Opinion
A150403
12-21-2017
In re Charlie J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHARLIE J., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV00269902)
Minor Charlie J. appeals from the juvenile court's findings and dispositional order placing him on probation for receiving a stolen motor vehicle in a proceeding initiated by the People's filing of a petition under Welfare and Institutions Code section 602. Charlie admitted to this allegation after the juvenile court denied his motion to suppress evidence obtained in the course of his detention and pat search by an Oakland Housing Authority police officer. The officer detained Charlie just moments after observing a hooded Charlie walking with a non-running Vespa motor scooter against traffic one morning, approximately one block from the West Oakland BART station and, upon approaching Charlie, noting several other suspicious circumstances. Charlie argues the juvenile court should have granted his motion to suppress for multiple reasons. We disagree and affirm.
BACKGROUND
The People filed their petition in October 2016. They alleged that Charlie, 14 years old at the time of the petition, had stolen a Vespa motor scooter in violation of Vehicle Code section 10851, subdivision (a), a felony; received the scooter as stolen property in violation of Penal Code section 496d, subdivision (a), also a felony; and possessed a burglar's tools in violation of Penal Code section 466, a misdemeanor.
In November 2016, Charlie filed a motion under Welfare and Institutions Code section 700.1 to suppress evidence seized from him in the course of his detention and arrest. At the hearing on the motion, the court heard the testimony of the officer who observed and approached Charlie, and quickly detained, handcuffed and searched him, Officer Matthew Carroll of the Oakland Housing Authority Police Department. The court also viewed a video from Officer Carroll's body camera depicting his initial detention, handcuffing and search of Charlie.
Carroll testified that he was, among other things, a member of the Oakland Housing Authority's Crime Prevention Unit. On October 28, 2016, at approximately 11:26 a.m., he was on duty for that unit in West Oakland, where he patrolled often. Carroll was in uniform and alone in a marked patrol car driving east on Eighth Street towards Mandela Parkway. He was on a "directed patrol" based on "reports that there were stolen vehicles in the area." He also "was investigating a vehicle in the area" and "doing directed patrol due to increased robberies on the 1400 block of Seventh Street."
The intersection of Eighth Street and Mandela Parkway was approximately one block from the West Oakland BART station. Carroll was "very familiar" with that BART station because he had conducted pursuits and directed patrols in the area. There was "a lot of crime" at that BART station, including vehicle thefts. "Often times," Carroll testified, "the West Oakland BART station is a [] grounds for stolen scooters and motorcycles. They're easy to get off the lot and they're easy to push to the neighboring apartments."
Carroll further testified that he had been the primary officer in 30 or 40 investigations regarding car, motorcycle and scooter thefts, and assisted other officers in numerous others. In the course of his investigations, he had learned some of the "typical tools of the trade." He said, "Typically, when motorcycles or scooters are stolen, they'll need some type of pry device to gain access to the compartment that exposed the wires, and some type of stripping material to gain access to the wires or force the ignition." Carroll said that for "motorcycles and Vespas, typically you'll see an Exacto knife, or a flat-head screwdriver, and then sometimes you'll see shaved down keys," and that he had run across scissors as well.
According to Carroll, as he traveled eastbound on Eighth Street that morning, he noticed a tall individual wearing a "hoody" pushing a Vespa motor scooter northbound on Mandela Parkway into the intersection of Mandela Parkway and Eighth Street. Carroll could not tell if the person was an adult or a juvenile. Carroll saw the individual stop short of the middle of the intersection, look in Carroll's direction and "quickly" push the scooter into a small gutter that was in front of a parked minivan, where the individual "kind of ducked down." Carroll parked his vehicle and approached the individual on foot. He did not activate his siren, lights or PA system, nor did he draw his gun or take out his baton. He did activate his body camera. At the hearing, Carroll identified Charlie as the individual he approached that morning. He said that Charlie's actions—pushing the scooter away from the BART station against traffic and ducking behind a minivan—made him suspicious that Charlie had stolen the scooter.
The video of Carroll's detention and search of Charlie was entered into evidence, and one minute and 56 seconds of it were played for the court. This court has reviewed the video, as well as a transcript of what was said between Carroll and Charlie that was referred to at the dispositional hearing. We now summarize what can be ascertained from the two. In the video, an officer, obviously Carroll, is driving down a residential street on a sunny day. He stops his vehicle in the driving lane, exits and walks around his vehicle to the right towards cars parked by the curb. He then walks around the driver's side of a minivan parked near the top of the block and turns right towards the curb, where Charlie is standing by the end of the curb's red zone directly in front of the parked minivan, wearing his hood over his head and looking down at a motor scooter that he is holding by his side. The scooter, which does not appear to be running, is in the street, with the back end partially in the red zone and the front end immediately next to the minivan.
In the video, Carroll says to Charlie, "Hey. What's up partner?" Charlie looks up and responds, somewhat nervously, "I was fittin' to park this," apparently meaning the scooter. Carroll asks him if he has identification on him. Charlie indicates he does not and says, "It was right here. I was trying to park it," to which Carroll responds, "Okay. Just take a seat brotha." Carroll, still holding up the scooter, asks, "How do you park it?" Carroll tells him to "[j]ust leave it right there. Push it up against the curb," and Charlie does so. After asking again for identification that Charlie again indicates he does not have, Carroll directs Charlie to turn around. Charlie says, "That's why I was trying to have . . . that's why I put it down cuz [unintelligible]." Carroll tells him again to turn around and instructs him to put his hands behind his back. Charlie does so and says, "What did I do? That's why, that's why I wasn't trying to ride it."
As this takes place, Charlie turns his head and upper body to the right and, looking over his right shoulder, asks, "Are you arresting me?" Sounds indicate Carroll is handcuffing Charlie. Carroll replies that he is not arresting Charlie, but needs to identify him and asks again for identification. Charlie again indicates he does not have any. A moment later, Carroll's hand is seen reaching into the right pocket of Charlie's sweatshirt, where some metallic objects are visible as Carroll says, "Whatchu got on you man? Some tools?" Carroll indicates one tool is "sharp" as Charlie says they are his father's tools.
Next, Carroll asks Charlie where he found "this," apparently referring to the scooter. Charlie says, "It was right here." Carroll replies, "It was right there? But I saw you pullin' it from the intersection," and Charlie replies, "It was right here and I put it down." Asked if he lives in the area, Charlie says he lives down the street. Carroll instructs Charlie not to walk away, asks a few more questions, and directs him to sit down on the curb. Charlie does so. Carroll communicates over his radio, as he has intermittently throughout the video, and his hands can be seen briefly picking up some metal tools lying on the ground near where Charlie is sitting.
At the hearing, Carroll testified about what he knew and observed leading up to and during his initial encounter with Charlie. When Carroll first walked up to Charlie, Charlie "seemed pretty nervous." When Charlie responded to Carroll's generic greeting by referring to the scooter, Carroll thought it was "premature" because Carroll had not asked about it. Also, Charlie's "eyes were looking around a lot," which was "usually an indicator somebody either wanted to take flight or possible looking for the backup." Carroll had seen individuals exhibit this type of behavior before who had fled from or fought with him. In Carroll's experience, often a suspect would "try to bring you into their world to distract you, and once you get into their world, they catch you with your guard down and run or strike at you." Often, they had tools on their person that "can be used to really hurt somebody." Carroll was also suspicious because Charlie made comments suggesting that he had found the scooter by the curb but Carroll had seen him walking with the scooter down Mandela Parkway a few moments before. Carroll put Charlie in handcuffs because "it looked as if he was about to run" and for officer safety.
Carroll also testified that before telling Charlie to turn around, Carroll noticed something suspicious about the scooter itself, which was not running. Specifically, Carroll saw "a yellow, flashing, security light" blinking on the scooter's console. From Carroll's "multiple, previous encounters with stolen" motorcycles and scooters and talks with "a lot of AAA people and CHP officers," he understood that "a lot of times when security devices are disabled or tampered with there will be indicators alerting people that the vehicle has been tampered with." Carroll continued, "If there's . . . an anti-tamper system, normally there will be some type of warning indicator that the system has been tampered with." Typically, "those lights don't continuously stay on. They're activated when there's some type of forcing of an ignition or some type of tampering with it." Further, he understood that Vespa motor scooters were automatic transmission vehicles, "so there would have to be something disabled to get that to roll freely. Normally, the wheel is going to lock up when it's parked." He did not see the scooter's ignition at this time, although later, when he "started processing the vehicle," he saw signs that the ignition had been tampered with.
Carroll further testified that he did not start pat searching Charlie before he handcuffed him. Asked if after he handcuffed Charlie, "you began to conduct a pat search," he replied, "Yes." Asked why he began, Carroll replied, "He said he didn't have any identification on his person. . . . So I was attempting to locate the identification." Asked if he had any other reasons to conduct a pat search, Carroll said, "Typically, officer safety, as well. There is a higher than likely chance the subject might have some tool on them that might cause me bodily harm." Asked further in cross-examination about what he was thinking when he began his pat search, Carroll said, "I think, if I remember correctly, while I was putting the handcuffs on [Charlie] he turned facing me at one point, turning over the right shoulder at that point, I felt my hand hitting something that was a hard item, I should say, and that's when I was kind of keyed in that there was something in that front jacket or front sweatshirt pocket." Carroll completed handcuffing Charlie and manipulated the exterior of Charlie's pocket. After Carroll "was able to determine it was some type of long, metal object" and that it was "thin, possibly bladed," he "peered inside." He was very much concerned about his safety because the object "was easily accessible" if Charlie were to twist around and use his "long arms." Carroll found a pair of scissors and a flathead metal screwdriver in Charlie's sweatshirt pocket.
At the hearing, the defense conceded that at this point in the detention there was probable cause to arrest Charlie "for a particular crime, the items found in the pocket." Carroll acknowledged that not everything he testified to was set down in his police report, such as his noticing Charlie moving "quickly" behind the minivan or his seeing a warning indicator light.
After Carroll testified, the court heard argument. Charlie's counsel argued that Carroll had acted on "speculation" and "hunch," given that he came upon an individual with a scooter that was not working who should have moved out of the roadway as a vehicle (Carroll's patrol vehicle) approached. Further, when Carroll spoke to him, Charlie made eye contact and responded appropriately even though he was not obligated to do so, having not yet been detained, and he did not run. Then, "in the matter of 14 seconds, without even asking this minor his name or what he's doing, he is put in handcuffs. This is completely not reasonable. That is based on a whole bunch of conclusions, jumping on conclusions." Further, "[s]ome more engagement with the public has to happen before a young person is put in handcuffs at this time." Also, just because this portion of Oakland had a lot of stolen vehicles and there were issues with BART "doesn't mean every resident of West Oakland is allowed to have a mere 14-second conversation before they're put in handcuffs."
The court denied Charlie's suppression motion. It stated: "I think the officer is experienced, sees somebody pushing the Vespa away from the BART station, sees him go behind the car. When he did, I think it's reasonable to walk up to him. He wasn't detaining anybody at that point, anyway.
"And then, before he even says take a seat, the minor says, 'It was right here. I was trying to park it.' And the officer knows that's not true. It wasn't right there. So it seems to me at that point it's reasonable to ask for some ID. He doesn't have any ID.
"And then at that point, while it's true he was handcuffed quickly, it's also true that the handcuffing period between when it occurred and when there was probable cause to arrest, which I think is when the tool was found in his pocket, was 10 or 15 seconds, also.
"The officer was alone. He was in an area where he wasn't quite sure what was going to happen. He's testified that in his experience he thought that there might be a knife. I think we all know from practicing law here that it's not uncommon that someone who is driving or otherwise using a vehicle does . . . flee . . . . So I think he was proceeding reasonably, one step at a time.
"The handcuffing is the only question, and I think it was reasonable under the circumstances and didn't transform the detention into an arrest, so I'm going to deny the motion."
Subsequently, Charlie admitted to receiving a stolen motor vehicle, a misdemeanor violation of Penal Code section 496d, subdivision (a), the court found this allegation to be true, and the remaining counts were dismissed with facts and restitution left open. At the dispositional hearing, the court declared Charlie to be ward of the court and ordered that he be placed under the supervision of the probation department subject to various terms and conditions of probation. Charlie filed a timely appeal from the court's findings and dispositional order.
Welfare and Institutions Code section 800, subdivision (a) provides, "A ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition."
DISCUSSION
Charlie argues that the trial court erred in denying his motion to suppress for three reasons: Carroll, upon encountering Charlie, did not have a reasonable suspicion of criminal activity and, therefore, should not have detained him; even if Carroll could detain him, Carroll's handcuffing of Charlie converted the detention into a de facto arrest, for which there was not probable cause; and in any event, Carroll did not have sufficient reason to search Charlie's person for identification or because of vague concerns about officer safety. We conclude based on the totality of the circumstances that Carroll had a sufficient basis to detain, handcuff and search Charlie, although Carroll was not entitled to search Charlie for identification.
I.
Carroll Had Sufficient Reason to Detain Charlie.
The United States Supreme Court held in Terry v. Ohio (1968) 392 U.S. 1 (Terry) that the legality of temporary detentions is determined under the general proscription of unreasonable searches and seizures contained in the Fourth Amendment of the federal Constitution. (Terry, at p. 20.) " ' "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." ' " (People v. Suff (2014) 58 Cal.4th 1013, 1053-1054 (Suff).) "[A] Fourth Amendment seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect [citations] or initiates a show of authority to which a reasonable innocent person would feel compelled to submit [citation], and to which the suspect actually does submit [citation] for reasons that are solely related to the official show of authority." (People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367.)
A warrantless search or seizure is presumed to be unreasonable, and when a defendant moves to suppress evidence obtained from such a search or seizure, " 'the prosecution bears the burden of demonstrating a legal justification for the search.' " (Suff, supra, 58 Cal.4th at p. 1053.) Courts look for an "objective justification" for the warrantless police action. (Illinois v. Wardlow (200) 528 U.S. 119, 123.) The actual motivation of the officers is not relevant. (Suff, at p. 1054.) Generally, evidence obtained as a result of an unlawful detention should be suppressed. (See, e.g., People v. Valenzuela (1994) 28 Cal.App.4th 817, 830.)
"[P]ossible innocent explanations for an officer's observations do not preclude the conclusion that it was reasonable for the officer to suspect that criminal activity was afoot. ' "Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. . . . " ' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 148.) "The citizen's undoubted interest in freedom from abuse of this procedure is protected—so far as it is within the law's power to do so—by the correlative rule that no stop or detention is permissible when the circumstances are not reasonably 'consistent with criminal activity' and the investigation is therefore based on mere curiosity, rumor, or hunch." (In re Tony C. (1978) 21 Cal.3d 888, 894.) Officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' " (United States v. Arvizu (2002) 534 U.S. 266, 273.)
On appeal, " ' "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ' " (Suff, supra, 58 Cal.4th at p. 1053.)
Here, Charlie contends Carroll did not have an objectively reasonable suspicion that he was engaging in criminal activity when he detained him, which he claims occurred when Carroll, immediately after greeting him and asking him for identification, said, "Just take a seat brotha." According to Charlie, at this point, just eight seconds into the encounter, Carroll only had a general concern about robberies in the area, had seen Charlie duck down, and had made no significant inquiries or investigation, circumstances that were not enough to form an objectively reasonable suspicion that Charlie was engaged in criminal activity.
Charlie's argument is unpersuasive because he cites only a few of the circumstances known to Carroll when Carroll detained him. We agree with Charlie that the detention occurred when Carroll directed him to sit down and he readily submitted to this authority, as " ' " 'a reasonable person would have believed that he was not free to leave,' " or " 'otherwise terminate the encounter at that point.' " ' " (People v. Linn (2015) 241 Cal.App.4th 46, 57-58, quoting Brendlin v. California (2007) 551, U.S. 249, 255.) And it is true that if only one or two of the circumstances that Charlie refers to were present, such as that Carroll saw Charlie engage in conduct that was arguably nervous or evasive, it might not be enough evidence to justify a detention, as indicated by two cases that Charlie cites. (See People v. Raybourn (1990) 218 Cal.App.3d 308, 312-313 [officer had insufficient reason to detain a suspect in the face of a suspect's apparent nervousness, transient behavior and merely furtive conduct]; People v. Loewen (1983) 35 Cal.3d 117, 125-126 [person's nervous behavior did not provide a sufficient basis to detain his suspected associates].) However, we must consider not only the subset of circumstances cited by Charlie, but the totality of the circumstances that existed at the moment of detention to determine whether there was an objective, reasonable suspicion to detain him. These circumstances are far more substantial than Charlie indicates.
To begin with, when Carroll first noticed Charlie, Carroll was not just aware of robberies in the area. Carroll understood this was a high crime area in the vicinity of the West Oakland BART station, that there were reports of stolen vehicles in the area, particularly thefts of motorcycles and scooters, and that Charlie was walking a scooter one block away from that BART station. Further, Charlie was pushing a non-running scooter against traffic wearing his sweatshirt hood over his head. Then, Carroll saw Charlie, after beginning to walk the scooter into the intersection of Mandela Parkway and Eighth Street, look in the direction of Carroll advancing in a marked patrol vehicle and immediately turn back and duck with the scooter behind a minivan on Eighth Avenue.
And there was more. When Carroll approached and greeted him, Charlie immediately referred to the scooter although Carroll had not inquired about it. Charlie indicated that he was just trying to park the scooter, which, he said, "was right here." This could reasonably be taken as a representation that he had happened upon the scooter by the curb and was just trying to park it properly. This was an incredible—and, therefore, suspicious—assertion for two reasons. First, Charlie was holding the scooter so that its back was partly in the curb's red zone and its front was immediately in front of the minivan. These facts made it unlikely Charlie found the scooter there because it would have been left in an illegal parking spot (Veh. Code, § 21458, subd. (a)(1) [a curb painted red by local authorities "indicates no stopping, standing, or parking, whether the vehicle is attended or unattended"]) and the scooter was too close to the minivan to allow the minivan to leave without possibly hitting the scooter. Second, Carroll knew Charlie had not found the scooter there because Carroll had just seen Charlie walking with it down Mandela Parkway. Charlie also seemed nervous and was looking around. Finally, Carroll saw a blinking yellow light on the scooter which, based on his training and experience, he knew could be a signal that the scooter had been tampered with.
Based on this totality of circumstances, most of which Charlie ignores, we conclude Carroll's suspicion that Charlie was in the midst of criminal activity, i.e., stealing the scooter, was objectively reasonable and that Carroll had a sufficient basis to detain him. Indeed, the combination of circumstances here raises significantly more suspicion than those discussed in People v. Brown (1985) 169 Cal.App.3d 159 (Brown), also cited by Charlie. In Brown, the appellate court upheld a trial court's denial of a motion to suppress that had been brought based on a purportedly impermissible detention, pat-down and arrest. (Id. at pp. 163, 168.) An officer on foot patrol saw Brown leave from a door that served as an exit of a bank and come running very fast towards the officer, only to slow to a fast walk when he noticed the officer and appear unusually startled and shaken, more so than anyone the officer had observed in his six years as an officer. (Id. at p. 162.) The officer asked Brown to stop because he thought Brown could have just robbed the bank. (Ibid.) The appellate court noted that, "[w]hile it is true that, taken in isolation, running down the street or the manifestation of nervousness in the presence of a police officer would not constitute grounds to detain a citizen on the street, the combination of circumstances here amounts to considerably more." (Id. at p. 164.) The court concluded that, given the officer's experience, these circumstances were sufficient to justify a detention. (Id. at pp. 164-165.)
Charlie attempts to distinguish Brown by contending that he merely ducked down behind a parked car and did not exhibit an extreme nervousness when Carroll detained him and, further, that if Carroll had bothered to observe him Carroll would have seen that he was very youthful in his appearance. These are not significant distinctions. Like Brown, Charlie was seen in the vicinity of a location susceptible to certain criminal activity (motorcycle and scooter thefts from the BART station) engaging in irregular activity (walking against traffic with a non-running scooter wearing a hood), changing his behavior immediately upon observing a police officer so as to possibly appear less suspicious or evade detection (by ducking behind the minivan and appearing to park the scooter), and appearing "pretty nervous" to Carroll, albeit less so than Brown. And as we have already discussed, there were several other suspicious circumstances that Carroll noticed before he detained Charlie that have no equivalent prior to Brown's detention, such as Charlie's apparent lie to Carroll about where he found the scooter, his contention that he was attempting to park the scooter in an illegal zone and the yellow light blinking on the scooter itself. As for Charlie's youthfulness, if anything this could have heightened Carroll's suspicion if Charlie appeared as young as he was, 14 years of age, which was too young to be operating a motorized scooter on public streets. (See Veh. Code, § 12509.5, subd. (a)(1) [stating requirements to obtain an instruction permit to operate a motorized scooter, including that a person be at least 15 years and 6 months old]; id., § 21235, subd. (d) [individual may not operate a motorized scooter without a valid driver's license or instruction permit].) If there was an objectively reasonable suspicion to detain the individual in Brown, there certainly was an objectively reasonable suspicion to detain Charlie. We conclude that was the case.
II.
Carroll's Handcuffing of Charlie Did Not Convert the Detention
into a De Facto Arrest.
Charlie next argues that Carroll's grabbing Charlie and handcuffing him about fifteen seconds after Carroll first approached him amounted to a de facto arrest that was not supported by probable cause. We disagree.
"A police stop that began as an investigative detention may 'become so overly intrusive that it can no longer be characterized as a minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. [Citation.] When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.' " (In re Antonio B. (2008) 166 Cal.App.4th 435, 440 (Antonio B.).) " '[T]here is no hard and fast line to distinguish permissible investigatory detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' " (People v. Celis (2004) 33 Cal.4th 667, 674-675.)
Charlie argues that Carroll did not have a sufficient reason to handcuff him, since Carroll did so "primarily due to his height." He contends that the present circumstances are like those discussed in two cases he discusses at some length. In Antonio B., supra, 166 Cal.App.4th 435, officers observed two teenagers walking down the street one afternoon, one of them smoking a marijuana cigarette. (Id. at p. 438.) The officers approached, identified themselves, and arrested the smoker. (Ibid.) They handcuffed the other individual, Antonio, and, after obtaining his consent, searched him and found he was carrying illegal drugs. (Ibid.) The detective who handcuffed Antonio said he did so because " '[w]e always handcuff people if we're going to detain' " them. (Id. at p. 439.)
The appellate court reversed the trial court's denial of Antonio's motion to suppress. (Antonio B., supra, 166 Cal.App.4th at p. 443.) After noting cases in which handcuffing was found appropriate because "at the time of the detention, the officer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee" (id. at p. 442), the court found no such circumstances in the record. (Ibid.) Further, it found that the detective's " 'policy' of handcuffing any suspect he detains for further investigation regardless of the circumstances of the stop ignores the constitutional directive that a detention based upon reasonable suspicion of criminal activity must be conducted using the least intrusive means reasonably available under the circumstances of that particular detention." (Ibid.) Since the use of handcuffs was not warranted, the seizure constituted an arrest for which there was no probable cause and, therefore, the drugs seized had to be suppressed. (Ibid.)
In the second case Charlie discusses, People v. Stier (2008) 168 Cal.App.4th 21 (Stier), two officers stopped a truck for Vehicle Code violations after being informed that the vehicle had been involved in a narcotics transaction. (Id. at p. 23.) After a consensual search uncovered narcotics in a passenger's possession, an officer ordered the driver, Stier, out of the truck and handcuffed him because of his height and because the officer knew narcotics users and dealers sometimes carried weapons. (Id. at pp. 23, 25.) The officer conducted a consensual search of Stier, who was very cooperative, easygoing, docile, polite and mellow. (Ibid.) Although the officer did not believe Stier actually possessed narcotics, he found some in Stier's jeans. (Ibid.)
According to the appellate court, "[g]enerally, handcuffing a suspect during a detention has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. [Citation.] The more specific the information an officer has about a suspect's identity, dangerousness, and flight risk, the more reasonable a decision to detain the suspect in handcuffs will be." (Stier, supra, 168 Cal.App.4th at p. 27.) The court concluded that there was not a reasonable basis for believing Stier posed a risk when he was handcuffed because, although the officer knew narcotics users and dealers are sometimes armed, he did not believe Stier had any narcotics and did not have any specific, articulable facts suggesting Stier was armed or was about to commit a violent crime. (Id. at p. 28.) Rather, the officer "handcuffed Stier primarily because Stier was four to five inches taller" than the officer and the officer " 'felt uncomfortable' about the height differential." (Ibid.) This alone was insufficient reason to handcuff the very cooperative, easy going, docile, polite and mellow Stier. (Ibid.) Since the handcuffing was not a reasonably necessary part of the detention, the detention was unlawful and the officer did not have probable cause to search Stier, whose consent was not voluntary under the circumstances. (Ibid.) Therefore, the appellate court reversed the trial court's denial of Stier's motion to suppress. (Id. at p. 29.)
Antonio B. and Stier are easily distinguishable from the present circumstances. Neither involved specific, articulable concerns by the detaining officer that the suspect was involved in a crime that might involve tools that could be used as weapons or was in the midst of a crime. Nor were the individuals detained in those cases exhibiting behavior indicating they might fight or flee. Further, contrary to Charlie's assertion, and unlike the officer in Stier, nothing in the record indicates Carroll handcuffed Charlie just because of his height and, unlike the officer in Antonio B., nothing indicates Carroll did so merely pursuant to any generic department policy. Rather, for the reasons we have already discussed, at the time he handcuffed Charlie, Carroll had specific, articulable and reasonable concerns that Charlie was in the midst of a crime, i.e., the theft of the Vespa scooter, that typically involved tools that can be used as weapons. Carroll knew that persons who stole such scooters often used tools like screwdrivers and Exacto knives to gain access to such things as the ignition wires of the scooters and he noticed a blinking yellow light on the scooter that suggested tampering with the scooter. Carroll observed Charlie looking nervous and scanning the area, which in Carroll's experience suggested he might fight or attempt to flee while Carroll investigated further. To compound the potential hazards, Carroll was alone and Charlie appears on the video to be able-bodied and capable of running. Based on all of these circumstances, we conclude Carroll's handcuffing Charlie was a minimally intrusive part of a permissible temporary detention conducted by Carroll until he further investigated whether Charlie had stolen the scooter. In these circumstances, the handcuffing did not convert the detention into a de facto arrest and Carroll therefore did not need probable cause to arrest Charlie at the time.
III.
Carroll Could Pat Down Search Charlie for Carroll's Own Safety.
Finally, Charlie argues the People did not point to reasonable and articulable facts that would lead Carroll to believe that Charlie was armed and dangerous and, therefore, Carroll was not entitled to conduct a pat-down search of Charlie. Again, we disagree.
In Terry, supra, 392 U.S. 1, the United States Supreme Court held that an officer who has detained an individual has the authority to conduct "a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in 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." (Id. at p. 27, fn. omitted; see also People v. Avila (1997) 58 Cal.App.4th 1069, 1074 [following Terry].)
Here, Carroll gave two reasons for initiating a pat-down search of Charlie after handcuffing him: to search for identification since Charlie had said he had none on his person and, second, because Carroll was concerned about his own safety. Charlie argues both reasons were insufficient. He correctly points out that Carroll was not entitled to search Charlie for identification. In People v. Garcia (2006) 145 Cal.App.4th 782 (Garcia), the Second Appellate District succinctly summarized the impropriety of such a search. The court held that "nothing in either the letter or spirit of [Terry] can be used as a springboard to justify a 'patdown' search for identification." (Garcia, at p. 784.) It continued, "We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of [Terry] which we could not and would not undertake even if we were so inclined. . . . [¶] A fair reading of [Terry] . . . show[s] that the 'frisk' allowable upon a proper showing was ' " . . . only a 'frisk' for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. . . ." ' Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161 [pat-down search 'only' for weapons].)" (Id. at pp. 787-788.)
However, the inadequacy of the identification rationale is not dispositive here because Carroll's second articulated reason for the pat down was a legitimate concern for his own safety. According to Charlie, "Carroll failed to describe anything at all to indicate that [Charlie] was likely . . . armed and dangerous, yet he proceeded to first handcuff [Charlie] and then conduct a pat-down search purportedly . . . because 'the subject might have some tool on them that might cause me some harm.' " Once more, Charlie does not take into account all of the circumstances in his analysis. First, Carroll did identify facts particular to the circumstances that led him to believe Charlie might have dangerous weapons on his person. He was reasonably suspicious that Charlie was in the process of stealing the scooter, knew that certain sharp tools were often involved in tampering with scooters in order to steal them, and saw a blinking yellow light on the scooter that he knew suggested such tampering. Based on experience, Carroll also thought that Charlie's nervous behavior suggested he might fight with Carroll. Further, Charlie ignores the evidence that while being handcuffed and before the pat-down search began, Charlie turned in a way that caused Carroll's hand to hit the outside of Charlie's sweatshirt pocket and that Carroll felt a "hard item" in that pocket. He also thought Charlie might be able to reach the item with his long arms. These circumstances together gave Carroll a reasonable concern for his own safety and justified his pat-down search and visual search of Charlie's sweatshirt pocket. His discovery of the tools was in the process of a legitimate search, the fruits of which need not be suppressed. (See Brown, supra, 169 Cal.App.3d at pp. 165-166 [officer's decision to pat down Brown based on the officer's observation of a bulge under Brown's jacket and his experience that weapons are commonly carried under clothing in that location was justified], following Pennsylvania v. Mimms (1977) 434 U.S. 106, 112 [officer justified in patting down a driver stopped for a traffic violation upon noticing a bulge in the driver's jacket, as "any man of 'reasonable caution' would likely have conducted the 'pat-down' "].)
DISPOSITION
The findings and order appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.