People v. Glaser

Opinion

May police officers searching a private home pursuant to a search warrant briefly detain a person who enters onto the premises at the same time as officers are beginning the search? Under the circumstances

Eventually defendant understood he was being ordered to lie face down on the gravel driveway. According to defendant, Hughes told him “to get down on the ground immediately, at gunpoint and said if I did not do so he would blow my brains out.” Defendant obeyed, and Hughes then cuffed his hands behind his back. Another officer arrived within five minutes, and about a minute later defendant was allowed to stand up and was led into the house. Defendant testified he first saw Murray inside the house, but conceded Murray may have been present while he was detained outside as well.

We are concerned here only with the validity of the initial period of detention by Officer Hughes, ending when Murray returned to the driveway area. The propriety of defendant’s continued detention from that point on, and of the ensuing patdown and other searches, was not decided by the Court of Appeal or raised in the petition, and we decline to decide that question. The events following Murray’s return to the driveway, therefore, will be described only briefly and only to provide factual context. Information acquired by the police after the initial detention, of course, is not relevant to the legality of that detention.

Murray, shining his flashlight on defendant’s face, recognized him; he knew defendant had been arrested on narcotics and weapons charges during a previous search of the Wagenman residence and that defendant had at some point suffered a felony conviction and been committed to the California Rehabilitation Center. Murray watched as Hughes patted defendant down for weapons, removing from his coat pocket a glass pipe suitable for smoking methamphetamine and marijuana. Murray then contacted and detained a woman who was sitting in defendant’s pickup truck. Defendant was taken inside and further detained. Murray subsequently searched defendant’s truck, in which he found syringes and a police scanner radio, and defendant’s person, on which he found three packets of methamphetamine powder.

Defendant was charged with possession and use of methamphetamine (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a)) and use of a scanner to intercept police radio communications (Pen. Code, § 636.5). He

Defendant pleaded no contest to the possession charge, and the remaining charges were dismissed. Defendant appealed his conviction on grounds of erroneous denial of the suppression motion. (See Pen. Code, § 1538.5, subd. (m).) The Court of Appeal reversed. The court agreed with defendant’s contention “the police did not have articulable suspicion to detain him as he was merely a visitor at the Wagenman residence.” Relying on People v. Gallant (1990) 225 Cal.App.3d 200 [ 275 Cal.Rptr. 50 ], the court held “a policy of securing everyone within the vicinity of the area to be searched for officer safety cannot supplant the requirement that articulable suspicion support each detention.” Further concluding that the subsequent searches of the truck, the metal box and defendant’s person were tainted by the initial illegal detention, the court declined to reach any other issues involving the legality of those searches.

We granted review on the People’s petition, which raised only the single issue decided by the Court of Appeal, to wit, the legality of defendant’s initial detention.

Discussion

The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Leyba (1981) 29 Cal.3d 591 , 596-597 [ 174 Cal.Rptr. 867 , 629 P.2d 961 ]; People v. Lawler (1973) 9 Cal.3d 156 , 160 [ 107 Cal.Rptr. 13 , 507 P.2d 621 ].)

The superior court’s express factual findings are supported by substantial evidence; indeed, they are largely undisputed. There is no dispute the officers had a warrant to search the Wagenman residence or that Officer Hughes stopped defendant at the gate to the backyard.

To decide whether relevant evidence obtained by assertedly unlawful means must be excluded in a trial for crimes allegedly committed after June 8, 1982, we look exclusively to whether its suppression is required by the United States Constitution. (People v. Souza, supra, 9 Cal.4th at p. 232; In re Lance W. (1985) 37 Cal.3d 873 , 885-890 [ 210 Cal.Rptr. 631 , 694P.2d 744].) In the present case, we find the analytical framework needed to resolve this question in two leading decisions of the United States Supreme Court.

In the landmark case of Terry v. Ohio, supra, 392 U.S. 1 (hereafter Terry), the federal high court considered whether and when police may constitutionally “stop and frisk” individuals in public places without probable cause to arrest or search. Such conduct, the court noted, “has not been, and as a practical matter could not be, subjected to the warrant procedure,” but instead “must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” (Id. at p. 20 [20 L.Ed.2d at p. 905] , fn. omitted.) Application of that general standard, in turn, requires the courts to identify the government interest allegedly justifying the intrusion and to balance “ ‘the need to search [or seize] against the invasion which the search [or seizure] entails.’ ” (Id. at p. 21 [20 L.Ed.2d at p. 905], quoting Camara v. Municipal Court (1967) 387 U.S. 523 , 534-535 [ 18 L.Ed.2d 930 , 938-939, 87 S.Ct. 1727 ], brackets in Terry.)

Central to the Terry court’s understanding of reasonableness is the requirement of “specificity in the information upon which police action is predicated . . . .” (Terry, supra, 392 U.S. at p. 21, fn. 18 [20 L.Ed.2d at p. 906] .) Thus, “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id. at p. 21 [20 L.Ed.2d at p. 906], fn. omitted.)

In Michigan v. Summers (1981) 452 U.S. 692 [ 69 L.Ed.2d 340 , 101 S.Ct. 2587 ] (hereafter Summers), the high court applied the principles enunciated in Terry and its progeny to a detention during the search of a private residence. Detroit police officers, arriving with a warrant to search a house for narcotics, encountered the defendant walking down the front steps. They requested his help in entering the house, but he said he had left his keys inside. The officers then detained the defendant while they gained entry and searched the house. Upon finding drugs and learning the defendant owned the house, the officers arrested and searched him, finding more drugs on his person. (Summers, supra, 452 U.S. at p. 693 [69 L.Ed.2d at pp. 343-344].)

The high court focused on whether the defendant’s initial detention met “the ultimate standard of reasonableness embodied in the Fourth Amendment.” (Summers, supra, 452 U.S. at pp. 699-700 [69 L.Ed.2d at p. 348].) To decide the question the court examined “both the character of the official intrusion and its justification.” (Id. at p. 701 [69 L.Ed.2d at pp. 348-349].) The court noted several factors it believed lessened the intrusiveness of a detention in these circumstances: detention of a resident is less significant than the more substantial invasion to which he was already subject by virtue of the warrant, to wit, search of his home; most occupants would prefer to remain on the premises anyway, in order to observe the search; detention during a warrant search is unlikely to be exploited or unduly prolonged by officers for investigatory purposes, since they are expecting to find the evidence they seek through the search itself; and the detention adds only minimally to the public stigma associated with the search itself. (Id. at pp. 701-702 [69 L.Ed.2d at pp. 348-350].)

Finally, the court examined “the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant.” (Summers, supra, 452 U.S. at p. 703 [69 L.Ed.2d at p. 350].) It found grounds for such suspicion in the issuing magistrate’s determination of probable cause to believe someone in the home is committing a crime. “The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies detention of that occupant.” (Id. at pp. 703-704 [69 L.Ed.2d at p. 351].) The court therefore held “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Id. at p. 705 [69 L.ED.2d at p. 351], fns. omitted.)

Applying the principles enunciated in the above decisions, we conclude Officer Hughes’s initial brief detention of defendant was justified by the need to determine what connection defendant, who appeared to be more than a stranger or casual visitor, had to the premises, and by the related need to ensure officer safety and security at the site of a search for narcotics. To test the detention against “the ultimate standard of reasonableness embodied in the Fourth Amendment” (Summers, supra, 452 U.S. at pp. 699-700 [69 L.Ed.2d at p. 348]), we balance the extent of the intrusion against the government interests justifying it, looking in the final and dispositive portion of the analysis to the individualized and objective facts that made those interests applicable in the circumstances of the particular detention. (Terry, supra, 392 U.S. at p. 21 [20 L.Ed.2d at pp. 905-906]; Summers, supra, 452 U.S. at p. 703 [69 L.Ed.2d at p. 350].)

We examine first the “character of the official intrusion.” (Summers, supra, 452 U.S. at p. 701 [69 L.Ed.2d at p. 349].) As already mentioned, the

The government interest in determining the identity of a person entering premises being searched is related to, though broader than, the officers’ need for security. The risk posed by residents or familiars of the household, who may be involved in the criminal activities therein, is obviously greater than that posed by mere visitors who happen unwittingly on the scene. In addition, determining the identity and connection to the premises of a person who is already present on the search site, or who enters during the search, allows officers to ascertain whether the other interests identified in Summers warrant detention of the person during the search. The “legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found” (Summers, supra, 452 U.S. at p. 702 [69 L.Ed.2d at p. 349]), for example, is present only if there is reason to suspect the person of involvement in criminal activities on the premises. Similarly, only those with ownership, control or knowledge of the premises will be able to assist in the “orderly completion of the search.” (Id. at p. 703 [69 L.Ed.2d at p. 350].) Searching officers therefore have a legitimate interest in determining the identity and connection of a person present at or entering a search site.

Having identified the relevant police interests, we weigh their application in this case against the invasion of defendant’s personal security

The officers, arriving after dark on a stormy night to execute a search warrant, saw defendant standing in an unlit spot in the driveway. Although investigator Murray was familiar with defendant, neither he nor any of the other officers recognized him under those conditions. Defendant was about to pass through a gate into the backyard of the house being searched. Defendant’s apparent familiarity with the premises and his entry through the backyard suggested he was not a stranger or chance visitor, but his exact connection to the house was not immediately apparent. Determining the nature of that connection would allow the police to evaluate the applicability of the interests identified in Summers, that is, whether defendant would wish to be present to observe the search, whether he was likely to flee if contraband was discovered, and whether his presence would assist in orderly execution of the search. Defendant, moreover, was in the process of entering the premises and, if unimpeded, would come up behind the officers searching the house and outbuildings. Under these circumstances, Officer Hughes’s decision to contact and identify defendant was not only reasonable, but virtually unavoidable.

According to defendant’s own testimony, Hughes tried unsuccessfully to communicate with him for some time, perhaps as long as two minutes. The noise of the storm, and possibly some degree of disorientation from having just awakened, prevented defendant from understanding what Hughes was saying during this time. Hughes was thus faced with an unidentified person who appeared to be a resident or familiar visitor of a house in which, Hughes had probable cause to believe, criminal drug activity was occurring—a person who was standing where he could not be clearly seen under the prevailing conditions, who was unresponsive to verbal attempts at contact, and who, if left alone, would walk into the middle of a search being conducted by several other officers. Hughes had no practical choice but to detain defendant, and, under these circumstances, the means used—drawing his weapon and ordering defendant to the ground briefly for handcuffing— were not unreasonable. They are steps a “reasonably prudent” officer (Terry, supra, 392 U.S. at p. 27 [20 L.Ed.2d at p. 909]) could consider necessary to protect his own safety, that of the other searchers and that of the detainee himself.

No evidence was presented as to what inquiries, if any, Hughes made of defendant from the time defendant was successfully detained until Murray’s

Defendant asserts he was “simply a visitor to the premises,” and neither the holding nor the rationale of Summers is therefore applicable. We find this reasoning unpersuasive. Summers’s blanket rule allowing detention, it is true, applies only to “occupants” of a residence being searched. In its opinion, moreover, the high court also used the terms “residents” and “residence” to describe the detainee’s connection to the premises (Summers, supra, 452 U.S. at pp. 701, 702, 704 [69 L.Ed.2d at pp. 348-349, 349-350, 350-351]), and some aspects of the court’s rationale logically apply only to those with ownership, control or knowledge of the premises being searched. Noting these aspects of the opinion, Professor LaFave concludes “it would seem that the word ‘occupants’ is not to be loosely construed as covering anyone present, but instead is to be interpreted literally.” (2 LaFave, Search and Seizure (2d ed. 1987) § 4.9(e), pp. 309-310, fns. omitted; but see U.S. v. Fountain (6th Cir. 1993) 2 F.3d 656 , 663 [“occupants” as used in Summers not restricted to “residents”].)

That only occupant detentions fall within Summers’ s safe harbor, however, does not imply nonoccupants may never be detained without probable cause during a search. (See 2 LaFave, Search and Seizure, supra, § 4.9(e), p. 311 [concluding Summers does not, “by negative implication, prohibit application of Terry to uphold a detention on reasonable suspicion, based on the facts of the particular case, of someone present where a search warrant is to be executed’’]; accord, State v. Torres (1985) 197 Conn. 620 [ 500 A.2d 1299 , 1301] [Terry applicable to nonoccupants]; U.S. v. Reid (D.C. Cir. 1993) 997 F.2d 1576 , 1579 [ 302 App.D.C. 374 ] [detention reasonable even though defendant not within Summers’s “bright line” rule for occupants].)

As we have previously noted, when defendant was detained, he was in the process of entering the premises through a gate leading into the backyard. The officers who stopped him did not know who he was. Although investigator Murray eventually identified defendant as someone other than the house’s owner, no evidence suggested even Murray knew whether defendant resided at the house or was merely visiting. While defendant may be correct he was not an occupant in the sense the Summers court used that term, the officers who detained him did not know that at the time. (See U.S. v.

A complete stranger to the premises arriving during the search might, under many circumstances, be sent on his or her way with little fear of danger to the officers conducting the search. In contrast, a resident or intimate of the home, who may have criminal interests there to protect, may present a substantial risk even if he or she leaves when encountered by the police. The police are not required to ignore the danger that persons possibly involved in crime, who leave the premises, may return during the search, with potentially fatal consequences for themselves or the officers. (See U.S. v. Reid, supra, 997 F.2d at p. 1579 [search of person encountered leaving apartment to be searched justified by officer’s testimony “he felt endangered by Reid’s potential presence behind the officers as they were seeking to execute the search warrant”]; U.S. v. El-Gabrowny (S.D.N.Y. 1994) 876 F.Supp. 495 , 499 [detention permissible of person who left building about to be searched, then started to return, where “if permitted to continue unhindered, he would come up behind agents who were about to execute a search warrant”].) Even assuming, therefore, that under some circumstances the police might act unreasonably in detaining a person arriving at a search site, without giving the person an opportunity to disavow a connection to the premises and leave (see, e.g., United States v. Clay (8th Cir. 1981) 640 F.2d 157 , 161), in the present circumstances the decision to detain defendant was not an unreasonable one.

Innocent explanations for defendant’s entry onto the property could certainly have been imagined and may have been as likely as those suggesting risk and suspicion. As we have recently reiterated, however, that a person’s conduct is consistent with innocent behavior does not necessarily defeat the existence of reasonable cause to detain. (People v. Souza, supra, 9 Cal.4th at pp. 233-235.) What is required is not the absence of innocent explanation, but the existence of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry, supra, 392 U.S. at p. 21 [20 L.Ed.2d at p. 906].) As we have seen, the present detention was objectively justifiable on that standard.

The People urge as a general rule that when police have a warrant to search a home, “the mere arrival or presence of someone at the warranted

When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, pursuant to Summers, for the duration of the search. (Summers, supra, 452 U.S. at p. 705 [69 L.Ed.2d at p. 351].) If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released.

In the unstable situation presented at the onset of a search of a private home for narcotics, the searching officers need to locate and identify all persons on the premises. That step is essential to protecting each of the three interests identified in Summers, supra, 452 U.S. at pages 702-703 [69 L.Ed.2d at pages 349-350]: ensuring the safety of the officers and others present, preventing flight of residents involved in the suspected criminal activity, and facilitating orderly completion of the search. In many instances the identity and resident or nonresident status of a person encountered as the search is beginning are not immediately apparent to the searching officers, and cannot safely be determined without momentarily restricting the person’s freedom of movement. As the Summers court noted, in such ambiguous and fluid circumstances the risk of violence is minimized if the police exercise complete command of the search site. (Ibid.)

Under Terry the touchstone of reasonableness for search or seizure without probable cause is the presence of “specific and articulable facts” that reasonably warrant the intrusion on personal liberty and privacy. (Terry, supra, 392 U.S. at p. 21 [20 L.Ed.2d at pp. 905-906].) The existence of a

Conclusion

The circumstances in which the police officers encountered defendant at the residence to be searched gave them sufficient grounds to detain him briefly for the purposes of identification and protection of the officers’ safety. The Court of Appeal erroneously held the initial detention illegal and did not decide the remaining questions raised by the suppression motion. The judgment of the Court of Appeal is therefore reversed, and the cause is remanded to that court for further proceedings consistent with our opinion.

Lucas, C. J., Mosk, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.