People v. Gutierrez

Filed 3/29/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F074601
Plaintiff and Respondent,
(Super. Ct. No. SF018202A)
v.
REYNALDO GONZALEZ GUTIERREZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following the denial of his suppression motion, Reynaldo Gonzalez Gutierrez
pleaded no contest to charges of possession of methamphetamine for sale and possession
of ammunition by a prohibited person. On appeal, Gutierrez challenges only the trial
court’s denial of his motion to suppress evidence obtained by the police, after detaining
him in connection with the probation search of a third party. Gutierrez argues the
detention was unreasonable under the federal Constitution’s Fourth Amendment,
requiring exclusion of evidence that was a product of the detention. We agree and
reverse the judgment. We will remand the matter for further proceedings in the trial
court.
PROCEDURAL HISTORY
Gutierrez was charged by an information filed in the Kern County Superior Court
with possession of methamphetamine for sale (count 1; Health & Saf. Code, § 11378) and
possession of ammunition, i.e., a “20-gauge shotgun live round,” by a prohibited person
(count 2; Pen. Code,1 § 30305, subd. (a)(1)). Gutierrez filed a motion to suppress
evidence related to both counts. (§ 1538.5.) After the trial court denied the suppression
motion, the parties reached a plea agreement. Pursuant to the agreement, Gutierrez
pleaded no contest to both counts and received a stipulated sentence of two years in
prison.2
FACTS3
At approximately 7:00 p.m. on June 4, 2015, Kern County sheriff’s deputies
arrived at the residence of Timothy Beltran in Shafter. The deputies came to conduct a
1 Subsequent statutory references are to the Penal Code unless otherwise specified.
2 More specifically, Gutierrez was sentenced to the middle term of two years on
each count, to run concurrently. As part of the plea agreement, various sentence
enhancements alleged in the information were dismissed.
3 The factual record pertains to the evidentiary hearing on Gutierrez’s motion to
suppress.
2
probation search of Beltran based on his probation terms (which are not reflected in the
record). The record discloses no evidence that Beltran had violated or was suspected of
violating, the terms of his probation; rather, it appears the deputies were conducting a
routine, random probation compliance search of Beltran. Gutierrez, who did not live at
Beltran’s house, was visiting him at the time.
Testimony of Sheriff’s Deputy James Simmons
The People called Sheriff’s Deputy James Simmons as a witness. Simmons was
one of the deputies who responded to Beltran’s house that evening, at “approximately
7:00 p.m.” Simmons testified that “three to four other deputies” had “actually arrived
first and made contact first.” Simmons “went there to assist” them, bringing up the rear.
Simmons took up a “perimeter position” from which he “had a view of the front door,”
but he could not see inside the house. He saw the other deputies go up to the front door
and speak to someone, whereupon Beltran and Gutierrez “exited the front of the house.”
Simmons explained: “The other deputies had [Gutierrez] step out, so at that point I broke
my perimeter spot and went over and they had him and [Beltran] detained.” Simmons
testified that Gutierrez “was detained” on account of the probation search relating to
Beltran. Simmons could not say whether, prior to being directed to step out in front of
the house, Gutierrez had been detained inside the house for any period.
Simmons “conduct[ed] a pat-down search” of Beltran and Gutierrez on the front
porch or in the front yard, for purposes of officer safety. Simmons did not detect any
type of weapon during the patdowns. Thereafter, “as [the other deputies] searched the
house,” Simmons “stood outside” with Gutierrez and Beltran. Gutierrez was directed to
sit on the front porch. Simmons noted: “[The other deputies] were coming in and out. I
believe they were talking to [Beltran], asking him questions and stuff.” Simmons
acknowledged the deputies had no information or basis to suspect that Gutierrez was
involved in illegal activity.
3
Sometime later, perhaps ten minutes or so after the patdown search, Simmons
“gathered [identifying] information from [Gutierrez]” and then “conducted a want and
warrant check and probation check [on him] through … dispatch via … radio.” Simmons
said it was possible that Beltran’s probation search started at 7:16 p.m. but the record
check on Gutierrez was not requested until 7:48 p.m. Simmons testified: “A short time
later, [dispatch] gave me a return of basically that [Gutierrez] was on PRCS, which is
Post-Release Community Supervision and a form of parole at the county level.”
Simmons “then conducted a more thorough search of [Gutierrez’s] person” and found a
wad of cash in one of his front pockets.4 A car that Gutierrez identified as his was also
searched by other deputies.5
Simmons testified that he had heard of instances when deputies requesting records
checks were told by dispatch that the subject was on PRCS, when in fact that was not the
case. Simmons had not personally had this experience previously.
Testimony of Sheriff’s Dispatcher Cheryl Longwith
The prosecution also called as a witness Cheryl Longwith, a sheriff’s dispatcher
who was on duty at 7:00 p.m. on June 4, 2015. Longwith testified that she was in
communication with the deputies executing a probation search at Beltran’s house.
Longwith created, in the dispatch system, an “event chronology” or log related to this
particular undertaking. The event chronology began at 7:15 p.m., when deputies
informed Longwith that they had “stopped a person” or detained someone. Longwith
testified, with reference to the event chronology, that at 7:48 p.m., a deputy gave her
Gutierrez’s “date of birth” and “requested that [she] check this subject” by running him
4 Testimony at the preliminary hearing, a separate proceeding from the suppression
hearing, indicated that Gutierrez had $121 in his pants pocket.
5 Testimony at the separate preliminary hearing revealed that a 20-gauge shotgun
round, a digital scale, and 0.93 ounces of methamphetamine were found in Gutierrez’s
car.
4
through the “national crime information database.” Longwith eventually informed the
deputies that Gutierrez was on active PRCS. The time when Longwith responded was
not reflected in the event chronology, but she testified it would have taken her no more
than a “[c]ouple minutes” to run the check and give the deputies the relevant information.
During cross-examination, defense counsel showed Longwith a “CJIS” (Criminal
Justice Information System) record showing that Gutierrez’s PRCS was dismissed in
September 2013 (the record was admitted into evidence), almost two years before June
2015, when the probation search of Beltran occurred. Longwith testified that the dispatch
system had pulled up a different type of record, not a CJIS record. Longwith was unable
to identify the agency or database that generated the record accessed by dispatch.
Longwith did not manually crosscheck the record pulled up by the dispatch system
against the corresponding CJIS record.
Longwith noted she had no reason to manually check the CJIS database because,
at the time, the dispatch system was set up do to that automatically. She testified: “In
our computer system, they tried to streamline things so that you’re not checking five and
six different [databases] for the information. So they have the computers communicate
together and they bring it up into one screen. I was always able to depend on that
information.” Longwith acknowledged that the system broke down at some point,
although she did not specify when that occurred. Specifically, “computer support …
determined that the [relevant] systems were no longer communicating with each other.”
In particular, at that point, the dispatch system was not communicating with CJIS, the
database used by the probation department to maintain probation and PRCS records.
Dispatchers were subsequently instructed—for purposes of improving accuracy when a
person’s probation or PRCS status was at issue—to manually access CJIS in order to
confirm any probationary or PRCS status reflected in the dispatch system.
5
Regarding the record search for Gutierrez, Longwith explained: “I went solely off
of [the automated system]. I did not [manually] double check it through CJIS. Had I
double checked it through CJIS, I would have seen what you saw and knew that
[Gutierrez] was no longer on PRCS.” Longwith knew of another dispatcher who had
encountered the same problem, in that the dispatch system had generated inaccurate
information regarding an individual’s PRCS status and the dispatcher had not double
checked it through CJIS.
Testimony of Probation Officer Artemio Pineda
Kern County Probation Officer Artemio Pineda testified that he had supervised
Gutierrez while Gutierrez was on PRCS. Pineda confirmed that Gutierrez was not on
PRCS on June 4, 2015; his PRCS was dismissed in September 2013. Pineda clarified
that any changes to a supervisee’s PRCS status were entered by the probation department
directly into the CJIS system, the system used by the probation department to maintain its
records.
Pineda was aware of mistakes made by dispatch in ascertaining people’s
probationary or PRCS status. For example, Pineda had another former supervisee (not
Gutierrez) who was also incorrectly identified by dispatch as being on probation when he
was not; like Gutierrez, that former supervisee was searched on the basis of the
inaccurate information provided by dispatch as well. Pineda stated the wrongful search
of his other supervisee had occurred in the 2013-2014 period. Pineda promptly alerted
his supervisor about the situation, because he was concerned that mistakes by dispatch
were leading to wrongful searches and seizures.
DISCUSSION
I. Constitutionality of Gutierrez’s Initial Detention
Gutierrez argues his detention from the inception of Beltran’s probation search
until the point dispatch told the deputies Gutierrez was on PRCS, was unreasonable under
6
the Fourth Amendment to the federal Constitution. He contends the subsequent searches
of his person and his car were, in turn, illegal. He argues the evidence obtained as a
result of those searches must be suppressed as the product of his unconstitutional
detention. We agree with Gutierrez and will reverse the trial court’s ruling denying his
motion to suppress this evidence.
In deciding whether relevant evidence must be suppressed, we look exclusively to
the requirements of the United States Constitution. (People v. Glaser (1995) 11 Cal.4th
354, 363 (Glaser).) In reviewing a ruling on a suppression motion, we “defer to the trial
court’s factual findings, express or implied, where supported by substantial evidence.”
(Id. at p. 362.) “In determining whether, on the facts so found [and/or facts that are
undisputed], the search or seizure was reasonable under the Fourth Amendment, we
exercise our independent judgment.” (Ibid.; see People v. Miranda (1993) 17
Cal.App.4th 917, 922 [reviewing court independently decides, as a matter of law, the
constitutionality of the challenged search or seizure].) The prosecution always bears the
burden of justifying, by a preponderance of the evidence, that a warrantless search or
seizure falls within a recognized exception to the warrant requirement. (People v.
Williams (1999) 20 Cal.4th 119, 130; People v. James (1977) 19 Cal.3d 99, 106,
disapproved on another ground in People v. Haskett (1982) 30 Cal.3d 841, 857, fn. 6.) If
a seizure is unreasonable under the federal Constitution, evidence obtained as a
consequence thereof must be excluded. (Mapp v. Ohio (1961) 367 U.S. 643, 655; Wong
Sun v. United States (1963) 371 U.S. 471, 484-485.)
“The Fourth Amendment to the United States Constitution, made applicable to the
states by the Fourteenth Amendment, guarantees the right to be free of unreasonable
searches and seizures.” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) For
purposes of Fourth Amendment analysis, “police ‘contacts’ or ‘interactions’ with
individuals” include consensual encounters, detentions, and arrests, with consensual
7
encounters being the least intrusive, and arrests the most intrusive, of these contacts.
(Wilson v. Superior Court (1983) 34 Cal.3d 777, 784, citing Florida v. Royer (1983) 460
U.S. 491 (plur. opn.).) Detentions are “seizures of an individual which are strictly limited
in duration, scope and purpose, and which may be undertaken by the police ‘if there is an
articulable suspicion that a person has committed or is about to commit a crime.’”
(Wilson v. Superior Court, supra, at p. 784.) The police have detained an individual “‘if,
in view of all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.’” (Michigan v. Chesternut (1988) 486 U.S.
567, 573.) Those circumstances may include “physical restraint, threat of force, or
assertion of authority.” (In re Tony C. (1978) 21 Cal.3d 888, 895.)
In the instant matter, both parties agree that Gutierrez was detained at the
inception of the probation search concerning Beltran and remained so for the duration of
the search. Indeed, Deputy Simmons expressly acknowledged that Gutierrez was
“detained,” explaining that Gutierrez was ordered out of the house, subjected to a
patdown search on the front porch or in the front yard, and directed to sit on the front
porch for the duration of Beltran’s probation search. Simmons testified he stood guard
over Gutierrez and Beltran, while other deputies conducted the search.
The exact duration of the detention is unclear. Deputies arrived at Beltran’s house
at approximately 7:00 p.m. The sheriff’s dispatcher testified that she started a log related
to the incident at 7:15 p.m., when she was informed the deputies had “stopped” someone.
At 7:48 p.m., Simmons asked the dispatcher to run a record check on Gutierrez and, a
couple of minutes later, she advised Simmons, albeit wrongly, that Gutierrez was on
PRCS. Thus, although the length of the detention is not precisely ascertainable, it
appears to be longer than 30 minutes but no more than 50 minutes.
In terms of assessing the legality of Gutierrez’s detention, our analysis starts with
the landmark case of Terry v. Ohio (1968) 392 U.S. 1, 22 (Terry). In Terry, the federal
8
high court considered “when police may constitutionally ‘stop and frisk’ individuals in
public places without probable cause to arrest or search.” (Glaser, supra, 11 Cal.4th at
p. 363; In re Tony C., supra, 21 Cal.3d at p. 892 [Terry established that “circumstances
short of probable cause to make an arrest may justify a police officer stopping and briefly
detaining a person for questioning or other limited investigation”].) Terry pointed out
that such conduct “has not been, and as a practical matter could not be, subjected to the
warrant procedure,” but rather “must be tested by the Fourth Amendment’s general
proscription against unreasonable searches and seizures.” (Terry, supra, at p. 20, fn.
omitted.) Application of that general standard, in turn, requires courts to identify the
government interest allegedly justifying the intrusion and to balance “‘the need to search
(or seize) against the invasion which the search (or seizure) entails.’” (Id. at p. 21.)
Furthermore, “in justifying the particular intrusion the police officer must be able to point
to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” (Ibid., italics added.)
In Michigan v. Summers (1981) 452 U.S. 692 (Summers), the federal high court
applied the principles enunciated in Terry to a detention at a private residence, where
police had come to execute a search warrant for narcotics. In Summers, when the police
arrived, they saw Summers (the defendant in that case) exit the front door of the house
and walk down its front steps. They requested his assistance in obtaining entry, but
Summers said he had left his keys inside. The police then detained him while they
searched the house. After police found drugs in the house and learned Summers owned
the house, they arrested and searched him, discovering more drugs on his person.
(Summers, supra, at pp. 692-693, fn. 1.) Extrapolating Terry’s holding, Summers
explained that, when the probable cause standard is inapplicable, the reasonableness of a
seizure depends on the “character of the official intrusion and its justification.”
(Summers, supra, at p. 701.) The Summers court proceeded to evaluate the nature of the
9
intrusion at issue there and its justification, and to consider whether the detention was
supported by articulable and individualized suspicion of criminal activity. (Id. at pp. 703-
704.)
In evaluating the nature of the intrusion, the Summers court observed that it was of
“prime importance … that the police had obtained a warrant to search [Summers’s] house
for contraband.” (Summers, supra, 452 U.S. at p. 701.) Summers’s statement to police
that he had left the house keys inside—indicating that he was in fact a resident or
occupant of the house—was also a critical fact in this context. The court explained: “A
neutral and detached magistrate had found probable cause to believe that the law was
being violated in that house and had authorized a substantial invasion of the privacy of
the persons who resided there. The detention of one of the residents while the premises
were searched, although admittedly a significant restraint on his liberty, was surely less
intrusive than the search itself.” (Ibid.)
The court also found it significant that “the type of detention imposed here is not
likely to be exploited by the officer or unduly prolonged in order to gain more
information, because the information the officers seek normally will be obtained through
the search and not through the detention.” (Summers, supra, 452 U.S. at pp. 701-702.)
Finally, the court noted that because Summers was detained inside his own residence, the
detention “could add only minimally to the public stigma associated with the search itself
and would involve neither the inconvenience nor the indignity associated with a
compelled visit to the police station [in connection with execution of the search warrant
at his house].” (Id. at p. 702.)
Turning to the justification for the intrusion (i.e., “the detention of an occupant of
premises being searched for contraband pursuant to a valid warrant”), the Summers court
explained that in assessing the justification, “both the law enforcement interest and the
nature of the ‘articulable facts’ supporting the detention are relevant.” (Summers, supra,
10
452 U.S. at p. 702.) The court identified a number of legitimate government interests
applicable to the particular situation: “preventing flight in the event that incriminating
evidence is found”; facilitating “the orderly completion of the search” in that residents
could open locked doors or containers, thereby limiting the need for forced openings and
attendant damage; and “minimizing the risk of harm to the officers.” (Id. at pp. 702-703.)
As for the requisite articulable and individualized suspicion, the court noted: “The
connection of an occupant to [a house subject to a search authorized by a search warrant]
gives the police officer an easily identifiable and certain basis for determining that
suspicion of criminal activity justifies a detention of that occupant.” (Id. at pp. 703-704,
fn. omitted.) Summers concluded: “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.”6 (Summers, supra, 452 U.S. at p. 705, fns. omitted; see Bailey v. United
States (2013) 568 U.S. 186, 202 [Summers holds that “[d]etentions incident to the
execution of a search warrant are reasonable under the Fourth Amendment because the
limited intrusion on personal liberty is outweighed by the special law enforcement
interests at stake” in that situation]; Muehler v. Mena (2005) 544 U.S. 93, 95, 99
[detention of woman who “occupied” house where search warrant for weapons was being
executed was categorically reasonable under Summers].)
In Glaser, supra, 11 Cal.4th 354, the California Supreme Court applied Summers
to a very similar situation. On a dark and stormy night, Glaser, the defendant, arrived at a
6 In Glaser, the California Supreme Court clarified that Summers’s use of the term
“occupant” excludes mere visitors. (Glaser, supra, 11 Cal.4th at p. 370, citing 2 LaFave,
Search and Seizure (2d ed. 1987) § 4.9(e), pp. 309-310, fns. omitted [“‘it would seem that
the word “occupants” is not to be loosely construed as covering anyone present, but
instead is to be interpreted literally’” as applying to persons who actually occupy the
relevant premises].)
11
house just seconds before the police, who had a warrant to search the premises for drugs
and associated paraphernalia. (Glaser, supra, at pp. 360-361.) Glaser was about to open
a back gate leading through the backyard to the house, when a plainclothes officer
approached him and yelled something. Glaser could not understand what was being said,
perhaps on account of the storm or the fact that he had just woken up. It was only some
minutes later that he realized the man was an officer, who, by that point, had his gun
pointed at Glaser and was ordering him to get on the ground. (Id. at p. 361.) Glaser was
handcuffed and taken into the house where, based on other factors, he was subjected to a
patdown search. Our Supreme Court addressed the validity of only the initial detention
of “two minutes or less,” that took place outside the house. (Id. at pp. 360-361, 367,
italics added.)
The Glaser court balanced “the extent of the intrusion against the government
interests justifying it, looking in the final and dispositive portion of the analysis to the
individualized and objective facts that made those interests applicable in the
circumstances of the particular detention.” (Glaser, supra, 11 Cal.4th at p. 365.) In
assessing the character of the detention, the court noted that its extreme brevity and out-
of-the-way location at “the back gate of a private residence” diminished the level of
intrusiveness, while the officer’s use of a gun exacerbated it. (Id. at pp. 366-367.) The
court also noted that because the detention was incidental to the execution of a search
warrant, and “there was no evidence of an independent investigatory purpose,” it was
“not likely to be exploited by the officer or unduly prolonged in order to gain more
information” beyond that expected to be obtained through the search. (Id. at p. 367.)
As for the government interests potentially justifying the intrusion, they arose
from the fact that there was probable cause to believe that criminal drug activity was
occurring at the residence, as reflected in the issuance of the search warrant. Specifically,
the government interests were: (1) determining whether Glaser, “who appeared to be
12
more than a stranger or casual visitor,” was connected to the criminal activity suspected
to be occurring at the residence and, (2) ensuring officer safety “at the site of a search for
narcotics.” (Glaser, supra, 11 Cal.4th at p. 365.) Regarding the issue of officer safety,
Glaser observed that when police execute a search warrant at a suspected drug dealer’s
home, it is reasonable to assume that dealers often have access to firearms. (Id. at pp.
367-368.) Thus, the police have a legitimate interest in “determining the identity of a
person entering premises being searched” and his connection to the premises, so as to
evaluate the level of risk to officer safety. Determining the identity of such a person and
his connection to the premises also assists the police in ascertaining whether “there is
reason to suspect the person of involvement in criminal activities on the premises” and
whether he can be of assistance in facilitating the search of the premises, as authorized by
the search warrant. (Id. at pp. 367-368.)
The Glaser court concluded that the detention of the defendant there was
constitutionally reasonable because his attempted entry into the backyard indicated he
was either “a resident or familiar visitor” and he was heading into the house where
criminal drug activity was suspected and a search for illegal drugs, pursuant to a search
warrant, was already underway. (Glaser, supra, 11 Cal.4th at p. 369.) In addition, the
defendant did not respond when the officer attempted to communicate with him, leaving
the officer “no practical choice but to detain [him],” so as to determine his identity and
connection to the house. (Ibid.) Indeed, given these circumstances, a momentary
detention was “virtually unavoidable” to prevent Glaser from coming up behind the
officers involved in the search authorized by the warrant. (Ibid.)
Glaser emphasized that “[u]nder Terry the touchstone of reasonableness for search
or seizure without probable cause is the presence of ‘specific and articulable facts’ that
reasonably warrant the intrusion on personal liberty and privacy.” (Glaser, supra, 11
Cal.4th at p. 374.) Glaser concluded that, “[t]he existence of a warrant to search a home
13
for illegal drugs, the presence of an unknown person on the premises when police begin
the search, and the officer’s inability to immediately determine the person’s identity and
connection to the premises without effecting a detention, are specific and articulable facts
that, on balance, reasonably warrant a detention limited to the time and means needed to
resolve the questions of identity and occupancy and to protect the safety of those present
while those questions are resolved.” (Id. at pp. 374-375.) The court thus approved the
detention of “two minutes or less” effected for this purpose. (Id. at p. 367.)
Glaser, however, expressly declined to adopt “a general rule” that when police
have a warrant to search a home, “‘the mere arrival or presence of someone at the
warranted premises, by itself,’ justifies a detention for the purpose of determining identity
and connection to the searched premises.” (Glaser, supra, 11 Cal.4th at pp. 373-374.)
Glaser noted that “[s]uch a blanket approval of detentions in the course of searches
would present too great a danger ‘of slippage into a guilt by association pattern whereby
anyone seen near prospective drug activity becomes fair game for a stop and frisk.’” (Id.
at p. 374.)
People v. Hannah (1996) 51 Cal.App.4th 1335 (Hannah) applied Summers and
Glaser to a situation where police arrived at an apartment to execute an arrest warrant
(not a search warrant), for a minor. The woman who answered the door consented to the
police entering to check whether the minor was present. The defendant and another man
were seated in the living room at the time. The officers directed the men to remain seated
while they attempted to locate the minor. One of the officers noticed that the defendant
appeared to be under the influence of drugs and arrested him.
In evaluating the legality of the defendant’s initial detention, the Hannah court
noted that the “need to detain defendant to protect the police officers is not as compelling
as when a search warrant has been issued or when a police officer has a reasonable basis
to believe criminal activity is occurring.” (Hannah, supra, 51 Cal.App.4th at p. 1345.) It
14
nonetheless found the detention was reasonable because “[i]t is hard to envision a more
minimal intrusion on an individual’s right to be free from unlawful seizure than the
circumstances of defendant’s detention.” (Id. at p. 1344.) Specifically, the court
observed the detention simply entailed a request that the defendant remain seated where
he was located and lasted, at most, several minutes; in addition, the defendant was
detained inside the residence, which minimized any “embarrassment or stigma associated
with the detention.” (Ibid.)
In People v. Matelski (2000) 82 Cal.App.4th 837 (Matelski), the court applied
Summers, Glaser, and Hannah to the same situation as presented in the instant case, i.e.,
a detention in the context of a probation search of a third party. In Matelski, the police
went to a probationer’s house to conduct a probation search because the probationer had
failed a drug test and was suspected of using drugs. (Matelski, supra, at p. 841.) The
defendants, who were not targets of the search, were walking out of the front door as the
police arrived. One of the officers asked the defendants to approach and explained that
the probationer was prohibited from associating with convicted felons. The officer then
asked the defendants for identifying information in order to determine whether they were
convicted felons. The information was relayed to the police dispatcher for a
determination of their status and it was discovered that both defendants had outstanding
warrants. They were arrested and searched, and drugs and paraphernalia were found in
the course of the searches. (Id. at pp. 841-842.)
In a two-to-one decision, the Matelski majority concluded the 15-minute detention
prior to arrest was constitutionally reasonable. The majority explained the detention was
brief and relatively private, in that the house was in a remote area. (Matelski, supra, 82
Cal.App.4th at pp. 841-842.) Furthermore, the majority “emphasize[d] that this was not a
suspicionless intrusion.” (Id. at p. 851.) “Instead, the officers were at the residence to
enforce probation terms against [the probationer] because he had flunked a drug test.”
15
(Id. at p. 852.) Finally, the majority noted “there was a need to determine [the]
defendants’ connection to the probationer because the probationer was prohibited by his
general terms of probation from consorting with convicted felons.”7 (Matelski, supra, 82
Cal.App.4th at p. 850.)
People v. Rios (2011) 193 Cal.App.4th 584 (Rios) also dealt with a detention in
the context of a probation search of a third party. In Rios, the police came to the house of
a juvenile probationer to conduct a probation search. The juvenile probationer had
admitted to using methamphetamine and police officers had also previously found drug
paraphernalia and gang tagging in the house. The officers knew that the probationer was
prohibited, under his probation terms, from associating with gang members. Rios was
sitting on a couch near the front door when the police arrived, and one of the officers
noticed he had gang tattoos on his face and hand. The officers asked Rios for identifying
information but Rios was uncooperative and appeared to reach for a weapon. Eventually
a struggle ensued and a gun fell out of Rios’s shirt. (Id. at pp. 589, 595.) The court
assumed Rios was detained from the time the officers entered the house. The court held
the detention was reasonable because the juvenile probationer was prohibited from
associating with gang members and Rios appeared to have gang tattoos, whereby the
officers were entitled to ascertain his relationship with the probationer. (Id. at p. 595.)
7 In contrast, the dissenting justice in Matelski was of the view that the drugs
discovered as a result of the detention should have been suppressed, noting:
“None of the Glaser facts were present here. There was no search warrant.
There was no evidence of illegal activity on the premises. The officers
could have determined in seconds that the Matelskis were not residents of
the home. The detention of the Matelskis was admittedly not for the
purpose of officer safety. The situation was not unstable. There was no
“‘specific and articulable facts” that reasonably warrant[ed] the intrusion on
personal liberty and privacy.’” (Matelski, supra, 82 Cal.App.4th at p. 854
(dis. opn. of Gaut, J.).)
16
Turning to the instant case, Terry, Summers, and Glaser make clear that our task is
to balance “the extent of the intrusion against the government interests justifying it,” and
to consider whether the detention was supported by “‘articulable and individualized
suspicion.’” (Glaser, supra, 11 Cal.4th at p. 365; see Summers, supra, 452 U.S. at pp.
703-704.) Here, Gutierrez’s detention appears to be moderately intrusive, even if not
greatly so. There is no evidence that officers had their guns drawn. On the other hand,
Gutierrez was ordered out of the house, subjected to a patdown search on the front porch
or in the front yard, and directed to sit on the front porch evidently for the duration of
Beltran’s probation search, a period ranging from 30 to 50 minutes. During this time,
Simmons stood on the porch to guard Beltran and Gutierrez, and other officers went in
and out of the house, questioning Beltran about matters related to his probation search.
Furthermore, evidence of an independent investigatory purpose is apparent, in that
Simmons had obtained identifying information from Gutierrez and after, or at least well
into, the probation search, asked dispatch to check whether Gutierrez was subject to
search terms himself. The detention appears to have been unduly prolonged for this
purpose, which was unrelated to the probation search of Beltran. Indeed, given that the
police were there simply to conduct a probation search of Beltran, they evinced no
interest in ascertaining whether Gutierrez lived with Beltran or was merely visiting him.
In this respect, the situation is very different from Glaser, where the police arrived at a
house to execute a search warrant for drugs and had a heightened interest in knowing
whether Glaser lived there, but Glaser, when contacted for this purpose, was
unresponsive, at least initially, necessitating a momentary detention.
We are mindful that central to the notion of reasonableness under Terry is the
requirement of “specificity in the information upon which police action is predicated.”
(Terry, supra, 392 U.S. at p. 21, fn. 18; see Glaser, supra, 11 Cal.4th at p. 369 [“We
look, that is, to ‘the nature of the articulable and individualized suspicion’ justifying the
17
detention.”].) Here, however, the detention was not related to a search warrant for the
premises; nor is there any evidence that police had reason to suspect that either Beltran or
Gutierrez were dangerous, or that a violation of the law had occurred or criminal activity
of any kind was afoot, including the use or dealing of drugs. Simmons in fact candidly
admitted that the deputies did not suspect Gutierrez of any wrongdoing.
As for the probation search itself, there is no evidence that Beltran had ever
violated his probation or that the instant probation search was anything more than a
routine or random probation compliance search. In this regard, this case is
distinguishable from Matelski and Rios, both of which also involved detentions that took
place in the context of probation searches of third parties. In those cases, the
probationers had violated the terms of their probation shortly before the searches at issue
took place. (Matelski, supra, 82 Cal.4th at p. 841 [search at issue “prompted” by fact that
probationer had failed drug test]; Rios, supra, 193 Cal.App.4th at p. 589 [probationer had
admitted to being under the influence of methamphetamine, and drug paraphernalia and
gang tagging was found in house].) Furthermore, the detentions in those cases were
found to be reasonable because the police needed information from the detained persons
regarding whether they were felons (Matelski) or a gang member (Rios), in order to
determine whether the respective probationers had violated specific probationary terms
prohibiting such contacts. Unlike Matelski and Rios, here there is no evidence that police
detained Gutierrez in order to verify Beltran’s compliance with a specific probationary
term.
Finally, we turn to the potential justification of officer safety. Even were we to
assume, without deciding, that the need to ensure officer safety justified a limited
detention and patdown search of Gutierrez, here the detention continued for
approximately 30 minutes or more after Simmons had patted down both Gutierrez and
Beltran and determined that each was unarmed. (See Terry, supra, 392 U.S. at pp. 19-20
18
[the Fourth Amendment “inquiry is a dual one—whether the officer’s action was justified
at its inception, and whether it was reasonably related in scope to the circumstances
which justified the interference in the first place”]; Florida v. Royer, supra, 460 U.S. at p.
500 [“The scope of the detention must be carefully tailored to its underlying
justification.”].) The applicable circumstances do not reflect “articulable and
individualized suspicion” to justify such an extended period of detention for purposes of
officer safety. (Glaser, supra, 11 Cal.4th at p. 369; see Terry, supra, at p. 22[“inarticulate hunches” and “subjective good faith” on the part of the officer are
insufficient to justify “intrusions upon constitutionally guaranteed rights”].) The
circumstances are not analogous, for example, to the situation that prevailed in Summers
and Glaser, where police were executing search warrants (based on a finding of probable
cause by a neutral magistrate) in the houses of suspected drug dealers and detained a
resident or “familiar visitor,” who would reasonably be expected to have access to
firearms. (Glaser, supra, at p. 369.) In short, here there were no “‘specific and
articulable facts’” that reasonably warranted an extended “intrusion on personal liberty
and privacy.” (Id. at p. 374 [declining to adopt a general rule that the mere presence of
someone at warranted premises alone justifies a detention]; see Florida v. Royer, supra,
at p. 498 [a person “may not be detained even momentarily without reasonable, objective
grounds for doing so”].)
Accordingly, we cannot say that the entire period of Gutierrez’s detention—from
the inception of Beltran’s probation search until the deputies were notified by dispatch
that Gutierrez was on PRCS—was justified by government interests made applicable to
his detention by “individualized and objective facts.” (Glaser, supra, 11 Cal.4th at
p. 365.) We conclude that the extended detention at issue here was unreasonable. Since
the detention itself was unlawful, its fruits—i.e., evidence subsequently obtained from
Gutierrez’s person and car, as well as any statements he made in connection with those
19
searches—must be suppressed.8 (United States v. Crews (1980) 445 U.S. 463, 470;
People v. Loudermilk (1987) 195 Cal.App.3d 996, 1001.)
DISPOSITION
The judgment is reversed and the cause remanded with directions to the trial court
to: (1) vacate its order denying Gutierrez’s suppression motion and enter a new order
granting the motion; (2) permit Gutierrez to withdraw his nolo contendere pleas; (3)
determine whether the People intend to retry the case; and (4) make such other orders as
are necessary and appropriate.
_____________________
SMITH, J
WE CONCUR:
_____________________
PEÑA, Acting P.J.
_____________________
Meehan, J.
8 In light of our conclusion, we need not address Gutierrez’s alternative contention
that even had the detention been lawful, the products of the searches of Gutierrez and his
car must nonetheless be excluded because the good faith exception to the warrant
requirement does not apply to the deputies’ reliance on incorrect information indicating
that Gutierrez was on active PRCS.
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