Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F02276
NICHOLSON, J.
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant Loren Scott Bratcher entered a negotiated plea of no contest to possessing cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted having a prior strike conviction for robbery (Pen. Code, § 667, subds. (b) through (i)). He appeals, contending the trial court erroneously denied his motion to suppress because police officers conducted an unreasonable weapons frisk. We disagree and affirm the judgment.
BACKGROUND
After dark on a March evening, Sacramento Police Officers Maria On and Michael Pinola were patrolling in the area of Phoenix Park (also known as G Parkway), near Franklin Boulevard and Shining Star Drive. Officers On and Pinola testified this area is known for gang activities, murders and drug sales: tenants of Phoenix Park are issued identification indicating their right to come and go from the complex, and visitors are supposed to be accompanied by tenants. The homeowners’ associations have authorized officers to contact people on the property to determine whether they live there or whether they have legitimate business on the premises.
Accordingly, when she saw defendant walking in that area, Officer On at first intended to approach him to “see who he was visiting within the complex or if he was a tenant within the complex.” The officers then saw defendant jaywalk across the intersection, so they decided to initiate a stop and cite him for jaywalking.
Officer On approached defendant, and told him he had been stopped for jaywalking. She then asked his name and “whether or not he was on any kind of probation or parole.” Defendant gave his name and said he was “on informal probation.”
When Officer On asked defendant if he was on searchable probation, he did not respond. He did not make eye contact with the officers: he was looking around and appeared nervous. He wore thick, baggy, corduroy clothing. Officer Pinola later testified defendant’s body appeared to be trembling, and his hands were visibly shaking.
Officer On then asked defendant whether he had any weapons. When he failed to respond, Officer On told defendant she was going to conduct a patdown search for weapons, and asked if he had anything “that was sharp that was going to poke or stick” her. Defendant continued to look around and did not respond.
Officer On conducted a patsearch of defendant. She “felt a circle object with a tubing” in his pants pocket, and asked, “Is that a pipe you have in your pocket?” Defendant continued to look around and did not respond, and she pulled from his pants pocket what proved to be a pipe and cocaine.
After defendant had been detained, Officer Pinola checked police records and learned that defendant was on “formal searchable” probation.
Defendant moved to suppress the evidence. At the suppression hearing, both officers testified that nothing about his behavior -- other than the jaywalking -- suggested defendant was engaged in any criminal activity, or that he was armed.
Officer On testified she would have conducted a patdown search of defendant, even had he not told her he was on informal probation, because -- based on her “knowledge of that neighborhood” and defendant’s “baggy clothes” and demeanor -- she believed a patsearch was necessary for her safety. Officer Pinola likewise testified he would have conducted a patsearch absent any knowledge about defendant’s probation status based on defendant’s demeanor: “Working this area I would say that over 50 percent of the people I come in contact with carry some type of edge weapon and sometimes in the past experience even a firearm. And due to his behavior, I was unsure about whether or not he would produce some type of weapon or he would have attempted to flee on us or possibly fight us.”
The trial court denied defendant’s motion to suppress, stating, “[t]he evidence establishes that the contact that Officer On made with the defendant was correct and proper. She observed a violation of a municipal code, a municipal ordinance concerning jaywalking and approached him for the purpose of citing him and she was well within what is permitted. [¶] I think then when you add -- I think there’s more present here than there was in the Lawler case. We know this was in a high crime area. Apparently produced at least for some period of time a greater percentage of murders than any other area in Sacramento was producing. It’s a known gang area, drug activity taking place and did inquire and I think that was permitted for her to inquire whether or not he was on probation. And the only thing that she learned was that he was on probation for something. [¶] At that point he’s nervous, evasive conduct, would not answer questions, wearing the baggy clothes in which a weapon could be hidden. Add all that together in the high crime area -- it was not late, late at night, but it was certainly at that time of year very dark on the streets in Northern California and -- her purpose of searching -- purpose of pat down to determine weapons I believe was totally appropriate. Not doing so under those circumstances often ends up in dead police officers.”
People v. Lawler (1973) 9 Cal.3d 156.
After the trial court denied his suppression motion, defendant pled no contest to possession of cocaine base and admitted a prior strike conviction. He was sentenced to the low prison term of 16 months, doubled by virtue of the prior strike.
DISCUSSION
I
Standard Of Review
In reviewing a motion to suppress (Pen. Code, § 1538.5) we defer to the trial court’s findings of fact that are supported by substantial evidence. We select the applicable law and apply constitutional principles to those facts de novo. (Ornelas v. United States (1996) 517 U.S. 690, 696-698 [134 L.Ed.2d 911, 919-920]; People v. Alvarez (1996) 14 Cal.4th 155, 182.)
II
The Search was Reasonable
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905] (Terry).) After a stop, police officers may conduct a limited search of a suspect if they have reason to believe the suspect is armed and dangerous. (Terry, supra, at p. 27.) This exception to the warrant requirement is limited, confined in scope to intrusions reasonably designed to discover weapons. (Id. at p. 29.) “[The] issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Id. at p. 27.)
Although a Terry frisk does not require probable cause, it is justified only when “specific and articulable facts . . . taken together with rational inferences from those facts,” warrant a suspicion that a suspect is armed and dangerous. (Terry, supra, 392 U.S. at p. 21.) “[T]he facts available to the officer at the moment of the seizure or the search [must] ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate[.]” (Id. at p. 22.) In determining the reasonableness of a challenged search, the court looks to the totality of the circumstances. (People v. Miles (1987) 196 Cal.App.3d 612, 617-618; United States v. Salas (9th Cir. 1989) 879 F.2d 530, 535.)
Defendant contends he was unlawfully searched because Officer On failed to testify to specific and articulable facts which would reasonably support an individualized suspicion that he was armed and dangerous.
Officer On, who actually conducted the frisk of defendant, testified defendant did nothing prior to the stop to suggest he might be dangerous. The People contend that a reasonable officer in her position would nonetheless have believed defendant was armed and presently dangerous thereafter based on the following: (1) defendant appeared nervous and evasive in his contact with her; (2) he was in an area known for its gang activity, murders and drug sales; (3) although not particularly late at night, it was very dark; and (4) defendant was wearing baggy clothes capable of concealing a weapon.
While none of these factors, taken alone, might justify a detention for a patsearch, we must consider the “totality of the circumstances.” (People v. Souza (1994) 9 Cal.4th 224, 231-233, 239.) In doing so, we conclude the combination of these factors justified the patsearch.
The officers knew defendant’s location as a site for both murderous violence and drug activity. “While a person cannot be detained for mere presence in a high crime area without more [citations], this setting is a factor that can lend meaning to the person’s behavior. [Citation.]” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) Here, officers knew defendant was on probation -- that is, he had already committed a crime. And defendant seemed nervous: Officer On testified defendant refused to make eye contact, kept looking around, and refused to respond to her questions; Officer Pinola saw that defendant’s body was trembling, and his hands were visibly shaking.
Defendant suggests on appeal his constitutional refusal to answer the officer’s questions formed the lion’s share of the basis of the officer’s reasonable suspicion necessary to justify the patsearch. We do not agree with defendant’s characterization of the record: Officer On testified she felt a search for weapons was justified by her “knowledge of that neighborhood and [defendant’s] baggy clothes and . . . demeanor . . . .”
Moreover, as several courts have noted, drugs and guns go together. (E.g., People v. Bland (1995) 10 Cal.4th 991, 1005 [“Drug dealers are known to keep guns to protect not only themselves, but also their drugs and drug proceeds; ready access to a gun is often crucial to a drug dealer’s commercial success”]; People v. Gallegos (2002) 96 Cal.App.4th 612, 629 [same]; see also People v. Glaser (1995) 11 Cal.4th 354, 367 [firearms are “‘tools of the trade’” in narcotics business]; People v. Bradford (1995) 38 Cal.App.4th 1733, 1739 [“[I]t is common knowledge that perpetrators of narcotics offenses keep weapons available to guard their contraband”].) The officers were not wrong to consider this nexus (see People v. Souza, supra, 9 Cal.4th at p. 240 [“An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment”]) or that they encountered defendant in this high-crime area after dark (id. at p. 241 [“The time of night is another pertinent factor in assessing the validity of a detention”]). The officers were entitled to weigh the time and location of the stop in their assessment of whether defendant might be armed and dangerous, together with his admitted prior criminal behavior, his current nervous behavior, and his baggy clothing, which was capable of concealing a weapon.
Under these circumstances, the officers had specific, articulable facts, combined with rational inferences, to reasonably support a suspicion defendant was armed and dangerous and therefore were justified in conducting a patdown search to determine if he was armed with a dangerous weapon.
We further note that appellate courts have repeatedly emphasized it is inappropriate for judges to “second-guess on-the-spot decisions of officers in the field under these circumstances.” (People v. Wilson (1997) 59 Cal.App.4th 1053, 1063.) “[T]he Fourth Amendment exclusionary rule is not to be interpreted so as to endanger police officers in the responsible performance of their duties.” (Id. at p. 1061.)
III
The Search Did Not Exceed its Proper Scope
Defendant also contends that even if the patsearch detention was proper, Officer On exceeded the scope of a permissible patsearch for weapons.
“Whether an officer’s suspicion that an object contained within a person’s clothing consists of narcotics or related contraband, derived at least in part from a patdown of a person’s outer clothing, permits the officer to conduct a full-blown search of the individual or to seize the object felt depends on whether the officer had probable cause to arrest the person for narcotics possession; the warrantless search then becomes justified as a search incident to arrest.” (People v. Dibb (1995) 37 Cal.App.4th 832, 835-836, italics omitted.) The United States Supreme Court essentially agreed with this notion of when “plain feel” or “plain touch” justifies seizure of the object in question in Minnesota v. Dickerson (1993) 508 U.S. 366 [124 L.Ed.2d 334] (Dickerson).
The rationale expressed in Dickerson follows by analogy to the plain-view doctrine: contraband left open to the view or touch of an officer from a lawful vantage point involves no invasion of the possessor’s legitimate expectation of privacy, and thus no search independent of any initial intrusion occurs. (Dickerson, supra, 508 U.S. at pp. 374-375.) Thus, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s [initial] search for weapons . . . .” (508 U.S. at p. 375, italics added.)
In Dickerson, officers patted down the defendant for weapons. No weapons were revealed, but the officer felt a small lump in the defendant’s jacket pocket. Only after manipulating the lump with his fingers did the officer determine it to be cocaine. Because the officer determined the contents of the defendant’s pocket only after “‘squeezing, sliding and otherwise manipulating’” it, the identity of the object as a narcotic substance was not “immediately” apparent, and thereby did not qualify as an exception under the “plain feel” doctrine. (Dickerson, supra, 508 U.S. at p. 378.)
The Court of Appeal applied the reasoning in Dickerson to drug contraband in People v. Dibb (1995) 37 Cal.App.4th 832. The passenger in Dibb was in a vehicle wearing a beeper, and consented to a search of his fanny pack. The officer found an ammunition clip, a gram scale smelling of methamphetamine, a small plastic bag and a beeper. During a subsequent patsearch, the officer felt “something beneath defendant’s pants he thought was ‘unusual[]’” and that he described as “‘lumpy’” with “‘volume and mass.’” (Id. at p. 835.) He did not believe it was a weapon, but thought it might be a controlled substance based on the presence of the beepers and the items found in the fanny pack. After asking his backup to patsearch the passenger, who confirmed the presence of “something,” the officer seized the package containing the methamphetamine. (Ibid.) The Court of Appeal held that, under the totality of circumstances, it was immediately apparent the lump was contraband. (Id. at p. 837.)
Here, Officer On testified she did not have to “manipulate” defendant’s pocket in order to feel the pipe within. When she “felt” the “circle object with a tubing” through the cloth of defendant’s pants pocket, Officer On knew defendant was in an area, after dark, which is known for a high level of drug sales activity and, further, by virtue of his status as a probationer, that defendant had been convicted of a crime. The trial court could properly take the totality of these circumstances into consideration (cf. People v. Dibb, supra, 37 Cal.App.4th at p. 837) and find it was immediately apparent to Officer On that the “circle object with a tubing” was a contraband pipe. Under Dickerson and Dibb, supra, Officer On’s patsearch did not exceed the scope of a permissible Terry patsearch.
On appeal, however, defendant contends the trial court erred in upholding the warrantless search because no testimony was elicited from Officer On’s actions that “the incriminating character of the [pipe] was immediately apparent” to her, so as to justify the “plain feel” exception established by Dickerson.
The People contend defendant has forfeited this argument by his failure to assert it in the trial court. They also urge us to reject defendant’s contention in the alternative, that if his counsel’s failure to object to the challenged condition forfeits the issue, then he received ineffective assistance of counsel. We disagree that the argument is forfeited.
However, we reject defendant’s assertion that his trial counsel provided ineffective assistance for failing to question whether Officer On’s actions were proper under Dickerson. To demonstrate ineffective assistance of counsel, a defendant must show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness, as well as prejudice flowing from counsel’s performance. (People v. Price (1991) 1 Cal.4th 324, 386-387 [superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165].) That is, counsel does not render ineffective assistance by failing to make objections that counsel could reasonably determine would be futile. (People v. Price, supra, 1 cal.4th at p. 387.)
In his brief on appeal, defendant relies on decisions by the courts of other states, and cites no binding authority for the proposition that, “[t]o credit an officer’s testimony that the incriminating nature of an item was immediately apparent to her based upon plain feel . . ., there must be testimony about the officer’s training and experience” in recognizing contraband by touch, and we are aware of none. Absent any such authority, defense counsel could reasonably have concluded there existed no basis for the argument he proffers here, or that evidence of Officer On’s qualifications in recognizing a contraband pipe by feel would have been a simple matter to elicit. Appellate courts reverse convictions on the ground of inadequate counsel only if the record affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Bradford (1997) 14 Cal.4th 1005, 1052.)
Finally, we note that defendant claims the incriminating nature of the pipe could not have been immediately apparent to Officer On because she asked him, “Is that a pipe you have in your pocket?” We agree, to the contrary, with the People that the question has a decidedly rhetorical cast, and the trial court could have determined from the officer’s inflection during testimony that the question was simply rhetorical, rather than an expression of uncertainty. Resolving this factual conflict in the manner most favorable to the judgment, as we must (People v. Woods (1999) 21 Cal.4th 668, 673 [noting “‘all factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion’”]), we assume Officer On’s question was a rhetorical one, and did not reflect any real uncertainty about the nature of the item. With that assumption, we conclude the record shows the nature of the item was immediately apparent to Officer On, and therefore seizure of the item legal. (Dickerson, supra, 508 U.S. at pp. 375-376.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., ROBIE, J.