PEOPLE v. SCHWIND (1989)

OPINION

Defendant and respondent, Aleta Marie Schwind, was charged by information with violation of Health and Safety Code section 11352, transportation of cocaine (count I), and violation of Health and Safety Code section 11351, possession of cocaine for sale (count II).   Defendant moved to suppress evidence under Penal Code section 1538.5, specifically “paper bindles and plastic baggies of controlled substances seized from defendant Schwind's person or her purse at the time of her arrest on April 16, 1987.”   The motion was grounded on defendant's claim her detention was not supported by sufficient facts.   After hearing, the trial court granted defendant's motion, finding:  “The officers accomplished an investigative detention without probable cause on the facts of this case to detain defendant.   The court does not, therefore, reach the issue of consent.”   The trial court thereafter dismissed the charges against defendant.   The People filed a timely notice of appeal.

FACTS

On April 16, 1987, Officer Perez of the Kern County Sheriff's Department, Officer Garcia and Detective McCathron, and several other officers went to 3031 San Emidio Street in Bakersfield for the purpose of serving a search warrant.

Spotting a woman in the house, Perez announced that he was a sheriff and that he had a warrant to search the house.   He then entered the house.   None of the officers were uniformed although they displayed badges on the front of their vests.

Upon entering the house, they found Marilee May and Cynthia Hiller in the living room.   A search of the premises revealed numerous items of suspected narcotics, and other items associated with narcotic dealings, including a scale.

Approximately 30 to 45 minutes after the search began, Garcia heard a knock on the door.   Garcia testified that during the execution of a search warrant it is common for people to come to the premises to buy narcotics.   When Garcia opened the front door, the defendant, standing outside the screen door, said, “Surprise.”   She then looked at Garcia and said, “You're not Marilee May.”   While Garcia was confirming the defendant's observation, Marilee May called from inside, “Don't come in, I'll talk to you later.”

The defendant started walking away, at which point Garcia called to her and told her to step inside.   Garcia testified that if the defendant had not wanted to come in, he would have spoken to her outside.   He said that he prefers to conduct such contacts inside the searched premises in order to attract as little attention as possible.   Garcia thought that the defendant might have been bringing drugs to the residence or coming to buy drugs.

It was the policy of the sheriff's department to contact people who come to a residence which is being searched in order to identify the person, determine why the person is at the residence, whether they live there, and determine whether the person is committing a crime, such as transporting drugs or purchasing drugs.   He indicated that the person is under detention during this process.   Garcia further testified it was department policy to photograph such persons and run a warrant check on them.   Until this process is completed, the person is not free to leave of his or her own volition.   In the instant case, Officer Garcia was aware from the time defendant arrived and knocked on the door that defendant was not the person named in the search warrant.   He further testified that at the time of defendant's arrival at the residence and her initial detention by him, he had no other information or evidence that led him to believe that she might be involved in some sort of criminal activity.

The defendant entered the residence as directed.   At that point, Garcia had shown the defendant his badge and identified himself as a sheriff's deputy, but he did not have his gun drawn or visible.   Garcia then turned the defendant over to Detective McCathron.

Detective McCathron testified that she did not have her gun drawn, although it was apparently visible.   She asked the defendant for identification and the defendant produced her driver's license.   Detective McCathron did not return the license to defendant.   Detective McCathron then asked if the defendant would mind if she checked her purse for guns or knives.   The defendant told her to go ahead, holding her purse open while McCathron made a cursory search.   McCathron testified that in the past where a person had refused to consent to a weapons search, the purse had been put aside until the person was allowed to leave.

McCathron then asked, “Ma'am, do you mind if I check your purse for narcotics?”   The defendant said, “Go ahead” and held her purse open.   McCathron testified that if a person refuses to consent to such a search, the search is not conducted and the person is allowed to leave if the person is not otherwise subject to detention.   In the defendant's wallet McCathron found a green paper bindle containing a substance she suspected was cocaine.

The defendant testified that on April 16, 1987, she went to Marilee May's house after having been out of town for over a year.   She said that she had not been sure May would know that it was she at the door.   The defendant knocked on the door, and heard May call out, “I'll call you later.”   The defendant testified that no one answered the door, and indicated that it was closed at the time.

She said that after May told her to leave, the door opened and she, the defendant, yelled, “Surprise.”   Deputy Garcia then asked the defendant to come into the house and said that he wanted to get some identification from her.

When the defendant met Detective McCathron, McCathron asked her for identification.   The defendant testified that she gave McCathron permission to search her purse for weapons, and then for drugs.   She testified that she gave permission for the searches because she thought she did not have a choice.¹

DISCUSSION

I. THE INITIAL DETENTION

The People contend the trial court erred as a matter of law in finding that the defendant's detention was not supported by sufficient cause.

The two-step procedure of appellate review of a motion to suppress evidence under Penal Code section 1538.5 was fully set forth in People v. Lawler (1973) 9 Cal.3d 156, 107 Cal.Rptr. 13, 507 P.2d 621.)   The trial court's factual findings relating to the challenged search or seizure “whether express or implied, must be upheld if they are supported by substantial evidence.”  (Id. at p. 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   The appellate court then exercises its independent judgment in determining whether, based on the facts as found, the search was constitutional.   (Ibid.)

The rules surrounding investigative detentions are also well-settled.

“As an initial matter we note that ‘[a]lthough each case [involving detention for questioning or limited investigation] must be decided on its own facts ․ [t]he guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution ․ is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”  [Citation.]’  [Citation.]

“The federal test for determining whether a detention is justified involves a weighing of (i) the public interest served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty [citation] and (ii) the officer's reasonable suspicion that a crime has occurred or is occurring (ibid.).   On the latter point, the United States Supreme Court's cases provide, ‘certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime’ [citations], and that ‘reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’  [Citations.]

“Relying on both federal cases and our own cases, we have acknowledged the same initial considerations (e.g., [In re ] Tony C. [1978] 21 Cal.3d [888] at pp. 892–893, 148 Cal.Rptr. 366, 582 P.2d 957] and, with regard to the second consideration, we have expressed essentially the same standard:  ‘[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.   Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so:  the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.   The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.  [Citation.]’  [Citation.]”  (In re James D. (1987) 43 Cal.3d 903, 913–914, 239 Cal.Rptr. 663, 741 P.2d 161, fn. omitted.)

In the instant case, the trial court concluded the initial detention was unlawful and suppressed the evidence obtained in the subsequent search of defendant's purse and wallet.   The People, appellant herein, argue:

“In this case, the police had ample facts showing that criminal activity was taking place.   They were searching a fixed location used for drug sales and had already found drugs.   As noted in Michigan v. Summers (1987) 452 U.S. 692, 701 [101 S.Ct. 2587, 2593, 69 L.Ed.2d 340], the issuance of the search warrant represented a judicial determination ‘that the law was being violated in that house.’

“The defendant's appearance at the house, coupled with her obvious intention to contact the occupant who was associated with drugs, was a sufficient indication that the defendant was, or intended to be, involved with drugs also․  In re Tony C. [ (1978) 21 Cal.3d 888, 148 Cal.Rptr. 366, 582 P.2d 957] made it clear that a detention is not rendered invalid by the fact that the circumstances may be as consistent with lawful as with unlawful activity.  (In re Tony C., supra, 21 Cal.3d 888, 893–894, 148 Cal.Rptr. 366, 582 P.2d 957.)

“Moreover, this case presents additional ‘specific and articulable facts' supporting the detention.   These facts are (1) the warning by the resident, who was clearly associated with illegal drugs that, obviously, due to the presence of police, the defendant should leave;  and (2) the defendant's immediate attempt to depart.   Flight can be strong evidence of consciousness of guilt.  (People v. Garcia (1981) 121 Cal.App.3d 239, 246 [175 Cal.Rptr. 296];  see also People v. Aldridge, supra, 35 Cal.3d 473, 479 [198 Cal.Rptr. 538, 674 P.2d 240].)   By the same token, the resident's reaction to the defendant's appearance during the search also showed that she believed the defendant was committing some offense at the time.   The actions and statements of the resident and the defendant were properly considered by police in detaining the defendant.

“The defendant may contend that the police intended to detain her when she appeared at the door of the premises being searched, and that the reasonable suspicions of the police are immaterial.   However, the facts and law are to the contrary.   First, such an argument would misconstrue the evidence.   Deputy Garcia testified that the defendant was detained based on his belief that she might be in possession of drugs or that she might have been coming to buy drugs․  The officer's belief was obviously and properly based on all the facts which appeared at the time of the detention which occurred only after the defendant attempted to leave the premises.   Second, it is well established that the subjective reason given by police for a search or seizure are immaterial;  if the police know of facts which provide legal cause for a search or seizure, the search or seizure is necessarily lawful regardless of the subjective reason given by police to justify the search or seizure.  (People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 954 [168 Cal.Rptr. 915];  In re Donald L. (1978) 81 Cal.App.3d 770 [146 Cal.Rptr. 720];  People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146 [92 Cal.Rptr. 916];  see also Scott v. United States (1977) 436 U.S. 128, 136 [98 S.Ct. 1717, 1723, 56 L.Ed.2d 168].)”

The facts in United States v. Clay (8th Cir.1981) 640 F.2d 157 are very similar to those presented in the instant case.   In Clay, the defendant knocked on the door of his cousin's house while the police were executing a search warrant for “drugs, contraband and firearms.”  (Id. at p. 158.)   An armed officer answered the door.   Defendant hesitated and took two steps backward, but did not run.   The officer drew his weapon and ordered the defendant inside.   He was frisked and a gun was found.

At the hearing on the motion to suppress, the officer offered several facts in support of the detention.   He testified that the search took place during the evening hours, that marijuana, firearms and ammunition had been discovered in the house prior to the defendant's arrival, and that he knew the occupant of the house was known to be armed and dangerous.   In addition, the officer testified defendant's “ ‘hesitation’ in complying with the order to enter the house and the danger associated with a white officer in a predominantly black neighborhood placed him in reasonable apprehension of bodily harm.”  (United States v. Clay, supra, 640 F.2d at p. 159.)   The district court concluded these facts would naturally lead “to a reasonable suspicion that any person that came to the door was potentially armed and dangerous.”  (Ibid.)

The defendant's conviction was reversed on appeal.   The court concluded none of these facts constituted “specific, objective facts sufficient to establish that the initial seizure of appellant was justified.”  (Ibid.)  The court further concluded neither defendant's “hesitancy” nor his presence at the scene justified the search.  (Id. at p. 160.)

In the instant case, the People argue that defendant's mere appearance at the house being searched for the purpose of contacting the occupant who was associated with drugs “was a sufficient indication that the defendant was, or intended to be, involved with drugs also.”   While it is true “some activity relating to crime has taken place,” here since the search of the premises disclosed contraband and paraphernalia, etc., we fail to see how Officer Garcia could reasonably conclude defendant was involved in that criminal activity.   He admits he had no reason to believe the defendant was connected to the premises in any way.   She was not at or in the house when the officers arrived;  when she later came to the house she did not attempt to enter, rather she knocked on the door;  and she was not known to police authorities or suspected of criminal activity at that time.   Rather, by Garcia's admissions, she was detained, questioned, and required to produce identification, because of sheriff's departmental “policy.”   This policy further included photographing defendant and running a warrant check on her.   Garcia further stated it was policy to detain defendant until at least the warrant check was completed.

In our view, the detention here was predicated on nothing more than curiosity or a hunch, irrespective of whether or not the officer was acting in complete good faith.   Thus, defendant's detention was unlawful from its inception.   (Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889;  In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

The People further argue there were additional “specific and articulable facts” supporting the detention:

“(1) the warning by the resident, who was clearly associated with illegal drugs that, obviously, due to the presence of police, the defendant should leave;  and (2) the defendant's immediate attempt to depart.   Flight can be strong evidence of consciousness of guilt.”

We must disagree.   Assuming arguendo Marilee May's statement from inside the house, “Don't come in, I'll talk to you later,” was an attempted warning of some kind, we fail to see how this isolated fact supports a conclusion that defendant was involved in some criminal activity.   At that point in time Miss May was inside the house in custody.   Defendant was outside the house and Officer Garcia was standing in the partially-opened doorway.   There is no evidence in the record that Miss May knew or could have known the identity of defendant at that time.   Rather, the remark appears to indicate a mere desire on Marilee May's part that neither she nor the visitor be subjected to the embarrassment of her coming into the home and finding May under arrest and the house being searched by five or six officers.   Whether or not May knew or suspected the identity of the visitor is not significant in this respect.

Nor is defendant's apparent attempt to leave upon being confronted by Officer Garcia helpful to the People's argument.   In People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, 597 P.2d 115, our Supreme Court rejected the argument that an individual's apparent desire to avoid contact with a police officer justified a detention.   The court noted that

“an outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable.   No reason is suggested why this principle does not apply with equal force to detentions.   If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless;  it would exist only to the extent it was not exercised.   Such a conclusion is unacceptable.”  (Id. at p. 649, 156 Cal.Rptr. 856, 597 P.2d 115, fn. omitted.)

The People further contend that reasonable suspicion will justify a detention in the case of a person associated with premises being searched based on ongoing criminal activity, citing Michigan v. Summers (1981) 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340:

“In Summers, the United States Supreme Court held that a search warrant carries with it limited authority to detain occupants of a residence while a proper search is conducted.  Summers reasoned that since a magistrate had already determined that probable cause exists to justify a search, the additional intrusion of requiring the occupants to remain during the search is constitutionally reasonable.  (Id., at pp. 701, 704–705 [101 S.Ct. at pp. 2593, 2595–2596].)   The rule serves three purposes:  (1) flight is prevented in the event contraband is discovered, (2) the risk of harm to the officers is reduced, and (3) the orderly completion of the search is facilitated.  (Michigan v. Summers, supra, 452 U.S. 692, 702–703 [101 S.Ct. 2587, 2594];  People v. Gabriel (1986) 188 Cal.App.3d 1261, 1264 [233 Cal.Rptr. 769].)   All three of these purposes were applicable in the instant case.   The defendant, whose connection with the house was apparent from her actions and those of the occupant, was attempting to flee at the time she was detained.   Since the defendant may have realized that a police search was being conducted, her flight presented a significant risk that she or other persons would harm the officers or interfere with the search.   Thus, under Summers, the defendant's detention was reasonable.”

Defendant in the instant case was not an occupant of the premises being searched and this fact was known to Garcia and the other officers present from the inception of the detention.   In Summers, the police arrived at a residence with a search warrant.   They saw Summers, whom they had not yet identified, walk out the front door of the residence and descend the front steps.   The officers sought his assistance in gaining entry.   Summers indicated he could not unlock the door because he had left his keys inside.   He rang the intercom.   When no one opened the door, the officers entered by force.   Summers was detained and brought inside while the residence was searched.  (Id. at p. 693, 101 S.Ct. at p. 2589.)

Rejecting Summers's contention that the detention was unlawful, the court held that “[i]f the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home.”  (Michigan v. Summers, supra, at pp. 704–705, 101 S.Ct. at pp. 2595–2596, fn. omitted.)   The court reasoned that because a magistrate has already determined probable cause exists to justify a search, the additional intrusion of requiring the occupants to remain during the search is constitutionally reasonable.  (Id. at pp. 701, 704–705, 101 S.Ct. at pp. 2595–2596.)   Relying in part on Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the court noted the “cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.”  (Michigan v. Summers, supra, 452 U.S. at p. 699, 101 S.Ct. at p. 2592, emphasis added.)

The court concluded that existence of the warrant to search the residence provided an objective justification for the occupants' detention.   The court stated:

“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.”  (Michigan v. Summers, supra, 452 U.S. at pp. 703–704, 101 S.Ct. at pp. 2594–2595, fn. omitted, emphasis added.)

The People in the present case seek to extend Summers to authorize the detention of an unidentified individual who knocks on the door when a search warrant is being executed.   They suggest such conduct supports a reasonable suspicion that the person is involved in criminal activity.   A similar argument was rejected by the Washington Supreme Court in State v. Broadnax (1982) 98 Wash.2d 289 [654 P.2d 96].   In Broadnax the defendant was inside the house when the officers arrived.   He was detained and frisked.   The court rejected the argument that the defendant's mere presence constituted justification for the detention and search.   The court stated:

“In Michigan v. Summers, 452 U.S. 692 [101 S.Ct. 2587, 69 L.Ed.2d 340] ․, the Court did permit officers executing a residential search warrant to detain the occupant of the home while the search was completed.   The basis for that limited intrusion was that [‘][t]he 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.[’]  [Citation.]  Thus, an occupant's constructive control over the premises which is the subject of a search warrant provides a sufficient connection with the suspected illegal activities to permit a detention of that individual.   A footnote in Summers, however, suggests that while occupants of private residences may be ‘seized’ while a proper search of the premises is conducted, any search of those occupants or others on the premises must meet the standards of Ybarra [v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ].  Summers, at 695–96 n. 4 [101 S.Ct. at 2590–2591 n. 4], ․

“When Summers is read in conjunction with Ybarra, it becomes clear that persons not directly associated with the premises and not named in the warrant cannot be detained or searched without some independent factors tying those persons to the illegal activities being investigated.   In other words, ‘mere presence’ is not enough;  there must be ‘presence plus' to justify the detention or search of an individual, other than an occupant, at the scene of a valid execution of a search warrant.   See generally Carr, Michigan v. Summers:  Detentions Permitted While Search Warrant is Executed, 8 Search & Seizure L.Rep. 115–19 (1981)․

“․

“A person's mere presence at the scene of suspected criminal activity does not entitle police officers to search that individual.   Neither may the police seize an individual, other than an occupant of the premises, so as to make him available in case probable cause is later developed to arrest him․

“․

“․ Absent some independent factors tying petitioner to the illegal activities on the premises, it was no more likely that he was engaged in the criminal enterprise than that he was an innocent visitor on the premises.”   (Id., 654 P.2d at pp. 103–105, emphasis in original.)

Relying in part on Broadnax, the Court of Criminal Appeals of Texas also rejected the argument that the defendant's mere presence on the premises at the time of the search justified his detention and frisk.  (Lippert v. State (Tex.Cr.App.1984) 664 S.W.2d 712.)   The Texas court held the defendant's “mere presence on the premises at the time of the execution of the search warrant, without more did not authorize his detention and subsequent frisk or search․”  (Id. at pp. 721–722, fn. omitted.)   The Texas court refused to extend Summers stating “while an occupant may be detained during the execution of a residential search warrant, this limited exception to the probable cause requirement does not extend to those merely on the premises․”  (Id. at p. 722.)

Similarly, in State v. Carrasco (1985) 147 Ariz. 558 [711 P.2d 1231], the Court of Appeals of Arizona declined to extend Summers to justify a detention of a visitor at a residence when the police arrived to execute a search warrant.   The court reasoned:

“The decision in Summers was founded on the logical conclusion that an occupant's control over premises which are the subject of a search warrant provides a sufficient connection with the suspected illegal activities so that it is reasonable to detain that individual for the duration of the search.   [Citations.]  Additionally, the court in Summers pointed to the practicality of having the occupant nearby to unlock doors, etc., and otherwise help expedite the search.   Thus, while an ‘occupant’ may be detained during the execution of a residential search warrant, this limited exception to the probable cause requirement cannot reasonably be extended to those merely present on the premises, since the foregoing justifications are inapplicable to a visitor.”  (Id. 711 P.2d at p. 1234, emphasis in original.)

Appellant's reliance on United States v. Sokolow (1989) 490 U.S. 1 [109 S.Ct. 1581], 104 L.Ed.2d 1 is misplaced.   In that case, numerous factors which, if taken one by one, were consistent with innocent activity but added together provided reasonable suspicion of drug activity and probable cause to detain.  (Id. at p. 1586.)   The defendant therein fit the profile of a drug courier and was reasonably detained at an airport.   The facts of Sokolow are easily distinguishable from those of the instant case and the reasoning of Sokolow does nothing to undermine the logic, rationale and applicability of Summers and its progeny.

Summers teaches that an occupant's control over, and connection to, a residence subject to a search warrant gives rise to a reasonable suspicion the occupant is involved in the criminal activity occurring in his or her home.   The same cannot be said of a visitor absent some individualized suspicion connecting that person to the suspected illegal activity.   In the instant case, there were no facts known to the officers present that support a reasonable suspicion connecting defendant to the illegal activity occurring in the searched premises or to some unidentified illegal activity on the part of defendant individually.   Thus, the facts known to Officer Garcia and the others present were not sufficient to warrant a detention of the defendant.

II ***

The judgment of dismissal is affirmed.

FOOTNOTES

1.   The People filed a motion to augment the record on June 24, 1988, asking that the affidavit and the search warrant be added to the record.   The Court granted the motion, directing that “[a]n affidavit and search warrant judicially noticed by the Honorable Roger D. Randall at the hearing on the motions pursuant to Penal Code sections 1538.5 and 995 heard on April 21, 1988, insofar as said affidavit and/or search warrant were filed or lodged in Kern County Superior Court action No. 34571.”   An affidavit and search warrant were added to the record as a supplemental clerk's transcript.   However, they were not the documents judicially noted, but relate to a search of the defendant's car after the events at issue in the suppression hearing.   By a separate motion filed with this brief, the People asked the Court to take judicial notice of the affidavit which led to the defendant's initial detention.   Since the trial court apparently reviewed this affidavit at the suppression hearing, we grant the People's motion.

FOOTNOTE.   See footnote ***, ante.

MARTIN, Acting Presiding Justice.

BEST and ARDAIZ, JJ., concur.