Opinion
2d Crim. No. B225835
10-05-2011
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM BRYANT, Defendant and Appellant.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. NA085025)
(Los Angeles County)
William Bryant appeals the judgment entered after he pled no contest to transporting and possessing marijuana for sale (Health & Saf. Code, §§ 11359, 11360, subd. (a)). The trial court sentenced him to four years in state prison. Appellant contends the court erred in denying his motion to suppress the marijuana on the ground it was obtained in violation of his Fourth Amendment rights. We affirm.
FACTS AND PROCEDURAL HISTORY
The relevant facts are derived from the transcripts of the preliminary hearing and the hearing on appellant's suppression motion. On March 11, 2010, Long Beach Police Sergeant Ernie Kohagura received a call about a strong-arm robbery near 10th Street and Alameda Avenue. One of the suspects was described as riding a silver bicycle and wearing a gray sweater or jacket, dark pants, and black shoes.
About 40 minutes later, Sergeant Kohagura saw appellant riding a bicycle on the wrong side of the street in the vicinity of where the robbery occurred. Appellant was wearing a large jacket and baggy pants that matched the description of the suspect's clothing. The officer also noticed that the bicycle appellant was riding did not have a fixed light as required by law.
Sergeant Kohagura activated his lights and siren and ordered appellant to get off the bicycle. The officer told appellant he was being apprehended pursuant to a robbery investigation. Sergeant Kohagura believed that appellant might be armed, so he decided to conduct a patdown search for weapons. As the officer approached appellant, he smelled the odor of marijuana emanating from appellant's person.
Sergeant Kohagura searched appellant and felt a hard object in one of the back pockets of his pants. The officer removed the object and discovered it was a bag of marijuana compressed into the form of a brick. Another baggie of marijuana was found in the same pocket. Appellant was subsequently found to be in possession of a digital scale, empty plastic baggies, and some cash in small denominations.
Appellant was arrested and charged with transporting and possessing marijuana for sale. Before the information was filed, appellant moved under Penal Code section 1538.5 to suppress the marijuana and other evidence found on his person as the fruit of an unlawful search. The court denied the motion. In subsequently denying appellant's renewed suppression motion under Penal Code section 995, the court reasoned that "[t]he officer did act properly under these circumstances, finding a hard object, not knowing what it is. The law does not require that he risk being injured by something that turns out to be a weapon that he couldn't tell was that at the time."
DISCUSSION
Appellant contends the court erred in denying his motion to suppress the marijuana and other evidence found on his person because the evidence was obtained in violation of his Fourth Amendment rights. He concedes that he was properly subjected to a patdown search for weapons as contemplated in Terry v. Ohio (1968) 392 U.S. 1 (Terry), yet claims that Sergeant Kohagura lacked the authority to remove the package of marijuana from his pocket because he did not have reasonable cause to believe it was either a weapon or illegal contraband. We conclude otherwise.
"In reviewing the trial court's ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness." (People v. Hughes (2002) 27 Cal.4th 287, 327.) "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,' [citation] and not on the officer's actual state of mind at the time the challenged action was taken." (Maryland v. Macon (1985) 472 U.S. 463, 470-471, quoting Scott v. United States (1978) 436 U.S. 128, 136.)
An officer conducting a Terry search is entitled to seize any hard objects that could be a potential weapon. (People v. Suennen (1980) 114 Cal.App.3d 192, 199-200; People v. Allen (1975) 50 Cal.App.3d 896, 902.) Sergeant Kohagura testified that the object in appellant's pocket, which he subsequently identified as a "brick" of compressed marijuana, was hard and felt like it might have been part of a knife, a knife case, or a taser. The prosecutor similarly described it as a "square hard object." Appellant did not challenge either of these characterizations. The court's implicit finding that the object was hard is thus supported by substantial evidence.
Appellant's claim that "no testimony can change a baggie containing marijuana from soft to hard" mischaracterizes the evidence. As we have noted, it was undisputed below that Sergeant Kohagura felt a hard object in appellant's pocket. Appellant's reliance on a prior decision in which we invalidated the removal of an indisputably soft object during a patdown search is therefore unavailing. (People v. Dickey (1994) 21 Cal.App.4th 952, 956; see also People v. Collins (1970) 1 Cal.3d 658, 662.) Equally unavailing is his citation to authority providing in dicta that "[a] box of matches, a plastic pouch, a pack of cigarettes, a wrapped sandwich, a container of pills, a wallet, coins, folded papers, and many other small items usually carried in an individual's pockets do not ordinarily feel like weapons." (People v. Mosher (1969) 1 Cal.3d 379, 394, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 30, and People v. Milner (1988) 45 Cal.3d 227, 237.) The identity of such items would in most circumstances be ascertainable by touch, thereby dispelling any reasonable belief that they might be weapons. By contrast, the item at issue here did not feel like anything that one would ordinarily carry in his or her pocket. Moreover, the size, shape, and texture of the object were such that Sergeant Kohagura could reasonably believe that it might be a weapon. (See People v. Hill (1974) 12 Cal.3d 731, 746-747 ["We are not prepared to hold that under all the circumstances . . . a prudent man could not have reasonably believed that a three-inch long, hard object might be an instrument of assault"] overruled on other grounds in People v. Devaughn (1977) 18 Cal.3d 889, 896, fn. 5.) Accordingly, appellant's motion to suppress the evidence on the ground that the officer had no such objectively reasonable belief was properly denied.
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT. P.J.
COFFEE, J.
Richard R. Romero, Judge
Superior Court County of Los Angeles
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.