Wilson v. State

• Decision Date: 07 July 1989
• Docket Number: No. 87-2897,87-2897
• Citation: 14 Fla. L. Weekly 1612,547 So.2d 215
• Parties: 14 Fla. L. Weekly 1612 Willie James WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 215

547 So.2d 215

14 Fla. L. Weekly 1612

Willie James WILSON, Appellant, v. STATE of Florida, Appellee.

No. 87-2897.

District Court of Appeal of Florida Fourth District.

July 7, 1989.

Rehearing Denied Aug. 30, 1989.

Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Mardi Levey Cohen, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

The defendant entered a plea to possession of a controlled substance, reserving the right to appeal an order denying a motion to suppress. The issue on appeal is the extent to which officers who are executing a search warrant may physically restrain persons found on the premises in order to secure the area. The trial court's findings reflect that a tactical unit of officers, executing a search warrant for drugs at a residence, found the defendant outside the house near the front door. He was leaning up against the house while sitting on a box next to a table. It was after dark and the house was located in an area of high crime and drug activity. As the police entered, with guns drawn, the defendant, along with three or four other men who were present, was told to get on the ground and was handcuffed. This was a standard precaution used for the protection of the officers and others when securing an area under these circumstances. The department's experience had shown that under these conditions aggressive behavior and resistance by those at the scene was not uncommon, and that there was a likelihood of firearms being present.

Miranda warnings were read to all present, and a deputy asked the defendant if there was anything on his person that he should know about. The defendant immediately confessed to possessing drug paraphernalia in his shoe. The trial court found that the detention was reasonable, and that the subsequent search of the defendant was permissible because he stated that he had contraband on his person.

In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court determined that police, executing a search warrant upon a tavern and its bartender, had no right to search customers in the bar in the absence of a reasonable suspicion that the patron posed a threat. This case, however, differs from Ybarra in several respects. In Ybarra there was no factual basis to conclude that the officers had reasonable grounds to conduct a search of the customers. Additionally, there was no reason to believe that Ybarra was anyone other than a customer. The court noted that Ybarra said and did nothing suspicious. Thus, it was not reasonable for the officers to fear for their safety from the defendant and there was nothing about his physical location or appearance to connect him to either the bartender or the bar.

Here, on the other hand, there were reasonable articulated grounds to secure the defendant, who the officers, in the exigency of serving the warrant, could reasonably perceive as posing a threat to their safety, ¹ and to the security of the premises. See generally Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Harper v. State, 532 So.2d 1091 (Fla. 3d DCA 1988), rev. denied, 541 So.2d 1172 (Fla.1989); State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA), rev. denied, 534 So.2d 401 (Fla.1988); Morganti v. State, 498 So.2d 557 (Fla. 4th DCA 1986); Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984). But see Julian v. State, 528 So.2d 427 (Fla. 2d DCA 1988).

A lawful temporary seizure and detention is not automatically converted into an unlawful arrest because the officers at the scene elect to handcuff a defendant rather than use some other method of restraint for their protection such as holding him on the ground at gunpoint. See generally United States v. Bautista, 684 F.2d 1286 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983); State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA 1988).

The trial court did not abuse its discretion by considering the totality of the circumstances and finding that the decision to restrain the defendant under these conditions was a reasonable and lawful procedure, and that the restraint was temporary. Had the contraband not been uncovered, the defendant, if unarmed, would have been free to leave. Nor did the court err in treating the defendant, who might well have been guarding the door, as an occupant of the premises.

Therefore, the judgment and sentence are affirmed.

WALDEN, J., concurs.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge, dissenting.

The majority has put its imprimatur on the routine handcuffing of all persons who are in or near a house where police are about to execute a search warrant, merely because sometimes people present may be dangerous. I think the cases show that there needs to be a much stronger ground than this for such intrusion into a person's Fourth Amendment rights.

My colleagues acknowledge dissonance if not outright conflict with the opinion in Julian v. State, 528 So.2d 427 (Fla. 2d DCA 1988). There the appellate court reversed the trial court's denial of a suppression of evidence motion, holding that the defendant's mere presence on the curtilage of a mobile home being subjected to a warranted search could not furnish a reasonable connection to the suspected narcotics activity which, according to the search warrant, was the required predicate to search of the defendant. Upon arrival to conduct the search of the mobile home the police had, according to plan, detained several persons standing around in the yard. Although these persons were not acting in a suspicious manner, they were not allowed to leave until each had been searched.

The case authorities on which my colleagues rely are all sufficiently different to make their reliance unjustified. The defendant in Harper v. State, 532 So.2d 1091 (Fla. 3d DCA 1988), rev. denied, 541 So.2d 1172 (Fla.1989), was taken down and handcuffed when found standing next to the counter in the kitchen of a crack house, during execution of a warranted search for items used or property taken during an armed robbery and burglary. A quantity of cocaine was in plain view on the counter, and a butane torch was nearby. The circumstances of Wilson's detention in the instant case are described below. They are markedly different.

In State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA), rev. denied, 534 So.2d 401 (Fla.1988), rev. denied, 488 U.S. 1044, 109 S.Ct. 872, 102 L.Ed.2d 995 (1989), the defendant drove up to a house at which officers had made several undercover cocaine purchases just as the officers were executing a search warrant there. Ruiz was ordered to lie prone on the ground but was not handcuffed. He was asked specifically whether he had a gun, not whether he had anything on him that the police should know about before they searched him. Again, the difference from the present facts will be apparent later.

In Morganti v. State, 498 So.2d 557 (Fla. 4th DCA 1986) the characteristics of the detention were in general those of a routine automobile stop, and search of the defendant for weapons was justified by police knowledge that two of the defendant's companions had felony convictions, and the fact that one of the officers had information that the defendant might have been involved in a previous shooting.

Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984) concerns detention and patdown of a man accosted by an officer a few feet from the steps leading to the man's apartment just as execution of a warranted search of that apartment was taking place. The officer had been told by a confidential informant that the man customarily carried a gun. The officer took out of the man's hands a brown nylon bag and shaving kit. The contents were a gun and some contraband narcotics. The warrant authorized search of the premises and of any person reasonably believed to be engaged in narcotics trafficking. The police had made "controlled buys" at the apartment. Zaner exhibits a very good fit with the facts and law of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), as the reader will soon see. The instant case does not.

The facts as detailed in People v. Summers, 68 Mich.App. 571, 243 N.W.2d 689 (1976), aff'd, 407 Mich. 432, 286 N.W.2d 226 (1979), reversed, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), readily show how Michigan v. Summers is distinguished from the instant case and why, contrary to my colleagues' reliance thereon, Summers fails to support the result favored here by the majority.

Summers was exiting his house as the police arrived to execute a search warrant. Officer Lehman stopped Summers and identified himself as a police officer. When the police learned that Summers lived in the house, they ordered him to unlock the door. Summers said that he did not have his keys with him, and would have to use the intercom to get someone inside to open the door. He did so, and instructed the person answering, Dwight Calhoun, to let him into the house. When Calhoun got to the door, and the officer identified himself, Calhoun would not let him in.

The officers quickly knocked down the door. As Lehman chased Calhoun down the hall, another officer, Conant, on Lehman's instructions, escorted Summers inside. Simultaneously other officers secured the house. Lehman saw Calhoun toss a pack of what proved to be heroin onto a bed in the bedroom. Calhoun was arrested and escorted back into the living room. Several other people found in the house were also brought into the living room. Conant proceeded to search the whole house, and found two plastic bags of suspected narcotics under the bar in the basement.

When Conant returned to the living room, Summers again indicated upon questioning that he owned the house and lived there. Summers was then placed under arrest and searched. Two...