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State v. Lewis6/9/1977
Appellant, Essie Mae Lewis, was convicted of possession of heroin in violation of A.R.S. § 36-1002. She appeals, asserting that the trial court erroneously denied her motion to suppress a balloon of heroin.
On November 29, 1974, the Phoenix police obtained a warrant to search Don and Carol Meacham and their residence at 201 1/2 West Broadway in Phoenix. After serving the warrant, the police talked with Clarence Mitchell, who was present at the Meacham residence. He told the police that they should have waited:
"because there was a black chick that just went out to score and she'd be back shortly and she'd be holding."
About twenty minutes after the warrant was served, the appellant, a black woman, opened the front door of the residence and entered. Police Officer Hogue took her by the arm and led her into the living room and started to question her. Appellant was nervous, evasive with her answers, and talked with her teeth clenched. At that point, Officer Hogue told her to open her
mouth. She refused and started a swallowing movement. One officer applied a chokehold to her in order to prevent her from swallowing. Another officer slapped her on the back to get her to open her mouth. After a struggle of a minute or two, a balloon was extracted from her mouth, which, after testing, was determined to contain heroin.
Appellant argues that the forcible taking of the balloon from her mouth constituted an illegal search in that the warrant only authorized the search of Carol and Don Meacham and, further, that the force used to obtain the heroin was grossly excessive.
It is true, as the appellant claims, that she was not named in the search warrant and, moreover, she was not present when the search warrant was served. It is also true that a visitor to the scene of a lawful search is not subject to a search warrant. Probable cause for the issuance of a search warrant exists only where the facts presented to a magistrate are based on personal knowledge or trustworthy information sufficient to warrant a man of reasonable caution to believe that seizable items are located on the premises or persons sought to be searched. See, e. g., State v. Maddasion, 24 Ariz. App. 492, 539 P.2d 966 (1975). A person incidentally on the premises and not named in the warrant would not be within the facts considered by the magistrate when the warrant was issued. See People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971); State v. Nabarro, 55 Haw. 583, 525 P.2d 573 (1974); Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). To hold otherwise would authorize a general warrant by which large numbers of persons could be searched without naming them and would be an unreasonable search under the Constitution of the United States. See Crossland v. State, 266 P.2d 649 (Okl.Cr.1954); Saunders v. State, 199 Md. 568, 87 A.2d 618 (1952).
The State, however, relies on A.R.S. § 13-1446(E)(2). It provides:
"A peace officer executing a search warrant directing a search of premises or a vehicle may search any person therein if:
2. It reasonably appears that property or items enumerated in the search warrant may be concealed upon the person."
We can see no reason why the statute should not apply to those persons who arrive while the warrant is being executed as well as those who are present when the search is commenced. No real distinction should be made between the two. See Johnson v. State, 440 S.W.2d 308 (Tex.Cr.App.1969). H
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