In Re Tiffany O. , 217 Ariz. 370 ( 2007 )

SNOW, Judge.

¶ 1 Tiffany O. (“Appellant”) appeals from the juvenile court’s finding that she is delinquent based on her possession of a pipe that she used or intended to use to smoke marijuana. We have jurisdiction pursuant to Arizona Revised Statutes section 8-235(A) (2007). Because the juvenile court erred when it admitted the pipe into evidence we vacate the finding and remand to the juvenile court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 During the early afternoon of June 21, 2004, Appellant, then fourteen years old, and her mother got into an argument. When Appellant began to leave the home, Mother told her that if she went “out that door” Mother would phone the police. When Appellant nevertheless left the home Mother called 9-1-1. Mother followed her daughter. Two police officers, Officer Robert Stewart and Officer Brian Lilly, responded to the call. Officer Stewart testified that the call was an emergency high traffic for domestic violence and that the report was that the Appellant wanted to kill herself. After Mother flagged down the officers as they were arriving and pointed out Appellant to them, Officer Stewart approached Appellant on the street and told her to stop. She did so. Appellant was carrying a closed blue purse. Officer Stewart remembered nothing about the purse other than it was blue. He immediately seized and opened Appellant’s purse upon the hood of his patrol car. He testified that he was searching the purse for a weapon with which Appellant might harm herself or Officer Stewart.

¶ 3 Although the purse contained no weapon, it did contain a marijuana pipe. Officer Stewart showed it to Appellant’s mother, who was present at the scene. He further testified to an ensuing discussion between Appellant and her mother which he overheard. Officer Stewart and Officer Lilly subsequently returned to Appellant’s home with Appellant and her mother while Mother searched the home for drugs. None were found. Mother requested that a drug dog be brought to the scene and that Appellant be tested for drugs. The officers indicated this was not possible. A petition for delinquency was subsequently filed against Appellant. She was adjudicated responsible for a class one misdemeanor for the possession of drug paraphernalia.¹ She has appealed. Because the court erred in admitting into evidence the pipe and the police officer’s testimony regarding the pipe, we reverse the juvenile court’s ruling.

ANALYSIS

¶ 4 The State argues on appeal that Appellant failed to sufficiently object to the introduction of the marijuana pipe to preserve the issue for appeal. It further asserts that even if the issue was preserved for appeal, the search of Appellant’s purse was justified by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We disagree.

I. The Objection Was Sufficiently Preserved.

¶ 5 When the State moved to admit the pipe into evidence, Appellant’s counsel said only “Objection.” The court then stated “Exhibit 1 is admitted,” and the hearing proceeded. According to Arizona Rule of Evidence 103, to preserve the issue for appeal, an objection needs to be made with specificity unless the ground for it is apparent from the context. The purpose of the rule “is to allow the adverse party to obviate the objection and to permit the trial court to intelligently rule on the objection and avoid error.” Thompson v. Better-Bilt Aluminum Prod. Co., Inc., 187 Ariz. 121, 129, 927 P.2d 781, 789 (App.1996).

¶ 6 In this case, in its direct examination before moving the pipe’s admission into evidence, the State only asked the officer about his justification for seizing the purse, not for searching it. But on its own, the court inquired why Officer Stewart had not considered the situation safe once he had taken the purse from Appellant and why he had not given the purse to Mother. We therefore find that the objection in context was sufficient to preserve for appeal the issue of the permissibility of the search of the purse.

II. The Officer’s Search Of The Purse Was Not Justified Under Terry Once He Had Seized The Purse.

¶ 7 Appellant does not contest Officer Stewart’s right to detain her under the circumstances. She does, however, contest Officer Stewart’s right under Terry to search her purse once he had seized it and it was within the officer’s control. “ ‘[S]ubject only to a few specifically established and well-delineated exceptions,’ a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant.” State v. Gant, 216 Ariz. 1, 3, ¶ 8, 162 P.3d 640, 642 (2007) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

¶ 8 Under Terry, an officer making an investigative stop may frisk an individual for weapons if the officer reasonably suspects that the person may be armed and presently dangerous to the officer or others. 392 U.S. at 30, 88 S.Ct. 1868. The operative legal question under Terry 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.” Id. at 27, 88 S.Ct. 1868. The scope of a protective search is limited to a search for concealed weapons, and “[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

¶ 9 In applying this standard, we “defer to the trial court’s factual findings absent an abuse of discretion,” but review the court’s “ultimate legal determination that the search complied with the dictates of the Fourth Amendment” de novo. State v. Valle, 196 Ariz. 324, 326, ¶ 6, 996 P.2d 125, 127 (App.2000).

¶ 10 In this case, the facts are not in dispute. Officer Stewart testified to the circumstances, and his testimony was not contested. The facts, as he testified to them, are as follows: (1) the call he was responding to “was an emergency high traffic pertaining to a domestic violence and a female possibly — well, indicating she was trying to kill herself or wanting to kill herself.” He also testified that according to the 9-1-1 call Appellant was “completely out of control” and that “the mother had said, she’s gonna commit suicide. And she’s saying that and domestic violence;” (2) when he responded to the call he “never made it to the apartment complex because the mom waved [him] down;” (3) when he reached Appellant, “she was very agitated, mad, angry, verbal, loud;” (4) when he approached Appellant, he “told her to stop and she did;” (5) he remembers nothing about the purse other than it was blue; (6) he “immediately seized [the] purse due to the totality of the information that she was possibly wanting to commit suicide;” (7) both his partner, Officer Lilly, and Mother were on the scene; (8) he immediately opened the purse and looked in it for “[a]ny type of weapon to harm herself or me;” and (9) the incident took place in the early afternoon.

¶ 11 There is no evidence in the record that the 9-1-1 call mentioned that Appellant had or was threatening anyone with a weapon. There was no sign of a weapon when the officers arrived on the scene, and upon their arrival, they saw no domestic violence or suicide attempt taking place. Officer Stewart testified, however, that the seizure of the purse was justified because when Mother called 9-1-1 she indicated Appellant was suicidal and, therefore, he thought there might be a weapon in the purse with which Appellant might harm either herself or him. We assume, without deciding, that this justifies Officer Stewart’s seizure of Appellant’s purse.

¶ 12 But the State must also justify the immediate search of the purse after it was in Officer Stewart’s control. After the purse’s seizure, the danger of Appellant using something in it to harm herself or others was removed. Generally, once a purse is no longer in its owner’s possession, a protective search of the purse is not justified pursuant to Terry. See State v. Schellhorn, 95 Or. App. 297, 769 P.2d 221, 223 (1989) (“[O]nce the officer had seized the purse, he no longer had any reason to believe that it still posed an immediate threat to him.”); People v. Stewart, 166 Mich.App. 263, 420 N.W.2d 180, 181-82 (1988) (holding that the search of purses could not be justified as a protective search for weapons when police had control of the purses); State v. Wynne, 552 N.W.2d 218, 222 (Minn.1996) (“[W]e fail to understand how the purse remained a threat to officers when it had been taken away from its owner.”).

¶ 13 Our supreme court recently made a similar determination when it held that even a warrantless search of a defendant’s vehicle incident to his arrest, a normally justified exception to the warrant requirement, did not apply when “based on the totality of the circumstances, an arrestee is secured and thus presents no reasonable risk to officer safety or the preservation of evidence.” Gant, 216 Ariz. at 7, ¶ 23, 162 P.3d at 646. In such cases, “a search warrant must be obtained unless some other exception to the warrant requirement applies.” Id.; cf. United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (holding that once federal agents had exclusive control of a footlocker, its warrantless search could not be justified by “any other exigency”), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).

¶ 14 Cases in which a search of a seized purse has nevertheless been found justified involve facts that are not present here. Appellant had been compliant when Officer Stewart asked her to stop. She had shown no interest in getting into the purse before Officer Stewart took it, had not resisted Officer Stewart when he took it, and had made no attempt to regain control over it after he took it. There was no testimony that the purse was heavy or that anything about its feel suggested that it contained a weapon. Nor was there any testimony establishing a reason to believe that Appellant had access to any weapons, nor were she and Officer Stewart alone, as both Officer Lilly and Appellant’s mother were present at the scene. See United States v. Flippin, 924 F.2d 163, 166 (9th Cir.1991) (holding that the opening of a makeup bag was justified when a woman had grabbed the bag when the officer turned away, had resisted it being taken from her, the bag felt heavy, her companion had been armed the previous day, and the officer and individual were alone); Bush v. State, 632 P.2d 764, 765 (Okla.Crim.App.1981) (holding that a search was justified when the police responded to a complaint that a woman at a school bus stop might have a gun in her purse, the woman’s responses to police inquiries were unhelpful, and she resisted the purse being taken from her).

¶ 15 As Flippin explained, the relevant question is “whether the danger justifying the seizure still existed once the officer had custody of the container. If the exigency was gone, a search warrant must be obtained before it may be opened.” 924 F.2d at 166. Here, once Officer Stewart secured Appellant’s purse, he deprived her of access to anything that it might contain. If she had been armed with anything in the purse, he had already disarmed her. Nor is there any evidence in the record to indicate that the seizure had not effectively foreclosed the possibility of Appellant using anything in her purse to harm herself or others. Thus, there was no objective basis in the record on which to justify the additional search of the purse once Officer Stewart had seized it. Cf. Valle, 196 Ariz. at 328, ¶ 14, 996 P.2d at 129 (rejecting an officer’s claim that he was justified in asking the defendant to remove his shoes when there was “nothing in the record to show that this Officer justifiably believed that Defendant might actually have hidden a weapon in his shoe or, if he had, that he would have been able to quickly retrieve it”). “[The] purpose of [a] Terry pat-down ‘is only to find implements which could readily be grasped by the suspect during the brief face-to-face encounter, not to uncover items ... which could be brought out only with considerable delay and difficulty.’ ” Id. (quoting 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(b), at 274 (3d ed.1996)).

¶ 16 When the court observed at the hearing, “[o]nce you had position [sic] of the whole purse, it was safe of her use of committing suicide or hurting you because you had the whole purse,” Officer Stewart replied, “[w]ell, she wasn’t in custody at the time.” The court then responded that “you could have given the purse to Mom instead of opening it up and it would have been just as safe at that circumstance?” Officer Stewart replied, however, that he did not know Mother and had never seen her before and could not be sure of his safety by giving the purse to Mother.

¶ 17 With respect to Officer Stewart’s observation that he was entitled to search the purse because he had not yet taken Appellant into custody, we note that it is the arrest that generally justifies a warrantless search of a defendant’s purse, not vice versa. And, as Gant demonstrates, a warrantless search of a purse incident to arrest is itself not appropriate when the purse is secured and “presents no reasonable risk to officer safety or the preservation of evidence.” 216 Ariz. at 7, ¶ 23, 162 P.3d at 646. Obviously, that a person is not in custody is not in itself sufficient justification for a search absent other circumstances. To justify the search of Appellant’s purse, Officer Stewart had to be able to point to particular facts from which he reasonably inferred that Appellant might make use of something dangerous that might be in her purse even once the purse had been taken from her. Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (holding that an officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous”) (emphasis added). A general observation that Appellant was not in custody is not a sufficiently particular reason for believing the purse still posed a danger once Officer Stewart had control of it.

¶ 18 To the extent that Officer Stewart felt unable to safely maintain possession of the purse while he assessed the situation, and to the extent he did not feel safe in handing it to Appellant’s mother, he could have handed the purse to his partner Officer Lilly. When the dissent argues that there was no one else at the setting to whom a purse with unknown contents could be given, it ignores the presence of Officer Stewart’s partner, Officer Lilly-

¶ 19 Further, nothing in the actual facts of this ease supports Officer Stewart’s immediate search of the purse before attempting to assess the situation. Thus, when the dissent engages in a worst-case scenario of what might have subsequently transpired had the purse been returned to Appellant before it was searched, it is pure speculation. The officers might have determined there was no danger in returning the purse to Appellant because the situation was never as exigent as the 9-1-1 report suggested. See State v. Gissendaner, 177 Ariz. 81, 83, 865 P.2d 125, 127 (App.1993) (holding that police, in responding to a domestic violence call, were not justified in engaging in a warrantless entry because the assault was over and “there was no real danger that the assault was about to resume”). Alternately, the officers might have had time to determine that Appellant’s mother was rational and the purse could be safely given to her with instructions not to return it to her daughter until it was safe to do so. Or, if the officers remained concerned that Appellant might injure herself using something from the purse, and they had concerns Mother was not rational, they could have requested Appellant’s consent to a search prior to its return. Or, if probable cause had arisen, they could have obtained a warrant to search the purse. “In this technological age, when warrants can be obtained within minutes, it is not unreasonable to require that police officers obtain search warrants when they have probable cause to do so to protect a citizen’s right to be free from unreasonable governmental searches.” Gant, 216 Ariz. at 6, ¶ 22, 162 P.3d at 645. Any of these steps would have been consistent with the Fourth Amendment and would have prevented the worst case scenario presented by the dissent. Instead, despite the opportunity Officer Stewart’s seizure of the purse gave him to assess the situation, he immediately searched it to look for weapons. He may have done so in good faith, but it was beyond any recognized exception to the Fourth Amendment’s presumptive warrant requirement. Thus, the court erred when it admitted the pipe he found into evidence.

¶20 Again, when neither safety nor the exigent need to preserve evidence justifies a warrantless search, Gant reemphasizes the longstanding principle that a warrantless search is not appropriate. Thus, even assuming the warrantless seizure of the purse may have been justified to ensure the safety of Appellant and the officers while the officers assessed the situation, its warrantless search was not.

III. The Search Was Not Justified Under Either The Emergency Aid Exception Or The Police’s Community Caretaker Function.

¶ 21 The dissent asserts that we should affirm on the basis of either the emergency aid exception or the police’s community caretaker function. We do not view these issues as having been raised on appeal or below and thus normally would not address such issues. Even if we agreed with the dissent that these issues had been raised and preserved, it would not change our result here. While we have no particular quarrel with either doctrine, the necessary facts do not exist in the record in this case to support application of either exception. Both of these doctrines apply only when there is a particular perceived exigency that caused the warrantless search. In recognizing the emergency aid doctrine, the United States Supreme Court quoted Terry in prescribing its limits. “[A] warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Terry, 392 U.S. at 26, 88 S.Ct. 1868). Similarly, the community caretaking function only sanctions a warrantless intrusion on privacy interests when the intrusion is

suitably circumscribed to serve the exigency which prompted it.... The officer’s ... conduct must be carefully limited to achieving the objective which justified the [search] — the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance [or property is at risk] and to provide that assistance [or to protect that property.]

People v. Ray, 21 Cal.4th 464, 88 Cal.Rptr.2d 1, 981 P.2d 928, 937 (1999) (internal quotations omitted). The search of Appellant’s purse here surpassed those limits.

A. The Emergency Aid Doctrine Would Not Have Authorized Officer Stewart’s Search.

¶ 22 There is a difference between searching a purse for weapons and searching a purse because the juvenile, who is unconscious or otherwise unresponsive, is in need of emergency aid and the search is undertaken to facilitate the aid that might be necessary.² To the extent that searches of purses and similar items have been analyzed under the emergency aid doctrine, it has been for such reasons. See generally State v. Amarelle, 190 S.W.3d 1 (Tex.Ct.App.2005) (involving the police finding a college identification card and a container of a substance in the open purse of an unresponsive woman); Terry v. Commonwealth, 23 Va.App. 87, 474 S.E.2d 172 (1996) (involving an officer searching the fanny pack of unaccompanied man in a semiconscious state to find identification, medical information, and the cause of the man’s condition).

¶ 23 Here, unlike any emergency aid ease involving the search of a purse, Appellant was not unresponsive, not unaccompanied, not in obvious need of immediate medical attention, and both Appellant and Mother were present and able to provide needed medical information in the event it had been necessary. The dissent suggests that the court may find a search justified based on the possible discovery of “an emptied pill box containing evidence of an overdose requiring immediate medical assistance,” infra at ¶ 46. To the extent that Appellant was in need of emergency aid and unconscious or unresponsive we would agree that a search for such a source of Appellant’s distress would be justified — but Appellant was neither. This is a key distinction between this case and both Amarelle and the Virginia court’s decision in Terry. The dissent cites no case for the proposition that an emergency search of a person’s purse is authorized by that person’s need for emergency aid in circumstances in which that person is fully alert, suffering no impairments, and is fully complying with police directives.

¶ 24 Nor in his testimony did Officer Stewart suggest that his search was motivated by Appellant’s need for emergency treatment. Rather, he testified he searched the purse, pursuant to Terry v. Ohio, to look for weapons with which the juvenile could harm herself or the officer:

Q. Did you do anything with regard to her purse?

A. Yes. I did. I immediately seized her purse due to the totality of the information that she was possibly wanting to commit suicide.

Q. Okay. Andy (sic) why did you seize that? What did you think may be there? A. Any type of weapon to harm herself or me.

Q. Did you look in that purse?

A. Yes. I did.

A. I opened the purse to see if there was a weapon in there.

¶ 25 The dissent cites caselaw for the proposition that Officer Stewart’s actual reason for searching the purse is irrelevant if there existed a separate objective basis for the search. But, in cases such as the emergency aid exception where the warrantless search is limited by the exigency that gives rise to it, the officer’s perception of the exigency is a necessary limitation on the search. As has been established above, no objective basis sufficiently justified the search of Appellant’s purse once it was in the control of Officer Stewart.

B. The Community Caretaker Function Would Not Have Authorized Officer Stewart’s Search.

¶ 26 Recognizing that Officer Stewart’s seizure of Appellant’s purse may have ended any prospective emergency with respect to her use of anything in it, the dissent asserts that the search of the purse is nevertheless justified by the police’s community caretaking function, even if it is not authorized by the emergency aid exception.

¶ 27 The dissent cites to the California Supreme Court’s plurality opinion in Ray, 88 Cal.Rptr.2d 1, 981 P.2d at 928, and urges us to follow it here. While Ray may have presented facts in which the community caretaking function justified a different result than the emergency aid exception, it is not apparent to us how it would do so in this case.

¶ 28 In Ray, neighbors called the police because a home’s front door had been open all day and the interior of the house appeared to be ransacked. Id. at 931. Police responded to the home, knocked and identified themselves, but no one responded. Id. at 931-32. From the door they could see that the interior was a shambles. Id. at 931. Fearing for the welfare of the occupants, or that a burglary might have occurred or be in progress, the police officers entered the home. Id. at 932. They found no one inside and they opened “[n]o interior doors or containers.” Id. Nevertheless, they did observe a large quantity of cocaine and money. Id. Rather than seizing the cocaine or the money, they obtained a warrant, and then, pursuant to the warrant, searched the home and seized the evidence. Id. The court in plurality found that the officers acted appropriately in balancing the defendant’s right to privacy with the police’s obligation to protect persons or property in light of their community caretaker function. Id. at 938-39.

¶ 29 However, the possible distinction between the emergency aid exception and the community care exception evidenced by the facts in Ray has no apparent application here. Even assuming it did, as we have noted above, the court in Ray limited the warrantless searches that were authorized by the community caretaker function to those that were “suitably circumscribed to serve the exigency which prompted it.” Id. at 937. To the extent the purse posed a danger to Appellant, or anybody else, Officer Stewart provided an appropriate response by immediately removing it from her control.³ He did not have a warrant for doing so, but the juvenile does not challenge her purse’s seizure. She challenges its search. The officer had no need to do more than to seize the purse to protect the juvenile (or anybody else) from any of the purse’s contents while he assessed the situation and obtained a warrant if necessary.

¶ 30 Under the dissent’s view, a search of Appellant’s purse under the circumstances presented here is reasonable even if it falls outside the permissible and traditionally-recognized exceptions to the warrant requirement. Because this is so our dissenting colleague determines the search must fall within the ambit of the emergency aid and community caretaker doctrines. “[T]he emergency aid and community caretaker doctrines would •permit — if not require — the officers” to make the search, infra at ¶ 59. Thus he suggests the officers would be liable for failing to undertake a search in these circumstances.

¶ 31 While the dissent is correct that the Fourth Amendment only forbids unreasonable searches, our precedent establishes that warrantless searches are presumptively unreasonable, see, e.g., Gant, 216 Ariz. at 3, ¶ 8, 162 P.3d at 642 (citing Katz, 389 U.S. at 357, 88 S.Ct. 507); Rodriguez v. Arellano, 194 Ariz. 211, 214, ¶ 9, 979 P.2d 539, 542 (App.1999); State v. Kempton, 166 Ariz. 392, 395-96, 803 P.2d 113, 116-17 (App.1990), and “[t]he burden is on the party seeking [an exemption from the warrant requirement] to show the need for it,” State v. Fisher, 141 Ariz. 227, 237, 686 P.2d 750, 760 (1984) (citations omitted). The reasonableness of a protective search under Terry is to be established by reference to particular facts necessitating the intrusion. Officer Stewart testified to no such facts once he had the purse. We come to this conclusion not because we disagree with the juvenile court with respect to what the facts are — the facts in this case are not in dispute — but rather because we disagree with the juvenile court as to how the law applies to those facts, and it is our responsibility to make that determination de novo.

¶ 32 Because the warrantless search of the purse was not justified under the circumstances, the marijuana pipe should not have been admitted into evidence, and Officer Stewart’s testimony regarding its discovery should not have been permitted at the hearing. See State v. Hunt, 2 Ariz.App. 6, 12, 406 P.2d 208, 214 (1965) (holding that the exclusionary rule “applies to oral evidence adduced from an officer’s testimony as to what he saw or found pursuant to an illegal search”).

¶ 33 The finding of delinquency is thus vacated and remanded.

CONCURRING: DONN KESSLER, Judge.

1 . The adjudication was not held until a year and a half after the underlying events. Because Appellant had shown great progress during that time, the trial court designated the offense as a class one misdemeanor.

2 . The dissent cites no cases in which the emergency aid doctrine has been used to analyze a search that the officer testified was done because the individual might be armed and dangerous. That kind of emergency is traditionally analyzed under Terry. As is discussed above, the limits on the two exceptions are the same. Mincey, 437 U.S. at 393, 98 S.Ct. 2408 ("[A] warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation.’ ” (quoting Terry, 392 U.S. at 26, 88 S.Ct. 1868)).

3 . These facts distinguish this case from Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), in which the officers needed to secure a weapon they believed to be in the defendant’s automobile that was not in the possession of the police.