dissenting:
The trial judge ruled the detention of defendant was unlawful and, without a lawful detention, the consent to search was invalid, and the majority affirms that finding. Because in my opinion the detention was lawful and defendant was not subjected to custodial interrogation in violation of Miranda, I dissent.
The trial judge and the majority make much of defendant being “invited” into the porch by Officer Wasson. While the factual determinations of the trial judge are owed great deference, the legal conclusions are reviewed de novo. Further, the trial judge stated he was not questioning Officer Wasson’s veracity. At the suppression hearing, Officer Wasson testified as follows:
“[STATE:] And so when you walked out, did you do anything to indicate that he should go in, motion him in, anything at all?
[OFFICER WASSON:] No.
[STATE:] And when he walked in then, was the door open, or shut, or do you know?
[OFFICER WASSON:] I don’t know.
[STATE:] So, when he walks in at that point, then you turn around?
[OFFICER WASSON:] Yes.”
Contrary to the majority’s finding, neither Wasson nor defendant testified that “while the door was open,” defendant stepped past Was-son and entered the enclosed porch. Here, Wasson and Thompson were working perimeter security while police officers were inside the residence conducting a search for drugs or awaiting the delivery of a search warrant. Under Summers, they were authorized to detain anyone who entered or attempted to enter the secure perimeter. See Jennings, 544 F.3d at 818. It is undisputed when defendant rang the doorbell, Wasson exited the porch, walked past defendant, and did not speak to him to invite him into the residence. Wasson was a stranger to defendant and unconnected to the occupants of the household. A stranger departing from a residence following the ringing of a doorbell, in my opinion, does not amount to an invitation to enter.
Defense counsel at oral argument conceded the officers had the right to detain defendant because of the police activity in the house. In fact, defense counsel stated the officers could have lawfully detained defendant for the duration of the search occurring in the residence. Defendant contended at oral argument that the questioning of defendant exceeded the permitted scope of the detention and was therefore unlawful.
Wasson testified: “[w]e were conducting a drug investigation, and [defendant] showfed] up and walked right into the residence, as if to know the resident, or maybe the activity that was going on. So, there was some suspicion, yes.”
In addition, Wasson testified defendant acted nervous once he realized the situation he was in and began to unzip his jacket, which suggested to Wasson defendant might be preparing to flee.
As the majority correctly points out, the trial court erroneously found the officer never asked permitted questions of defendant, like “Why are you here?” Wasson testified defendant was asked that question. Moreover, the trial judge found defendant was asked several times for consent to search. The testimony was, however, that Officer Thompson asked on only one occasion for consent to search and defendant agreed thereto.
Officer Wasson testified, in response to the question of whether there had been complaints about drug activity in this house, that, in addition to the person wanted on the arrest warrant, there was some indication of drug activity there.
Here, police were in the process of securing or executing a search warrant when defendant entered the secured perimeter. This was a place where complaints of drug activity had been received, defendant entered as if already familiar with his surroundings, began to act nervous when he realized the police were on the porch and in the house, and started to unzip his jacket, indicating potential flight to Wasson. These facts are similar to those in Bohannan, 225 F.3d at 617, and Jennings, 544 F.3d at 818, cited by the majority, and Baker v. Monroe Township, 50 F.3d 1186, 1188-89 (3d Cir. 1995), where the recovery of evidence by police was upheld. In particular, in Bohannan, the defendant merely approached the residence as if he was familiar with it — he did not even make it onto the porch or into the house.
Looking at the totality of the circumstances as outlined above, i.e., defendant arrives at a house where drug activity was suspected, defendant entered the security perimeter while a search was being or about to be conducted, and upon learning of the drug investigation, acted nervously, I conclude the officers were justified in determining a reasonable suspicion of criminal activity arose.
As the majority notes, under Summers, the police have the authority to detain occupants during the execution of a search warrant to ensure the occupants are unarmed and uninvolved in criminal activity. In Jennings, the Seventh Circuit held an “occupant” includes individuals who approach the premises during the execution of a search warrant. Jennings, 544 F.3d at 818. I would find the officers acted within the scope of Summers in asking defendant if he possessed illegal drugs after he (1) rang the doorbell and entered uninvited into a suspected drug house subject to a search warrant and (2) behaved suspiciously after learning a drug investigation was under way.
Because defendant was lawfully detained, but not in custody, I would further find no custodial interrogation occurred in violation of Miranda. Defendant entered the porch area of his own accord, where he met Thompson and shook his hand. Defendant was not physically restrained or handcuffed nor did the officers display their weapons. Defendant’s detention was investigatory, not custodial.
Since defendant’s detention was lawful pursuant to Summers, his consent to search was not tainted by any illegality and was thus valid. Consequently, I would reverse the court’s suppression of the evidence.