State v. Banks

• Citation: 720 P.2d 1380
• Decision Date: 20 June 1986
• Docket Number: No. 19974,19974
• Parties: STATE of Utah, Plaintiff and Respondent, v. Louis A. BANKS, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 1380

720 P.2d 1380

STATE of Utah, Plaintiff and Respondent, v. Louis A. BANKS, Defendant and Appellant.

No. 19974.

Supreme Court of Utah.

June 20, 1986.

David C. Biggs, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Louis Banks appeals from his convictions for possession of a controlled substance with intent to distribute for value and possession of a dangerous weapon by a restricted person. Banks argues that the evidence on the drug charge was obtained in violation of his right to be free from unreasonable searches and seizures and should have been suppressed; that the evidence on the weapons charge was insufficient to sustain the conviction; and that with respect to both charges, the twenty-six-month delay between his arrest and the trial court's decision violated his constitutional right to a speedy trial. We reverse the conviction on the weapons charge and affirm the conviction on the drug charge.

This case involves an investigation into the sale of narcotics. Prior to obtaining a search warrant, police officers conducted an extensive investigation into Banks's involvement in illicit drug traffic: On three separate occasions, the officer who signed the affidavit for the warrant utilized a confidential informant to purchase narcotics from Banks at the residence for which the search warrant was issued. This informant told the officer that Banks was "extremely careful in his operation and employ[s] a guard who is armed with firearms." A fourth controlled buy had been effected by another officer. The officers had received an anonymous tip that individuals at Banks's address were selling narcotics. Banks's vehicle had been observed frequently at the residence for over six months, and the telephone directory listed his address as that of the residence. Banks was known as a convicted felon to the officers engaged in the search.

Based upon the information in the affidavit, a no-knock warrant to search the residence was issued. Banks, his wife, and a third party were in the residence. After handcuffing and frisking each of them, the officers informed Banks that they were looking for illegal drugs and read him his Miranda rights. At trial, the officer testified that Banks was handcuffed to insure the officers' safety during the search. The officers did not tell Banks that he was under arrest at that time.

A search of the residence followed. During the search, officers saw a shotgun leaning against a dresser in a bedroom and found a paper sack containing prescription drugs. They then conducted a full body search of Banks and found a prescription bottle containing a variety of controlled substances in his shirt pocket. A further search of the residence turned up three other guns: two were found under the pillows on a bed and the third was in a bedroom dresser drawer. At trial, the officer testified that he could not remember exactly when Banks was arrested. The vial was removed from Banks's pocket within ten to fifteen minutes after the search commenced, but Banks was not taken to the police station until the search was completed four hours later.

Banks was charged with one count of possession of a controlled substance with intent to distribute for value and four counts of possession of a firearm by a restricted person. U.C.A., 1953, § 58-37-8(1)(a)(ii) (Repl.Vol. 6A, Supp.1985); U.C.A., 1953, § 76-10-503(1) (Repl.Vol. 8B, 1978 ed.). He was arraigned in October 1981, and trial was set for mid-February 1982. In early February, Banks moved to suppress the evidence of the drugs discovered in his pocket. That motion was denied. Banks then requested and was granted a continuance, and the trial was rescheduled for May 11, 1982. On the trial date, the parties submitted the case to the judge on stipulated facts. Unfortunately, the judge died before he could issue a decision.

Soon after the trial judge's death, the presiding judge of the Third District Court met with both the prosecutor and defense counsel and asked them to enter into a stipulation acknowledging the sufficiency of the record so that the case could be assigned to a new judge for entry of a decision. The State asserts that the prosecutor signed such a stipulation and that it was delivered to Banks's counsel on June 29, 1982; however, no such stipulation appears in the file and Banks's counsel denies having ever received it. For reasons not apparent from the record, the case then lay dormant for almost eighteen months.

Finally, on December 14, 1983, a hearing was held by the judge newly assigned to the case. The judge first denied both Banks's renewed motion to suppress and his motion to dismiss on speedy trial grounds. Then, based upon the stipulated facts and the memoranda in the file, he found Banks guilty of possessing a controlled substance with intent to distribute for value and of one count of possessing a dangerous weapon, that weapon being a loaded Ruger .22 caliber pistol found under a pillow on a bed. ¹ This appeal followed.

Banks first contends that the trial court improperly denied his motion to suppress the drug vial found in his pocket, arguing that the officers had no authority to conduct a full body search under a warrant authorizing only a search of the residence. The State, on the other hand, argues that the search was valid because it was conducted incident to Banks's arrest. We agree that the warrantless search was valid as a search incident to arrest.

As a starting point, we note that the warrant requirement is an important check upon the power of the State to subject individuals to unreasonable searches and seizures and is not to be lightly disregarded. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). If the warrant is to serve its function, then the circumstances under which an individual may be subjected to a warrantless search must be narrow. Banks is correct for example, in his contention that a person's mere presence in the company of others whom the police have probable cause to search does not provide probable cause to search that person. United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 225, 92 L.Ed. 210 (1948). Nor are police officers authorized to search an individual merely because that person is present on premises for which a search has been authorized, id., unless there is some independent probable cause to justify a search of the individual. Cf. Ybarra v. Illinois, 444 U.S. 85, 92-93 and n. 4, 100 S.Ct. 338, 342-43 and n. 4, 62 L.Ed.2d 238 (1979); United States v. Peep, 490 F.2d 903, 905 (8th Cir.1974).

In this case, however, the officers had more than adequate probable cause to arrest and search Banks prior to discovering the drug vial in his pocket. Immediately upon entering the residence, Banks was handcuffed, read his Miranda rights, and subjected to a pat-down for weapons. No further search of Banks's person was conducted at that time. This initial pat-down search was permissible. The officers were entitled to restrain Banks to the extent they believed necessary to insure their safety. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); accord 2 W. LaFave, Search and Seizure § 4.9(d), at 147-48 (1982). Banks was known to be dangerous and accompanied by an armed guard, so the officers quite reasonably could have believed that restraining him with handcuffs was necessary.

Moreover, since the search warrant authorized a search for narcotics, which can be easily concealed and disposed of, the officers clearly had reason to restrain Banks to prevent him from secreting contraband and to preserve the premises during the search. See United States v. McKethan, 247 F.Supp. 324, 328 (D.D.C.1965). A search warrant for a residence or premises, properly issued upon probable cause (as the search warrant in this case unquestionably was), carries with it limited authority to detain an occupant during the search. Michigan v. Summers, 452 U.S. 692, 701-04, 101 S.Ct. 2587, 2593-95, 69 L.Ed.2d 340 (1981). Admittedly, the restraint of Banks was extreme, but given the exigencies of the situation, we cannot say that the officers' detention of Banks was an unreasonable infringment upon his fourth amendment rights.

Such detention does not necessarily amount to an arrest. United States v. McKethan, 247 F.Supp. at 327-28. Therefore, Banks's assertion that he was under arrest as soon as he was handcuffed and that the arrest was invalid because it was made without probable cause is not persuasive. Under the circumstances, it is reasonable to conclude that Banks was not under arrest until the officers subsequently discovered contraband and a weapon in a bedroom and that his detention until that point amounted to no more than a reasonable restraint to insure the officers' safety.

Even if the officers' conduct in handcuffing Banks amounted to an arrest, that arrest was not invalid. An officer may arrest an individual without a warrant either when he has reasonable cause to believe a felony has been committed and that the person arrested committed it or when the officer has reasonable cause to believe the person has committed a public offense and there is a reasonable basis for believing the person will destroy or conceal evidence of the commission of the offense. U.C.A., 1953, § 77-7-2 (Repl.Vol. 8C, 1982 ed.). In the instant case, the officers had probable cause to arrest Banks even before executing the warrant, based upon the controlled buys which had been conducted prior to the search.

Finally, regardless of when Banks was arrested, the search of his person and the discovery of the drug vial clearly were preceded by probable cause for his arrest and were therefore valid. See State v. Kaae, 30 Utah 2d 73, 513 P.2d 435 (1973). A search is...