Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62087003
HULL, J.Convicted of burglary (Pen. Code, § 459) and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), defendant Duane Keita Hercules appeals the trial court’s denial of his suppression motion. We affirm the judgment.
Facts and Proceedings
On January 12, 2009, at approximately 4:25 p.m., Lincoln Police Officer Ryan Byrd responded to a report of a black male adult inside a Blockbuster store breaking tabs off of “disks,” taking them out of the “cassettes,” and putting them in his pants. Officer Byrd arrived at the store, “[s]et a perimeter up,” and, from outside, saw defendant at the back of the store talking on a cell phone.
Officer Byrd then received another call from “dispatch” and was informed that the “reporting party” said defendant was putting the disks back on the shelves. Officer Byrd then entered the store and an employee pointed him “to the direction of the defendant.”
Officer Byrd moved toward defendant and as he did, he noticed the blue tabs that are used to secure the disks lying on the floor. As Officer Byrd approached, defendant asked “What’s going on.” Officer Byrd informed defendant that he was being detained “on investigation of burglary.” Defendant immediately said he had not taken anything out of the store. Officer Byrd then handcuffed defendant and walked him outside.
Outside the store, Officer Byrd “patted [defendant] down” to confirm defendant did not have any weapons. During the pat down, Officer Byrd discovered a “bulge” in defendant’s front pocket that was “hard to the touch.” He asked defendant what the bulge was but defendant did not answer. Consequently, Officer Byrd reached into defendant’s pocket and removed a pair of pliers. Along with the pliers came a plastic baggie, which fell to the ground. Officer Byrd asked defendant what was in the baggie; again, defendant failed to respond. Accordingly, Officer Byrd picked the baggie up off the ground and saw that it contained seven “white tablets.”
During his subsequent investigation, Officer Byrd learned that defendant was using the red and black handled pliers to remove the security tabs from the disks. Defendant was then arrested and charged with burglary (Pen. Code, § 459), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The charging complaint further alleged that defendant was previously convicted of three felonies and served a prison term for each conviction within the meaning of Penal Code section 667.5, subdivision (b).
Defendant pleaded not guilty to all charges and moved to suppress the evidence obtained as a result of his detention and subsequent search at the Blockbuster store on January 12, 2009. After hearing testimony from Officer Byrd and argument from counsel, the trial court denied defendant’s motion. “My reading of the law and understanding of the law is that in a situation such as this, where the person is detained on a reasonable suspicion of a felony being committed, the officer under these circumstances as testified to by Officer Byrd has a right.
“And he testified that he was concerned about his safety and the safety of other people there. This was a busy area with not just himself present, but people and customers not only in the store but outside the store, as the officer testified to. He then felt a hard object, and he asked what the object was. The testimony of Officer Byrd was that there was no response to that question by the defendant. And the testimony, I wrote it down in my notes, is that he felt it was something hard, that it could be a weapon.
“There was no response to that question, so he pulled it out. And it turned out to be pliers[,] which under these circumstances, are implements of burglary, contraband. They are implements--they are tools to be used in the commission of a felony.
“And incidentally to the pliers being pulled out, a plastic bag came with it. That just was hooked up, I guess, in some way with the pliers coming out. And that came out. And that was in plain view a that point.”
Defendant subsequently changed his plea to no contest on both counts, but ultimately denied the enhancement allegations. He was sentenced to an aggregate term of two years in state prison and ordered to pay various fines and fees. Defendant appeals.
Discussion
Defendant contends the trial court erred in denying his motion to suppress. Specifically, he claims Officer Byrd could not lawfully pat him down because Officer Byrd did not have reason to believe defendant was armed and dangerous. Defendant misreads the law as it is applied to the facts in this case.
Contrary to defendant’s assertion, an officer need not “point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous” (People v. Garcia (2006) 145 Cal.App.4th 782, 786, citing Terry v. Ohio (1968) 392 U.S. 1, 20), if the officer has probable cause to arrest the suspect. (United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2d 427].) The question thus is whether Officer Byrd had probable cause to arrest defendant when he performed the pat down search. We conclude that he did.
Officer Byrd knew that a black adult male was stealing disks from the store, the store employee pointed Officer Byrd to defendant, and safety tabs from several disks were lying on the floor near defendant. Officer Byrd approached defendant, detained him, and performed a pat down search for his own safety as he placed defendant under arrest. The search was lawful and there was no error.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P. J., CANTIL-SAKAUYE, J.