The COA considered possible tests for determining whether a purse falls within a search warrant. The COA noted that courts generally either apply the possession test (i.e. police may assume any object not worn by or in the close physical proximity of the guest is subject to the warrant) and the notice test (i.e. requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant). The COA considered the merits of each test, but adopted the notice test:
Both Lambert and Tonroy are highly suggestive that the notice test together with the relationship exception should be applied in Kansas to protect social guests from unreasonable search and seizure of their persons and personal property during execution of a search warrant. In our opinion, the bright-line possession test is not sufficient to provide adequate constitutional protection when considering whether the privacy rights of a guest have been violated during execution of a search warrant. We agree with the Oregon Court of Appeals in Reid that the possession test is potentially arbitrary and inflexible, thereby not affording due regard for the privacy rights of social guests. Accordingly, we hold that the notice test together with the relationship exception are to be applied to protect social guests from unreasonable searches and seizures of their persons and property during execution of a search warrant.A nice explanation that a few simple questions do not impede good police work.
In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of "containers" not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses. But Officer Phillips made no inquiry about the purses' ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.
[Update: the state did not file a PR and the mandate issued on September 1, 2011.]