Types of Detentions:

Traffic Stops:

Detention vs. Arrest

Detention vs. Arrest: Although issuing a traffic citation is technically an arrest and release on the person's written promise to appear, it is treated as a detention because of the minimal intrusion involved. (Berkemer v. McCarty (1984) 468 U.S. 420, 439 [82 L.Ed.2^nd 317, 334]; see also People v. Hernandez (2006) 146 Cal.App.4^th 773: "Traffic stops are treated as investigatory detentions for which the officer must be able to point to specific and articulable facts justifying the suspicion that a crime is being committed.")

In that the traffic stop itself (i.e., prior to the issuing of a citation), is no more than a detention, it only requires a "reasonable suspicion" that a traffic offense had been committed in order to be a lawful stop. (United States v. Lopez-Soto (9^th Cir. 2000) 205 F.3^rd 1101, 1104-1105; People v. Miranda (1993) 17 Cal.App.4^th 917, 926 Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4^th 499, 509-510; United States v. Miranda-Guerena (9^th Cir. 2006) 445 F.3^rd 1233.)

In establishing the necessary "reasonable suspicion," the officer is not required to personally "observe all elements of criminal conduct." He need only "be able to ‘point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citation]" Id., at p. 509.)

Then the citation (i.e., the arrest and release) is written based on the "probable cause" to believe a traffic infraction had been committed by the person being cited. (Ibid.)

A random license check on the defendant's vehicle, resulting in information that the owner had an outstanding traffic warrant, justified the stop of that vehicle. (People v. Williams (1995) 33 Cal.App.4^th 467.)

No Law Enforcement Involvement

No Law Enforcement Involvement:

A suspect who stops on his own, even if mistakenly believing that he was required to stop, but where law enforcement does nothing affirmatively to cause him to stop, has not been detained for purposes of the Fourth Amendment.  (United States v. Hussein Al Nasser (9^th Cir. 2007) 479 F.3^rd 1166, 1168-1170; "(Defendant's) freedom of movement may have been restrained, but was not restrained by police efforts to restrain it. . . . (T)here was no stop for purposes of the Fourth Amendment.")

Moving Violations

Moving Violations:

A citizen's report of a vehicle driving erratically, with a specific description of the vehicle (including a personalized license plate, although one digit was wrong), where the officer observed the vehicle shortly thereafter weave outside its lane, was cause to effect a traffic stop.  (People v. Carter (2005) 36 Cal.4^th 1114, 1139-1142.)

A pedestrian crossing diagonally across an intersection without interfering with any traffic is not a violation of V.C. § 21954(a) (Pedestrian's interference with traffic), and therefore does not justify a detention.  (People v. Ramirez (2006) 140 Cal.App.4^th 849.)

Vehicle Code Equipment Violations

Vehicle Code Equipment Violations:

A license plate, although only partially obscured by a trailer hitch, violates V.C. § 5201, and justifies a traffic stop and citation.  (People v. White (2001) 93 Cal.App.4^th 1022.)

Note:    Amendment to V.C. § 5201, effective 1/1/04, excuses the obstruction of a rear license plate by a wheelchair lift or carrier if by a disabled person with the applicable disabled person plates or placard, and a decal with the license plate number is clearly visible in the rear window.

A missing front license plate, a violation of V.C. § 5200, is legal justification upon which to base a traffic stop.  (People v. Saunders (2006) 38 Cal.4^th 1129, 1136; People v. Vibanco (2007) 151 Cal.App.4^th 1, 8.)

It is not a search to randomly check license plates that are otherwise visible to an officer, and to check law enforcement databases for information about that vehicle.  Discovering that a vehicle's registered owner has a suspended license, and noting that the observed driver resembles the physical description of the registered owner, stopping the car to check the driver's license status is lawful.  (United States v. Diaz-Castaneda (9^th Cir. 2007) 494 F.3^rd 1146, 1150-1152.)

A cracked windshield (V.C. § 26710) will also justify a traffic stop.  (People v. Vibanco, supra.)

An inoperable third (rear window) brake light is a Vehicle Code violation (V.C. § 24252(a)), and justifies a traffic stop and citation.  (In re Justin K. (2002) 98 Cal.App.4^th 695.)

An officer's determination that defendant was not wearing a seat belt, even where it is reasonably uncertain whether the defendant's vehicle was even equipped with a shoulder harness, justified a stop to determine whether California's mandatory seat belt law was being violated.  (Kodani v. Snyder (1999) 75 Cal.App.4^th 471.)

An Anchorage, Alaska, Municipal Code ordinance forbidding any item affixed to the windshield (similar to California's V.C. § 26708(a)(1); see People v. White (2003) 107 Cal.App.4^th 636.) was not violated by an air freshener dangling from the rear view mirror.  A traffic stop was found to be illegal.  (United States v. King (9^th Cir. 2001) 244 F.3^rd 736, 740.)

A traffic stop was illegal when based upon a perceived violation of V.C. § 26708(a)(2), for obstructing or reducing the driver's clear view through the windshield, for having an air freshener dangling from the rear view mirror.  (People v. White, supra.)

However, an air freshener hanging from a car's rearview mirror was held to be a violation of V.C. § 26708(a)(2) in another case where a more thorough foundation was established through testimony of the officer, citing his personal experience and noting that the object was big enough to block out the view of a pedestrian or a vehicle, and where there was no defense-offered expert testimony relevant to the overall size of the air freshener relative to the size of the window.  (People v. Colbert (2007) 157 Cal.App.4^th 1068.)

A traffic stop for an equipment violation in a "high crime" (i.e., gang) area at night is not reasonable suspicion sufficient to justify a detention or patdown for weapons.  (People v. Medina (2003) 110 Cal.App.4^th 171.)

A traffic stop for the purpose of checking the validity of a red DMV temporary operating permit displayed in a vehicle's window (i.e., the red sticker), when the number on the permit was visible to the officer before the stop and appeared to be current, is a stop based upon no more than a "hunch," and is illegal.  (People v Dean (2007) 158 Cal.App.4^th 377; People v. Nabong (2004) 115 Cal.App.4^th Supp. 1; People v. Hernandez (2006) 146 Cal.App.4^th 773.)

Review was granted in Hernandez by the California Supreme Court on March 21, 2007.  This case is therefore not available for citation.

In a case decided by the United States Supreme Court out of California, it was assumed for the sake of argument, without discussing the issue, that stopping a car for the purpose of checking the validity of the temporary operating permit without reason to believe that it was not valid, is illegal.  (See  Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400; 168 L.Ed.2^nd 132]; remanded for consideration of the legality of stopping a vehicle to check the red sticker.) 

In another case decided along with Brendlin when it was at the state level, the California Supreme Court noted that such a stop is legal when combined with the fact that the vehicle had only one license plate (the front plate being missing) and the registration tab on the rear plate was expired.  (People v. Saunders (2006) 38 Cal.4^th 1129:  The missing license plate, a violation of V.C. § 5200, at the very least constitutes a reasonable suspicion to believe that the red temporary operator's permit, despite a current visible month on the permit, might not be for that vehicle.) 

Note:   The Court in People v. Hernandez, supra. (review granted), differentiates itself from Saunders on the fact that there were no license plates on the car in Hernandez, as opposed to only the front license plate missing in Saunders.

A missing rear license plate and no visible temporary registration displayed in the rear window, even though the temporary registration is later found to be in the front windshield as allowed by law, but not visible to the officer coming up behind the vehicle, is still sufficient reasonable suspicion to justify a traffic stop.  (In re Raymond C. (2006) 145 Cal.App.4^th 1320.)

Review was granted in Raymond C. by the California Supreme Court on March 21, 2007.  This case is therefore not available for citation.

A traffic stop for an expired registration tab, verified via radio through DMV, is lawful, even though it is discovered after the stop that there is a temporary registration sticker in the window but not visible due to the tinted window.  However, citing the driver for failing to produce evidence of financial responsibility (per V.C. § 16028), after determining that the car was registered, is an illegally prolonged detention and improper.  Also, citing the driver for failing to produce evidence of financial responsibility when there is no other citable offense or a traffic accident is a violation of subdivisions (b) and (c) of section 16028.  (People v. Verdugo (2007) 150 Cal.App.4^th Supp. 1.)

Weaving Within the Lane

Weaving Within the Lane:

State Rule:  Observation of the defendant weaving within his traffic lane for one half of a mile is sufficient cause to stop him to determine whether he is driving while under the influence ("DUI") or the vehicle has some unsafe mechanical defect.  (People v. Bracken (2000) 83 Cal.App.4^th Supp. 1, weaving within his lane for half a mile; see also People v. Perez (1985) 175 Cal.App.3^rd Supp. 8; weaving within his lane for three quarters of a mile.)

Federal Rule:   See United States v. Colin (9^th Cir. 2002) 314 F.3^rd 439, where the Ninth Circuit Court of Appeal held that weaving from lane line to lane line for 35 to 45 seconds is neither a violation of the lane straddling statute (V.C. § 21658(a)), nor reasonable suspicion that the driver may be under the influence; a questionable decision, and one that may probably be ignored by state law enforcement officers in light of Bracken and Perez.

Weaving Plus:  A single pronounced weave within the lane, plus an experienced Highway Patrol officer's observation of the defendant sitting up close to the steering wheel, which the officer recognized as something an impaired driver does, was sufficient to corroborate second-hand information concerning defendant's "erratic driving" from Montana Department of Transportation employees, justifying the stop of the defendant's car.  (United States v. Fernandez-Castillo (9^th Cir. 2003) 324 F.3^rd 1114.)

Gang-Related Investigations

Gang-Related Investigations:

Seeing three vehicles with four Black male occupants each, one of the occupants who is known to be a gang member, driving as if in military formation at 12:30 at night, hours after a prior gang shooting, the vehicles being in one of the warring Black gang's territory, held to be insufficient to justify a stop and detention.  (People v. Hester (2004) 119 Cal.App.4^th 376, 385-392.)

To Identify a Suspect in a Criminal Offense

To Identify a suspect in Criminal Offense:

Stopping and detaining a suspect in a criminal offense, when balancing law enforcement's interest identifying criminal suspects with the suspect's interest in personal security from government intrusion, is lawful.  (United States v. Hensley (1985) 469 U.S. 221 [83 L.E.2^nd 604]; a robbery.)

The same is not true in the case of a misdemeanor, noise violation, not occurring in the officer's presence, at least where there are possible alternative, less intrusive methods, of identifying the suspect.  Stopping the suspect's vehicle to identify him held to be illegal.  (United States v. Grigg (9^th Cir. 2007) 498 F.3^rd 1070.)

Mistake of Law vs. Mistake of Fact

Mistake of Law vs. Mistake of Fact: 

An officer making a traffic stop based upon a misapprehension of the law, (i.e., a "mistake of law"), even if reasonable, is an illegal stop.  (United States v. Lopez-Soto, supra; United States v. Morales (9^th Cir. 2001) 252 F.3^rd 1070, 1073, fn. 3.)

See People v. White (2003) 107 Cal.App.4^th 636, 643-644; police officer unaware that Arizona did not require a front license plate; stop illegal.

There is some authority to the contrary.  (People v. Glick (1988) 203 Cal.App.3^rd 796.)  But this is based upon an unusual fact situation; i.e., California police officer did not know that New Jersey doesn't require registration stickers on their license plates.  This is probably a minority opinion that most courts will not follow.

Also, United States v. Twilley (9^th Cir. 2000) 222 F.3^rd 1092; California police officer mistakenly believed that Michigan required two plates.

An officer's misapprehension that a person crossing the street other than in a cross walk was in violation of V.C. § 21954(a), did not justify a detention to cite for that offense when it is later held that the section did not apply.  (People v. Ramirez (2006) 140 Cal.App.4^th 849.)

But, an officer making a traffic stop based upon a "mistake of fact," "held reasonably and in good faith," will not invalidate the stop. 

Sheriff's deputies stopping defendants' car based upon a computer check indicating that the vehicle's registration had expired, when in fact the registration had already been renewed.  Absent some reason to believe that the computer information was not accurate, the stop was held to be lawful.  (United States v. Miguel (9^th Cir. 2004) 368 F.3^rd 1150.)

A missing rear license plate and no visible temporary registration displayed in the rear window, even though the temporary registration is later found to be in the front windshield as allowed by law, but not visible to the officer coming up behind the vehicle, is still sufficient reasonable suspicion to justify a traffic stop.  (In re Raymond C. (2006) 145 Cal.App.4^th 1320.)

Review was granted in Raymond C. by the California Supreme Court on March 21, 2007.  This case is therefore not available for citation.

Pretext Stops

Pretext Stops:  A "pretext stop" is one where law enforcement officers stop a vehicle usually for some minor traffic infraction but where the officers' true motivation is actually to investigate some more serious offense for which there is no reasonable suspicion. 

A prior three-way split of opinion on the legality of such a practice was finally resolved by the U.S. Supreme Court in Whren v. United States (1996) 517 U.S. 806 [135 L.Ed.2^nd 89], upholding the legality of such a practice.  (See also People v. Gomez (2004) 117 Cal.App.4^th 531, 537; and People v. Gallardo (2005) 130 Cal.App.4^th 234.)

Per Whren, so long as there is some lawful justification for making the stop, the officers' subjective motivations are irrelevant.  (Ibid; see also United States v. Miranda-Guerena (9^th Cir. 2006) 445 F.3^rd 1233.)

Whren is based upon the United States Constitution's Fourth Amendment, precluding a state's attempt to impose a stricter standard upon law enforcement, unless the state chooses to employ its own Constitution (under the theory of "independent state grounds")  (Arkansas v. Sullivan (2001) 532 U.S. 769 [149 L.Ed.2^nd 994].); an alternative which is not available in California since passage of Proposition 8, in June,1982, the so-called "Truth in Evidence" initiative.

The "pretext stop" theory of Whren v. United States  applies to civil parking violations as well as any criminal violation.  (United States v. Choudhry (9^th Cir. 2006) 461 F.3^rd 1097.)

Exceptions:  The theory of Whren is not without its limitations.  For example:

When the pretext used for making a stop is to conduct an "administrative search," such as inspecting the licensing of a taxicab, per local ordinance, or an inventory vehicle search, making a traffic stop is unlawful, and any direct products of that stop are subject to suppression.  (People v. Valenzuela (1999) 74 Cal.App.4^th 1202; Whren v. United States, supra, at pp. 811-812, [135 L.Ed.2^nd at p. 97].)

When a stop or search is not a "run-of-the-mine" case, such as "cases where ‘searches or seizures [were] conducted in an extraordinary manner, usually harmful to an individual's privacy or even physical interests-such as, for example, seizure by means of deadly force, unannounced entry into a home, entry into a home without a warrant, or physical penetration of the body.' (Citing Whren v. United States, supra, at p. 818.)"  (United States v. Ibarra (9^th Cir. 2003) 345 F.3^rd 711, 715.)

The theory of Whren is limited to those circumstances where a police officer is aware of facts that would support an arrest.  "(A)lthough Whren stands for the proposition that a pretextual seizure based on the illegitimate subjective intentions of an officer may be permissible, it does not alter the fact that the pretext itself must be a constitutionally sufficient basis for the seizure and the facts supporting it must be known at the time it is conducted."  (Moreno v. Baca (9^th Cir. 2005) 431 F.3^rd 633, 640; finding that a belatedly discovered arrest warrant and parole search conditions did not justify a detention and search.)

And query:  Would Whren validate a traffic stop when the officer's real motivation is based upon prohibited "racial profiling?"  The answer has to be; No! 

Balancing the constitutional principles involved (e.g., 14^th Amendment and Calif. Const. Art I, §§ 7, 15, equal protection and due process), and the state and federal statutes the officer would be violating (18 U.S.C. §§ 241, 242; 42 U.S.C. 1983; P.C. §§ 422.6(a), 13519.4; and C.C. § 52.1), a court will not likely uphold such a stop.  (See also Baluyut v. Superior Court (1996) 12 Cal.4^th 826; equal protection; and Shapiro v. Thompson (1969) 394 U.S. 618 [22 L.Ed.2^nd 600]; discrimination may be so arbitrary and injurious as to be deemed a due process violation.

The Supreme Court itself, in Whren, specifically noted that; "We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race."  (Whren v. United States, supra, at p. 813 [135 L.Ed.2^nd at p. 98].)

Such "racial profiling" would be a Fourteenth Amendment "due process" violation.  (Ibid.; United States v. Ibarra (9^th Cir. 2003) 345 F.3^rd 711, 714.)

Motor Vehicle Passengers:

To Arrest a Passenger

To Arrest a Passenger:

The stop of the defendant's car upon observing a passenger in the car for which there was a known outstanding arrest warrant was upheld.  When the stop revealed the defendant/driver was in possession of a billy club, the officer lawfully arrested him as well.  (In re William J. (1985) 171 Cal.App.3^rd 72.)

"A momentary stop of an automobile by police to investigate a passenger reasonably believed to be involved in a past crime is proper.  It creates a minimal inconvenience to the driver of that automobile, when balanced against the government's interest in apprehending criminals."  (Id., at p. 77.)

To Detain a Passenger

To Detain a Passenger:  Is a passenger in a vehicle when the driver is stopped and detained also subject to being detained, thus implicating the passenger's privacy rights? 

The United States Supreme Court has recently reversed the California Supreme Court on this issue and held that at least in a private motor vehicle (as opposed to a taxi, bus, or other common carrier), the passenger, by virtue of being in a vehicle stopped for a possible traffic infraction, is in fact detained, giving him the right to challenge the legality of the traffic stop.  (Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400; 168 L.Ed.2^nd 132].)

The test is whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."  Or, in the case where the person has no desire to leave, "whether ‘a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'"

(Id., at pp. ___.)

If the driver is stopped for a traffic-related offense, a "passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place."  If the driver is stopped for something unrelated to his driving, a "passenger will reasonably feel subject to suspicion owning to close association" with the driver.  (Id., at pp. ___.)

This decision is in accord with the majority of prior cases that have considered this issue.  (See People v. Bell (1996) 43 Cal.App.4^th 754; see also People v. Grant (1990) 217 Cal.App.3^rd 1451, 1460; People v. Hunt (1990) 225 Cal.App.3^rd 498, 505; People v. Lionberger (1986) 185 Cal.App.3^rd Supp. 1, 5; and People v. Lamont (2004) 125 Cal.App.4^th 404; United States v. Twilley (9^th Cir. 2000) 222 F.3^rd 1092, 1095; United States v. Eylicio-Montoya (10^th Cir. 1995) 70 F.3^rd 1158, 1164; United States v. Kimball (1^st Cir. 1994) 25 F.3^rd 1, 5-6; United States v. Roberson (5^th Cir. 1993) 6 F.3^rd 1088, 1091; United States v. Rusher (4^th Cir. 1992) 966 F.2^nd 868, 874, fn. 4.)

Note also that even if the passenger is illegally detained, any evidence recovered from the vehicle, if not the product of the illegal detention, will be admissible.  (United States v. Pulliam (9^th Cir. 2005) 405 F.3^rd 782, 787; a vehicle search was done independent of the defendant's detention.)

Brendlin, however, deals only when the right (i.e., "standing") of the passenger to challenge the legality of the traffic stop.  It does not tell us whether, as someone who is already detained, may be further detained by the police should that passenger express an interest in walking away from the traffic stop.

The detention of a passenger can be justified by a showing that the passenger is in "close association" with persons (e.g., the driver) reasonably suspected of illegal activity.  (People v. Samples (1996) 48 Cal.App.4^th 1197.)

Otherwise, there must at least be some reason for the officer to believe that his safety will be placed in jeopardy in order to justify a refusal to allow a passenger to walk away from a traffic stop.  (See People v. Vibanco (2007) 151 Cal.App.4^th 1; and "Ordering In," below.)

The California Supreme Court has held, however, that upon ordering the passenger out of the vehicle; "there is a social expectation of unquestioned police command, which is at odds with any notion that a passenger would feel free to leave without advance permission."  (People v. Hoyos (2007) 41 Cal.4^th 872, 892-894; brief, one-minute detention, necessitated for purposes of officer safety, held to be lawful.)

Ordering Out

Ordering Out:  The law is clear that upon making a lawful traffic stop, the driver may be ordered out of the vehicle without the need for the officer to justify why.  (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L.Ed.2^nd 331, 337].)

Although previously subject to a split of opinion, the U.S. Supreme Court has ruled that the same rules apply to passengers other than the driver.  If anything, the need to protect the safety of the officers is even greater when he must deal with more than just a lone driver.  (Maryland v. Wilson (1997) 519 U.S. 408 [137 L.Ed.2^nd 41]; see also Ruvalcata v. City of Los Angeles (9^th Cir. 1995) 64 F.3^rd 1323.)

Prior state law was leaning in that direction anyway, allowing drivers and passengers to be ordered out of a vehicle with very little cause:

To corroborate the driver's identity, and for officer's safety.  (People v. Maxwell (1988) 206 Cal.App.3^rd 1004, 1009.)

Where there is a legitimate need to search the vehicle.  (People v. Webster (1991) 54 Cal.3^rd 411.)

Less justification than is needed for a patdown will warrant the ordering of a passenger out of a vehicle.  (People v. Superior Court [Simon] (1972) 7 Cal.3^rd 186, 206, fn. 13.)

Citing Wilson, the California Supreme Court has cited with approval "an officer's authority to order a passenger to exit a vehicle during a traffic stop as a matter of course."  (People v. Saunders (2006) 38 Cal.4^th 1129, 1134.)

Ordering In

Ordering In:  A police officer may require the driver to remain in his or her vehicle.  (Pennsylvania v. Mimms, supra.) 

Under the same rationale, some federal courts have ruled that an officer may order a passenger to remain in the vehicle, at least where the passenger has not expressed an intent to simply leave the scene, or when the passenger is interfering with the officer's contact with the driver.  (Rogala v. District of Columbia (D.C. Cir. 1998) 161 F.3^rd 44; United States v. Moorefield (3^rd Cir. 1997) 111 F.3^rd 10, 13.)

The Ninth Circuit is in accord, finding that the officer's safety outweighs the minimal intrusion involved in maintaining the status quo by returning the passenger to where he was in the car.  (United States v. Williams (9^th Cir. 2005) 419 F.3^rd 1029.)

See also Id., at p. 1032, fn. 2, for a list of state cases (other than California) that are in accord.

See also People v. Castellon (1999) 76 Cal.App.4^th 1369, upholding the officer's order to a passenger to remain in the vehicle:  "(W)e will not second-guess (the officer's) reasonable in-the-field call; it was for the officer to decide whether his personal safety was better preserved by ordering Castellon to stay inside the car or by ordering him out of the vehicle." 

But see People v. Gonzalez (1992) 7 Cal.App.4^th 381, where ordering a passenger back into a vehicle was held to be an unlawful detention. 

In light of Castellon and Williams, supra, it can be argued that Gonzalez is a minority opinion, and probably not a correct statement of the law.

Gonzalez was also criticized as no longer good law in People v. Vibanco (2007) 151 Cal.App.4^th 1, at p. 11, where the court specifically held that:  "The possibility of a violent encounter is likely to be even greater still when one or more of the passengers in a stopped car attempts to leave while others stay in the car," and that "Wilson can therefore reasonably be interpreted to allow officers as a matter of course to order a passenger or passengers either to get out of the car or to remain in the car during a lawful traffic stop if the officers deem it necessary for officer safety."

And see "To Detain a Passenger," above.

Flight

Flight:  While the "flight" of the driver of a vehicle provides probable cause to arrest for various Vehicle Code violations (E.g., V.C. §§ 2800 et seq.), and a driver who is subject to citation may not avoid the citation by fleeing on foot (see P.C. § 148(a)), what if the passenger, for whom there is no connection with any illegal activity, chooses to exit the vehicle and run?

The long-standing rule has always been that "flight alone," without other suspicious circumstances, is not sufficient justification for a detention.  (People v. Souza (1994) 9 Cal.4^th 224.)

However, the United States Supreme Court recently lowered the bar a little by holding that flight from a so-called "high narcotics area" is sufficient in itself to justify a temporary detention.  (Illinois v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2^nd 570].)

Flight of two people is more suspicious than one.  Add to this the fact that there appeared to be drug paraphernalia on a table where the two persons had been sitting, and that the defendant was carrying something in his hand as he fled; the officer had sufficient reasonable suspicion to detain him.  (People v. Britton (2001) 91 Cal.App.4^th 1112, 1118-1119.)

And see "Ordering In," above.

Search Incident to Citation

Search Incident to Citation:  Although a traffic citation is technically an arrest and release on one's promise to appear, it is treated by the courts as a temporary detention only.  Temporary detentions do not include the power to conduct a search.  Therefore, it is not constitutionally permissible to conduct a non-consensual search of a vehicle incident to a citation, even if authorized by statute.  (Knowles v. Iowa (1998) 525 U.S. 113 [142 L.Ed.2^nd 492].)

Note:  California has no such statute, as did Iowa.

A "search incident to arrest" (see below) requires the transportation of the arrestee as a prerequisite to a search, absent probable cause to believe there is something illegal to seize.  (United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2^nd 427]; People v. Brisendine (1975) 13 Cal.3^rd 528; United States v. Moto (9^th Cir. 1993) 982 F.2^nd 1384.)  Writing a person a traffic citation, of course, does not normally involve the transportation of the person who is cited.  He is therefore not subject to search based upon the writing of a traffic ticket alone.

A traffic stop for an equipment violation in a "high crime" (i.e., gang) area at night is not reasonable suspicion sufficient to justify a detention or patdown for weapons.  (People v. Medina (2003) 110 Cal.App.4^th 171.)

But see People v. McKay (2002) 27 Cal.4^th 601, 607-619, a violation of V.C. § 21650.1 (riding a bicycle on the wrong side of the street); and People v. Gomez (2004) 117 Cal.App.4^th 531, 538-539, seat belt violation:  U.S. Supreme Court decisions have held that a mere violation of state statutory restrictions on making a custodial arrest for a minor criminal offense (e.g., mere traffic infraction) does not mean that the Fourth Amendment was also violated.  (See Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2^nd 549]; People v. Gallardo (2005) 130 Cal.App.4^th 234, 239, fn. 1.)  Absent a constitutional Fourth Amendment violation, evidence that is the product of a state statutory violation is not subject to suppression. 

Detention of Residents During the Execution of a Search Warrant

Detention of Residents During the Execution of a Search Warrant:

The occupants of a residence may be detained during the execution of a search warrant even though they did not match the description of the suspects (e.g., Caucasian instead of African-American) believed to be living there at the time.   (Los Angeles County v. Rettele (2007) 550 U.S. ___ [127 S.Ct. 1989; 167 L.Ed.2^nd 974]; the court noting that until the rest of the house is checked for the suspects, other occupants may be detained.)

It was further held that with knowledge that one of the sought-for suspects had a firearm registered to him, the detainees could be held at gunpoint until the rest of the house could be checked, even though the detainees were unclothed at the time.  It was not necessary to allow the detainees to cover us until officers' safety could be assured.  (Ibid.)

See also Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.2^nd 299]; detention of a resident lawful while evidence in a gang shooting case looked for, at least if not "prolonged."

Prolonged Detentions

Prolonged Detentions:  A traffic stop (or any other detention) which is reasonable in its inception may become unreasonable if prolonged beyond that point reasonably necessary for the officer to complete the original purposes of the detention.  (People v. McGaughran (1979) 25 Cal.3^rd 577.)

A person may be detained only as long as is reasonably necessary to accomplish the purpose of the original stop, possibly extended by the time needed to investigate any new information justifying a further detention which comes to light during the original detention.  (People v. Russell (2000) 81 Cal.App.4^th 96, 101.)

E.g.:  A "reasonable suspicion" of criminal activity developed during a detention that was initiated for other purposes will justify holding the detainee beyond the time it took to accomplish the original purposes of the stop.  (United States v. Thompson (9^th Cir. 2002) 282 F.3^rd 673; a Coast Guard boat safety check developed cause to believe the subjects were smuggling drugs, justifying a further detention to investigate that possibility.)

Detaining the defendant for ten minutes, until a radio check came back that the car was stolen, was not excessive, particularly when symptoms of intoxication were noted during the ten minutes.   (People v. Carter (2005) 36 Cal.4^th 1114, 1139-1142.)

Random warrant checks during routine traffic stops are lawful, but the subject must be released when the citation process is completed (People v. McGaughran, supra; see also United States v. Luckett (9^th Cir. 1973) 484 F.2^nd 89.), or within a reasonable time thereafter.  (People v. Brown (1998) 62 Cal.App.4^th 493; one minute delay while awaiting the results of a warrant check was not unreasonable, even though the officer never wrote the ticket.)

Asking defendant for a consent to search, even without any reason to believe there was anything there to search for, is lawful so long as done within the time it would have taken to write the citation which was the original cause of the stop.  (People v. Gallardo (2005) 130 Cal.App.4^th 234.)

Note:  Recent authority has called into question the continuing validity of McGaughran, noting that U.S. Supreme Court decisions have held that a mere violation of state statutory restrictions on making a custodial arrest for a minor criminal offense (e.g., mere traffic infraction) does not mean that the Fourth Amendment was also violated.  (See Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L.Ed.2^nd 549].)  Absent a constitutional Fourth Amendment violation, evidence that is the product of a state statutory violation is not subject to suppression.  (People v. McKay (2002) 27 Cal.4^th 601, 607-619, a violation of V.C. § 21650.1 (riding a bicycle in the wrong direction); People v. Gomez (2004) 117 Cal.App.4^th 531, 538-540, seat belt violation.)

The issue becomes whether holding onto a defendant beyond the time it would have taken to cite him is (1) merely a statutory violation of the requirement that one cited for a Vehicle Code infraction be released (See P.C. § 853.5) without arrest or booking, or (2) a Constitutional Fourth Amendment violation.  Gomez supra, makes an argument for the former.

Statements taken from a detained criminal suspect held for over 16 hours without probable cause to arrest, are subject to suppression as the product of an unlawfully prolonged detention.  (People v Jenkins (2004) 122 Cal.App.4^th 1160, 1174-1178.)

An otherwise lawful "knock and talk," where officers continued to press the defendant for permission to enter his apartment after his denial of any illegal activity, converted the contact into an unlawfully "extended" detention, causing the Court to conclude that a later consent-to-search was the product of the illegal detention, and thus invalid.  (United States v. Washington (9^th Cir. 2004) 387 F.3^rd 1060.)

Enlarging the Scope of the Original Detention

Enlarging the Scope of the Original Detention:

If the person voluntarily consents to having his vehicle searched after he is free to leave, there is no prolonged detention, at least where a reasonable person should have understood that the purposes of the traffic stop were done.  The officer is under no obligation to advise him that he is no longer being detained or that he has a right to refuse to allow the officer to search.  (Robinette v. Ohio (1996) 519 U.S. 33 [136 L.Ed.2^nd 347].)

Up until recently, the Ninth Circuit Court of Appeal has had difficult accepting the idea that a police officer, during an otherwise lawful detention, and so long as that detention is not unlawfully prolonged (see above), may question the detained person about other possible criminal activity absent some "particularized suspicion" relevant to that other criminal activity: 

See United States v. Chavez-Valenzuela (9^th Cir. 2001) 268 F.3^rd 719, amended at 279 F.3^rd 1062, where the Ninth Circuit Court of Appeal found a consent search, obtained after the purposes of the traffic stop had been satisfied, was invalid as a product of an illegally prolonged detention, the extended detention being the result of the officer's unnecessary inquiries made during the traffic stop.  Robinette was not discussed by the Court.  The defendant's nervousness was held to be irrelevant to the detention issue, per the Court.  (See also People v. Lusardi (1991) 228 Cal.App.3^rd Supp. 1, making a similar argument.)

See also United States v. Murillo (9^th Cir. 2001) 255 F.3^rd 1169, 1174, where the Ninth Circuit Court of Appeal held that an officer must be able to "articulate suspicious factors that are particularized and objective" in order to "broaden the scope of questioning" beyond the purposes of the initial traffic stop." (United States v. Murillo (9^th Cir. 2001) 255 F.3^rd 1169, 1174; a questionable rule in light of Robinette.)

And see United States v. Mendez (9^th Cir. 2006) 467 F.3^rd 1162 (Superseded by United States v. Mendez (9^th Cir. 2007) 476 F.3^rd 1077.), where it was held that questioning a detainee about possible criminal activity not related to the cause of the detention, and without a "particularized suspicion" to support a belief that the detainee is involved in that activity, is a Fourth Amendment violation.

The Ninth Circuit has since overruled its decisions in Chavez-Valenzuela and Murillo, finally recognizing the Supreme Court's rulings to the contrary.  (United States v. Mendez (9^th Cir. 2007) 476 F.3^rd 1077.)

In other cases, the Supreme Court has held: "Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage-provided they do not induce cooperation by coercive means."  (United States v. Drayton (2002) 536 U.S. 194 [153 L.Ed.2^nd 242.); citing Florida v. Bostic (1991) 501 U.S. 429, 434-435 [115 L.Ed.2^nd 389, 398-399].)

Most recently, in Illinois v Caballes (2005) 543 U.S. 405 [160 L.Ed.2^nd 842], the U.S. Supreme Court rejected the argument that allowing a narcotics-sniffing dog to sniff around the outside of a vehicle that was lawfully stopped for a traffic offense "unjustifiably enlarge(s) the scope of a routine traffic stop into a drug investigation."  Per the Supreme Court:  No expectation of privacy is violated by this procedure, and therefore does not implicate the Fourth Amendment.

Also, the U.S. Supreme Court recently rejected the Ninth Circuit's unsupported conclusion that, absent "a particularized reasonable suspicion that an individual is not a citizen," it is a Fourth Amendment violation to ask him or her about the subject's citizenship.  (See Mena v. City of Simi Valley (9^th Cir. 2003) 332 F.3^rd 1255, 1264-1265; reversed by the U.S. Supreme Court in Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.2^nd 299].)

California courts seem to be in line with these latest Supreme Court pronouncements on the issue:  "Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation.  Mere questioning is neither a search nor a seizure.  [Citation.]  While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking.  [Citation.]"  (People v. Brown (1998) 62 Cal.App.4^th 493, 499-500; see also People v. Gallardo (2005) 130 Cal.App.4^th 234, 239; asking for consent to search during the time it would have taken to write the citation that was the original cause of the stop is legal, despite the lack of any evidence to believe there was something there to search for.)

Taking Fingerprints

Taking Fingerprints:  It is lawful to detain and fingerprint a particular suspect on less than probable cause, at least if done at the scene and without transportation to a police station.  (Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2^nd 676]; Hayes v. Florida (1985) 470 U.S. 811 [84 L.Ed.2^nd 705]; Virgle v. Superior Court (2002) 100 Cal.App.4^th 572.)

Driving Under the Influence Cases:

Weaving

Weaving:  Observation of the defendant weaving within his traffic lane is sufficient cause to stop him to determine whether he is DUI or the vehicle has some unsafe mechanical defect.  (People v. Bracken (2000) 83 Cal.App.4^th Supp. 1, weaving within his lane for half a mile; see also People v. Perez (1985) 175 Cal.App.3^rd Supp. 8; weaving within his lane for three quarters of a mile.)

But see United States v. Colin (9^th Cir. 2002) 314 F.3^rd 439, where the Ninth Circuit Court of Appeal held that weaving from lane line to lane line for 35 to 45 seconds is neither a violation of the lane straddling statute (V.C. § 21658(a)), nor reasonable suspicion that the driver may be under the influence; a questionable decision, and one than may probably be ignored by state law enforcement officers in light of Bracken and Perez.

A single pronounced weave within the lane, plus an experienced Highway Patrol officer's observation of the defendant sitting up close to the steering wheel, which the officer recognized as something an impaired driver does, was sufficient to corroborate second-hand information concerning defendant's "erratic driving" from Montana Department of Transportation employees, justifying the stop of the defendant's car.  (United States v. Fernandez-Castillo (9^th Cir. 2003) 324 F.3^rd 1114.)

DUI (and Other Regulatory “Special Needs”) Checkpints

DUI (and Other Regulatory "Special Needs") Checkpoints:  Are they legal?

Yes, if conducted according to specified criteria, and involve a "special needs," "regulatory" area of the law.  (Ingersoll v. Palmer (1987) 43 Cal.3^rd 1321; Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444 [110 L.Ed.2^nd 412].)

Whether or not a "DUI" (or other regulatory) roadblock or checkpoint is lawful depends upon whether it meets the federal standard for reasonableness:

"The federal test for determining whether a detention or seizure is justified balances the public interest served by the seizure, the degree to which the seizure advances the public interest and the severity of the interference with individual liberty.  (Brown v. Texas (1979) 443 U.S. 47, 50-51 [61 L.Ed.2^nd 357, 361-362, . . .].)"  (Emphasis added; People v. Banks (1994) 6 Cal.4^th 926; holding that failure to publicize a DUI roadblock was not necessarily fatal to its lawfulness, under Brown.)

While standardless and unconstrained discretion on the part of government officers is prohibited; "stops and inspections for regulatory purposes, although without ‘individualized suspicion,' may be permitted if undertaken pursuant to predetermined specified neutral criteria."  (Italics added; Ingersoll v. Palmer, supra, at p. 1335.)  The factors identified in Ingersoll (at pp. 1341-1347) are whether:

• The decision to establish a sobriety checkpoint, the selection of the site, and the procedures for the operation of the checkpoint, are made and established by supervisory law enforcement personnel.
• Motorists are stopped according to a neutral formula, such as every third, fifth or tenth driver.
• Adequate safety precautions are taken, such as proper lighting, warning signs, and signals, and whether clearly identifiable official vehicles and personnel are used.
• The location of the checkpoint was determined by a policy-making official, and was reasonable; i.e., on a road having a high incidence of alcohol-related accidents or arrests.
• The time the checkpoint was conducted and its duration reflect "good judgment" on the part of law enforcement officials.
• The checkpoint exhibits indicia of its official nature (to reassure the public of the authorized nature of the stop).
• The average length and nature of the detention is minimized.
• The checkpoint is preceded by publicity.

Other Regulatory Checkpoints

Other Regulatory Checkpoints:  Other than for DUI deterrence, roadblocks, checkpoints, and similar "administrative, special needs" searches have been approved in the following cases:

• License and registration inspection checkpoints. (Delaware v. Prouse (1979) 440 U.S. 648 [59 L.Ed.2^nd 660]; People v. Washburn (1968) 265 Cal.App.2^nd 665; People v. Alvarez (1996) 14 Cal.4^th 155; Merrett v. Moore (11^th Cir. 1996) 58 F.3^rd 1547; United States v. McFayden (D.C. Cir. 1989) 865 F.2^nd 1306; United States v. Diaz-Albertini (10^th Cir. 1985) 772 F.2^nd 654; United States v. Lopez (10^th Cir. 1985) 777 F.2^nd 543; United States v. Obregon (10^th Cir. 1984) 748 F.2^nd 1371; United States v. Prichard (10^th Cir. 1981) 645 F.2^nd 854.)
• Border Patrol checkpoint inspections. (United States v. Martinez-Fuerte (1976) 428 U.S. 543 [49 L.Ed.2^nd 1116.)
• Airport security searches. (People v. Hyde (1974) 12 Cal.3^rd 158.)
• To regulate hunting licenses. (People v. Perez (1996) 51 Cal.App.4^th 1168.)
• Agricultural inspection checkpoints. (People v. Dickinson (1980) 104 Cal.App.3^rd 505.)
• Vehicle mechanical inspection checkpoints. (People v. De La Torre (1967) 257 Cal.App.2^nd 162.)
• Security checkpoint at military bases. (United States v. Hawkins (9^th Cir. 2001) 249 F.3^rd 876, Air Force; United States v. Hernandez (9^th Cir. 1984) 739 F.2^nd 484, Marines.)
• Sobriety checkpoints on a federal military base. (United States v. Dillon (D.Kan. 1997) 983 F.Supp. 1037; United States v. Ziegler (N.D. Cal. 1993) 831 F.Supp. 771.)
• A forest service checkpoint for identification and registration, targeting what in the past has been a "uniquely disruptive event," is not per se illegal. (Park v. Forest Service (8^th Cir. 2000) 205 F.3^rd 1034, 1040.)
• Traffic safety checkpoints. (United States v. Trevino (7^th Cir. 1996) 60 F.3^rd 333.)
• Checkpoints at the entrance to a prison parking lot. (Romo v. Champion (10^th Cir. 46 F.3^rd 1013.)
• Checkpoint to "thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route." (see below; City of Indianapolis v. Edmond, infra.)
• Checkpoints set up for the purpose of collecting information from the public concerning a prior criminal act (i.e., a fatal "hit and run" in this case), when set up at the location of the prior criminal act, and exactly one week after it occurred. Such a roadblock was differentiated from the attempt to discovery "ordinary criminal wrongdoing," as condemned in Indianapolis v. Edmond, infra. (Illinois v. Lidster (2004) 540 U.S. 419 [157 L.Ed.2^nd 843].)
• An "information station" set up to provide park visitors with information concerning the rules of the park and be given a litter bag, where every vehicle was stopped. (United States v. Faulkner (9^th Cir. 2006) 450 F.3^rd 466.)

Dual Purpose Checkpoints

Checkpoints may also have a dual-purpose, such as the interdiction of drugs (but see below) and enforcement of driver's license and registration laws.  (Merrett v. Moore (11^th Cir. 1995) 58 F.3^rd 1547.)

Multiple Agency Checkpoints

Checkpoints may be attended by more than one law enforcement agency, despite the different interests involved.  (United States v. Barajas-Chavez (10^th Cir. 1999) 162 F.3^rd 1285, New Mexico DUI checkpoint with Border Patrol present in case the police discovered illegal aliens; United States v. Galindo-Gonzales (10^th Cir. 1998) 142 F.3^rd 1217, aliens found at state driver's license and vehicle registration roadblock.)

V.C. § 2814.1:  A County Board of Supervisors to authorized by statute to establish a combined vehicle-inspection and sobriety-checkpoint program, to check for violations of V.C. §§ 27153 and 27153.5 (exhaust and excessive smoke violations), V.C. § 23140 (person under the age of 21 driving with a blood-alcohol level of 0.05% or more), and V.C. § 23152 (driving under the influence of alcohol and/or drugs).

Drug Interdiction Checkpoints

Drug Interdiction (or "Ordinary Criminal Wrongdoing") Checkpoints:

Earlier cases from lower appellate courts upheld the validity of drug interdiction checkpoints upon the same reasoning as above.  (See Merrett v. Moore, supra; and Missouri v. Damask (1996) 936 S.W.2^nd 565.)

However, the U.S. Supreme Court has since determined that "drug interdiction" checkpoints are not lawful.  The difference is that drug interdiction checkpoints, rather than being "regulatory," or involving some "special need," are set up for the purpose of detecting "ordinary criminal wrongdoing."   As such, drug interdiction checkpoints require the standard Fourth Amendment "individualized" or "particularized" suspicion to be lawful.  (City of Indianapolis v. Edmond (2000) 531 U.S. 32 [146 L.Ed.2^nd 333].)

The Supreme Court in Edmond intimated strongly that roadblocks in unusual circumstances of criminal wrongdoing might be constitutionally acceptable.  "(T)here are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control.  For example, as the Court of Appeals noted (see Edmond v. Goldsmith (7^th Cir. 1999) 183 F.3^rd 659, 662-663; reversed), the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route."  (Italics added; City of Indianapolis v. Edmond, supra, at p. 44 (146 L.Ed.2^nd at p. 345].)

See Illinois v. Lidster (2004) 540 U.S. 419 [157 L.Ed.2^nd 843]:  A checkpoint set up for the purpose of collecting information from the public concerning a prior criminal act (i.e., a fatal "hit and run" in this case), when set up at the location of the prior criminal act, and exactly one week after it occurred.  Such a roadblock was differentiated from the attempt to discovery "ordinary criminal wrongdoing," as condemned in Indianapolis v. Edmond, supra.

A Field Interview

A Field Interview ("F.I.") of a person suspected of criminal activity:

Field interviews are a standard law enforcement tactic used to identify individuals and document their presence at a particular location at a particular time, discourage planned criminal activity, and note companions with whom the person is associating; information which sometimes becomes important and relevant in later prosecutions.  Field interviews may be handled as a consensual encounter or, if a reasonable suspicion exists, a detention.

General Rule:  Temporarily detaining a person for the purpose of verifying (or negating) the person's possible connection with some criminal activity, based upon an articulable "reasonable suspicion" that the person may be involved in criminal activity, is lawful.  (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2^nd 889]; In re Tony C. (1978) 21 Cal.3^rd 888.)

Absent the necessary "reasonable suspicion," a detention is unlawful unless the contact is handled as a "consensual encounter."  (See above)

For instance, membership in a street gang is not in and of itself a crime.  (See P.C. § 186.22)  The practice of stopping, detaining, questioning, and perhaps photographing a suspected gang member, based solely upon the person's suspected gang membership, is illegal.  (People v. Green (1991) 227 Cal.App.3^rd 692, 699-700; People v. Rodriguez (1993) 21 Cal.App.4^th 232, 239.)

The Rodriguez court noted that; "While this policy (of stopping and questioning all suspected gang members may serve the laudable purpose of preventing crime, it is prohibited by the Fourth Amendment."  (Id., at p. 239; citing Brown v. Texas (1979) 443 U.S. 47, 52 [61 L.Ed.2^nd 357, 363.)

Being in the area of a house for which there is only a speculative belief that it might be involved in drug activity, even when it is known that the person to be detained has a prior drug-related record and that there exists prior untested, unreliable information that the person might be involved in the sale of drugs, is insufficient cause to detain.  (People v. Pitts (2004) 117 Cal.App.4^th 881.)

Spotlighting the defendant in a high narcotics area and then walking up to him "briskly" while asking questions held to be a detention under the circumstances.  (People v. Garry (2007) 156 Cal.App.4^th 1100.)

During Execution of a Search or Arrest Warrant, or Fourth Waiver Search

During Execution of a Search or Arrest Warrant, or during a Fourth Waiver Search:

An occupant of a house being subjected to a search pursuant to a search warrant may be detained during the search (1) in order to prevent flight, (2) to minimize the risk of harm to the officers, and (3) to facilitate an orderly search through cooperation of the residents.  (Michigan v. Summers (1981) 452 U.S. 692, 702-703 [69 L.Ed.2^nd 340, 349-350].)

Note, however, Ybarra v. Illinois (1979) 444 U.S. 85 [62 L.Ed.2^nd 238], condemning the detention and pat down of everyone at the scene absent individualized evidence connecting each person so detained with the illegal activity being investigated.

And, using an otherwise lawful detention as a tool with which to coerce the employees of a business to submit to interviews, conditioning their release on answering questions, is unlawful and a violation of the Fourth Amendment.  (Ganwich v. Knapp (9^th Cir. 2003) 319 F.3^rd 1115.)

Officers acted reasonably by detaining a female occupant of a residence in handcuffs for two to three hours while search was in progress, even though she was not the suspect the officers were looking for, given the fact that the search warrant sought weapons and evidence of gang membership.  (Muehler v. Mena (2005) 544 U.S. 93 [161 L.Ed.2^nd 299].)

Recognizing the inherent dangerousness in serving narcotics-related search warrants and the common use of weapons, particularly firearms, in such cases, if for no other reason than the officers' safety, anyone present at the scene of the execution of such a warrant who appears to have a "close physical and functional association" with the subjects of the search, may be temporarily detained while the person is identified and that possible association is investigated.  (People v. Samples (1996) 48 Cal.App.4^th 1197; defendant driving the car listed in the search warrant, in the company of two people listed in the warrant, lawfully detained.)

The same rules apply to detaining occupants of a residence while serving an arrest warrant.  (People v. Hannah (1997) 51 Cal.App.4^th 1335.)

Also, police may lawfully detain visitors to a probationer's home while executing a "Fourth Waiver" search for purposes of identifying the visitors (as possible felons) and for the officers' safety.  (People v. Matelski (2000) 82 Cal.App.4^th 837.)

A person merely approaching a house being searched, at least in the absence of any indication that the person has some connection with the illegal activity occurring in the house, may not be detained.  (People v. Gallant (1990) 225 Cal.App.3^rd 200, 203-204.)

But, a person who approaches a house being searched pursuant to a search warrant under circumstances either indicating some connection with the residence, or when his possible connection cannot be determined without a brief detention, may be detained long enough to investigate his connection with the illegal activity at the house and to ensure police safety during the search.  (People v. Glaser (1995) 11 Cal.4^th 354, 363-374.)

Pending the Obtaining of a Search Warrant

Pending the Obtaining of a Search Warrant:

Securing a home from the outside, detaining the occupant on his own porch pending the obtaining of a warrant, was upheld by the United States Supreme Court.  (Illinois v. McArthur (2001) 531 U.S. 326 [148 L.Ed.2^nd 838].)

It is proper for the police to temporarily "detain a residence" from the outside, preventing people from entering, when there is a reasonable suspicion that contraband or evidence of a crime is inside, at least until the officers can determine through their investigation whether to seek a search warrant.  (People v. Bennett (1998) 17 Cal.4^th 373.)

It is also lawful to detain packages and other containers.  (United States v. Hernandez (9^th Cir. Dec. 23, 2002) 313 F.3^rd 1206.)   The rules generally parallel the requirements for detaining a person under Terry v. Ohio (1968) 392 U.S. 1 (See United States v. Place (1983) 462 U.S. 696 [77 L.Ed.2^nd 110].). 

When the container is a package that has been mailed, and the personal intrusion upon the intended recipient is less, the length of time the package may be detained is considerably longer than if taken from the defendant's person.  In Place, for instance, the container was the defendant's luggage taken from him at an airport.  The Supreme Court held that 90 minutes was too long.  In contrast, the Hernandez case, where a 22-hour delay was upheld, cites prior authority where holding onto a mailed package for up to six days was approved.