment affirmed.

Deen, P. J., and Banke, P. J., concur. McMurray, P. J., and Carley, J., concur in the judgment only. Birdsong, C. J., Sognier, Pope, and Benham, JJ., dissent.