State v. Graves

• Decision Date: 23 November 1994
• Docket Number: No. 14921,14921
• Citation: 888 P.2d 971,1994 NMCA 151,119 N.M. 89
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Billy Charles GRAVES, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 971

888 P.2d 971

119 N.M. 89

STATE of New Mexico, Plaintiff-Appellee, v. Billy Charles GRAVES, Defendant-Appellant.

No. 14921.

Court of Appeals of New Mexico.

Nov. 23, 1994.

[119 N.M. 90] Tom Udall, Atty. Gen., Shari Weinstein, Sp. Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, David Henderson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

FLORES, Judge.

The opinion filed November 1, 1994, is withdrawn and the following substituted therefor.

Defendant pled guilty to trafficking by possession with intent to distribute cocaine, reserving the right to appeal the trial court's denial of his pre-trial motions. The trial court denied Defendant's motions to suppress physical evidence and oral statements and Defendant appeals. On appeal Defendant raises the following issues: (1) whether the standard of review of the trial court's ruling on the motion to suppress physical evidence in the instant case is de novo review; (2) whether the search and seizure of Defendant was unlawful because (a) the warrant was not valid, (b) Defendant was not a resident of the premises searched, and (c) the detention was an illegal arrest; (3) whether the statements made and the waiver signed by Defendant were voluntary; and (4) whether the cocaine seized from Defendant at the police station was a product of an illegal arrest. We reverse.

FACTS

On November 26, 1991, Detective Brian Sallee (Sallee) obtained a search warrant for certain premises identified in the affidavit for search warrant as 636 Grove S.E., # C in Albuquerque. The affidavit also included a description of persons to be searched as "any persons and/or vehicles which can be shown to be involved in drug dealing (purchasing or selling)." On December 4, 1991, Sallee executed the warrant. Accompanying Sallee in the execution of the warrant were Detectives Samora and Roberts, Sergeant Chavez, and Officers Carroll, Salcido, and Tanuz.

Defendant was present during the execution of the search warrant and was taken into the living room, along with several other individuals in the house. All these individuals, including Defendant, and with the exception of the children, were then handcuffed. The police officers then searched Defendant and all the individuals who were handcuffed and sat them down. At some point during the search the officers discovered a gas bill made out to Cindy Hicks, who was the tenant of the premises searched. The police knew that Defendant was not a resident of the premises. Defendant, while sitting on the couch and handcuffed from behind, was observed squirming and trying to get into his front pocket. Defendant was then searched again, and crack cocaine was found in his left front pocket. Defendant was then placed under arrest and transported to a police substation. Although the length of Defendant's detention from the time of the execution of the warrant to the time of his formal arrest is unclear, it appears the detention lasted approximately thirty minutes. At the substation, Defendant gave Sergeant Chavez another "stone" of crack cocaine, allegedly made some incriminating statements, and signed an advice of rights form.

STANDARD OF REVIEW

Defendant contends that the standard of review of the motion to suppress in the present case is de novo review. We agree. In State v. Attaway, 117 N.M. 141, 870 P.2d 103 (1994), our Supreme Court dealt with the standard of review for the determination of exigent circumstances. The standard of review set out in Attaway is that any predicate findings of historical fact on the part of the trial court below should be given deference. Id. at 144, 870 P.2d at 106. However, when a mixed question of law and fact implicates constitutional rights, that question resembles a conclusion of law more closely than a historical fact; in resolving such a question, the appellate court reviews it de novo. Id. at 144-46, 870 P.2d at 106-08. We perceive no difference between the question of exigent circumstances and the issue of the legality of Defendant's detention. Therefore, we review de novo the court's determination regarding that issue. Cf. State v. Werner, 117 N.M. 315, 316-17, 871 P.2d 971, 972-73 (1994) (reviewing issue of whether defendant was subjected to de facto arrest as issue of law).

DISCUSSION

The trial court found that Defendant gave the officers probable cause to search him because of Defendant's "obvious effort to conceal something." The trial court also found that this probable cause was "separate and apart from the search warrant," and that the officers had a right to detain Defendant. We disagree.

Initially, we address the issue of whether Defendant was subject to the search warrant. The affidavit for search warrant contains language authorizing the search of "any persons and/or vehicles which can be shown to be involved in drug dealing (purchasing or selling)." Defendant contends that this language did not serve to authorize the seizure or subsequent search of Defendant. We agree. In State v. Valdez, 91 N.M. 567, 568, 577 P.2d 465, 466 (Ct.App.1978), this Court found that the " 'all persons' " language did not make the warrant invalid, but was surplusage. Since the warrant in this case did not specifically authorize the seizure or subsequent search of Defendant, the State bears the burden of proof to show that its conduct with respect to Defendant was reasonable. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (mere propinquity of individual to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person). For the reasons that follow, we believe the State has failed to meet this burden.

Regarding whether non-residents on the premises can be lawfully detained while a search warrant is being executed, Defendant contends that the police should not have detained him simply because he was found on the premises when the officers executed the search warrant. We agree, and hold that the police cannot detain a non-resident unless they have a reasonable basis to believe that the non-resident has some type of connection to the premises or to criminal activity. See Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Ybarra, 444 U.S. at 91, 100 S.Ct. at 342. Thus, the dispositive issue here is whether the detention of Defendant on the premises during the course of the search was legal.

The traditional justification for detention is probable cause; however, other detentions are constitutionally permissible under certain circumstances. See Dunaway v. New York, 442 U.S. 200, 208-10, 99 S.Ct. 2248, 2254-55, 60 L.Ed.2d 824 (1979) (a Terry stop is based on the rationale that some seizures are substantially less intrusive than arrests and may be warranted to protect officers and aid them in their efforts to detect and prevent crime); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) ("A brief stop of a suspicious individual ... may be most reasonable in light of the facts known to the officer[s] at the time."). Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny have attempted to balance the competing interests of effective law enforcement and individual privacy. In order for this to be accomplished, the government must be able to demonstrate a " 'reasonable suspicion' " that the individual was engaged in criminal activity. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).

In Summers, the United States Supreme Court established another limited exception to the probable cause requirement and ruled that a resident of the premises being searched could be detained for the duration of the search. In that case, police officers encountered the defendant walking down his front steps as they were about to execute a search warrant. They requested entrance into his house and detained him during the search. After finding drugs in the basement of the house, the police arrested the defendant and found heroin in his pocket. Summers, 452 U.S. at 693, 101 S.Ct. at 2589.

Summers reaffirmed the holding in Dunaway that an official seizure of a person must be supported by probable cause even if no formal arrest is made. It also added that some seizures, significantly less intrusive than formal arrest, may be constitutionally permissive. Id. at 699-700, 101 S.Ct. at 2592-2593. Summers stated that "[i]n assessing the justification for the detention of [a resident] of premises being searched for contraband pursuant to a valid warrant, both the law enforcement interest and the nature of the 'articulable facts' supporting the detention are relevant." Id. at 702, 101 S.Ct. at 2594. The Court defined these law enforcement interests as (1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk to law enforcement officers; and (3) facilitating the search. Id. at 702-03, 101 S.Ct. at 2594-95. Although the Court recognized that it also had to consider the nature of the articulable and individualized suspicion on which the police based the detention of the resident, it noted that a search warrant provided an objective justification for the detention. Id. at 703, 101 S.Ct. at 2594. We now determine whether Summers applies in the instant case and whether Defendant's detention was reasonable under the circumstances.

Summers did not address whether the search warrant authorized the detention of the defendant as a non-resident. Summers appears not to have made a distinction between residents and non-residents since the defendant in that case was a resident. In the present case the police knew Defendant was not a resident of the premises. The decision in Summers was founded on the logical conclusion that a resident's control over premises which are the subject of a search warrant provides a sufficient connection with the...