Opinion
Court of Appeals No. A-9820.
January 14, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court Nos. 3AN-05-10077 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Ramón A. Cedeño of one count of fourth-degree misconduct involving a controlled substance. Cedeño moved to suppress the evidence, arguing that the police had illegally seized and searched him when they stopped him then outside of an apartment where the police were executing a search warrant. Cedeño appeals the superior court's denial of his motion to suppress. Because we conclude that the police were not authorized to remove Cedeño from the scene and then search him, we reverse the superior court.
AS 11.71.040(a)(3)(A) (possession of cocaine).
Background facts and proceedings
On September 28, 2005, the Anchorage Police Department aided federal Drug Enforcement Agency (DEA) officers in executing a search warrant for apartment B-104 at 4240 Folker Street in Anchorage. The apartment was leased to Frank Mota-Rijo — a suspected drug dealer — and was one of two places to be searched that night as part of a coordinated effort by the Anchorage police and the DEA. The police had information from an informant, as well as from their investigation, that Mota-Rijo was distributing drugs from apartment B-104.
From 10:00 a.m. through the rest of the day, the officers watched Mota-Rijo's apartment. Sometime between 7:30 and 8:00 p.m., the officers prepared to execute the search warrant. One of the officers stationed outside B-104, Officer Jason Penman, "observed movement that caught [his] eye." Unlike some other apartments, apartment B-104 had two entrances: a main entrance from the stairwell, and a wheelchair-accessible ramp on the building's side. The wheelchair ramp accessed Mota-Rijo's dining room and no other apartment in the building. Penman "saw a black male adult standing just outside the threshold of the doorway to the wheelchair access" to B-104. That man was Cedeño.
Penman had his firearm at the "low ready" position when he quickly approached Cedeño. According to Penman, Cedeño appeared nervous and was looking around as if to escape — perhaps thinking about jumping off of the wheelchair ramp. As Penman approached, he announced "[S]top, don't move, Anchorage Police." Penman waited for other officers to take over control of Cedeño while the search warrant was being executed.
A short time later, Officer Ryan Rockom received instructions to arrest Cedeño and transport him to DEA headquarters. Before placing Cedeño in a patrol car, Rockom performed a pat-down search of Cedeño. During this search, Rockom "felt . . . a film canister" in Cedeño's pants pocket, and reached in the pocket and removed a "black 35-millimeter film canister." Based on his past experiences and training, as well as the circumstances at the time, Rockom "felt that there was a high probability that . . . [the] film canister . . . did contain illegal narcotics." Instead of opening the film canister, Rockom brought Cedeño to DEA headquarters and turned the canister over to the case officer, Detective Monique Doll.
Doll opened the film canister without a warrant based on her belief that there was ample probable cause that it contained illegal narcotics. She testified that "[t]here wasn't a doubt in [her] mind that there was going to be cocaine or crack cocaine inside that film canister." Doll found a small amount of crack cocaine in the canister. According to Doll, Cedeño was not under arrest when he was brought to DEA headquarters. Instead, "he was being detained for purposes of questioning in the drug investigation. After [she] opened the film canister he was being detained because he was under arrest for possessing a controlled substance."
After the grand jury indicted Cedeño on one count of fourth-degree misconduct involving a controlled substance, Cedeño filed a motion to suppress the evidence obtained from Rockom's pat-down search and Doll's opening of the film canister.
Superior Court Judge Michael L. Wolverton presided over evidentiary hearings where the State called Penman, Rockom, and Doll to testify. Judge Wolverton ruled that there was a "nexus" between Cedeño and Mota-Rijo's apartment because Cedeño "was seen right outside on a ramp that had access only to B-104." Based on this finding, Judge Wolverton ruled that the police could contact and pat down Cedeño. Judge Wolverton then upheld the search of the film canister under the inevitable discovery doctrine. Consequently, Judge Wolverton denied Cedeño's motions. Cedeño was convicted at trial and now appeals.
Discussion
The State argues that the police were authorized to detain Cedeño and pat search him.
In Michigan v. Summers, the United States Supreme Court held that police officers serving a search warrant at a residence have "a limited authority to detain the occupants of the premises. . . ." This court relied on Summers in Way v. State, where we stated that restraining the occupants of a residence while a warrant is executed can be "justified (1) by the fact that a judicial officer has already authorized a police entry of the residence . . . and (2) by the officers' need to protect themselves from attack while they are executing the warrant, and to prevent the occupants from concealing or disposing of the items described in the search warrant." We found further support for our decision in Way in People v. Bailey, a decision from the Illinois Court of Appeals. In Bailey, the police detained a person present in a residence to prevent him from interfering with their execution of an arrest warrant. Yet, the police expanded the scope of Bailey's detention by searching him for illegal items. The Bailey court concluded that Summers was an application of the United States Supreme Court's decision in Terry v. Ohio — which held that under the Fourth Amendment, police officers may briefly detain people for a potential crime (an investigative stop) even though the officers do not have probable cause to make an arrest — to a specific circumstance, the execution of a warrant.
452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
Id. at 705, 101 S. Ct. at 2595.
101 P.3d 203 (Alaska App. 2004).
Id. at 206 (citing Summers, 452 U.S. at 702-05, 101 S. Ct. at 2594-95).
733 N.E.2d 891 (Ill.Ct.App. 2000).
Id. at 894-95.
Id. at 895.
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Way, 101 P.3d at 208. See also Bailey, 733 N.E.2d at 894-95 (citing People v. Spann, 604 N.E.2d 1138 (1992) (applying Terry where the police stopped and frisked the defendant inside an apartment while executing a search warrant for the apartment)).
Also, in Coleman v. State, the Alaska Supreme Court set a "somewhat more stringent [standard] than the standard for investigatory stops under the [F]ederal [C]onstitution." The Alaska standard requires a police officer to have "a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred."
553 P.2d 40, 46 (Alaska 1976).
State v. Wagar, 79 P.3d 644, 647 n. 3 (Alaska 2003).
Coleman, 553 P.2d at 46; see also Ebona v. State, 577 P.2d 698, 700 (1978).
Judge Wolverton found that the evidence established a nexus between Cedeño and apartment B-104. He found that Cedeño was on the ramp outside the apartment, and could not have come from any other place. Considering Cedeño's connection to B-104, there were "specific and articulable facts which, taken together with rational inferences from those facts, reasonably . . . `warrant[ed] a man of reasonable caution in the belief' that the [brief detention] w[ould be] appropriate." Thus, the police were authorized to detain Cedeño outside the apartment.
Coleman, 553 P.2d at 45 (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880).
After this initial detention, the police moved Cedeño to a patrol car where he was searched and the film canister was found and removed from his pocket.
In Ybarra v. Illinois, the United State Supreme Court considered the authority of the police to search persons present at a location when the police execute a search warrant. The police in Ybarra were executing a search warrant that authorized the police to search a tavern and the barkeeper at the tavern. The tavern was open when the police executed the warrant and the police frisked each customer for weapons. One officer discovered a cigarette pack on Ybarra that contained packets of heroin. Illinois argued that police officers should be allowed to search those present for the objects named in the search warrant. However, applying that rule, the Supreme Court concluded that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." The Supreme Court decided that the "narrow scope" of Terry's frisk standard was applicable: A police officer may conduct a limited search of persons present "to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted." With respect to a private residence, in Summers, the Supreme Court ruled that police officers serving a search warrant on a residence have "the limited authority to detain the occupants of the premises" while conducting their search.
444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979).
Id. at 87-88, 100 S. Ct. at 340-41.
Id. at 88-89, 100 S. Ct. at 341.
Id., 100 S. Ct. at 340-41.
See id. at 92-94, 100 S. Ct. at 343-44.
Id. at 91, 100 S. Ct. at 342 (citing Sibron v. New York, 392 U.S. 40, 62-63, 88 S. Ct. 1889, 1902, 20 L. Ed. 2d 917 (1968)).
Id. at 93, 100 S. Ct. at 343.
Summers, 452 U.S. at 705, 101 S. Ct. at 2595.
The State argues that this court should extend Summers' bright-line rule that officers serving a search warrant on a residence have a "limited authority to detain the occupants of the premises" while conducting their search. Specifically, the State contends that once the police legally detain a person, the police are authorized to frisk the person in order to ensure officer safety. However, this contention conflates the reasonable suspicion necessary for a stop with the additional reasonable suspicion required to justify a frisk.
Id.
In Terry, the Court distinguished the initial detention from the protective search. According to Terry, after detaining a person, an officer may, if necessary, investigate further by "conduct[ing] a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." This limited search — the frisk for weapons — is allowed when "nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety."
Terry, 392 U.S. at 30, 88 S. Ct. at 1884.
Id. at 30, 88 S. Ct. at 1884-85.
Id., 88 S. Ct. at 1884.
The requirement of a separate justification for a frisk is also apparent in Sibron v. New York, a companion case to Terry. In Sibron, a police officer observed the defendant speaking with several known drug addicts during an eight-hour period. After Sibron entered a restaurant (where he spoke to some other drug addicts) and ordered pie and coffee, the police officer took the defendant outside. Once outside, the officer put his hands in the defendant's pockets while stating: "You know what I am after." The Court focused its analysis not on the officer's detention of the defendant, but on the officer's defective grounds for performing such a search:
392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).
Id. at 45, 88 S. Ct. at 1893-94.
Id.
Id., 88 S. Ct. at 1894.
Before [a police officer] places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.
Id. at 64, 88 S. Ct. at 1903 (emphasis added).
In Way, we recognized the limited authority the police have to detain third parties when executing warrants, noting that although the police may be justified in detaining occupants present at the premises when executing a warrant, that authority is normally limited to the time period it takes to execute the warrant, and does not automatically provide grounds to search each person detained.
Way, 101 P.3d at 205-06.
See id., 101 P.3d at 209.
Id. at 211-13.
This court stated in Way that:
[I]f the search warrant is for evidence of a violent crime (or a crime that is commonly associated with violent behavior, such as drug dealing), and if the police have reason to believe that the people on the premises are associated with that crime, then the police will often have the requisite basis for a protective frisk.
Id. at 211.
We also recognized that Terry and Ybarra require the police to have affirmative indications that a detainee both possesses a weapon (or an object that could be used as a weapon), and is potentially motivated to use that weapon against the officer, before a frisk is authorized.
Id. at 213.
At Cedeño's suppression hearing, Officer Rockom was asked "[w]hat specific information made you think Mr. Cedeño was a drug trafficker or drug user?" Officer Rockom replied that there was "[n]othing specifically regarding [Cedeño]. Merely the fact that he had been . . . detained in proximity to the residence that they — they were serving this — the search warrant on." Detective Doll's testimony confirmed this lack of particularized suspicion when she stated that she wanted to see "if [they] had anything other than Mr. Cedeño's proximity to a cocaine house with which to detain him."
The only specific facts that the police had pertaining to Cedeño, as reflected in the testimony at the evidentiary hearing, were (1) that Cedeño was present at the scene as the search warrant was being executed, and (2) that Cedeño appeared nervous and might have been looking for an escape route when initially contacted by a police officer with a gun in the "low ready" position.
The officers' testimony gave no indication that they feared Cedeño might pose a safety concern while they secured the perimeter to execute the warrant. Instead, the officers' testimony indicates that they only decided to search Cedeño before placing him in the patrol car to drive him to headquarters for interrogation. Thus, the search of Cedeño's pocket is more similar to a search incident to an arrest rather than a Coleman-type frisk.
Of the three police officers who testified at the suppression hearing, none ever articulated the grounds for why Cedeño should have been detained for a longer period of time than it took for the police to execute their search warrant. Detective Doll, the case officer, was not at all present when the search warrant was being executed. Officer Rockom, the officer who secured the perimeter and frisked Cedeño before bringing him to headquarters, was not aware of anything specific that Cedeño had done to merit being detained. And Officer Penman, the officer who initially detained Cedeño, stated that he never ordered Cedeño to be arrested, but handed him off to two other unnamed officers. Thus, there is nothing in the record that indicates why any officer felt it necessary to detain Cedeño for longer than it took to execute the search warrant. Consequently, during the suppression hearing the State failed to articulate any reasonable grounds (besides his location and nervousness) which might call for Cedeño being frisked for weapons.
Next, the State argues that the police had probable cause to believe that Cedeño possessed evidence of drug dealing on his person. Essentially, the State argues that the police had probable cause to arrest Cedeño.
In contrast to a Coleman stop, if the police take a person into custody and transport the person to another site for interrogation or other investigation, the police must normally have probable cause. For example, in Davis v. Mississippi, the defendant and twenty-three other suspects were detained for interrogation and fingerprinting at a police station following a sexual assault that had occurred days before. The Supreme Court held that the defendant's fingerprints should have been excluded as fruit of the poisonous tree from the officers' violation of the Fourth Amendment in failing to have probable cause for such an arrest. And in Dunaway v. New York, the police took a suspect into custody at his home and then brought him to a police station for questioning. New York argued that Terry should be extended to allow police to briefly bring a suspect to a police station for questioning (a relatively lesser-intrusive seizure) based on a lesser quantum of evidence than would normally be required for a full arrest. But the Court rejected this argument, recognizing the difficulty in distinguishing between such detentions and actual arrests: "[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room." Because the police did not have probable cause to arrest the defendant in Dunaway, the Court held that his Fourth Amendment rights had been violated and excluded his resulting confession.
394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969).
Id. at 722-23, 89 S. Ct. at 1395.
Id. at 726-27, 89 S. Ct. at 1397.
442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979).
Id. at 211-12, 99 S. Ct. at 2256.
Id. at 212, 99 S. Ct. at 2256.
Id. at 218-19, 99 S. Ct. at 2260.
This principle — requiring probable cause before police take a suspect into custody — was recently affirmed in Kaupp v. Texas. In Kaupp, the Court found that "involuntary transport to a police station for questioning is `sufficiently like arres[t] to invoke the traditional rule that arrests may constitutionally be made only on probable cause.'"
538 U.S. 626, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003).
Id. at 630, 123 S. Ct. at 1846 (alteration in original) (quoting H ayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647 (1985)).
In his treatise on criminal procedure, Professor LaFave explains that this case law provides that "a taking of the suspect to the police station in lieu of conducting the investigation at the scene will ordinarily take the police conduct outside the Terry rule."
2 Wayne R. LaFave, et al., Criminal Procedure § 3.8(b), at 310 (3d ed. 2007).
Probable cause to arrest exists if the facts and circumstances known to the officer would support a reasonable belief that an offense has been or is being committed by the suspect.
State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
Aside from Cedeño's nervous demeanor and his presence at the scene, the officers had no specific knowledge about Cedeño that could establish probable cause that he possessed evidence of drug dealing. Because the officers did not have probable cause, they were not authorized to search Cedeño before placing him in the patrol car to drive him to the police station. Accordingly, we must reverse the order of the superior court denying Cedeño's motion to suppress.
Conclusion
The judgment of the superior court is REVERSED.
I write separately to clarify my reasons for concluding that the evidence against Cedeño must be suppressed.
The evidence (viewed in the light most favorable to the superior court's ruling) supports the conclusion that Cedeño had just walked out of the apartment that the police had come to search. But other than this, the police had no evidence that Cedeño was a participant in the drug dealing activities that the police had come to investigate.
See Crawford v. State, 138 P.3d 254, 258 (Alaska 2006); State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001); Tuttle v. State, 175 P.3d 60, 62 (Alaska App. 2008).
Arguably, the fact that Cedeño had apparently just walked out of the apartment gave the police justification for temporarily detaining Cedeño while they conducted their search. But when the police decided to transport Cedeño to DEA headquarters without his consent, the "temporary detention" became an arrest for Fourth Amendment purposes (even if no one formally arrested Cedeño). Because there was no probable cause for this arrest, it was unlawful.
The search of Cedeño's person (which resulted in the discovery of the film canister in his pocket) was not conducted as part of the initial temporary detention. Rather, the search of Cedeño's person was conducted as part of the protocol for transporting prisoners — and, as noted in the preceding paragraph, this transportation was illegal. Moreover, the State offered no testimony that would have supported a limited search of Cedeño's person as part of the initial temporary detention: there was no evidence that the officers had reason to believe that Cedeño was armed or otherwise posed a threat to them.
As explained in Judge Stewart's lead opinion, the superior court concluded that, once Cedeño was detained outside the apartment, the discovery of the cocaine in his film canister by lawful means was "inevitable". The superior court offered no explanation for this conclusion, and the evidence presented at the hearing provides no support for a theory of inevitable discovery. Indeed, the State makes no effort to defend the superior court's ruling on appeal.
Instead, the State offers an alternative rationale for upholding the superior court's denial of Cedeño's suppression motion. The State suggests that the film canister found in Cedeño's pocket was a "single-purpose container" — a container that had no purpose other than to hold and transport illicit drugs — and that, therefore, it could be searched without a warrant under the "plain view" exception.
One might think that the very name of this container, "film canister", is a sufficient rebuttal of the State's contention. Given the fact that this container was manufactured and distributed for the lawful purpose of holding photographic film, it seems strange indeed for the State to claim that the sole purpose of this container is to hold and transport illicit drugs.
It is true, of course, that people re-use small containers for many different purposes. For instance, I have an opaque plastic film canister in my office; it contains foam ear plugs for those occasions when the courthouse fire alarm (which is fairly ear-piercing) goes off.
This fact — that people use film canisters for purposes other than carrying photographic film — illustrates that the State's argument in this case is not based on the assertion that film canisters have no legitimate purpose, and that they are used solely for holding and transporting illicit drugs. Rather, the State's argument is based on the assertion that, given the circumstances of this case, it was extremely likely that Cedeño was using this particular film canister to hold illicit drugs.
It may be true that the police had good reason to believe that Cedeño was carrying drugs in the film canister. But this does not mean that the film canister became a "single-purpose container" — any more than a purse, a baseball mitt, or an egg carton becomes a "single-purpose container" when the police have excellent reason to believe that it contains illicit drugs. All of this was ably explained by Judge Bryner in his concurrence in Newhall v. State, 843 P.2d 1254, 1261 (Alaska App. 1992).
Thus, even if the film canister had been seized lawfully (which it was not), the police could not lawfully search the canister for drugs without a warrant.
In sum: for two separate reasons — because the canister was unlawfully seized, and because the police did not procure a warrant before opening the film canister — the evidence found inside the canister must be suppressed.