Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF2601 John Conley, Judge.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), Gustavo Arellano pled guilty to one count of possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)), and one count of carrying a loaded firearm in public by a convicted felon (Pen. Code, § 12031, subd. (a)(1), (2)(A)). On appeal, Arellano argues the trial court erroneously denied his motion to suppress because the evidence (a gun and bullets) was found as a result of an illegal search during a traffic stop. His contention has no merit, and we affirm the judgment.
FACTS
The following facts adduced at the suppression hearing are uncontested. Arellano was riding in the back seat of a car driven by Cesar Chavez at 10 p.m. on September 5, 2008. Chavez made an illegal U-turn in front of a marked police car that Officer Otilio Sanchez was following, forcing both police cars to brake abruptly. Sanchez stopped Chavez’s car, and when he approached the driver’s window, he noticed three passengers inside the car. All the passengers made eye contact with Sanchez, except Arellano who was seated “behind the right front passenger.” Sanchez testified he “felt uneasy because of the number of occupants” in the car and Arellano’s behavior.
Sanchez testified he told Chavez to step out of the vehicle and Chavez complied. Chavez granted Sanchez permission to search the vehicle. Sanchez requested Chavez’s driver’s license, which he then ran through the police database and found no outstanding warrants. Sanchez asked Chavez if he was on parole or probation or in possession of any weapons or illegal drugs. Chavez said no, but he gave Sanchez permission to pat him down when asked. Chavez placed his hands behind his back while Sanchez proceeded to pat him down. Sanchez found nothing. He then asked Chavez “a second time if [he] could look in his vehicle, and [Chavez] said yes.” Sanchez directed Chavez to sit on the curb while he instructed the other passengers to exit the vehicle one at a time.
The first passenger out of the car was Mario Anaya, who was sitting to Arellano’s left, behind the driver. Sanchez asked him the same questions he directed to Chavez, to which Anaya responded in the negative. Anaya also gave Sanchez permission to pat him down when asked. Finding nothing, Sanchez moved to the second passenger, Arellano.
Approximately 10 to 15 minutes after the initial stop, Sanchez instructed Arellano to exit the vehicle. Sanchez asked Arellano the same questions he asked the others. Arellano denied being on parole or probation, but stated, “I have a gun in my pocket.” Sanchez looked Arellano over and confirmed there was something concealed in his pocket. He handcuffed Arellano, searched his pockets, and removed a pistol loaded with eight hollow point bullets. After escorting Arellano to his patrol car, Sanchez removed the final passenger, Kenneth Haynes, so he could question him similarly. Finally, Sanchez asked all of the passengers for their identification, which they each turned over. Chavez was cited for the illegal U-turn.
Chavez and Anaya testified for the defense. Chavez said he was forced to stand at the car’s trunk after exiting the car with his hands behind his head. He was then told to give Sanchez his driver’s license, which he did. Sanchez conducted a pat down search of Chavez before asking any questions. Chavez could not recall being asked for permission to search his car. When the search was complete, Sanchez instructed Chavez to sit on the curb and ordered the other passengers to exit the car.
Anaya, however, testified the passengers were told to give Sanchez their identification before Chavez exited the car.
Anaya testified Sanchez ordered him and Haynes to exit the car one at a time. He performed the “same procedures” on them as he had done with Chavez, and again turned up nothing. Haynes and Anaya were also told to sit on the curb alongside Chavez.
Arellano was the last passenger removed from the car. Sanchez began patting him down without asking him any questions beforehand, and as he searched near Arellano’s pants, Arellano told Sanchez he was carrying a gun. Sanchez recovered the gun and handcuffed Arellano, Chavez, and the rest of the passengers.
The trial court denied Arellano’s motion to suppress, finding “the officer more credible than the civilian witnesses.” Additionally, the trial court determined there was “justification for the pat down, ” the “clock stops [for a prolonged detention analysis] once the driver has given consent to search the car, ” and “the court doesn’t feel [the detention was] unduly prolonged.” Further, the court found “there is a right to detain passengers and to order them out” of the car during a traffic stop.
DISCUSSION
Arellano argues the trial court improperly denied his motion to suppress evidence because the testimony provided at the hearing established Sanchez did not suspect Arellano was armed or dangerous, and the search thereby violated his rights under the Fourth Amendment. The Attorney General correctly contends we must defer to the trial court’s factual findings if they are supported by substantial evidence, and substantial evidence supports the finding Arellano admitted he was carrying a firearm prior to the search, which rendered the search lawful. Accordingly, we affirm the judgment.
“‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]’” (People v. Vibanco (2007) 151 Cal.App.4th 1, 8.)
“[W]e view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.]” (People v. Jenkins (2000) 22 Cal.4th 900, 969.) Substantial evidence is “evidence that is reasonable, credible, and of solid value.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
The hearing on Arellano’s motion to suppress was a credibility contest between Sanchez and the defense witnesses—resulting in different versions of the events. Most importantly, Sanchez testified he asked each passenger for their consent to a search, their probationary status, and whether they were carrying any weapons or drugs before conducting the pat downs. Sanchez also said Arellano admitted he was in possession of a firearm before Sanchez began his search. Conversely, the defense witnesses testified the personal searches were conducted prior to Sanchez questioning any of the passengers. They also said Sanchez started to frisk Arellano prior to Arellano’s statement he possessed a gun. In considering the testimony, the trial court made an express credibility assessment, finding “the officer’s testimony... more credible than the civilian witnesses.” “If there is conflicting testimony, we must accept the trial court’s resolution of disputed facts and inferences, its evaluations of credibility, and the version of events most favorable to the People, to the extent the record supports them. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We therefore accept Sanchez’s version of the facts as true.
The law regarding search and seizure of passengers during a traffic stop has become increasingly well defined since the United States Supreme Court found a police officer may only search a person he has lawfully stopped if he reasonably suspects the person is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 27.) While Terry was originally extrapolated only to the drivers of vehicles that were pulled over for traffic violations, it has since been extended to passengers. (Brendlin v. California (2007) 551 U.S. 249, 251.) Today, officers can “justify a patdown of the driver or passenger during a traffic stop [if they] harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.” (Arizona v. Johnson (2009) __ U.S. __, __ [129 S.Ct. 781, 784].) Sanchez’s testimony, which the trial court determined was the most credible, constitutes substantial evidence supporting the finding Arellano alerted Sanchez to the gun’s presence prior to Sanchez’s pat down search, thereby providing Sanchez with the reasonable suspicion necessary to make the search lawful.
Sanchez testified he used the same procedure when dealing with each of the passengers in the car. He first asked them to exit the vehicle and walk to the car’s trunk. Sanchez next asked each passenger if they were on parole or probation or if they were carrying weapons or drugs. He then asked for consent to conduct a pat down search prior to ever laying a hand on any of the passengers. According to Sanchez’s testimony, Arellano divulged he was carrying a gun before Sanchez began his search. Upon hearing this, Sanchez looked Arellano over and “confirmed it looked like he had something” in his pocket. At that point, Sanchez was able to fully embrace a “reasonable suspicion that [Arellano] may be armed, ” thereby justifying the search under the Fourth Amendment. (Arizona v. Johnson, supra, ___ U.S. at p.___ [129 S.Ct. at p. 787].) Even if Sanchez did not have enough information at the time Arellano was pulled from the car to permit him to conduct a proper Terry pat down search, the circumstances changed once Arellano told Sanchez “I have a gun in my pocket.” Sanchez no longer had to reasonably suspect Arellano was armed—he actually knew Arellano was armed. Because Arellano’s admission fulfilled the remaining Terry requirement, we need not address Arellano’s contention the evidence should be suppressed under the “fruits of the poisonous tree” doctrine since Arellano’s conduct rendered the search lawful. (Wong Sun v. United States (1963) 371 U.S. 471, 488.)
Arellano attempts to contrast his case with People v. Collier (2008) 166 Cal.App.4th 1374, asserting that unlike the officer in Collier, Sanchez did not have a reasonable suspicion Arellano was armed and dangerous prior to the pat down search. In Collier, the officer inferred defendant was armed and dangerous from his large size, baggy clothing, and the presence of drugs in the car. (Id. at p. 1376.) Collier held the search was justified because specific and articulable facts supported the officer’s inferences. (Id. at p. 1378.) Here, however, Sanchez was not required to infer anything about Arellano’s possible possession of a weapon prior to the pat down search because Arellano had informed him he had a gun in his possession. Collier is therefore factually distinguishable and does not affect the outcome of this case.
Accordingly, we conclude Sanchez’s pat down search did not violate the Fourth Amendment because Arellano told Sanchez he was in possession of a gun prior to Sanchez conducting the pat down search. Thus, the trial court properly denied Arellano’s motion to suppress evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.