Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC949385
Premo, J.
After the trial court denied his motion to suppress evidence, defendant Benjamin Lester Durham pleaded nolo contendere to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and admitted allegations that he had six prior convictions for which he served prison terms (§ 667.5, subd. (b)). Durham was sentenced to the middle term of three years and the court ordered the prior prison term allegations stricken in the interests of justice (§ 1385).
Further unspecified statutory references are to the Penal Code.
On appeal, Durham contends that the trial court erred in denying his motion to suppress because the evidence at issue was obtained in the course of an unlawful arrest or an unlawful search during a lawful detention.
We disagree and shall affirm.
I. Factual and Procedural Background
As Durham pleaded no contest and is only challenging the trial court’s denial of his motion to suppress, we derive the facts from the transcript of the motion hearing.
At approximately 3:00 p.m. on July 13, 2009, San Jose Police Officer John Dokter was informed via dispatch that a robbery had occurred at the Bank of America located at Park Center Plaza in San Jose. Dokter proceeded south on Almaden Boulevard towards the location and, en route, received descriptions of the suspect on his computer screen. The initial reports described the suspect as a dark-complected Black male, 38 to 40 years old, five feet nine inches tall, weighing 200 pounds, with black, curly hair and wearing a white t-shirt. The suspect was further described as having an “African” accent. The suspect reportedly entered the bank with a black plastic bag and took cash from one of the tellers. Another police officer on the scene reported that a witness had seen a Black male with a white t-shirt with black writing on it going northbound on Almaden Boulevard, and Dokter began looking on both sides of the street for someone who matched the description. Dokter observed a Black male wearing a white t-shirt with black lettering on it outside a building, smoking a cigarette, but the man appeared to be younger and not as tall as the suspect was described, so Dokter did not approach him.
Dokter proceeded past a nearby park where transients congregate, where he observed two more Black males, but he did not approach either of them, as they both appeared to be much older than the suspect. He then entered the Greyhound bus station near the robbery scene, but found no one matching the suspect’s description. After exiting the bus station, Dokter observed a Black male a block and a half away whose clothing seemed to match the description and who was carrying something in his right hand. Dokter got back into his patrol car and drove after the man, who entered a large office building. Dokter got out of his car and followed him in, encountering him at the reception desk. At that point, Dokter saw that the man was carrying a cleaning cloth and, upon questioning him, determined that he was the building’s maintenance man. Dokter also saw that the man was older and had salt and pepper hair, which did not match the suspect’s description.
Dokter then received a report that the suspect was seen entering the parking garage of Park Center Plaza from Park Avenue, so he proceeded to the garage. He parked his patrol car in front of a nearby pizzeria and entered the garage, but failed to find anyone matching the suspect’s description. As he returned to his patrol car, Dokter noticed that the doors of the pizzeria were open, so he decided to go inside the restaurant to look for the suspect.
As Dokter entered, he noticed a dark-skinned male and female sitting at a table in a corner and approached them. As his eyes adjusted to the dimmer interior, however, he noticed that the man was Hispanic, not Black, so he did not contact them.
Dokter then observed a Black man, later identified as Durham, sitting at a table closer to the doors, behind a short wall topped with glass bottles. Durham was eating, which led Dokter to initially discount him as the suspect, since Dokter did not think enough time had elapsed for the suspect to sit down at a restaurant, place and receive an order. However, he saw that Durham was wearing a white t-shirt with writing on it, although the writing was in a red to yellow color.
Dokter continued to the back of the restaurant and looked into the men’s restroom, which was empty. He asked an employee how long Durham had been there. The employee said he did not know but he would ask the server to find out. As Dokter waited for the employee to return, Dokter called in to ask for any updated descriptions and was told the suspect was wearing light-colored, calf-length cut-off shorts. Durham was wearing light-colored shorts that, while sitting, reached his knees. Dokter also observed that he had short-cropped hair, and his age and height appeared to match the suspect’s description.
Dokter approached Durham and asked him “How’s it going?” in order to hear if he spoke with an accent. Durham replied, “Good, ” though without an accent. However, since this was the only part of the description that did not match, Dokter asked Durham to stand up. Because there were other civilians inside the restaurant and silverware on the table, Dokter took Durham into a control hold and placed him in handcuffs. Dokter was also concerned that he was alone and thus would be involved in a “one-on-one” fight, in close quarters, if Durham resisted or attempted to flee. However, Dokter admitted that Durham was cooperative with him at all times during his encounter and his demeanor was “calm and relaxed.”
Dokter pat-searched Durham for weapons and felt a large object in his front pants pocket. It felt like an unfolded wallet, about two and a half inches wide and eight or nine inches long. Since he could not feel if anything was behind it, Dokter removed the wallet and put it on the table. After completing his pat search, Dokter asked Durham for identification, and Durham said it was in his wallet. Dokter removed Durham’s driver’s license from the wallet and ran a warrants check. As he pulled out the license, Dokter noticed that the wallet could not be folded in half because it was full of money. Within 20 seconds, the warrants check was completed and Dokter was advised that Durham was a parolee at large who was subject to a no-bail parole hold.
Dokter admitted that no one had reported that a weapon was used in the robbery, but testified he was “always concerned about people having weapons; whether it be a bank robber, or a person we stop on the street, any time we [i.e., police officers] are very wary of weapons.”
Durham was charged by information with one count of second-degree robbery (§§ 211, 212.5, subd. (c)) with six prison priors (§ 667.5, subd. (b)). At his arraignment, Durham pleaded not guilty.
The trial court denied Durham’s motion to suppress, finding that Dokter’s actions were lawful and that Durham’s rights were not violated.
Durham subsequently changed his plea to no contest and admitted the prison priors. The trial court struck the prison prior enhancements and sentenced Durham to the middle term of three years on the second-degree robbery.
II. Discussion
A. Standard of review
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
B. Durham was not arrested when initially placed in handcuffs
Durham argues that he was unlawfully arrested without probable cause when Dokter placed him in handcuffs prior to pat-searching him, and that the trial court should have granted his motion to suppress.
The use of handcuffs does not necessarily convert a lawful detention into an arrest. (People v. Celis (2004) 33 Cal.4th 667, 675 (Celis).) Handcuffs may be used when reasonably necessary to effectuate a detention. (People v. Stier (2008) 168 Cal.App.4th 21, 27 (Stier).) In deciding the reasonable necessity of handcuffing a suspect, the court must consider the duration and scope of the detention, as well as “the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.” (Celis, supra, at pp. 675-676.) “Although a routine traffic stop would rarely justify a police officer in drawing a gun or using handcuffs, such actions may be appropriate when the stop is of someone suspected of committing a felony.” (Id. at p. 676.) Handcuffing has been found to be reasonably necessary for a detention when “(1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers.” (Stier, supra, at pp. 27-28.)
Reviewing the circumstances presented in this case, though it presents a close question, we agree that it was reasonably necessary for Dokter to handcuff Durham. First, the detention appears to have been brief, lasting only long enough for Dokter to pat search Durham, remove the wallet from his pocket, ask him for identification, remove Durham’s driver’s license from the wallet and run a warrants check. We do not know the length of the encounter, since Dokter was only asked how long the warrants check took to complete. However, Durham does not argue that this encounter was unduly prolonged. Since the warrants check took no more than 20 seconds, the preceding events described by Dokter likely took very little time.
Second, although Durham was cooperative with Dokter at all times and made no attempt to flee even when Dokter passed him by and went to the back of the restaurant, Dokter had no way of knowing if that cooperation would continue once he confronted Durham. Dokter admitted that Durham was calm and did not appear nervous, but the two most likely explanations for his demeanor were: One, he had done nothing wrong and thus had no reason to be anxious or upset, or two, he had done something wrong and was simply acting calm in order to avoid drawing attention to himself. In the latter case, once it became clear that his ruse was ineffective, there was a significant possibility that Durham would resist or try to flee.
We reject, however, the People’s suggestion that one reason Dokter was justified in handcuffing Durham is that “[h]aving fled from the bank, it was reasonable to believe that [Durham] would flee from the restaurant.” Presumably the vast majority of criminals, at least those aspiring to some degree of success, flee from the scenes of their crime(s). The mere fact that they have done so does not, we think, make a criminal any more or any less likely to flee from police if he or she is eventually confronted.
Finally, although there was no report that the robbery suspect used a weapon or was armed in any way, if Durham did resist or attempt to flee, the struggle would occur in close quarters with various stabbing implements and other potential weapons within Durham’s reach. In that event, it is a near certainty that both Durham and Dokter would be injured, if not only by their mutual struggle, but also by collisions (deliberate and/or inadvertent) with furnishings or by Durham stabbing Dokter with a nearby knife or fork or smashing him with one of the glass bottles sitting atop the dividing wall by his table.
C. The pat search and removal of Durham’s wallet was lawful
Durham argues that, assuming he was lawfully detained, Dokter’s pat search and removal of his wallet were unjustified because Dokter offered no explanation for why he may have believed that Durham was armed and dangerous.
The rules for determining the legality of a pat search are well settled. When an officer has a reasonable belief that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer has the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. (Terry v. Ohio (1968) 392 U.S. 1, 24.) “The sole justification of the search... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Id. at p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. (Id. at p. 20.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Id. at p. 27.) “The judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.” (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
Although Dokter testified that he was not specifically concerned that Durham was armed, rather that he was “always concerned about people having weapons, ” Dokter did testify that he was concerned about his own safety and the safety of the restaurant’s employees and patrons when he confronted Durham. Durham closely matched the description of the person who had recently robbed a nearby bank, and a reasonable person would presume that someone who robs banks may be armed even if no weapon had been displayed during the robbery. (Cf. Terry v. Ohio, supra, 392 U.S. at p. 28 [daylight robbery likely to involve the use of weapons].) Though Durham was already handcuffed when Dokter began the pat search, that fact does not preclude such a search; in fact, a pat search would be a reasonable and necessary precondition to the removal of those handcuffs if it had turned out that Durham was not the person involved in the robbery.
Dokter was also justified in removing Durham’s wallet from his pocket, even though he knew it was not a weapon or contraband. In general, if a pat search demonstrates that the objects found on a suspect’s person are not weapons or contraband, the search ends and the objects may not be seized. (People v. Dickey, supra, 21 Cal.App.4th at pp. 956-957.) However, Dokter testified that he could not feel if there was anything, such as a weapon, behind Durham’s wallet and therefore removed it to complete his search. There was nothing impermissible about him doing so.
Finally, it was also permissible for Dokter to remove Durham’s driver’s license from the wallet. “Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.” (Hiibelv. Sixth Judicial Dist. Court of Nev., Humboldt Cty (2004) 542 U.S. 177, 185.) When Dokter asked Durham if he had any identification, Durham responded, “Yes, in the wallet.” Since Durham was handcuffed, and Dokter was still investigating whether he was involved in the bank robbery, it was reasonable for Dokter to remove Durham’s license in order to verify his identity as well as check for outstanding warrants.
Accordingly, since there was no unlawful arrest or unlawful search, the motion to suppress was properly denied.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.