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In re Nicolas C.

California Court of Appeals, First District, Fifth Division
Apr 29, 2009
No. A121583 (Cal. Ct. App. Apr. 29, 2009)

Opinion


In re NICOLAS C., a Person Coming Under the Juvenile Court Law. A121583 California Court of Appeal, First District, Fifth Division April 29, 2009

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J07-00382

SIMONS, J.

After the juvenile court denied his motion to suppress evidence, defendant Nicolas C. (appellant) pled no contest to misdemeanor possession of a firearm (Pen. Code, § 12101, subd. (a)) and misdemeanor possession of less than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (b)). He contends the court erred in denying his suppression motion. We reject the contention and affirm.

BACKGROUND

The background facts are derived from the suppression hearing.

At approximately 4:25 p.m., East Bay Regional Park District Police Officer O’Neill drove into the Bear Creek staging area of Briones Regional Park, where he saw three people (appellant, the driver, and the other passenger) inside a parked car. The driver, who appeared to be 17 or 18 years old, was smoking what looked like a cigarette and smoke was coming from the car. Appellant was seated in the front passenger seat. O’Neill decided to effect a traffic stop of the car for under age tobacco smoking. He activated his patrol car’s red light and pulled up behind the parked car.

On cross-examination, O’Neill said the car was parking at the staging area when he first saw it.

As the uniformed O’Neill approached the driver, he smelled the odor of marijuana coming from the car’s open windows. When O’Neill looked into the car, appellant did not make eye contact and seemed “nervous and agitated.” O’Neill asked all three persons inside the car for identification. O’Neill “intend[ed] to search the interior of the vehicle for any illicit substance or controlled substance for my safety because it’s an isolated area that I was in. I intended to detain all three in the back of my vehicle after pat-searching them for weapons.” The driver had identification on his person, and appellant and the other passenger were “orally identified.” When O’Neill asked if there was marijuana in the car, the driver held up the butt of a marijuana cigarette and said, “This is all there was.” O’Neill then had the driver exit the car to “pat-search” and detain him. He told appellant and the other passenger to remain in the car while he did so. O’Neill pat-searched the driver and detained him unhandcuffed in the back of the patrol car.

O’Neill then told appellant to step out of the car, intending to pat-search him. Appellant said O’Neill could not search him because he was a juvenile. As appellant was getting out of the car, O’Neill noticed appellant was keeping his right hand tight and saw a large bulge in appellant’s right front pocket, which appeared suspicious. O’Neill used a “twist lock” hold on appellant, in order to control him during the pat-search. Before O’Neill executed the pat-search, appellant became “very agitated” and several times started to pull away from the officer. O’Neill then changed his hold of appellant from a “wrist lock” to a “modified standard” hold with appellant’s hands locked behind his head. O’Neill asked appellant what the bulge was, and appellant mumbled something that O’Neill could not hear and twisted his hips away from O’Neill, trying to spin away from him. Based on his training and experience, appellant’s “physical demeanor and physical response” suggested to O’Neill that appellant had something in his right pocket he did not want O’Neill to see, which could be dangerous. O’Neill then reached into the pocket and withdrew a clear plastic bag containing a green leafy substance and felt something metallic underneath. O’Neill reached further into the pocket and withdrew a small caliber pistol.

On cross-examination, O’Neill referred to this as a “wrist lock” hold.

On cross-examination, O’Neill referred to this as a “rear wrist lock.”

No contraband was found inside the car.

The trial court denied the motion to suppress, explaining O’Neill justifiably reached into appellant’s pocket without first pat-searching him because appellant “attempted to... turn when [O’Neill] asked him about what was in his pocket. And he turned away and tried to put that part of his pocket away from the officer. [¶] I think adding those things together that does give the officer sufficient cause to make a quick search of that pocket. And risks of [a] weapon being retrieved rapidly are huge, and I think he was within his right to do so.”

DISCUSSION

Appellant concedes O’Neill was justified in detaining him and the other occupants of the car after O’Neill observed the driver smoking something and smelled the odor of marijuana emanating from the car. He also concedes O’Neill was justified in ordering the car’s occupants out of the car and searching the car after the driver displayed the remains of a marijuana cigarette. Appellant contends, however, that O’Neill’s initial pat-search of his person was unjustified under the Fourth Amendment. Alternatively, he argues that even if the pat-search was justified, the intrusion into his pocket was not supported by probable cause.

“The standard of review of a trial court’s ruling on a motion to suppress is well established and is equally applicable to juvenile court proceedings. ‘ “On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court’s ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court that are supported by substantial evidence and independently determine whether the facts support the court’s legal conclusions.” [Citation.]’ [Citation.]” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)

Appellant contends O’Neill lacked any reasonable suspicion that he was armed and dangerous at the time the officer initiated the pat-search.

“When an officer reasonably suspects that an individual whose suspicious behavior he or she is investigating is armed and dangerous to the officer or others, he or she may perform a pat[-]search for weapons. [Citations.] The sole justification for the search is the protection of the officer and others nearby, and the search must therefore be confined in scope to an intrusion reasonably designed to discover weapons. [Citation.] A pat[-]search is a ‘serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.’ [Citation.] On the other hand, law enforcement officers have a legitimate need to protect themselves even where they may lack probable cause for an arrest. [Citation.] The officer has an immediate interest in taking steps to ensure that the person stopped ‘is not armed with a weapon that could unexpectedly and fatally be used’ against the officer. [Citation.]

“Such a limited frisk for weapons is justified where the officer ‘can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.’ [Citations.]

“ ‘[T]he officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.’ [Citations.] Reasonable suspicion must be based on ‘commonsense judgments and inferences about human behavior.’ [Citation.] The determination of reasonableness is ‘inherently case-specific.’ [Citation.] An inchoate and unparticularized suspicion or hunch is not sufficient, nor is the fact the officer acted in good faith. [Citation.] Where specific and articulable facts are absent, the pat[-]search cannot be upheld. [Citation.] Whether a search is reasonable must be determined based upon the circumstances known to the officer when the search was conducted. [Citation.]” (In re H.M. (2008) 167 Cal.App.4th 136, 143-144.)

Appellant argues that O’Neill’s concern for his safety was unreasonable because it was unsupported by specific and articulable facts giving rise to a reasonable suspicion that appellant was armed and dangerous. The People rely on People v. Collier (2008) 166 Cal.App.4th 1374, to justify O’Neill’s pat-search of appellant. In Collier, a police officer stopped a car for not having a front license plate. As the officer spoke to the driver, he smelled marijuana emanating from the car. Another officer approached the defendant, seated in the front passenger seat, and also smelled marijuana. (Id. at p. 1376.) The officer asked the defendant to step out of the car and asked him if he had any weapons or contraband on his person. The defendant answered no. The defendant was taller than the officer and wore baggy clothing, which caused the officer to believe the defendant might be concealing a weapon. To allay his fear, the officer pat-searched the defendant for weapons. The pat-search turned up a handgun and a jar of PCP (phencyclidine). (Id. at pp. 1376-1377.)

Collier noted that the traffic stop was not ordinary because the officers smelled marijuana emanating from the car. The court stated that the defendant’s presence in the car supported a rational suspicion that he may have been possessing and transporting drugs. (Collier, supra, 166 Cal.App.4th at p. 1377.) The court upheld the pat-search of the defendant as “reasonably necessary because the officers had probable cause to search the car interior and had decided to do so. When [the defendant] alighted from the vehicle, the officer was concerned about his safety based on [the defendant’s] size, the baggy clothing, and the knowledge that [the defendant] or the driver may have been smoking marijuana.” (Id. at p. 1378.) In a footnote, the court stated, “Our opinion should not be read as allowing the police carte blanche to pat down anyone wearing baggy clothing. But the wearing of baggy clothing, coupled with other suspicious circumstances, here, being in a car which reeks of marijuana, furnish the requisite facts to support a pat down for weapons so that the search of the car could be safely performed.” (Id. at p. 1377, fn. 1.)

While factually not identical, Collier informs our decision in this case. Appellant concedes that after O’Neill smelled marijuana emanating from the car and saw the driver holding the butt of a marijuana cigarette, O’Neill was entitled to order the occupants out of the car, search the inside of the car, and detain the occupants while he searched. During any such search, O’Neill’s vulnerability would increase because he would be unable to focus on the three young men.

As appellant exited the car and before O’Neill commenced the pat-search, O’Neill noticed appellant was holding his right hand tight and saw a large bulge in appellant’s pocket, which appeared suspicious. Those observations provided a justification to pat-search appellant similar to the justification found in Collier. When appellant made a persistent effort to block the search, the officer was justified in concluding that “there’s something [appellant] doesn’t want me to know about in this pocket, and it could be dangerous to me.” This, in turn, justified a rapid search of the pocket itself, which revealed the firearm.

This analysis assumes O’Neill saw the bulge and appellant twisted away from the pat-search, before it occurred. Appellant contends, however, that these two critical factors occurred after the search was initiated. O’Neill testified he imposed the “twist lock” as appellant exited the vehicle so he would have control over him during the pat-search. Appellant relies on this testimony to argue the pat-search began with the control hold, which occurred before either of the factors mentioned above. But O’Neill’s testimony on this point is vague. He does not specifically say that the twist lock preceded his observation of the suspicious bulge, and his testimony permits the inference, impliedly adopted by the trial court, that the officer observed the suspicious bulge before he put any sort of hold on appellant.

Appellant never challenged the propriety of O’Neill placing him in a control hold in the trial court or in his opening brief. Because the issue was raised for the first time in his reply brief, it is waived. (People v. Senior (1995) 33 Cal.App.4th 531, 536.)

But even if the pat-search began before the bulge was observed, tainting the later search of the pocket, we would uphold the trial court’s ruling based on the inevitable discovery doctrine. Under the inevitable discovery doctrine, information obtained illegally “need not be suppressed if the prosecution can establish by a preponderance of the evidence that the information would inevitably have been discovered by lawful means. [Citations.]” (People v. Carpenter (1999) 21 Cal.4th 1016, 1040, citing Nix v. Williams (1984) 467 U.S. 431, 444.) Here appellant does not challenge O’Neill’s command to exit the car, and the bulge in appellant’s pocket was seen by the officer as soon as he did so. Even if the pat-search began prematurely before the bulge was visible, it did not cause that visibility. Thus the officer’s observation of the bulge was inevitable and the subsequent pat-search would have revealed the metallic object in appellant’s pocket, justifying the officer’s intrusion into the pocket. The trial court properly denied the motion to suppress.

DISPOSITION

The judgment is affirmed.

We concur. JONES, P.J., BRUINIERS, J.

Judge of the Contra Costa Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re Nicolas C.

California Court of Appeals, First District, Fifth Division
Apr 29, 2009
No. A121583 (Cal. Ct. App. Apr. 29, 2009)
Case details for

In re Nicolas C.

Case Details

Full title:In re NICOLAS C., a Person Coming Under the Juvenile Court Law.

Court:California Court of Appeals, First District, Fifth Division

Date published: Apr 29, 2009

Citations

No. A121583 (Cal. Ct. App. Apr. 29, 2009)