Executing Search Warrants - Alameda County District Attorney's Office

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RESIDENTS: All residents may be detained pending completion of the search. 42 VISITORS: All visitors may be briefly detained to determine their connection to the premises. 43 If it turns out they are not residents and are not involved in the illegal activity under investigation, they must be released. In determining the visitor’s status, officers may rely on direct and circumstantial evidence. For example, it may be reasonable to believe a visitor was a criminal associate if he ran or made a furtive gesture when he saw the officers; or, while the search was underway, he entered the house without knocking or announcing his presence. 44 ARRIVALS: Officers may briefly detain people who arrive outside the residence at or about the same time as they did, and whose identity and connection to the premises are unknown and cannot be immediately determined. 45 The purpose of the detention is to find out if the person is a detainable occupant or an uninvolved visitor. 46 DETAINING OCCUPANTS OF A BUSINESS: Officers who are searching a business open to the public may detain a person on or near the premises only if there is reasonable suspicion that the person is connected with the illegal activities under investigation. 47 of the law execute a valid warrant to search his home.”]; People v. Ingram (1993) 16 Cal.App.4 th 1745, 1751-2; People v. Gabriel (1986) 188 Cal.App.3d 1261, 1264-5. 42 See Michigan v. Summers (1981) 452 US 692, 705 [“(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.”]; People v. Glaser (1995) 11 Cal.4th 354, 373 [“(A) resident or intimate of the home, who may have criminal interests there to protect, may present a substantial risk . . . ”]; People v. Thurman (1989) 209 Cal.App.3d 817, 823; People v. Gabriel (1986) 188 Cal.App.3d 1261, 1264. ALSO SEE People v. Ingram (1993) 16 Cal.App.4th 1745, 1751-2. 43 See People v. Glaser (1995) 11 Cal.4 th 354, 374-5. 44 See People v. Huerta (1990) 218 Cal.App.3d 744, 749 [“When defendant entered the residence without knocking or announcing his presence the officers executing the warrant had reason to believe defendant was directly connected to the premises in some way.”]; People v. Fay (1986) 184 Cal.App.3d 882, 892-3 [“Once Totah had entered the apartment building and was seen standing in front of the apartment about to insert keys into the lock, the officers had reasonable grounds to believe that he was a resident of the apartment”]; People v. Glaser (1995) 11 Cal.4th 354, 365 [defendant “appeared to be more than a stranger or casual visitor”]; People v. Valdez (1987) 196 Cal.App.3d 799, 802-4 [although defendant’s connection to the premises was unknown, he and another man who were standing close together “started turning away from officers” when the officers identified themselves]; People v. Samples (1996) 48 Cal.App.4th 1197, 1206 [“(A)ppellant was clearly in close association with several subjects of a search warrant which was then being executed.”]; People v. Tenney (1972) 25 Cal.App.3d 16, 26-7 [defendant opened the door without knocking and ran when he saw the officers inside]; U.S. v. Fountain (6th Cir. 1993) 2 F.3d 656, 663 [the concerns that justify the detention of people inside a house being searched for drugs “are the same regardless of whether the individuals present in the home being searched are residents or visitors.”]; Burchett v. Kiefer (6th Cir. 2002) 310 F.3d 937, 943 [“(T)he Supreme Court’s discussion of ‘occupants’ in Summers included nonresidents who are present at the scene of a search when police arrive”; suspect approached the house, saw the officers, and fled]. PROSECUTOR’S NOTE: Defense attorneys may cite People v. Gallant (1990) 225 Cal.App.3d 200 in visitor-detention cases. Gallant has been implicitly overruled by Glaser. See People v. Samples (1996) 48 Cal.App.4th 1197, 1206. 45 See People v. Glaser (1995) 11 Cal.4 th 354, 374. 46 See People v. Glaser (1995) 11 Cal.4 th 354, 366, 374. 47 See People v. Ingram (1993) 16 Cal.App.4 th 1745, 1752-3 [“(W)hen executing a search warrant at a business open to the public, law enforcement officers may detain those persons on the premises when the circumstances create a reasonable suspicion of a relationship between the person and the place sufficient to connect the individual to the illegal activities giving rise to the warrant.”]. 8
This means a person may not be detained merely because he was present in a place open to the public. 48 ARRESTING OCCUPANTS AND VISITORS: Officers may arrest any person on the premises for whom probable cause to arrest exists upon entry or develops during the search; i.e., neither an arrest warrant nor a Ramey warrant is required. 49 PAT SEARCHES: Officers may pat search people on the premises as follows. ARMED OR DANGEROUS: Officers may pat search any person who is reasonably believed to be armed with a conventional weapon or an object that could be used as a weapon, or who otherwise constitutes a threat them or others. 50 DRUG HOUSE: Officers who are executing a warrant to search a private residence for drugs or illegal weapons may pat search, (1) everyone who is present when they arrive and, (2) everyone who enters while they are on the scene if the manner in which they entered reasonably indicated they lived there or were otherwise closely associated with the residence; e.g., person entered without knocking. 51 QUESTIONING OCCUPANTS: As a safety measure, officers may question the occupants about the location of weapons, needles, and any other dangerous substance or condition. Even if the person was “in custody” for Miranda purposes, a waiver is not required if, as is usually the case, officers reasonably believed the answer to such questions were necessary to help prevent serious injury to them while conducting the search. 52 WHAT MAY BE SEARCHED After the premises have been secured, officers will normally begin the search. But before starting, they must know precisely what places and things they may search. It is sometimes permissible to search every structure, storage area, vehicle, piece of furniture, person, and item of personal property on and around the premises. In most cases, however, the search must be limited to some extent. It is important that officers are aware of any limitations because evidence may be suppressed if it was obtained while they were exceeding the permissible scope of the search. Moreover, all evidence obtained during the search may be suppressed if a court concludes they were conducting the search in “blatant disregard” of the terms of the 48 See Ybarra v. Illinois (1979) 444 US 85, 91-3. 49 See People v. McCarter (1981) 117 Cal.App.3d 894, 908; People v. Palmquist (1981) 123 Cal.App.3d 1, 15. 50 See Terry v. Ohio (1968) 392 US 1, 27-8. 51 See People v. Thurman (1989) 209 Cal.App.3d 817, 823; People v. Glaser (1995) 11 Cal.4th 354, 373 [“(A) resident or intimate of the home, who may have criminal interests there to protect, may present a substantial risk . . . ”]; People v. Huerta (1990) 218 Cal.App.3d 744, 750 [because the defendant “opened the front door and walked inside without knocking or otherwise announcing himself,” “the police could reasonably conclude defendant was lying or was in some way linked [to the criminal activity].”]; People v. Valdez (1987) 196 Cal.App.3d 799, 802-4 [although defendant’s connection to the premises was unknown, he and another man who were standing close together, “started turning away from officers” when they identified themselves]; People v. Samples (1996) 48 Cal.App.4th 1197, 1206 [“(A)ppellant was clearly in close association with several subjects of a search warrant which was then being executed.”]. ALSO SEE People v. Galant (1990) 225 Cal.App.3d 200, 207-8 [insufficient grounds to connect defendant to the premises or the criminal activity]. 52 People v. Simpson (1998) 65 Cal.App.4 th 854, 862. ALSO SEE People v. Cressy (1996) 47 Cal.App.4 th 981, 989 [officers, who were about to conduct a lawful search of a suspect, asked him if he had any needles or other sharp objects in his possession]; People v. Sims (1993) 5 Cal.4 th 405, 451 [dangerous suspect who had been arrested and handcuffed was asked, “Where are the guns?”]. 9
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Executing Search Warrants - Alameda County District Attorney's Office

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