Opposition Brief — Nancy Catherine Powers, Petitioner v. Alabama

No. 21-1486

In the Supreme Court of the United States

──────────────────────────

NANCY CATHERINE POWERS,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

──────────────────────────

On Petition for Writ of Certiorari to the

Supreme Court of Alabama

──────────────────────────

BRIEF IN OPPOSITION

──────────────────────────

Steve Marshall

Alabama Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

A. Barrett Bowdre

Deputy Solicitor General

Cameron G. Ball

Assistant Attorney General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for State of Alabama

i

QUESTION PRESENTED

After a confidential informant bought methamphetamine from a man named Joshua Moyers at Moyers’s house, police officers obtained a warrant to

search the house for drugs. When they executed the

warrant, they encountered Petitioner, Nancy Powers,

asleep on the living room couch, where she had slept

the night before. Her purse was on a nearby table.

Though the officers did not know that Powers would

be present, the informant had told them about her—

that she occasionally stayed at Moyers’s house and

usually had methamphetamine on her. The officers

searched Powers’s purse and found methamphetamine.

Powers moved to suppress the evidence, contending that the search violated her rights under the

Fourth Amendment. On appeal, she urged the Alabama Supreme Court to consider the totality of the

circumstances. The court did so, and held that the

search was reasonable. The question presented is:

Did the search of Powers’s purse comply with the

Fourth Amendment?

ii

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Contents ....................................................... ii

Table of Authorities....................................................iv

Statement ....................................................................1

A.

Police Find Methamphetamine in

Powers’s Purse While Executing a Search

Warrant of the House Powers Was

Staying At. .....................................................1

B.

The Alabama Court of Criminal Appeals

Adopts the “Relationship Test” and

Affirms the Denial of Powers’s

Suppression Motion. ......................................2

C.

The Supreme Court of Alabama Adopts

Powers’s Proposed Test—Totality of the

Circumstances—and

Affirms

the

Constitutionality of the Search. ....................4

Reasons for Denying the Writ.....................................8

I.

The Supreme Court Of Alabama

Considered The Totality Of The

Circumstances, Making Powers The

Wrong Person To Present The Fourth

Amendment Issue. .........................................9

II.

The Split Is Academic To This Case

Because The Search of Powers’s Purse

Would Be Upheld Under Any Test. ............. 17

A. The Search Was Reasonable Under

the Totality of the Circumstances. ......... 17

iii

B. The Search Was Reasonable Under

the Relationship Test. ............................ 19

C. The Search Was Reasonable Under

The Possession Test. ............................... 21

III. The Split In Approaches Is Not As

Important As Powers Claims. ..................... 23

Conclusion ................................................................. 27

iv

TABLE OF AUTHORITIES

Cases

Camara v. Municipal Ct. of City & Cnty. of San

Francisco,

387 U.S. 523 (1967) ............................................. 10

Commonwealth v. Reese,

549 A.2d 909 (Pa. 1988) ...................................... 22

Hayes v. State,

234 S.E.2d 360 (Ga. App. 1977) .......................... 24

Ohio v. Robinette,

519 U.S. 33 (1996) ......................................... 10, 18

People v. Gross,

465 N.E.2d 119 (App. Ct. Ill. 1984) .................... 24

Samson v. California,

547 U.S. 843 (2006) ...............................................9

State v. Brown,

905 N.W.2d 846 (Iowa 2018) ........................ 24, 27

State v. Bulgin,

820 P.2d 1235 (Idaho Ct. App. 1991) ................. 13

State v. Gilstrap,

332 P.3d 43 (Ariz. 2014).......................... 22, 23, 27

State v. Ingersoll,

1994 WL 615127 (Minn. Ct. App. Nov. 8,

1994) .................................................................... 24

State v. Lambert,

710 P.2d 693 (Kan. 1985).................. 24, 25, 26, 27

v

State v. Merritt,

567 S.W.3d 778 (Tex. Ct. App. 2018) ................. 27

State v. Molnau,

904 N.W.2d 449 (Minn. 2017)....................... 10, 19

State v. Nabarro,

525 P.2d 573 (Haw. 1974) ............................. 24, 25

State v. Reid,

77 P.3d 1134 (Or. Ct. App. 2003)........................ 27

State v. Thomas,

818 S.W.2d 350 (Tenn. Crim. App. 1991)........... 24

State v. Wenzel,

399 P.3d 145 (Idaho Ct. App. 2017) ................... 13

United States v. Giwa,

831 F.2d 538 (5th Cir. 1987) ......................... 19, 21

United States v. Gray,

814 F.2d 49 (1st Cir. 1987) ........................... 13, 21

United States v. Johnson,

475 F.2d 977 (D.C. Cir. 1973) ............. 5, 11, 12, 13

United States v. Kahn,

415 U.S. 143 (1974) ............................................. 18

United States v. Micheli,

487 F.2d 429 (1st Cir. 1973) ............................... 10

United States v. Peep,

490 F.2d 903 (8th Cir. 1974) ............................... 18

United States v. Simmermaker,

998 F.3d 1008 (8th Cir. 2021) ....................... 12, 21

vi

United States v. Teller,

397 F.2d 494 (7th Cir. 1968) ............................... 22

Wyoming v. Houghton,

526 U.S. 295 (1999) ..................................... passim

Ybarra v. Illinois,

444 U.S. 85 (1979) ......................... 6, 15, 16, 22, 25

Zurcher v. Stanford Daily,

436 U.S. 547 (1978) ................................. 15, 18, 26

Constitutional Provisions

U.S. Const. amend. IV ............................................... 17

Rules

Ala. R. App. P. 39(d)(5).............................................. 21

Ala. R. App. P. 39(k) .................................................. 21

S. Ct. R. 10 ................................................................. 17

S. Ct. R. 10(b) ...................................................... 23, 24

1

STATEMENT

A. Police

Find

Methamphetamine

in

Powers’s Purse While Executing a Search

Warrant of the House Powers Was Staying

At.

On the morning of November 26, 2018, police

raided the home of Joshua Moyers, a known methamphetamine dealer. Pet. App. 3a. An informant had

purchased methamphetamine from Moyers at his

home just days before, leading police to obtain a warrant to search the premises. The warrant authorized

the officers to search the house for:

Illegal drugs, to wit: methamphetamine,

phone bills, cell phone, documents, ledgers,

currency, prerecorded U.S. currency, photographs, lock boxes and safes and contents

thereof, paraphernalia, weapons that may be

used to facilitate in illegal drug transactions,

articles of property tending to establish the

identity of persons in control of premises, vehicles, storage areas, and containers being

searched to include utility receipts, addressed

envelopes, and keys.

Id. at 2a-3a.

Police entered the home at around 8:50 in the

morning. They immediately encountered Powers,

asleep on the living room couch. Her purse was sitting

on a nearby table. Id. at 1a-3a. Though police did not

know ahead of time that Powers would be there, the

informant had told them about her—“‘that she usually

has meth,’ and that she does not ‘stay [at Moyers’s

house] full time.” Id. at 4a (alterations in original).

2

The officers swept the house and found Moyers and

two other individuals, also asleep. Id. at 3a, 27a. Police discovered marijuana and methamphetamine in

Moyers’s wallet and in a box in his bedroom. R. 43.

The officers read Powers her Miranda rights,

which she waived. Pet. App. 3a. She said that the

purse was hers and that it did not have anything illegal in it. Id. at 3a-4a. When officers searched the purse

they discovered 17 grams of methamphetamine, over

$800 in cash, and a digital scale that Powers admitted

she used to weigh methamphetamine. Id. at 3a, 5a.

Powers was taken into custody and indicted for unlawful possession of methamphetamine with the intent to distribute and possession of drug paraphernalia. Id. at 3a. She moved to suppress the evidence,

claiming that the search of her purse violated her

rights under the Fourth Amendment. Pet. App. 4a,

43a-44a. After the trial court denied the motion, Powers reserved her right to appeal the denial of the motion and pleaded guilty to possession with intent to

distribute. Id. at 5a n.1. She was sentenced to three

years in prison, which was suspended for two years of

probation. Id. at 44a.

B. The Alabama Court of Criminal Appeals

Adopts the “Relationship Test” and

Affirms

the

Denial

of

Powers’s

Suppression Motion.

On appeal, the Alabama Court of Criminal Appeals noted that the question presented to it—

whether a premises search warrant allows officers “to

search the belongings of a person who is present at the

house”—was one of first impression for the court. Id.

3

at 25a-26a. The court recounted two main tests that

other courts use. Id. at 32a-38a.

First was the “proximity test,” also known as the

“physical-possession” test. Id. at 32a-33a. Under this

test, the court wrote, “the reviewing court focuses on

the physical location of the container and whether the

individual wore the container at the time it was

searched in order to determine whether the container

was an extension of the person or part of the premises.” Id. (citation omitted).

Second was the “relationship test.” The court explained that this test focuses “on the officers’

knowledge or understanding of the person’s ‘relationship’ to the premises searched at the time the officers

executed the search warrant.” Id. at 35a (citation

omitted).

The court of appeals adopted the “relationship

test,” reasoning that it “best balances citizens’ reasonable expectations of privacy with law enforcement

needs.” Id. at 38a. Then the court upheld the search of

Powers’s purse under the test. The court noted that

police encountered Powers “by herself in the first room

inside the house asleep on the couch,” and that the

confidential informant had “indicat[ed] that Powers … ‘stay[ed]’ at Moyers’s house on occasion” and

“usually ha[d] meth.” Id. at 40a. The court concluded

that “at the time the law enforcement officers carried

out the search warrant for Moyers’s house, they would

have perceived Powers as something more than a

‘transient visitor’ to Moyers’s house.” Id.

For this reason, “and because Powers’s purse was

a container that could conceivably conceal the ‘illegal

4

drugs’ that law-enforcement officers were looking for,”

the court unanimously concluded that “Powers’s

Fourth Amendment rights were not violated when the

officers searched her purse.” Id. at 41a.

C. The Supreme Court of Alabama Adopts

Powers’s Proposed Test—Totality of the

Circumstances—and

Affirms

the

Constitutionality of the Search.

Powers petitioned the Alabama Supreme Court for

a writ of certiorari, which the court granted. Arguing

that the Court of Criminal Appeals had erred “by evaluating the search under a single court-constructed

test,” Powers urged the Supreme Court to evaluate

her claim “based on the totality of the circumstances.”

Petr’s Ala. S. Ct. Op. Br. 14-15.

The court did so. After examining the various tests,

the court “decline[d] to adopt any specific ‘test’” and

expressly agreed with Powers that “the ‘touchstone’ of

the Fourth Amendment is ‘reasonableness.’” Pet. App.

16a-17a (cleaned up and citation omitted). The court

explained that “the determination of what is reasonable in a given situation is necessarily a fact-intensive

inquiry best evaluated by considering all of the circumstances.” Id. at 17a (cleaned up and citation omitted). “Each case must be evaluated based on the

unique facts and circumstances relevant to a defendant’s reasonable expectations of privacy and whether

police reasonably can conclude that a particular personal effect comes within the scope of a premises warrant.” Id. at 16a-17a.

In its opinion, the court discussed the reasoning of

several Fourth Amendment decisions from various

5

courts. Id. at 5a-22a. Because Powers claims that the

court’s discussion of two of these cases demonstrates

the court’s error, Pet. 10, 19-21, 25-29, it is worth

briefly surveying this part of the court’s opinion.

The first discussion concerned the D.C. Circuit’s

decision in United States v. Johnson, 475 F.2d 977

(D.C. Cir. 1973), which Powers had held up to the Supreme Court as a case that “examined the totality of

the circumstances—exactly the analysis [she] advocates.” Petr’s Ala. S. Ct. Rule 28B Resp. 2. In Johnson,

police executing a search warrant of an apartment for

drugs found the defendant—a visitor to the apartment—sitting on a couch with her purse “resting on a

table in front of her.” Pet. App. 17a. The officers

searched the purse and found drugs; the Court of Appeals upheld the search as consistent with the Fourth

Amendment. In so doing, the D.C. Circuit discussed

how it weighed the various circumstances of the

search, including: (1) that the defendant did not have

her purse on her person; (2) that the “apartment was

a place where narcotics were sold as well as stored”;

(3) that there was a delay before the apartment door

was opened; and (4) (and this is the Alabama Supreme

Court’s summary)“because the premises warrant had

been issued based on allegations that narcotics were

being sold in the apartment, police could have reasonably believed that the defendant was a customer of the

owner of the apartment, that she had purchased narcotics, and that she had placed them in her purse.” Id.

at 18a-19a; see Johnson, 475 F.2d at 979 & n.3. Based

on these circumstances, the Court of Appeals held

that the purse fell within the warrant the officers

were executing.

6

The second discussion Powers says is problematic

was of Wyoming v. Houghton, 526 U.S. 295 (1999), a

decision in which this Court considered the lawfulness

of a search of a passenger’s purse during a warrantless traffic stop. Though recognizing that the decision

rested “in part on the diminished expectation of privacy that accompanies vehicle searches,” Pet. App.

22a, the Alabama Supreme Court drew three lessons

that it thought could apply beyond the vehicle context.

One, it noted that this Court applied a general reasonableness, totality-of-the-circumstances test, not a

bright-line rule. Id. Two, it recognized that this Court

emphasized the distinction between a body search and

the search of a passenger’s purse. Id. And three, it

found it informative that this Court observed that “a

car passenger … will often be engaged in a common

enterprise with the driver,” making a search of a passenger’s purse more likely to be reasonable than, say,

the search of a patron who just happens to be present

at a bar when it is searched. Id.; see Houghton, 526

U.S. at 304-05 (citing Ybarra v. Illinois, 444 U.S. 85

(1979)). Based on this last observation, the Alabama

Supreme Court reasoned that “[a] similar conclusion

might be reached with respect to Powers, who was discovered asleep on a couch in a place known to be involved in the buying and selling of methamphetamine.” Pet. App. 22a.

After discussing these cases, the Supreme Court of

Alabama summarized the totality of the circumstances of the search of Powers’s purse and concluded

that the search did not violate the Fourth Amendment. Because Powers claims that this conclusion was

based solely on the court “applying the physical

7

possession test” and holding “that Powers enjoyed a

reduced expectation of privacy merely because she

‘chose to set her purse down on a table,’” Pet. 21 (citation omitted), the court’s concluding paragraph is

worth recounting in full:

Powers, who was found sleeping on a couch at

8:50 a.m. with her purse set on a table, was

more than a mere visitor who happened to be

on the premises when the search warrant was

executed. In addition, as a person known for

possessing methamphetamine and given her

multiple visits to a house known for its involvement in the selling of methamphetamine, Powers should have reasonably believed that her

property could be subject to search and seizure.

Furthermore, the search warrant at issue was

specifically aimed at locating methamphetamine, which by its nature will fit in small containers such as purses. Thus, police reasonably

believed that Powers’s purse could contain the

items listed in the premises warrant, and they

acted reasonably in searching Powers’s purse

without a warrant that specifically identified

her or her property. Considering all the circumstances, arguments, and above-discussed authorities, we agree with the State that police

reasonably concluded that Powers’s purse was

a container that came within the scope of the

premises warrant and that Powers’s right to

privacy was not violated.

Pet. App. 23a.

8

REASONS FOR DENYING THE WRIT

Powers asks this Court to grant certiorari to “clarify how to determine whether a search warrant for a

premises includes the authority to search the personal

property in the possession of a visitor present when

the warrant is executed.” Pet. 2. Her suggested answer? “Reasonableness should be assessed under the

totality of the circumstances.” Id. at 16.

That is the answer the Supreme Court of Alabama

gave, too. Pet. App. 16a. That court explicitly rejected

the bright-line tests Powers complains of and expressly adopted the path Powers proposed. The only

thing the court didn’t do was blind itself to what circumstances it should consider, thus ruling that Powers’s challenge failed under the very test she advocated. Reviewing that fact-bound inquiry is no reason

to grant certiorari.

Nor, in any event, is the split in approaches as

meaningful as Powers suggests. To start, the split is

academic in this case because the search of Powers’s

purse was reasonable under the totality of the circumstances (as the Supreme Court of Alabama held), the

relationship test (as the Alabama Court of Criminal

Appeals held), and the possession test. And Powers

forfeited any reliance on the so-called “notice test,”

which—according to Powers’s petition—has not been

adopted by any federal court of appeals or state court

of last resort. See Pet. App. 13a n.4; Pet. 14. As a result, this case does not present a good vehicle to examine the different approaches.

Powers also overstates the degree and practical

significance of the difference in approaches. When all

9

the circumstances are considered, the decisions Powers relies on do not so much demonstrate a patchwork

of “differing decisions in cases with identical fact patterns,” Pet. 2, as a difference in salient facts. Many of

the cases would not come out differently under a totality-of-the-circumstances test, making the Court’s

review unnecessary.

I.

The Supreme Court Of Alabama Considered

The Totality Of The Circumstances, Making

Powers The Wrong Person To Present The

Fourth Amendment Issue.

Powers contends that this Court’s intervention is

needed to clarify that the Fourth Amendment requires courts to shun “bright-line test[s],” Pet. 16, and

instead “examine the totality of the circumstances to

determine whether a search is reasonable within the

meaning of the Fourth Amendment,” id. (cleaned up)

(quoting Samson v. California, 547 U.S. 843, 848

(2006)). But Powers already received the test she advocates because the Alabama Supreme Court expressly adopted it. So she is the wrong person to ask

this Court to “clarify” its Fourth Amendment jurisprudence. Pet. 2. The law applied to her was perfectly

clear.

1. As explained above, supra at 4, the Alabama Supreme Court expressly held that courts reviewing

challenges under the Fourth Amendment must consider the totality of the circumstances. Pet. App. 16a.

It “decline[d] to adopt any specific ‘test’ to the exclusion of others,” id., and emphasized that “[e]ach case

must be evaluated based on the unique facts and circumstances relevant to a defendant’s reasonable expectations of privacy and whether police reasonably

10

can conclude that a particular personal effect comes

within the scope of a premises warrant,” id. at 16a17a. Its reasoning echoed this Court’s: “We have long

held that the touchstone of the Fourth Amendment is

reasonableness. Reasonableness, in turn, is measured

in objective terms by examining the totality of the circumstances.” Id. at 17a (cleaned up) (quoting Ohio v.

Robinette, 519 U.S. 33, 39 (1996)); id. at 17a (“There

can be no ready test for determining reasonableness….” (cleaned up) (quoting Camara v. Municipal

Ct. of City & Cnty. of San Francisco, 387 U.S. 523, 536

(1967))); see also id. (“No crisp formula can substitute

for reasonable judgments.” (cleaned up) (quoting

United States v. Micheli, 487 F.2d 429, 432 (1st Cir.

1973))); id. (“The determination of what is reasonable

in a given situation is necessarily a fact-intensive inquiry best evaluated by considering all of the circumstances.” (cleaned up) (quoting State v. Molnau, 904

N.W.2d 449, 452 (Minn. 2017))).

The court did, in other words, precisely what Powers asked it to do. See Petr’s Ala. S. Ct. Op. Br. 13-14

(“[T]o determine the reasonableness of such a search

courts must ‘examine the totality of the circumstances.’” (citation omitted)). That the court then

weighed the totality of the circumstances differently

than Powers would have liked does not change the fact

that the test the court adopted is the one Powers proposed. She is thus the wrong person to bring her claim

to this Court.

2. Powers tries to skirt this problem by claiming

that the Alabama Supreme Court paid mere “lip service to the totality of the circumstances,” when in fact

it affirmed her conviction “under a framework that

11

was, for all intents and purposes, a physical possession analysis.” Pet. at 19-20. She points to two pieces

of evidence to support her claim: (1) the court’s discussion of the D.C. Circuit’s decision in United States v.

Johnson, 475 F.2d 977 (D.C. Cir. 1973), and (2) the

court’s consideration of the totality of the circumstances in her case. Even putting aside her shaky

premise—that what matters for certiorari purposes is

a court’s secret application of a test rather than its

public pronouncement of what test governs—neither

piece of evidence supports Powers’s allegation.

a. While some courts have characterized Johnson

as an “example of the physical possession test,” Pet.

20 n.8, the Supreme Court of Alabama clearly did not.

See Pet. App. 17a-19a. Neither did Powers until a few

minutes ago. Twice she told the Alabama Supreme

Court that Johnson was a totality-of-the-circumstances case. In her reply brief, she asserted that the

Johnson “court did not apply the possession test; it applied a balancing test, e.g., it examined the totality of

the circumstances.” Petr’s Ala. S. Ct. Reply Br. 24 (citing 475 F.2d at 979). She then repeated her reading

after oral argument, responding to the State’s letter of

supplemental authority by stating: “the Johnson court

examined the totality of the circumstances—exactly

the analysis Ms. Powers advocates here—to determine that, ‘on the limited nature of the circumstances

presented,’ the search of a purse was reasonable.”

Petr’s Ala. S. Ct. Rule 28B Resp. 2 (quoting 475 F.2d

at 979). Only when the Alabama court accepted her

reading (and still ruled against her) did Powers

change her tune: now she says the court erred by even

12

discussing Johnson because Johnson “is a canonical

physical possession case.” Pet. 20.

But put aside Powers’s flip-flopping. Even without

that history it is hard to read the Alabama Supreme

Court’s discussion of Johnson and come away with the

impression that it viewed physical possession as the

sole circumstance to consider. For one, in the part of

the Johnson decision discussed by the Alabama court,

the Johnson court itself considered a number of factors beyond possession, including that the “apartment

was a place where narcotics were sold as well as

stored,” “the delay, the suspicious noises that preceded the executing officers’ entry into the apartment,” “the apparent effort of [the apartment’s owner]

to escape through the bedroom window,” and the officers’ reasonable belief that the visitor “might have been

a customer who had purchased narcotics and placed

them in her purse” since “[t]he warrant was issued on

allegations that the apartment was a place where narcotics were being sold.” 475 F.2d at 979 & n.3; see Pet.

App. 18a-19a.

For another, after discussing the various factors

the Johnson court considered, the Alabama Supreme

Court included a string cite of cases that all emphasized factors other than possession. Here is how the

court characterized those cases:

See also United States v. Simmermaker, 998

F.3d 1008 (8th Cir. 2021) (holding that a “lock

box” owned by a nonoccupant of a house frequented by drug users came within the scope of

a premises warrant, noting that the nonoccupant was a suspected drug user and was found

asleep on a couch in the house); State v. Wenzel,

13

162 Idaho 474, 476, 399 P.3d 145, 147 (Idaho

Ct. App. 2017) (holding that the search of an

overnight guest’s purse at a premises where

there was cause to believe controlled substances were located was valid under a premises warrant); State v. Bulgin, 120 Idaho 878,

880-81, 820 P.2d 1235, 1237-38 (Idaho Ct. App.

1991) (holding that the search of the defendant’s purse was valid under a premises warrant

because the defendant was an overnight guest

at the premises and a suspected methamphetamine user); United States v. Gray, 814 F.2d [49,

51 (1st Cir. 1987)] (holding that police properly

searched a jacket owned by the defendant,

which had been draped over a chair, noting that

the defendant was more than “a casual afternoon visitor” and instead “was discovered in a

private residence, outside of which a drug deal

had just ‘gone down,’ at the unusual hour of

3:45 a.m.”).

Pet. App. 19a-20a.

At bottom, Powers’s contention that the Alabama

Supreme Court erred by discussing Johnson and other

“possession test authorities” is a red herring. The

court viewed Johnson just as Powers did—as a totality-of-the-circumstances case. Even if that was not the

best reading of the case, Powers is not the person to

complain about it. And more fundamentally (and as

discussed next), that reading did not infect the court’s

holding.

b. Besides relying on the court’s discussion of

Johnson, Powers also asserts that the Alabama Supreme Court really applied the possession test

14

because it “held that Powers enjoyed a reduced expectation of privacy merely because she ‘chose to set her

purse down on a table’ next to her, as opposed to wearing it on her shoulder.” Pet. 21 (citing Pet. App. 12a

n.3, 20a). Not so.

To be sure, the Alabama Supreme Court did note

that, “[b]ased on the facts of this case, Powers cannot

possibly be deemed to have been ‘wearing’ her purse

when it was searched” because “she chose to set her

purse down on a table before she went to sleep.” Pet

App. 12a n.3, 20a. But this statement is obviously

true, and just as obviously not the court’s entire analysis. The court also emphasized that: (1) “Powers was

known to usually have methamphetamine,” (2) she

“was an overnight guest in a house known to be involved in the sale of methamphetamine,” (3) she “was

known to have stayed at the house on more than one

occasion,” (4) she “was found sleeping on a couch at

8:50 a.m.,” (5) she “was certainly more than a mere

‘patron’ of a legitimate business or a ‘passing visitor’

of a residence,” and (6) “the search warrant at issue

was specifically aimed at locating methamphetamine,

which by its nature will fit in small containers such as

purses.” Id. at 20a, 22a-23a. Those considerations go

far beyond mere physical possession.

3. Powers next tries to taint the court’s opinion by

arguing that it was error for it to discuss and analogize to this Court’s decision in Wyoming v. Houghton,

526 U.S. 295 (1999). Pet. 25-29. She claims that by doing so the Alabama Supreme Court “extend[ed] the

automobile exception to premises searches” and

“swallowed the warrant requirement.” Id. at 26.

15

Again, not so. Houghton indeed concerned an automobile search. The question was “whether police officers violate the Fourth Amendment when they

search a passenger’s personal belongings inside an automobile that they have probable cause to believe contains contraband.” 526 U.S. at 297. In holding that the

search of a passenger’s purse is constitutional when

there is probable cause to search the car for contraband, this Court analogized the situation to premises

searches. When considering the “constitutionality of a

search warrant directed at premises belonging to one

who is not suspected of any crime,” the Court noted,

“[t]he critical element in a reasonable search is not

that the owner of the property is suspected of crime,

but that there is reasonable cause to believe that the

specific ‘things’ to be searched for and seized are located on the property to which entry is sought.’” Id. at

302 (quoting Zurcher v. Stanford Daily, 436 U.S. 547,

556 (1978)). So it was, the Court found, when it came

to searches of vehicles.

The Houghton Court also relied on premises search

cases to distinguish between a search of a person’s belongings and a search of the person. So, for instance,

the Court noted that in Ybarra v. Illinois, 444 U.S. 85

(1979), it had “held that a search warrant for a tavern

and its bartender did not permit body searches of all

the bar’s patrons” due to the “unique, significantly

heightened protection afforded against searches of

one’s person.” Id. at 303. The Houghton Court emphasized that this “distinction between search of the person and search of property” was “not newly minted,”

but had long existed in the caselaw. Id. at 303 n.1

(cleaned up). And it gave as an example a search that

16

it considered obviously constitutional: “a house

search” in which officers “inspect[ed] property belonging to persons found in the house—say a large standing safe or violin case belonging to the owner’s visiting

godfather.” Id.

Last, the Houghton Court distinguished cases like

Ybarra based on the relationship a passenger in a car

might have to the car’s owner. “A car passenger,” the

Court reasoned, “unlike the unwitting tavern patron

in Ybarra[,] will often be engaged in a common enterprise with the driver, and have the same interest in

concealing the fruits or the evidence of their wrongdoing.” Id. at 304.

It was these aspects of Houghton that the Alabama

Supreme Court recognized had something to say

about Powers’s situation. See Pet. App. 22a. Unlike

the “unwitting tavern patron in Ybarra,” the court

noted, it was not likely that Powers just happened to

have wandered into Moyers’s private home at the

wrong time. Rather, the court said, because she “was

discovered asleep on a couch in a place known to be

involved in the buying and selling of methamphetamine,” it was reasonable to think that she might “be

engaged in a common enterprise with” Moyers—particularly given that the confidential informant had

mentioned that she was known to stay over at the

house and usually had methamphetamine on her. Id.

And unlike in Ybarra, the court recognized, the search

of Powers’s purse was not a search of Powers herself.

These considerations do not reflect error, or the

“swallow[ing of] the warrant requirement,” Pet. 26, by

the Supreme Court of Alabama.

17

4. At root, Powers’s problem with the decision below is not the test the court adopted. Her problem is

that the court ruled against her under that test. But

for the reasons the court explained (and as discussed

next), that decision was correct. And even if it wasn’t,

correcting such a fact-bound application “of a properly

stated rule of law” is no reason to grant certiorari.

See S. Ct. R. 10.

II. The Split Is Academic To This Case Because

The Search of Powers’s Purse Would Be

Upheld Under Any Test.

Although Powers is right that different courts have

focused on different factors when determining

whether a search of a visitor’s belongings is reasonable, she is wrong to suggest that the difference matters to her case. Cf. Pet. 21-25. It doesn’t. The search

of her purse was lawful under any reasonable test,

making this case a poor vehicle to resolve the split.

A. The Search Was Reasonable Under the

Totality of the Circumstances.

To begin, it’s important to recall what the Fourth

Amendment protects: “The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S.

Const. amend. IV. Accordingly, the Amendment provides that “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Id.

Reasonableness is the “touchstone of the Fourth

Amendment.” Robinette, 519 U.S. at 39. And when it

comes to reasonable premises searches, “[t]he critical

18

element … is not that the owner of the property is suspected of crime but that there is reasonable cause to

believe that the specific ‘things’ to be searched for and

seized are located on the property to which entry is

sought.” Zurcher, 436 U.S. at 556. Ownership is not

part of the particularity requirement. See id. at 555

(“Search warrants are not directed at persons; they

authorize the search of ‘place[s] and the seizure of

‘things,’ and as a constitutional matter they need not

even name the person from whom the things will be

seized.” (quoting United States v. Kahn, 415 U.S. 143,

155 n.15 (1974))). Nor does the Fourth Amendment

contain any additional requirement that the executing officer look behind the warrant to determine

whether the issuing magistrate would have found

probable cause to search unanticipated items on the

premises (such as purses).

The Supreme Court of Alabama was correct to find

that the search of Powers’s purse was reasonable under the circumstances. Officers had probable cause to

obtain a search warrant of Moyers’s home because a

confidential informant had recently bought methamphetamine from him there. Pet. App. 27. Based on

that purchase, the officers also had reason to believe

that anyone they encountered at the drug house was

likely to be involved in some way and that any of their

bags could also contain the contraband they were

searching for. Cf. United States v. Peep, 490 F.2d 903,

906 (8th Cir. 1974) (noting that “it is plainly unreasonable to infer that anyone else other than a participant would be allowed on the premises” of a residence

“obviously being used for the distribution of narcotics”

(citation omitted)); Houghton, 526 U.S. at 304-05.

19

That suspicion was made all the more reasonable

when officers encountered Powers, asleep on the

couch, at 8:50 in the morning. The informant had told

the officers about Powers, and so they knew that she

occasionally stayed at Moyers’s house and usually had

methamphetamine with her. It was thus reasonable

for them to conclude that her purse that was sitting

on a table fell within the contours of the warrant because it could contain the drugs they were after. Pet.

App. 22a-23a. Under the totality of the circumstances,

the search was reasonable. E.g., Molnau, 904 N.W.2d

at 452 (upholding search of purse under similar facts

after considering the totality of the circumstances).

B. The Search Was Reasonable Under the

Relationship Test.

Courts applying the relationship test would also

uphold the search, as the Alabama Court of Criminal

Appeals did. Pet. App. 40a-41a. Under this test, courts

“examine … the relationship between the person and

the place” to determine whether the scope of a premises warrant extends to a person who does not own or

manage the premises. United States v. Giwa, 831 F.2d

538, 545 (5th Cir. 1987).

Applying this test, the Alabama Court of Criminal

Appeals noted that it was “clear that, at the time the

law enforcement officers carried out the search warrant for Moyers’s house, they would have perceived

Powers as something more than a ‘transient visitor’ to

Moyers’s house.” Pet. 40a. That is because, “[w]hen

the officers entered Moyers’s house on the morning of

November 26, 2018, Powers was by herself in the first

room inside the house asleep on the couch, and she

had left her black purse sitting next to her on the side

20

table while she slept.” Id. She was, “at least, an overnight guest.” Id. And likely, the court noted, she was

more than that: as one of the officers testified at the

suppression hearing, the confidential information had

told the officer “about Powers—namely, that Powers

‘usually has meth’ and that she does not ‘stay [at Moyers’s] house full time,’ indicating that Powers does,

at least, ‘stay’ at Moyers’s house on occasion.” Id. (citing R.5). Powers’s relationship with the house was

such that officers could “have reasonably believed”

that her purse contained the drugs they were “searching for as detailed in the search warrant.” Id.

Powers attempts to contest these factual findings

in her petition, arguing that “any determination that

[she] was more than a mere visitor is based on a

flawed understanding of the record.” Pet. 31. This is

so, she says, because “there is nothing in the record

itself indicating that [officers] knew Powers to be” the

guest “that the confidential informant mentioned to

Officer Wood.” Id. But as the Alabama Supreme Court

held, because Powers did not challenge the intermediate appellate court’s statement of facts when she

sought certiorari review from the state high court, she

cannot claim now that the high court erred by relying

on those facts. Pet. App. 21a n.6 (“Powers did not submit with her petition for a writ of certiorari a statement of facts or a verification that such a statement

had been submitted to the Court of Criminal Appeals

on rehearing in that court. Under Rule 39(k) [of the

Alabama Rules of Appellate Procedure], the scope of

certiorari review ‘will ordinarily be limited to the facts

stated in the opinion of the particular court of appeals,

unless the petitioner has attempted to enlarge or

21

modify the statement of facts as provided by Rule

39(d)(5).” (citation omitted)).

Nor was there error in any event. Not only did both

appellate courts below recognize the factual basis for

concluding that the officers did know of Powers at the

time, Pet. App. 21a & n.6, but officers also knew that

Powers was no casual visitor because she had stayed

over the night before the search. She was sleeping on

the couch when officers entered the house that morning. See Giwa, 831 F.2d at 545 (holding that an “overnight visitor” who slept on premises was subject to

search because he was “more than just a temporary

presence”); cf. Gray, 814 F.2d at 51-52 (holding that

search of defendant’s jacket was lawful, whether or

not “searchers believed that the jacket belonged to defendant,” because defendant was “discovered in a private residence, outside of which a drug deal had just

gone down, at the unusual hour of 3:45 a.m.”); Simmermaker, 998 F.3d at 1009-10 (upholding a search of

a lockbox where defendant was “asleep on the couch

in the living room of the house” and “known drug users were in and out of the house often”). Powers’s

claim would thus fail under the relationship test, too.

C. The Search Was Reasonable Under The

Possession Test.

Last, Powers would lose under the possession test.

This test is based on the distinction between a search

of one’s person and a search of one’s property, and so

focuses “on the location of the searched item in relation to its owner.” Pet. App. 11a. A search of a jacket

a person is wearing may be considered a search of the

person, cf. Ybarra, 444 U.S. at 88-89, while a search

of a jacket left on a kitchen chair may be a search of

22

the premises, e.g., Commonwealth v. Reese, 549 A.2d

909, 910-12 (Pa. 1988).

Powers did not have possession over her purse. It

was sitting on a table, while she was sleeping on the

couch. That her purse was “wearable,” or that it “contain[ed] key possessions and materials,” Pet. 31, does

not change that analysis. “For the time being at least

the purse was then no more a part of her person than

would have been a dress which she had worn into [a]

room and then removed for deposit in a clothes closet.”

United States v. Teller, 397 F.2d 494, 497 (7th Cir.

1968); see also State v. Gilstrap, 332 P.3d 43, 46 (Ariz.

2014).

***

In sum, whether courts consider Powers’s claim

under the totality of the circumstances (as the Supreme Court of Alabama did), the relationship test (as

the Alabama Court of Criminal Appeals did), or the

possession test, the search of Powers’s purse would be

considered lawful. As a result, this case is a poor vehicle to resolve the split in approach.1

1 Powers also mentions the “notice test,” which turns on whether

officers were on “notice” that a container they find during a premises search belongs to a non-resident. Pet. 14. Powers does not

point to any “state court of last resort” or “a United States court

of appeals” that has adopted the test. S. Ct. R. 10(b); see Pet. 14.

(The quotation Powers includes (at 14) from the Arizona Supreme Court summarizing the test comes from a decision rejecting the test. See State v. Gilstrap, 332 P.3d 43, 46 (Ariz. 2014)).

23

III. The Split In Approaches Is Not As Important

As Powers Claims.

Finally, the Court should deny the petition because the split in approaches is not nearly as meaningful as Powers suggests. Although different courts

have labeled their approaches somewhat differently

based on the primary factors they consider important,

at base what tends to separate the decisions are not

their analytical frameworks but the specific facts of

each case.

True, Powers says otherwise. She asserts that the

decision of the Alabama Supreme Court “widened a

split between it and other appellate and state courts

of last resort which have found nearly identical

searches to be unreasonable.” Pet. 16. According to

Powers, “the appellate courts of multiple other states

have held that the search of a visitor’s purse when the

owner is present during the execution of a premises

warrant violates the Fourth Amendment even when

the purse is not ‘worn’ by the defendant at the time of

This Court’s Houghton decision explains well why so few courts

have adopted this test (and why none have done so this century):

Once a visitor’s property exception to premises searches “became

widely known, one would expect [visitor]-confederates to claim

everything as their own” and for “a bog of litigation” to ensue,

“involving such questions as whether the officer should have believed a [visitor’s] claim of ownership, whether he should have

inferred ownership from various objective factors, whether he

had probable cause to believe that the [visitor] was a confederate,

or to believe that the [owner] might have introduced the contraband into the package with or without the [visitor’s] knowledge.”

Houghton, 526 U.S. at 305 (footnote omitted). To the extent a

split exists based on the notice test, the split is stale and obviously insignificant.

24

the search.” Id. at 22. Those decisions are (according

to Powers and in the order she discusses them): State

v. Lambert, 710 P.2d 693 (Kan. 1985); State v. Nabarro, 525 P.2d 573 (Haw. 1974); People v. Gross, 465

N.E.2d 119 (App. Ct. Ill. 1984); State v. Brown, 905

N.W.2d 846 (Iowa 2018); Hayes v. State, 234 S.E.2d

360 (Ga. App. 1977); State v. Ingersoll, 1994 WL

615127 (Minn. Ct. App. Nov. 8, 1994) (unreported);

and State v. Thomas, 818 S.W.2d 350 (Tenn. Crim.

App. 1991). Pet. 21-25.

None of these decisions are by a federal circuit

court, and only three of them are by a state court of

last resort: Lambert, Nabarro, and Brown. Cf. S. Ct.

R. 10(b). Brown and Nabarro are easily distinguishable, while the Lambert decision is not indicative of an

entrenched split warranting this Court’s attention.

Brown “was decided as a matter of state constitutional law,” as Powers dutifully notes. Pet. 23 n.9.

Though Powers tries to paper over that fact by arguing that “the clause of the Iowa State Constitution interpreted in Brown substantially mirrors the Fourth

Amendment to the United States Constitution,” id.,

Powers neglects to mention that the Iowa Supreme

Court has “departed from Federal Fourth Amendment

precedent in a number of cases interpreting the search

and seizure provisions” of its state constitution,

Brown, 905 N.W.2d at 849 (collecting cases). Brown is

not good evidence of a deep split in federal Fourth

Amendment law.

Neither is Nabarro. In that case, officers executed

a search warrant of a hotel room for drugs. The warrant named two men as the occupants of the room. 525

P.2d at 575, 577. When the officers entered the room

25

in the mid-afternoon, they encountered three women.

One of them, Nabarro, picked up her purse and began

walking to the bathroom; “she was stopped at the door

of the bathroom, however, and was told to surrender

her purse to one of the officers,” who found marijuana

in it. Id. at 574-75. The Supreme Court of Hawaii suppressed the evidence, reasoning that the police knew

that Nabarro was “a non-resident visitor to the premises,” that she owned the purse, and that the purse

was in her immediate, personal possession. Id. at 577.

Notably, Nabarro was decided five years before

this Court’s Ybarra decision, so its reasoning may indeed be off, focused as it is on the officers’ notice of

ownership. But its facts are not the “nearly identical”

ones Powers promised, and its holding does not conflict with the court’s below. Pet. 21. Unlike Nabarro,

Powers was found asleep on a couch in the mid-morning, having slept there the night before. Unlike Nabarro, Powers was found in a private residence at

which a confidential informant had recently bought

methamphetamine. Unlike Nabarro, Powers was

known to the officers as someone who occasionally

stayed at the drug house and who usually had methamphetamine on her. And unlike Nabarro, Powers

was not holding her purse when officers took it to

search. Nabarro is no reason to grant certiorari review

in this case.

That leaves the Kansas Supreme Court’s 1985 decision in Lambert. There, law enforcement officers obtained a warrant to search “an apartment and its occupant, known as Randy, for a white powder that was

believed to be cocaine.” 710 P.2d at 694. When officers

entered the apartment, they discovered two women

26

seated at a table in the kitchen. “Between the two

women was a serving tray containing marijuana and

a partially burned, hand-rolled cigarette, which the officer believed to be marijuana.” Id. After placing the

women under arrest, the officers searched a purse

they found on the kitchen table beside the marijuana

trey. The purse contained amphetamine and more

marijuana. Id. The Kansas Supreme Court suppressed the evidence because “the officer executing

the search warrant had no reason to believe that the

purse lying on the kitchen table next to the defendant

belonged to Randy” and thus “could not reasonably believe that the purse was part of the premises described

in the search warrant.” Id. at 698.

Lambert was plainly wrong because it focused almost entirely on ownership. The Kansas court should

have upheld the search because the officers knew that

the purse could contain the contraband they were after. The purse was sitting on a table of drugs out in

the open. And the women were seated at that drugladen table at the known drug house. The Kansas

court thus erred by not following this Court’s guidance

in Zurcher: “The critical element … is not that the

owner of the property is suspected of crime but that

there is reasonable cause to believe that the specific

‘things’ to be searched for and seized are located on

the property to which entry is sought.” 436 U.S. at

556.

Fortunately, since Lambert was decided nearly

forty years ago it has not infected the caselaw of other

States. Since 2000, the only out-of-state decisions to

even discuss Lambert did so either to explicitly reject

its test or (as the Iowa Supreme Court did in Brown)

27

as an aid to interpret state law. See Brown, 905 N.W.

2d at 849; State v. Merritt, 567 S.W.3d 778, 782-83

(Tex. Ct. App. 2018); Gilstrap, 332 P.3d at 45-46; State

v. Reid, 77 P.3d 1134, 1139-40 (Or. Ct. App. 2003).

This Court’s intervention is not needed to correct a

lone state-court decision from decades ago.

CONCLUSION

For these reasons, the Court should deny the petition.

Respectfully submitted,

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

A. Barrett Bowdre

Deputy Solicitor General

Cameron G. Ball

Assistant Attorney General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

501 Washington Avenue

P.O. Box 300152

Montgomery, AL 36130-0152

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for State of Alabama

AUGUST 12, 2022