Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. PA057385, Charles L. Peven, Robert J. Schuit, Judges.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and Robert M. Snider, Deputy Attorneys Generals, for Plaintiff and Respondent.
RUBIN, J.
INTRODUCTION
Appellant Jesse James Thompson challenges his possession of heroin conviction on the ground the trial court erroneously denied his suppression motion. We conclude the police officers’ exceeded the bounds of constitutional reasonableness by conducting a patdown search of appellant.
BACKGROUND AND PROCEDURAL HISTORY
Los Angeles Police Department officers received information that a parolee-at-large was residing at a particular home. From an alley behind that home, the officers recognized a man walking through the backyard toward a garage as the parolee for whom they were searching. The officers entered the yard and garage with guns drawn, and ordered the parolee and appellant to emerge from the garage and lie on the ground. They handcuffed appellant and the parolee, stood them up, then patted them down. During the patdown, appellant managed to remove a small mesh bag of hypodermic needles from his rear pocket. One of the officers saw the needles and arrested appellant.
Appellant moved to suppress the narcotics that apparently were recovered during an ensuing search, along with paraphernalia, police officers’ observations, and appellant’s statements. After a hearing, the court denied the motion. Appellant then changed his plea to nolo contendere. He received probation under the terms of Proposition 36, but his probation was later terminated as a result of a new charge. Appellant admitted violating his probation and was sentenced to the low term of 16 months, to be served concurrently with the sentence in Case No. PA057566.
DISCUSSION
Appellant’s sole contention on appeal is his motion to suppress was improperly denied. He argues he was either arrested without probable cause or improperly detained, and that the patdown search was impermissible under the circumstances.
The evidence at the hearing on appellant’s suppression motion was undisputed. Officer Nicholas Abinanti testified that he and his partner went to a particular residential address to search for a parolee-at-large whom they believed was living at that location. They drove down the alley and saw the parolee walking through the backyard of the residence toward a detached garage. The officers parked, approached the garage, and heard music and men’s voices inside it. They knocked on the large door, but received no response. They walked through an open gate into the yard and approached an open “pedestrian” door into the garage. With guns drawn, the officers stepped to the doorway and saw appellant and the parolee. The officers ordered both men to leave the garage, then ordered them to lie on the ground in the yard. The men complied, and the officers handcuffed each of the men behind their backs. Abinanti testified they did this for “safety reasons” and in order to “continue conducting our investigation.” The men did not attempt to get up from the ground.
Other officers arrived in about one minute, and appellant and the parolee were then allowed to stand up. Abinanti and his partner then “cleared” the garage and house to make sure no one else was present “lying in wait to ambush” the officers. Appellant and the parolee remained handcuffed and under guard by the other officers while Abinanti and his partner checked the garage and house. At the time of the events, Abinanti knew the nature of the parolee’s conviction, but he no longer recalled it at the time of the suppression hearing. Abinanti testified he had no specific information that the parolee was armed. They did not know who appellant was and had no information that he was engaged in any criminal activity. Neither appellant nor the parolee made any threatening movements while they were in Abinanti’s presence.
Sergeant Frank Whitman testified that he and two other police officers responded to the house to support Abinanti and his partner. When they arrived, appellant and the parolee were handcuffed in the backyard. Officer Verna began a pat search of appellant, and Whitman saw appellant pull a small package from his rear trousers pocket. Appellant remained handcuffed behind his back at the time. Whitman saw appellant move the package toward the waistband of his trousers and attempt to “stick it down his pants.” One side of the package was clear mesh, and Whitman could see that the package contained hypodermic needles. He walked behind appellant and took it away from him. At the time, it was “halfway shoved . . . down the rear portion of his pants.” Whitman also did not recall the nature of the parolee’s conviction.
Abinanti testified that two to five minutes elapsed from the time appellant was ordered to exit the garage until he was placed under arrest. Appellant was removed from the scene fifteen minutes after he was ordered out of the garage.
No witnesses testified for the defense.
1. Standard of Review
A warrantless search is presumed to be illegal. (Mincey v. Arizona (1978) 437 U.S. 385, 390.) The prosecution always has the burden of justifying a warrantless search or seizure by proving that it fell within a recognized exception to the warrant requirement. (People v. Williams (1999) 20 Cal.4th 119, 130; People v. James (1977) 19 Cal.3d 99, 106.)
In ruling upon a motion to suppress, the trial court judges the credibility of the witnesses, resolves any conflicts in the testimony, weighs the evidence, and draws factual inferences. We will uphold the trial court’s findings, express or implied, on such matters if they are supported by substantial evidence, but we independently review whether the search or seizure was reasonable under the Fourth Amendment. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).) Whether an interaction between the police and an individual constitutes a consensual encounter, a detention, or an arrest is an issue of law subject to de novo review on appeal. (People v. Franklin (1987) 192 Cal.App.3d 935, 940; see also People v. Boyer (1989) 48 Cal.3d 247, 262-263, 267-268 [Supreme Court determined encounter was arrest, not detention or consensual encounter] overruled on another ground in People v. Stansbury (1995) 9 Cal.4th 824.)
2. Appellant was detained, not arrested.
“ ‘[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.’ ” (People v. Celis (2004) 33 Cal.4th 667, 674-675 (Celis), quoting In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.) The duration, scope and purpose of a detention are important factors in determining whether it constituted a permissible detention or an impermissible arrest. (Celis, supra, 33 Cal.4th at p. 675.) “[S]topping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a short period . . . do not convert a detention into an arrest.” (Ibid.) “Of significance too are the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.” (Id. at pp. 675-676.)
Aiming a gun at appellant, forcing him to lie on the ground, and handcuffing him behind his back were severe tactics suggestive of arrest, rather than detention. Nonetheless, it was undisputed that the seizure of appellant lasted just two to five minutes from the time he was ordered out of the garage until he was officially arrested. After asserting control over appellant, the police acted swiftly to “clear” the garage and house and patdown appellant and the parolee. The conduct of the police indicates their purpose in detaining appellant was to eliminate any threat he might pose to their safety and ensure that he would not interfere with their arrest of the parolee. Accordingly, we conclude that the seizure constituted a detention, rather than an arrest.
3. The pat search of appellant was unconstitutional.
Detentions and patdown searches of persons present in or outside of a premises where the police are lawfully searching or arresting another person may be constitutionally permissible. (Michigan v. Summers (1981) 452 U.S. 692 (Summers); Glaser, supra, 11 Cal.4th 354.) The police intrusions in each case are analyzed for reasonableness under the Fourth Amendment by balancing “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.” (Glaser, supra, 11 Cal.4th at p. 365.)
In Summers, supra, 452 U.S. 692, the United States Supreme Court extended the principles enunciated in Terry v. Ohio (1968) 392 U.S. 1, to the detention of a man leaving a residence as the police were arriving to execute a search warrant for narcotics. The police asked the man to assist them in entering the house, but he claimed he had left his keys inside. They detained the man while they entered and searched the house. After the police found drugs and learned that the man owned the house, they arrested and searched him. (Summers, supra, 452 U.S. at p. 693.) The Supreme Court held that the man’s detention met “the ultimate standard of reasonableness embodied in the Fourth Amendment.” (Id. at pp. 699-705.)
In reaching this conclusion, the Summers court noted that it was of “prime importance . . . that the police had obtained a warrant to search respondent’s house for contraband. A neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there. The detention of one of the residents while the premises were searched, although admittedly a significant restraint on his liberty, was surely less intrusive than the search itself.” (Summers, supra, 452 U.S. at p. 701.) The court also found it significant that “the type of detention imposed here is not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention.” (Id. at pp. 701-702.) In addition, because the man was detained inside his own residence, the detention “could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.” (Id. at p. 702.)
Against these attributes of the intrusion, the Summers court weighed “both the law enforcement interest and the nature of the ‘articulable facts’ supporting the detention.” (Summers, supra, 452 U.S. at p. 702.) It found the police had a legitimate interest in “preventing flight in the event that incriminating evidence is found,” facilitating “the orderly completion of the search” through residents opening locked doors or containers to prevent the police from damaging them by forcible opening, and “minimizing the risk of harm to the officers.” In regard to the final factor, the court noted, “Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” (Id. at pp. 702-703.) Finally, the court explained that “[I]t is also appropriate to consider 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. We have already noted that the detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant. The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. 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 a detention of that occupant.” (Id. at pp. 703-704.)
In Glaser, supra, 11 Cal.4th 354, the defendant arrived at a house seconds before the police, who had a warrant to search the premises for narcotics and paraphernalia. The defendant was about to open a gate into the backyard. An officer in plain clothes approached the defendant and spoke to him, but the defendant did not recognize him as a police officer or understand what the man was saying, possibly because it was stormy. After several minutes, the defendant understood the officer had his gun pointed at him and was ordering him to lie down on the ground. The officer handcuffed the defendant behind his back. About six minutes later, officers took the defendant into the house. Although the officers then patted down the defendant, the Supreme Court addressed only the validity of the initial detention, not the subsequent patdown. (Id. at pp. 360-361.)
In examining the extent of the intrusion, Glaser noted that the officers’ use of their guns increased the intrusiveness of the detention, whereas the extreme brevity of the detention and its location at “the back gate of a private residence” diminished its intrusiveness. (Glaser, supra, 11 Cal.4th.at pp. 366-367.) Moreover, because the detention was incidental to the execution of a search warrant, and “there was no evidence of an independent investigatory purpose,” it was unlikely to be abused by the officers. (Id. at p. 367.)
The court concluded the portion of the detention within the scope of review lasted just two minutes. (Id. at pp. 366-367.)
The Glaser court found two strong, interrelated governmental interests justifying the detention: “the officers’ concern for security while they executed the search warrant and their interest in determining what connection, if any, defendant had with the premises being searched.” (Glaser, supra, 11 Cal.4th.at p. 367.) The court noted that “[t]he police interest in protecting against violence during the search of a home for narcotics has been widely recognized” because it is likely that persons selling narcotics are armed or have ready access to firearms, and police officers in a suspected dealer’s home are in unfamiliar surroundings and at greater risk of ambush than in a public place. (Id. at pp. 367-368.) In addition, the police have a broad interest in “determining the identity of a person entering premises being searched” and the person’s connection to the premises in order to determine the degree of risk they pose to officers, whether “there is reason to suspect the person of involvement in criminal activities on the premises,” and whether the person can be of assistance in facilitating the search. (Id. at p. 358.)
The court in Glaser then weighed the governmental interests against the invasion of the defendant’s privacy and security, “keeping always in mind that ‘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.’ [Citation.] We look, that is, to ‘the nature of the articulable and individualized suspicion’ justifying the detention. [Citation.]” (Glaser, supra, 11 Cal.4th.at pp. 368-369.) It concluded that the detention of the defendant was constitutionally reasonable because the officers did not recognize him, his attempted entry into the backyard indicated he was familiar with the house and its occupants, and if he were not stopped, he would come up behind the officers who were beginning to search the home and its outbuildings where there was probable cause to believe “criminal drug activity was occurring.” (Id. at p. 369.) In addition, the defendant did not respond when the officer attempted to communicate with him, and this left the officer with “no practical choice but to detain defendant.” (Ibid.) Detention served to determine the defendant’s identity and connection to the house. The court concluded it was reasonable for the officer to point a gun at the defendant, order him to lie on the ground, and handcuff him. (Ibid.)
The principles of Summers, supra, 452 U.S. 692, and Glaser, supra, 11 Cal.4th. 354, have been applied in a number of ensuing appellate decisions, most involving drug-related searches by the police. For example, in People v. Matelski (2000) 82 Cal.App.4th 837, upon which the trial court relied in denying appellant’s motion, the police arrived at a house to conduct a probation search prompted by the probationer’s failed drug test. The defendants, who were not the subject of the search, were walking out of the front door as the police arrived. The police ordered the defendants to approach, explained that the probationer was prohibited from associating with convicted felons, and asked the defendants for their names and dates of birth. This information was relayed to the police dispatcher, and outstanding warrants were discovered for both defendants. They were arrested and then searched. (Id. at pp. 841-842.) The appellate court concluded the 15-minute detention prior to arrest was constitutionally reasonable. The court explained that it was brief and relatively private, in that the house was in a remote area. (Id. at pp. 849-850.) It was justified by the necessity of learning whether the probationer was violating the terms of his probation and protecting the officers. (Id. at p. 850.) The court noted that there was suspicion of drug activity at the house, and one of the defendants was larger than the officer and upset at being detained. (Ibid.)
In People v. Hannah (1996) 51 Cal.App.4th 1335, the police received a tip that a juvenile for whom there was an arrest warrant was located in a particular apartment. They went to the apartment and a woman permitted them to enter to look for the juvenile. The defendant and another adult man were seated in the living room. One officer asked the men to remain seated, then asked them who they were, why they were there, and what relationship they had to the woman who answered the door. While the other officer looked through the apartment, the officer in the living room noticed that the defendant appeared to be under the influence of drugs. He attempted to place the defendant under arrest, and, after a struggle, succeeded in subduing him. The defendant was not searched until after he was arrested. (Id. at p. 1339.) The appellate court concluded the detention was permissible. It noted the officers did not draw their guns or threaten to do so, and did not handcuff, patdown, or search the defendant prior to his arrest. (Id. at p. 1344.) The entire detention was a request that he remain seated, it all occurred in private, and it lasted, at most, several minutes. (Id. at pp. 1343-1344.)
With respect to the governmental interests, the court concluded, “Objectively, it is reasonable for a police officer who is in a residence attempting to execute an arrest warrant to determine who is present. This is true even when he does not reasonably believe any one of them is the subject of the arrest warrant. If the police officer has received information the suspect he is attempting to arrest is in the residence, it is reasonable to conclude people inside may know the suspect and have information concerning where he might be found. Additionally, a reasonable police officer could be concerned the individuals in the residence not only know the suspect, but are either related to or friends with him. Therefore, it is reasonable to conclude the individuals may attempt to alert the suspect to the fact the police are there or might assist him in escaping.” (Id. at p. 1345.) The fact the officers were not executing a search warrant reduced, but did not eliminate concerns for officer safety. (Id. at pp. 1345-1346.) “The reasonableness of the police officers’ belief that detaining defendant, even briefly, was necessary to protect their safety must be evaluated from the perspective of the police officers who entered the apartment. They were entering a residence, the exact floor plan of which they were unaware, to arrest a juvenile they had been told may be present, when they encountered individuals whose identity and relationship to the juvenile they were seeking was unknown. Faced with these circumstances, any reasonable person would find an initial detention of the individuals encountered was necessary to ensure the safety of the police officers.” (Id. at p. 1346.)
In light of these authorities, we conclude that, it was permissible for the police to order appellant from the garage and detain him in some fashion at gunpoint while arresting the parolee. We need not determine whether ordering appellant onto the ground and handcuffing him behind his back was reasonable, as these actions did not result in the discovery of any contraband or lead appellant to make any incriminating statements.
We conclude, however, that the pat search of appellant was constitutionally unreasonable. The prosecution, which bore the burden of proving that the police conduct was constitutional, did not establish circumstances justifying the search. There was no evidence of the nature of the parolee’s conviction and, critically, no evidence that the police suspected any type of criminal activity was occurring at the premises where they found the parolee. Nor was there any evidence that the police had reason to believe or even suspect that the parolee or appellant might be armed or have ready access to weapons. Unlike Summers, Glaser and Matelski, the absence of any suspicion that illegal drug activity was occurring at the premises precluded an assumption that weapons would be present.
Moreover, once appellant and the parolee left the garage, their only possible access to weapons was to those they were already carrying on their person. Once the men were lying on the ground, handcuffed behind their backs, and watched by two officers who were pointing guns at them, their ability to extract a weapon from their persons and deploy it was further reduced to a minimal level. By the time appellant was pat-searched, additional officers had arrived to watch him. There was no evidence that appellant was incompliant, fidgety, irate or otherwise behaved suspiciously at any time.
The purpose of the police presence at the premises was to take the parolee into custody. Unlike Summers, Glaser, Matelski and cases such as People v. Samples (1996) 48 Cal.App.4th 1197 (Samples) [warranted search for illegal drugs] and People v. Thurman (1989) 209 Cal.App.3d 817 (Thurman) [same], the officers were not present to search the premises. Unlike those cases, the officers were not going to be on the premises for an extended period of time. They saw the parolee and quickly seized him. They were able to focus their attention on appellant and the parolee, unlike officers searching a home, whose attention is necessarily diverted from the occupants by the necessity of looking through rooms, closets, cabinets, drawers and containers for the objects of the search. The officers’ speedy location and capture of the parolee also distinguishes the present case from Hannah, where the officers had to search through the apartment for the person they sought.
Under the circumstances, pat-searching appellant cannot be justified by officer safety concerns. The officers had appellant under complete control while aiming guns at him as he lay on the ground with his hands cuffed behind his back, and they had no specific, articulable reasons for believing he had been engaged in criminal activity or that he posed any danger to them. It is important to observe that in Summers, Hannah and Matelski, no patdown or other search was conducted before the defendant was placed under arrest. In Glaser, such a search occurred, but the Supreme Court did not review its legitimacy. In Thurman and Samples, the officers conducted patdown searches, which the appellate courts found reasonable, but both cases involved underlying warranted searches for illegal drugs. Moreover, the persons patted down in Thurman and Samples were neither handcuffed nor lying on the ground, and the police did not have their guns drawn. (Samples, supra, 48 Cal.App.4th at pp. 1200, 1207; Thurman, supra, 209 Cal.App.3d at p. 821.)
In Samples the defendant’s wife testified the officers had their guns drawn, but the trial court accepted the officer’s testimony to the contrary. (Samples, supra, 48 Cal.App.4th at pp. 1201, 1203, 1207.)
Other governmental interests identified in cases such as Summers, Glaser, Matelski and Hannah are inapplicable under the circumstances of the present case. Apart from its relationship to officer safety, there was no governmental interest in preventing appellant from fleeing the scene. There was no suspicion that illegal activity was occurring at the premises, and there was therefore no expectation or likelihood that incriminating evidence would be found. The person the police intended to arrest was a parolee-at-large, not a suspect in recent criminal activity. In any event, appellant’s detention prevented him from fleeing. The patdown search did not further this purpose. Because the officers were simply there to arrest the parolee, not to search, any unproven ability of appellant to facilitate entry into rooms or containers was irrelevant. Finally, appellant’s identity was irrelevant to the officer’s purposes in arresting the parolee, who apparently was already known to be in violation of his parole by not reporting. To the extent appellant’s identity might have provided additional grounds for finding the parolee in violation, appellant’s detention was sufficient to enable the police to learn his identity. A patdown search did not further this purpose.
Accordingly, the pat search was constitutionally unreasonable. It was not justified by governmental interests and the officers possessed no “individualized and objective facts that made those interests applicable in the circumstances . . . .” (Glaser, supra, 11 Cal.4th at p. 365.)
Respondent argues that appellant “actually revealed the evidence himself” by removing the packet of needles from his pocket. However, appellant’s actions occurred during the impermissible patdown search and it is reasonable to infer they were directly induced by the patdown search. There is no evidence appellant attempted to remove or conceal the needles or anything else before the officer began the impermissible search. Even if the needles were deemed not to be the product of the search, they would be subject to exclusion as derivative evidence obtained as a result of, and tainted by, the unconstitutional search. (People v. Williams (1988) 45 Cal.3d 1268, 1299.)
Accordingly, appellant’s conviction must be reversed.
DISPOSITION
The judgment is reversed.
We concur: COOPER, P. J., FLIER, J.