and therefore the arrest and search were invalid.
The broad issue raised by the government's asserted justification for the detention of the defendant is whether officers executing a search warrant may restrict the movement of persons found on the premises so as to preserve the premises for the search. I believe they may. In narcotics cases the danger of secreting contraband is great, and some limitation of movement may often be justified.
In this case the officers could reasonably have feared interference in their search from the defendant. If he had attempted to prevent them from searching, they would of course have been justified in stopping him. Moreover, the officers did not have to wait to see whether there would be interference. The testimony revealed that there were at least three people downstairs and others upstairs in the premises they were searching. To wait for actual interference would be to run the risk that someone might do undetected damage.
The officers might have asked the defendant and the others seated in the dining room - who were also detained with the defendant - to leave the building during the search. But this also raises problems. Because the Fourth Amendment is a safeguard of personal liberty, it might well be regarded as a more severe infringement of that liberty for people rightfully in a place to be ordered to leave it than for them to be ordered to remain where they are within it. Moreover, in this case the warrant authorized a search not only of the building but of the yard and shed nearby. The informant, upon whose information the warrant was originally issued, had told Detective Bush that his vendor had gone out to the yard to get the narcotics which he sold him. To allow the defendant and the other men in the room with him to leave the house would have been to run the risk of some interference with the search of the yard and shed.
It may have been better had the police asked the defendant to leave the house. Or it may have been better still to have given the defendant a choice as to whether he would stay in his chair or walk from the building. But the fact that there may have been something better to do does not make what the police here did unreasonable. The alternatives were certainly not so clearly superior that we must condemn the course they in fact chose. We ask good conduct from the police; we do not demand perfection.
The Court is not persuaded by any argument that the manner in which the defendant was initially detained caused him to fear that a search of his person might take place and therefore induced him to perform the additional acts which justified his later arrest. Although Detective Bush testified that he would have prevented the defendant from leaving the premises - something which would not have been justified if the rationale for the detention were the need to prevent interference with the search inside the building - this cannot be determinative of the issue. Had Detective Bush acted in this manner, this Court would have been faced with a different case. Other testimony that the defendant was the only person searched and that the detention of the other two men lasted only fifteen or twenty minutes - just long enough to complete the search of the premises - suggests that the officers did not intend to make a full arrest. This conflicting testimony bearing on the intent of the police is largely beside the point in any case, since the test to be applied in judging the defendant's present argument is not what Detective Bush - or any other officer - thought, but what the defendant thought. Moreover, the test must be not what the defendant himself, as a possessor of drugs at the time of his detention, thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes. Detective Bush did not say that the defendant was under arrest, and Detective Fogle expressly said that he had not been arrested. A reasonable man, interpreting these words and the acts accompanying them, would have considered his detention to be merely for the purpose of assuring that a proper search of the premises would be possible. If the defendant feared a search, it was his feeling of guilt which prompted his fears, not the conduct of the police. Had the defendant seen the police coming to the house, then gone to the kitchen, turned on the water, and let a capsule fall, and had he been apprehended there after a valid entry by the police, the arrest would have been proper. His arrest in this case, under analogous circumstances, should be and therefore is sustained.
Motion to suppress denied.
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