Opinion
H045978
05-01-2020
THE PEOPLE, Plaintiff and Respondent, v. PHUONG MINH NGUYEN, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1770354)
After the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant Phuong Minh Nguyen, Jr., pleaded no contest to two narcotics-related charges. The trial court suspended imposition of sentence, placed Nguyen on probation on condition he serve one year in county jail, and imposed various fines and fees, detailed below. Nguyen had 484 days of custody credits, the trial court directed that "excess credits can be used to satisfy the fines and fees that will be imposed at the rate of $125 per day."
Unspecified statutory references are to the Penal Code.
On appeal, Nguyen argues the trial court erred in denying his motion to suppress and further argues that the trial court erred in imposing fines and fees without first conducting a hearing on his ability to pay pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157.
We agree that Nguyen's motion to suppress should have been granted and will reverse the order of probation. Accordingly, we need not reach Nguyen's Dueñas argument.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Nguyen was charged by information filed on October 19, 2017, with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and transportation of methamphetamine (id., § 11379, subd. (a); count 2). The information further alleged that Nguyen had a prior strike conviction (§§ 667, 1170.12) and a prior conviction resulting in a prison term (§ 667.5, subd. (b)). Nguyen initially pleaded not guilty and denied the sentencing enhancement allegations.
B. Motion to suppress hearing
Nguyen brought a motion to suppress the evidence (§ 1538.5) seized during the search of his person and belongings on the night of his arrest.
At the hearing on the motion, San Jose Police Officer Daniel Hall testified he was on duty on August 4, 2017, at around 2:25 a.m., when he and another officer, Christopher Bergstrom, observed Nguyen riding his bicycle, uphill, along a dark street. Nguyen did not have a front light operating on his bicycle, so the officers pulled their patrol car into his path. Nguyen stopped, and Hall got out of the car and told him he needed to have a light on his bike. Nguyen said something like, " 'Oh, it just went off.' "
Nguyen was wearing a T-shirt, baseball cap, jeans and tennis shoes. He had a small bag connected to a belt loop on his jeans and a backpack on his back. Hall noticed that Nguyen was shifting from side to side, was sweating and, as Hall pat-searched him, he noticed Nguyen's skin was warm.
Hall asked if Nguyen had any weapons on him, and Nguyen said he had a knife in his pocket. After removing the knife, Hall felt a hard object, which turned out to be a flashlight, in Nguyen's front left pocket. Hall took the flashlight as he believed it could be used as a weapon. Hall continued the patdown search and felt a softer object in the same pocket. He did "not immediately" know what it was. Hall asked Nguyen, and Nguyen initially said he did not know what it was, but it might be another flashlight. Hall asked if it could be a "meth" pipe, and Nguyen agreed, but then said it was a "weed" pipe.
Hall's testimony that Nguyen "agreed" the object was a meth pipe is contradicted to some extent by the footage from Bergstrom's body-worn camera which was played at the hearing. The transcript of the audio portion of the footage reflects that when Hall asked about the other object in Nguyen's pocket, Nguyen first responded, "I don't know what is that. [Sic.] I don't remember. Probably another flashlight or something." Hall asked, "Is that your pipe? Your meth pipe?" and Nguyen said, "Oh yeah, that's a pipe, yeah." (Italics added.) Hall asked again, "It's a meth pipe in there?" but Nguyen said, "No. [¶] It's a weed pipe."
Hall believed that Nguyen was trying to deceive him. Based on his observations of Nguyen's body temperature, continuous movement even as he was being searched, muscle rigidity, and rapid speech, Hall believed that Nguyen was under the influence of a controlled substance and was likely carrying drug paraphernalia, such as a pipe, needles, or spoon.
After Nguyen refused to let Hall remove the object from his pocket, Bergstrom handcuffed Nguyen, informing him that he was not under arrest, but was being detained. Bergstrom handcuffed Nguyen for "a couple of reasons." First, Nguyen was carrying a knife, and in Bergstrom's experience, "people that carry weapons often carry more than one." Second, after Hall asked if the object in Nguyen's pocket was a "meth pipe," Nguyen initially agreed, then changed his story, and "seemed to be becoming agitated with . . . Hall's line of questioning." As Nguyen appeared to be under the influence of a controlled substance, Bergstrom was concerned that Nguyen could go "from what you might consider normal to extremely erratic in a split second."
See footnote 2, ante.
Bergstrom asked Nguyen when he last used any drugs and Nguyen eventually admitted he had used methamphetamine earlier that evening. Nguyen also admitted that he had a methamphetamine pipe on him.
Hall removed the pipe, which was wrapped in toilet paper and enclosed in a soft, zippered case, from Nguyen's front left pocket. The pipe was covered in a white residue and had burn marks at the bowl end. Hall asked Nguyen if he had any drugs on him, and Nguyen said there were drugs in the bag attached to his belt loop. Hall opened the bag and found a baggie containing a white, crystalline substance. Nguyen told Hall the substance was methamphetamine and that there was about "half an ounce" in the baggie.
Hall also found two cell phones in Nguyen's pockets and a pill bottle containing marijuana in a case underneath the bicycle seat. Based on the amount of methamphetamine and the two cell phones, Bergstrom believed that Nguyen possessed the drug for sale. In Nguyen's backpack, the officers found a functional digital scale, four small plastic baggies, and nine larger plastic baggies, which also indicated that Nguyen intended to sell the methamphetamine in his possession.
The trial court denied the motion to suppress in open court, making the following findings of fact: (1) the stop "was for a bicycle light violation"; (2) the stop occurred "late at night in an isolated area"; (3) Nguyen was cooperative and did not act furtively or in a threatening manner; (4) when asked if he had any weapons, Nguyen admitted he was carrying a pocket knife, which the officer removed; (5) the officer then discovered and removed a hard object (the flashlight) from Nguyen's pocket, which he believed could be a weapon, during the patdown search; (6) the officer then felt a soft object in Nguyen's pocket and asked what it was; and (7) the officer asked if he could retrieve the object and Nguyen "said no, and the officer did not retrieve it." The trial court then concluded that: (1) it was not a Fourth Amendment violation for Hall to ask Nguyen if he was armed; (2) once Nguyen admitted that he had a weapon, it was reasonable for the officers to conduct a patdown search for additional weapons; (3) after finding the flashlight and feeling the "other object," the officer was allowed to ask what it was; (4) when Nguyen refused to let the officer retrieve the object, it was "correct" for the officer to not retrieve it; and (5) "what they found as a result of the patdown search, and ultimately, the arrest of Mr. Nguyen and the search incident to arrest, based on the symptoms that were discussed, are—were lawful."
C. Plea and sentencing
On April 2, 2018, Nguyen pleaded no contest to both counts and admitted the prior strike and prior prison term allegations.
At the June 22, 2018 sentencing hearing, the trial court granted Nguyen's Romero motion, suspended imposition of sentence and placed Nguyen on probation for three years subject to various terms and conditions, including the condition that he serve one year in county jail. Nguyen was awarded a total of 484 days of credits, consisting of 242 custody credits plus 242 conduct credits under section 4019. The trial court noted that Nguyen's "excess credits can be used to satisfy the fines and fees that will be imposed at the rate of $125 per day."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court imposed, without corresponding penalty assessments, a $100 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5) and a $300 drug program fee (Health & Saf. Code, § 11372.7). The trial court further imposed, but not as conditions of probation: an $80 court security fee (§ 1465.8); a $60 criminal conviction assessment (Gov. Code, § 70373); a $129.75 criminal justice administration fee payable to the City of San Jose (Gov. Code, §§ 29550, 29550.1, 29550.2); and probation supervision fees of $50 per month (§ 1203.1b).
The minute order also reflects a restitution fine of $330 (§ 1202.4) and an identical $330 probation revocation fine, suspended (§ 1202.44), but neither of these fines were orally pronounced at sentencing.
Nguyen timely appealed.
II. DISCUSSION
A. Motion to suppress
1. Standard of review
" ' "In ruling on [a motion to suppress evidence], 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 inquires 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) 24 Cal.4th 243, 279.)
2. Patdown searches under the Fourth Amendment
In Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States Supreme Court held that the Constitution permits "a reasonable search for weapons for the protection of the police officer, where he [or she] has reason to believe that he [or she] is dealing with an armed and dangerous individual." (Id. at p. 27.) A patdown search for weapons is justified if "a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." (Ibid.) "[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the search. (Id. at p. 21.)
When reviewing the Fourth Amendment reasonableness of an officer's patdown search, we must consider the totality of the circumstances known to the officer when the search was conducted. (Terry, supra, 392 U.S. at p. 27; People v. Souza (1994) 9 Cal.4th 224, 231.) "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Terry, supra, at p. 27.) "Reasonable suspicion must be based on 'commonsense judgments and inferences about human behavior.' [Citation.] The determination of reasonableness is 'inherently case-specific.' " (In re H.M. (2008) 167 Cal.App.4th 136, 143.)
A patdown search does not allow an officer to reach inside a suspect's pocket. "[T]he search of an interior pocket for contraband can only be made incident to an arrest, not merely as part of the investigative detention." (People v. Holt (1989) 212 Cal.App.3d 1200, 1205.) "If 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 search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." (Minn. v. Dickerson (1993) 508 U.S. 366, 375-376 (Dickerson), italics added.)
3. Analysis
In this case, Nguyen does not contest his initial detention, but argues that because he admitted possessing a pocketknife, Hall's subsequent patdown search was not supported by a reasonable suspicion that he was "armed and dangerous" under Terry. We disagree that the patdown search violated the Fourth Amendment, but only up to the point where Hall no longer reasonably suspected that Nguyen had additional weapons on his person. Once that point was reached, there was no longer reason to detain Nguyen absent suspicion that he was involved in criminal activity.
Dickerson controls here. In Dickerson, the United States Supreme Court upheld the suppression of the narcotics found in the patdown search because the officer had squeezed the soft material inside the defendant's pocket before determining it was crack cocaine. "Although the officer was lawfully in a position to feel the lump in [the defendant's] pocket . . . the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of [defendant's] pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional." (Dickerson, supra, 508 U.S. at p. 379.)
An officer "may conduct a patdown search 'to determine whether the person is in fact carrying a weapon.' [Citation.] 'The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .' [Citation.] Rather, a protective search—permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' [Citations.] If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." (Dickerson, supra, 508 U.S. at p. 373.)
If an object encountered during a patdown search might be a weapon, officers may retrieve it from the person being searched. (See Terry, supra, 392 U.S. at p. 30.) When the patdown "reveals a hard object that might be a weapon, the officer is justified in removing the object into view." (People v. Limon (1993) 17 Cal.App.4th 524, 535.) If the object is not a weapon, the incriminating character of the object must be "immediately apparent" to the officer before he may remove it from the person. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.)
The question we confront here is whether the contraband nature of the "softer object" was "immediately apparent" to Hall before he removed it from Nguyen's pocket. The trial court made no explicit factual findings on this point and the prosecution elicited no evidence that the incriminating nature of the pipe was apparent to Hall before he removed it from Nguyen's pocket. Hall testified that, after finding a hard object which turned out to be a flashlight, he then felt a "soft object" in the same pocket. The prosecutor asked if Hall knew what the object was, and Hall responded, "Not immediately, no." When Hall asked Nguyen what it was, Nguyen replied he could not remember but it might be another flashlight. Hall asked if it was "your pipe, your meth pipe," and Nguyen responded, "yeah, that's a pipe." Hall asked again if it was a meth pipe and Nguyen said, "No. [¶] It's a weed pipe."
The timing and method of discovery of the pipe determine whether Nguyen's Fourth Amendment rights were violated. If Hall determined the pipe was contraband during the patdown itself then its seizure would have been lawful pursuant to the "plain-touch" exception to the warrant requirement. (See Dickerson, supra, 508 U.S. at p. 371, fn. 1.) However, if Hall only discovered the incriminating character of the pipe after further questioning Nguyen or removing it from the pocket then its subsequent seizure violates the Fourth Amendment, and it must be suppressed. (Id. at p. 379.) Hall testified that, when he first felt the object, he did "not immediately" know what it was. His questioning of Nguyen showed he suspected it was a meth pipe, but that questioning further supports the implication that he could not tell what the object was. In any event, it was not "immediately apparent" to Hall that the item was contraband. (Ibid.) The trial court implicitly recognized this fact when it stated that it was "correct" for Hall not to retrieve the object from Nguyen's pocket absent his consent.
For these reasons, the trial court erred in denying Nguyen's motion to suppress.
B. Dueñas
Because we conclude that the motion to suppress should have been granted, we need not address whether the trial court erred by failing to hold an ability to pay hearing under Dueñas.
III. DISPOSITION
The order of probation is reversed. On remand, the trial court shall permit Nguyen to withdraw his no contest plea. In the event he elects to withdraw his plea, the trial court shall vacate its order denying the motion to suppress, and enter a new order granting that motion.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Grover, J.