PEOPLE v. SMITH (1990)

OPINION

By information filed December 15, 1988, in Kern County criminal action No. 37689, defendant Edwin Grant Smith was charged with one count of possessing methamphetamine for sale (Health & Saf.Code, § 11378).   His Penal Code section 1538.5 motion to suppress was denied.   He appeals from the judgment which followed his plea of guilty.

In the first portion of this opinion, we address the question of whether a person in the general vicinity of a place to be searched under a warrant may be detained by the police when the officers know of no specific facts which reasonably connect the person with the place.   We will find Smith's detention under such circumstances to have been unlawful, and we will therefore reverse the judgment in action number 37689.   In the second portion of this opinion, we will affirm an order in action No. 205145 which denied Smith relief from a nonjudicial forfeiture of certain property.

The pertinent facts are summarized in the discussion of each issue raised on this appeal.

DISCUSSION

I. Suppression Motion (Case No. 37689 )

Smith contends his suppression motion should have been granted because his initial detention was unlawful and all evidence seized thereafter constituted “fruit of the poisonous tree.”

 A trial court hearing a motion to suppress evidence acts as the finder of fact.   Under standard principles of appellate review, we will uphold its factual findings, whether express or implied, if they are supported by substantial evidence.  (Cf. People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   We will then exercise our independent judgment and “measure the facts, as found by the trier, against the constitutional standard of reasonableness” to determine if the search or seizure was lawful.  (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

 Evidence adduced at the hearing on the suppression motion ¹ shows that at approximately 4 p.m. on September 22, 1988, Kern County Deputy Sheriff Conny Ericsson served a search warrant at 3815 K Street, Apartment A, in Bakersfield.   The warrant named a female, Francis Ann Smith, and asserted she was involved in narcotics transactions at that address.   Ericsson and five other officers arrived at virtually the same time, although Ericsson was first.

As nearly as we can discern from the record,² K Street ran north and south.   To the east, at the address on the warrant, was a duplex, which may have been a part of a larger residential complex.   The duplex contained two apartments, “A” and “B.”   The doors to both units opened to the north, with Apartment A having the door nearest K Street.   Between K Street and the duplex was a dirt parking area.   The officers approached the duplex from the south and parked near the southeast corner of the building.

Smith's vehicle was parked off the street, facing west toward the duplex.  Other vehicles were parked in the same area.   Ericsson parked his car next to Smith's vehicle, facing into it so that a “T” was formed by the two cars.  When Ericsson first observed him, Smith appeared to be coming around the northeast corner of the duplex.   He was walking south toward his (Smith's) car and was 15 to 20 feet from the front door of Apartment A.

Ericsson was dressed in civilian clothes, but wore a bulletproof vest with “Sheriff” printed across the back and a badge on the front.   He got out of his auto and moved toward Apartment A.   His weapon was in his hand.   As he ran past Smith he yelled “Detain him!” to other deputies who were running in the same direction.

When Ericsson first saw Smith, he could not tell whether Smith had come from either of the two apartments, or, if he had, from which one.   However, Ericsson testified “any time anyone is coming from the house or an apartment where we're conducting a search warrant, we will naturally detain them and try to figure out where he came from.”   Ericsson, who signed the affidavit in support of the warrant, knew he did not have a search warrant for the other apartment and knew the person named in the warrant, Francis Smith, was female.   Ericsson had no reason to detain Smith, other than the fact he appeared to be leaving the area of the two apartments.   Smith was walking normally and was not engaged in any suspicious activity.

According to Deputy McCathron, when she first saw Smith he was seated in his car.   She personally had no basis for detaining him, but did so because another officer said, “Detain him.”   She assumed this officer had a basis for a detention.   Accordingly, she walked up to Smith's vehicle and asked him his name.   A subsequent search of Smith's car, pursuant to a warrant obtained by telephone, revealed narcotics.

The Attorney General does not argue that the implementation of Ericcson's order did not constitute a detention of Smith.   Instead, he concedes the issue but maintains the seizure was legal under applicable Fourth Amendment principles.   He relies principally on Michigan v. Summers (1981) 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340.   We accept the Attorney General's concession and proceed to consider the legality of the detention.

 Circumstances short of probable cause to arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.  (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, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   Although each case must be decided on its own facts, the guiding principle is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.”  (Terry v. Ohio, supra, 392 U.S. at p. 19, 88 S.Ct. at p. 1878.)

Under both federal and state standards (In re James D. (1987) 43 Cal.3d 903, 914, 239 Cal.Rptr. 663, 741 P.2d 161),

“in 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.]”  (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957, fn. omitted.)

In determining whether the detention was justified, we must focus on Ericsson's knowledge at the time Smith was seized, not on knowledge subsequently gained by McCathron or other officers.  (People v. Conway (1990) 222 Cal.App.3d 806, 814, 271 Cal.Rptr. 832.)   Ericsson ordered the stop of Smith solely because of the latter's physical proximity to a place about to be searched.   As Ericsson testified:

“Q [Defense Counsel] Now, you indicated, I believe, that when you arrived at a location for which you had a search warrant, you naturally retain everybody you see in close proximity to the place you are about to search, did I understand you correctly?

“A (By Witness Connie [sic ] Ericsson) Yes.

“Q Other than the fact you saw Mr. Smith coming from apparently one of the apartments in the complex, was there any other reason from your natural inclination anybody walking from the structure you have a right to search?

“A He was not only walking from the structure, he was coming from the area of the apartments.   He was coming from around the corner.

“․

“Q Did you think perhaps he might have been committing criminal activity?

“A Anybody coming from an area we are searching for narcotics I would naturally stop and identify him and, sure, you always think anybody coming out from the house would be involved in some way with narcotics, sure.

“Q That would be if he were coming from the apartment to be searched?

“A Yes.

“Q You didn't know that?

“A No.

“Q Was he walking or running when you saw him?

“A He was walking.

“Q Was there anything unusual about the way he was walking when you saw him?

“A No.

“Q Was there anything that otherwise made him appear suspicious other than the fact he was walking away from an area where it seemed like he had just exited one of the two apartments for which you had a search warrant?

“A No.”

 In other words, the detention was not predicated upon any facts which logically linked Smith with Apartment A or with any criminal activity whatsoever.   Instead, it was based solely upon Ericsson's ritualistic assumption that any person in the vicinity of Apartment A might be connected with it.   The detention was thus unlawful.  (Terry v. Ohio, supra, 392 U.S. at pp. 21–22, 88 S.Ct. at pp. 1879–1880;  In re James D., supra, 43 Cal.3d at p. 914, 239 Cal.Rptr. 663, 741 P.2d 161;  In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957;  see also Ybarra v. Illinois (1979) 444 U.S. 85, 91–92, 100 S.Ct. 338, 342–343, 62 L.Ed.2d 238.)

Relying on Michigan v. Summers, supra, 452 U.S. 692, 101 S.Ct. 2587, the People assert that “[i]ndividuals associated in an unknown manner with premisses [sic ] targeted by a search warrant may be detained for investigative purposes,” and hence the fact Ericsson was not certain of Smith's previous presence in the apartment “did not negate his justifiable suspicion, and so did not contraindicate” the detention.   Even if the People's statement is an accurate recitation of the principle of Summers, it presumes the existence of a fact not in evidence in this case—that Smith was in some way “associated” with Apartment A.

In Summers, as police officers were about to search a house for narcotics pursuant to a warrant, they encountered Summers descending the front steps.   They requested his assistance in gaining entry;  he said he had left his keys inside.   The officers detained Summers while they searched the premises.   After narcotics were found inside and officers determined Summers owned the residence, they arrested him.  (Michigan v. Summers, supra, 452 U.S. at p. 693 and fn. 1, 101 S.Ct. at p. 2589 and fn. 1.)

In holding the detention lawful, the Supreme Court stated:  “Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent's [Summers's] house for contraband.”  (Michigan v. Summers, supra, 452 U.S. at p. 701, 101 S.Ct. at p. 2593;  emphasis added.)   The court further stated:

“It 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․  The existence of a search warrant ․ 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.

“․ If 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.   Thus, for Fourth Amendment purposes, we hold that 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.”  (Michigan v. Summers, supra, 452 U.S. at pp. 702–705, 101 S.Ct. at pp. 2594–2596;  fns. omitted;  emphasis added.)

As is clear from the foregoing passage, the holding in Summers is squarely based on the fact that the detainee, by his actions, appeared to be connected to the residence to be searched.   The officers were justified in detaining him to further investigate because they could reasonably infer he had some relationship with the home from their observation of him leaving it and from his subsequent statement that he had left his keys inside.

 However, while the existence of a search warrant may provide an objective basis for the detention of an apparent occupant of the place to be searched, it does not provide justification for the detention of everyone who merely happens to be in the general area.  (See Ybarra v. Illinois, supra, 444 U.S. at p. 91, 100 S.Ct. at p. 342.)   Here, at the time of the detention, the officers did not have a single fact which suggested Smith had even been to or in the residence to be searched, let alone that he was an “occupant.”   They detained him solely on the unsubstantiated possibility he might have or have had some connection with Apartment A because he appeared to be walking away from the area which contained the two apartments.   This perhaps would be a different case if the facts known to the officers included something from which could be drawn a reasonable inference that Smith was linked to Apartment A.  Absent such a “specific and articulable fact[ ]” (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957), there is simply not enough to warrant the detention.

The People's other authorities are similarly unhelpful.   In People v. Valdez (1987) 196 Cal.App.3d 799, 242 Cal.Rptr. 142, officers had a search warrant for a yard used for storage and auto body repair.   When officers arrived to execute the warrant, defendant was present in the yard.  (Id. at p. 802, 242 Cal.Rptr. 142.)   The central issue in the case was an officer's search of a film canister found in defendant's pocket during a pat search for weapons.   In passing, the Court of Appeal noted that defendant “was properly subjected to a detention search for weapons during the execution of the search warrant.”  (Id. at p. 804, 242 Cal.Rptr. 142.)   Unlike the instant case, however, defendant was inside the premises to be searched at the time officers arrived to execute the warrant.

In People v. Huerta (1990) 218 Cal.App.3d 744, 267 Cal.Rptr. 243, officers were in the process of searching a residence, pursuant to a warrant, when the defendant opened the front door without knocking or making any announcement, and walked inside.   Concerned defendant might reside there and be part of a conspiracy to sell narcotics out of the residence, an officer asked if he lived in the home.   Problems were encountered when officers tried to ascertain where defendant lived and whether he was wanted by the authorities.   Eventually defendant was asked for, and gave, consent to search his own residence.   Drugs and weapons were found.  (Id. at pp. 746–748, 267 Cal.Rptr. 243.)

The Court of Appeal held that defendant's detention was justified under Michigan v. Summers, supra, 452 U.S. 692, 101 S.Ct. 2587.   The court stated:

“When defendant entered the residence without knocking or announcing his presence the officers executing the warrant had reason to believe defendant was directly connected to the premises in some way.   His unannounced entry into the residence established his direct association with the premises and gave defendant the status of ‘occupant’ under the rule set forth in Michigan v. Summers ․

“While the officers had the right to detain defendant until they completed their search of the premises under Michigan v. Summers, the initial detention was also valid under a more traditional probable cause analysis.  The police had secured a house in which they had found a large quantity of drugs.  Defendant then opened the front door and walked inside without knocking or otherwise announcing himself.   Although defendant told Officer Wall he did not live there, the police could reasonably conclude defendant was lying or was in some way linked to the drugs and weapons found at the house.   They had a reasonable suspicion to believe he had committed or was about to commit a crime.  [Citations.]”  (People v. Huerta, supra, 218 Cal.App.3d at pp. 749–750, 267 Cal.Rptr. 243.)

Obviously, a materially different situation is involved in the instant case.  At the moment of detention, the officers did not know of any fact which reasonably pointed to a conclusion that Smith was “directly connected to the premises in some way.”  (People v. Huerta, supra, 218 Cal.App.3d at p. 749, 267 Cal.Rptr. 243.)

 Since the initial detention of Smith was unlawful, the suppression motion should have been granted.   All of the evidence seized, including the information used to obtain the search warrant for the auto, and thus the evidence secured by its execution, resulted from the exploitation of the initial illegal detention.   Because the evidence was not obtained “ ‘by means sufficiently distinguishable to be purged of the primary taint,’ ” it was all “ ‘fruit of the poisonous tree.’ ”  (Wong Sun v. United States (1963) 371 U.S. 471, 487–488, 83 S.Ct. 407, 417–418, 9 L.Ed.2d 441;  see also People v. Edwards (1969) 71 Cal.2d 1096, 1106, 80 Cal.Rptr. 633, 458 P.2d 713.)   The conviction in action number 37689 must therefore be reversed.

In view of our decision on this issue, we need not address Smith's other arguments in support of his contention the evidence should have been suppressed.

II. Forfeiture Proceedings (Case No. 205145) **

DISPOSITION

The judgment in criminal proceeding No. 37689 is reversed.   The order denying Smith relief from the forfeiture in action No. 205145 is affirmed.

FOOTNOTES

1.   We do not include any facts derived from the transcript of the preliminary hearing.   The People contend the trial court considered the contents of the transcript in ruling on the motion.   Although Smith's written notice of motion states it is based in part on the transcript of the preliminary hearing, the record does not establish that the court took the transcript into account in making its ruling, except to review several pages with which defense counsel sought to impeach a witness.   Since Smith did not make a suppression motion at the preliminary hearing, he had the right to fully litigate the search and seizure issue based on evidence presented at the de novo hearing in superior court.  (Pen.Code, § 1538.5, subd. (i).)  “The preliminary hearing transcript is not admissible at a de novo suppression hearing in the superior court absent a stipulation of the parties or applicability of the hearsay exception for former testimony.”  (Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 94, 154 Cal.Rptr. 494.)   If there was a stipulation in superior court, it is not a part of the record on appeal.   Accordingly, we have addressed the merits of the suppression issue only upon the evidence produced at the de novo hearing.

2.   The physical configuration and the positions of the participants in the events at the scene cannot be accurately reconstructed from the oral testimony.   The superior court had before it a general diagram of the area, marked as appropriate by the various witnesses.   Unfortunately, this exhibit is not a part of the appellate record.

FOOTNOTE.   See foonote *, ante.

DIBIASO, Associate Justice.

STONE (WM. A.), Acting P.J., and VARTABEDIAN, J., concur.