Oral Argument Draft - JerryPrettyman.com

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7 Οκτ 2013 (πριν από 3 χρόνια και 8 μήνες)

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Page 7

That the
Scott

location was a business with many types of visitors is a
misnomer as to what a visitor is. Whether a visitor was a customer, prospective
customer or a vendor is immaterial. The person would be a visitor in any
circumstance. The
Scott

warrant was directed specifically at the records of the
business, and containers or persons that might hold them. Those persons would
specifically be employees and only employees and their containers that would be
plausible repositories for records of the

business. In a residence, visitors are still
visitors, unless and until they make the premises their residence. If anything, the
range of visitor qualifications in a residence is greater in a residence. A residential
visitor may be a non
-
occupant family
member, a friend, a solicitor, a service
person, a landlord, a business associate, or perhaps a professional making a house
call. The officer in Scott failed to ascertain whether owner of the purse he wanted
to search was an employee or not. He would not h
ave cared with kind of visitor
was on the premises. Similarly with Agent Bradley, his concern with respect to
whether the purse was a plausible repository for the financial documents was not
directed to the type of visitor, but simply whether the purse bel
onged to a person
whose circumstances presented the opportunity to possess and place the ACME
financial documents in the purse. Since the agents knew that only Mr. Barrett lived
in the residence, and neither Agent Long nor Agent Bradley had a reason to
sus
pect any of the three visitors presented the opportunity to possess and place the
ACME financial documents in the purse. The agents had not seen a transfer of
belongings from Mr. Barrett to a visitor, nor had they heard noises, or seen
anything suggesting
such a transfer could or had taken place. The agents could not
point to specific facts providing a reasonable belief that the purse was a plausible
repository for the ACME financial documents. The search of the bag did not
reveal checks, receipts, or diske
ttes, only letter sized documents. Absent any
specific facts to the contrary, the purse could not be plausible repository.

II

The Andrews court applied its analysis of the Fourth Amendment only to
the physical proximity test. The Andrews court rejected the

relationship test for
grounds that the court thought the test could be thwarted. The Andrews court did
not reject the relationship test on constitutional grounds. That the courts are
divided is true. The First, Fifth, Tenth, and Eleventh Circuits accepted

the
relationship test. Only the Seventh and D.C. Circuits accepted the physical
proximity tests.

Andrews

and
Teller

are distinguished from Ms. Bloom because during their
respective searches, both Andrews and Teller left the rooms that their belongings
we
re in. Also, Mrs. Teller was an occupant of the premises, while Mr. Andrews
had brought a duffel bag to Ms. Sisco’s apartment. As a duffel bag is another form
of luggage, both Mrs. Teller and Mr. Andrews showed they had some kind non
-
short term relationshi
p with the premises. Regardless of which test their respective
courts used, both persons would have failed both visitor qualification tests. On the
other hand, Ms. Bloom brought only as small evening purse, which lay within
arm’s length of her the entire t
ime of the search. Under the
Chimel

rule, her purse
was within her immediate control, and therefore within her proximate possession,
and as a short
-
term visitor showing no indication of a longer stay, she was outside
the scope of the search warrant by both

tests.

Page 10.
Johnson

and
Riccitelli

are distinguished from Ms. Bloom in
several ways. First, neither case mentions distance the pocketbook was from the
defendant, nor do the cases mention the size of the table so we could possibly infer
the distance.
Officer Bradley could see how close the purse was to Ms. Bloom.
Second, officers in both cases were looking for items for which the purse and
pocketbook were plausible repositories. The
Johnson

officers were looking for
narcotics, and the
Scott

said that a

purse is a plausible repository for illegal drugs
when the drugs are the object of the search. The Riccitelli officers were looking
for receipts and monies, which are normally within a pocketbook. Ms. Bloom
purse was not a plausible repository for ACME fi
nancial documents since letter
size papers and folders could not fit into the small purse without folding, and the
book bag, which did contain such records, did not contain the smaller items, so
Agent Bradley did not have specific facts for reasonable beli
ef supporting a
plausible repository. Third, although the Johnson officers knew she was a visitor,
they heard the sound of breaking glass, and they found drugs in the bedroom, so
the Scott purse applied. The Riccitelli officers did not know that Ms. Riccit
elli was
a visitor. Agent Bradley was looking for financial documents, not drugs, and he
knew that Ms. Bloom was a visitor.