P. v. Tara

Filed 3/28/07 P. v. Tara CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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Defendant Alexander Ryan Tara pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code,  11378) and admitted to being on bail during the commission of the offense (Pen. Code,  12022.1). Defendant also pleaded no contest to a felony charge of evading a peace officer (Veh. Code,  2800.2) in a separate case unrelated to this appeal. The trial court sentenced defendant to four years in state prison.

On appeal, defendant contends the trial court improperly denied his suppression motion. We agree and shall reverse the judgment.

FACTUAL BACKGROUND

On November 25, 2003, around 3:00 p.m., a multi-agency task force executed a search warrant on 4255 Vista Oaks Court in Redding. Officers found defendant working on the engine of his car in the driveway of the house and detained him. Defendant was handcuffed and did not resist.

Defendants identification was checked and his name run for outstanding warrants. The officers quickly determined defendant did not live in the residence being searched.

An officer patted down defendant and felt a rectangular object which defendant said was an electronic scale. Defendant was asked to consent to a search. He first gave verbal consent, but withdrew it when presented with a written consent form, which he refused to sign.

An officer then decided to obtain a warrant to search defendant. Defendant was detained a period of three hours until the warrant was obtained. At first he was in the driveway with handcuffs behind his back, but officers moved him to the garage and put him in the more comfortable belly chain when it started to rain. When it was cold and dark, defendant was moved to the dining room, where he slept in a chair.

The officers received telephone confirmation that a warrant had issued and searched defendant at around 6:14 p.m. The search revealed methamphetamine and an electronic scale.

Defendant moved to suppress the methamphetamine as the product of an illegal detention. The trial court denied the motion. It found that the patdown was made early in defendants detention, and the time required to obtain the warrant and search defendant was not out of line.

DISCUSSION

I

Defendant asserts the methamphetamine should have been suppressed because his search was the product of an illegal detention. We agree.

Although the search of defendant was authorized by a warrant, his detention before the search was not. Defendant does not contest the validity of the search warrant, but asserts the over three-hour length of his detention violated his Fourth Amendment rights.

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)

The trial court relied on Glaser as authority for denying the suppression motion. In Glaser, the California Supreme Court upheld as reasonable the detention of a defendant who arrived at a private home seconds ahead of officers intent on executing a search warrant; officers detained the defendant as he was about to open the gate to the back yard. (Glaser, supra, 11 Cal.4th at p. 360.) In the subsequent search, a glass pipe was found in the defendants pocket and three packets of methamphetamine powder were found on his person. (Id. at p. 361.) Applying the principles of Michigan v. Summers (1981) 452 U.S. 692 [69 L.Ed.2d 340] and Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889], the court found the brief detention was justified by the need to determine what connection [the] defendant, who appeared to be more than a stranger or casual visitor, had to the premises, and by the related need to ensure officer safety and security at the site of a search for narcotics. (Glaser, supra, 11 Cal.4th at p. 365; see id. at pp. 363-365, 367.)

Glaser did not address whether the execution of a search warrant for drugs justifies a patdown in addition to a temporary detention (Glaser, supra, 11 Cal.4th at p. 361), but we find the patdown of defendant here to be reasonable under the circumstances. The task force members were in the process of executing a search warrant for suspected narcotics distribution, a potentially dangerous situation due to the strong association between narcotics offenses and weapons. (See People v. Bradford (1995) 38 Cal.App.4th 1733, 1739 [it is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband].) The decision in Glaser was partially premised on the danger associated with searches of homes for narcotics. (See Glaser, supra, 11 Cal.4th at pp. 367-368.) While it is not clear when the officers established defendants identity, the patdown took place within minutes of his detention.^[1] The patdown of defendant was reasonable in light of the dangers associated with executing the search warrant.

Glaser did not provide for prolonged detention of persons found on the property. If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released. (Glaser, supra, 11 Cal.4th at p. 374.) Since the officers quickly learned defendant was not a resident of the place being searched, Glaser does not justify detaining defendant for more than three hours without specific facts tying defendant to the alleged criminal activity at the house being searched.

[A] detention must be reasonably related in scope to the circumstances which justified the interference in the first place. (People v. Brown (1998) 62 Cal.App.4th 493, 499.) A detention that is unreasonably prolonged amounts to a de facto arrest that must be supported by probable cause to be constitutionally valid. (People v. Gomez (2004) 117 Cal.App.4th 531, 538.) As the Attorney General does not claim that there was probable cause to arrest defendant before he was searched, the People must find some other justification for the prolonged detention.

In Illinois v. McArthur (2001) 531 U.S. 326 [148 L.Ed.2d 838] (McArthur) the Supreme Court found exigent circumstances which justified a prolonged detention. The high court held that officers did not violate the Fourth Amendment when they prevented a man from entering his home for about two hours until a search warrant was secured. (Id. at p. 328 [148 L.Ed.2d at p. 846].) McArthur upheld the warrantless detention because the police had probable cause to believe the home contained unlawful drugs; they had good reason to fear that the suspect would go in the home and destroy the drugs if he was not restrained; the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by waiting for a warrant rather than making a warrantless search for the suspected contraband; and the police imposed the restraint for a limited period of time, namely, two hours. (Id. at pp. 331-332 [148 L.Ed.2d at p. 848].)

Defendants detention is significantly more intrusive than the one in McArthur. At three hours, it is an hour longer than McArthurs. The police in McArthur imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. (McArthur, supra, 531 U.S. at p. 332 [148 L.Ed.2d at p. 848].) Defendant was detained in handcuffs and then belly chains for three hours, a restraint much more like an arrest and therefore more invasive than McArthur.

The duration of the seizure in McArthur was carefully limited. As far as the record reveals, this time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant. (McArthur, supra, 531 U.S. at p. 332 [148 L.Ed.2d at p. 848].) The record before us contains no evidence establishing that defendant was detained for no longer than necessary for the police to obtain the warrant to search defendant.

The trial court concluded the time necessary to obtain a search warrant and call it in is not out of line with the time frame thats reported in this case. While we defer to the trial courts factual findings on a suppression motion, the reasonableness of the officers efforts to obtain a search warrant is a legal conclusion which we review independently.

The record establishes that at some point during defendants detention Agent Casey Bokavich decided to seek a search warrant. However, Agent Bokavich never testified at the suppression hearing and no other testimony establishes when the search warrant was requested. The record before us contains no evidence establishing how long it would take to obtain a search warrant in Shasta County under these conditions, nor is there any evidence showing what steps were taken to ensure that the warrant was obtained and communicated to the task force in a timely fashion. Even when viewed in the light most favorable to the trial courts ruling, the evidence does not establish that the search warrant was obtained without unnecessary delay.

McArthur was decided by balancing the invasion of the suspects privacy against the exigent circumstance of the threat of losing evidence of criminal activity. (See McArthur, supra, 531 U.S. at pp. 331-333 [148 L.Ed.2d at pp. 847-849].) Defendants detention does not reflect a similar balance of interests. While the task force had reason to fear defendant would dispose of any contraband on him if he was not detained, his detention was significantly more intrusive than the one upheld in McArthur. We conclude defendants unreasonably prolonged detention violated the Fourth Amendment. Since defendants detention violated the Fourth Amendment, the trial court should have granted his suppression motion.

DISPOSITION

The judgment is reversed and the case is remanded to the trial court with directions to permit defendant to withdraw his no contest plea, to vacate its order denying the motion to suppress, to enter a new order granting the motion to suppress, and for further proceedings in accordance with law.

BUTZ , J.

We concur:

NICHOLSON , Acting P. J.

CANTIL-SAKAUYE , J.

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^[1] Defendant claims the patdown did not take place within minutes of the detention. At the suppression hearing, the officer who conducted the patdown admitted that at the preliminary hearing he said the patdown took place at 4:00 p.m. The officer then indicated that the 4:00 p.m. time was possibly too late an estimate, and he conducted the patdown within minutes of detaining defendant. This is substantial evidence supporting the trial courts ruling that the patdown took place within minutes of the detention.