Opinion
D082687
08-14-2024
THE PEOPLE, Plaintiff and Respondent, v. LARRY EMIL DAVIS, Defendant and Appellant.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD296161 Albert T. Harutunian III, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
BUCHANAN, ACTING P. J.
A jury found Larry Emil Davis guilty of three counts of robbery (Pen. Code, § 211) and one count of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). The jury also found true various aggravating factors, and that Davis had prior strikes (§§ 667, subd. (b)-(i); 1172.12) and prior serious felony convictions (§ 667, subd. (a)).
Further undesignated statutory references are to the Penal Code.
Davis contends on appeal that the trial court erred when it denied his motion to suppress evidence from a pat-down search he claims was unlawful under Terry v. Ohio (1968) 392 U.S. 1 (Terry). We conclude there was probable cause to arrest Davis before the officer allegedly exceeded the scope of the Terry search, and therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our review of the trial court's ruling to the evidence presented at the suppression hearing. (See § 1538.5, subd. (i) ["defendant shall have the right to fully litigate the validity of a search or seizure on the basis of the evidence presented at a special hearing .... The court shall base its ruling on all evidence presented at the special hearing ...."].)
In September 2022, a dispatcher at the San Diego Police Department received a 911 call reporting a bank robbery at gunpoint. The caller described the suspect as a Black male in his late 40s wearing red shoes, a Padres cap, and a colorful beach towel around his shoulders. The cash taken during the robbery included "bait money," which contained a GPS tracking device that activated when the money left bank premises. Once activated, the device provided location updates to the dispatcher, who could then track its position on a map. The device accurately showed the bait money's path, speed, and location within a block, and updated as frequently as every six seconds.
Officers responding to a dispatch call about the bank robbery received information about the tracking device's location in real time. They drove to the location of the tracking device and initially detained another Black male found in the area. They released him, however, when they found that he "did not match the [suspect's] description fully," and when they realized that the tracking device was in another location.
Officers then followed the movement of the tracking device further and observed Davis rummaging through the open sliding door of a van. Davis was the only person they saw on the street and the tracking device was actively pinging in that location. He matched the suspect's general description, but he was wearing white shoes, a gray jacket, and a backpack. Because the officers had information that a gun was used during the robbery, they handcuffed Davis and one of the officers conducted a pat-down. The officer did not feel any weapons, but he did feel an "odd, unusual object" in Davis's groin area. The object "felt like a wad of something ...." The officer pulled Davis's sweatpants out and away from Davis's body, looked down his pants, and saw a surgical glove "containing a large sum of cash." The officer left the glove in place, walked Davis to a nearby patrol vehicle, and placed him in the back seat.
While Davis was detained, the officers ran a records check on the van and discovered it was stolen. With Davis's consent, they searched the van, his person, and his belongings. The officers found items including a black shirt, red shoes, a colorful beach towel, and an imitation firearm. Officers also removed the surgical glove filled with cash from Davis's pants, which contained the tracking device. The officers arrested Davis.
Davis moved to suppress all evidence seized from his person and the van, including the tracking device. At the suppression hearing and in its opposition papers, the prosecution argued that the officers had at least reasonable suspicion to detain Davis because he was found where the tracking device indicated the bait money was located, he matched the suspect's general description, and there were no other pedestrians in the vicinity at the time. The prosecution further argued that because Davis was rummaging through the stolen van and was found with the bait money on his person, the officers also had probable cause to arrest him and conduct a search incident to arrest, even absent Davis's consent.
The defense argued that the prosecution failed to adequately address where the seized items came from and what information the officers had when they searched the van. The defense also argued that while the officer conducting the pat-down may have had reasonable suspicion to detain Davis, the officer exceeded the scope of a lawful Terry search when he looked in Davis's pants. Defense counsel contended that seeing the cash in Davis's pants "is what result[ed] in [the officer's] probable cause to arrest" and continue the search of Davis's person and the van.
After hearing argument and considering the evidence, the trial court found there was reasonable suspicion to detain Davis because the tracking device led the officers to the area where he was found, he was the only person in the immediate vicinity, and he matched the suspect's description. The court further found that the officers had a basis for patting Davis down for weapons. The court concluded that "the police conduct was reasonable from start to finish" and denied Davis's motion to suppress evidence from the officers' searches, including the tracking device.
After the jury convicted Davis, he timely appealed.
DISCUSSION
Davis contends on appeal that when the officer pulled back Davis's pants to look at the cash-stuffed glove, he exceeded the proper scope of a Terry search and thus the trial court should have suppressed both the cash and the tracking device. We conclude that because there was probable cause to arrest Davis before the officer saw the glove, the officer's further investigation in pulling back Davis's waistband was justified as a search incident to arrest.
Davis argues in his reply brief that the People did not raise in the trial court the issue of whether the search was valid based on probable cause to arrest. We disagree. In its opposition brief to Davis's motion to suppress, the prosecution argued that there was probable cause for the arrest once Davis "was found with the 'bait money' on his person." Then during the suppression hearing, the defense itself argued that the officer did not have probable cause to arrest Davis before looking in his pants. Specifically, defense counsel stated that seeing the cash "is what result[ed] in [the officer's] probable cause to arrest him ...." Accordingly, the issue has not been forfeited.
When reviewing the denial of a motion to suppress, we "indulge all inferences in favor" of the trial court's ruling and will uphold the court's express and implied factual findings if they are supported by substantial evidence. (People v. Holt (1989) 212 Cal.App.3d 1200, 1204.) But "we exercise our independent judgment in determining the legality of a search on the facts so found." (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
In Terry, the United States Supreme Court held that a permissible patdown search is limited to "an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (Terry, supra, 392 U.S. at p. 29.) Generally, an officer cannot search a suspect's pockets or otherwise intrude on the suspect's privacy beyond a pat-down of his outer clothing unless the officer feels an object that could be a weapon. (See People v. Dickey (1994) 21 Cal.App.4th 952, 957 (Dickey).) The "plain touch" exception, however, allows for an officer to seize an object "whose contour or mass makes its identity" as contraband "immediately apparent." (Minn. v. Dickerson (1993) 508 U.S. 366, 375-376 (Dickerson); see People v. Dibb (1995) 37 Cal.App.4th 832, 835-836 (Dibb); Dickey, at p. 957.)
When an officer's tactile perceptions during a Terry search, coupled with the other facts known to the officer, furnish probable cause to arrest, the officer may conduct a more thorough search incident to arrest. (Dibb, supra, 37 Cal.App.4th at pp. 835-836; People v. Lee (1987) 194 Cal.App.3d 975, 984.) "Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037 (Kraft).) In deciding whether probable cause exists, courts must examine the "totality-of-the-circumstances" at the time of the arrest. (Illinois v. Gates (1983) 462 U.S. 213, 233.) An officer with probable cause to arrest can search the suspect incident to arrest before making a formal arrest. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239.)
Davis does not challenge the trial court's finding that the officer was justified in detaining him and conducting a pat-down search. The dispositive question then is whether the officer had probable cause to believe Davis was guilty of a crime after he felt the "unusual object" in Davis's groin area, making his expansion of the Terry search justified as incident to arrest. We conclude he did. The suppression hearing evidence shows that when the officer first encountered Davis, the officer knew about the bank robbery and was tracking the location of the stolen bank cash with a high degree of accuracy. (See United States v. Levine (5th Cir. 1996) 80 F.3d 129, 132-133 [upholding determination that probable cause to arrest existed based on tracking device in bait money and suspect's general description].) Not only did Davis fit the general description of the suspect, he was the only person on the street in the vicinity of the tracking device's location. And the officer felt an unusual "wad" of something on Davis's person in an area not commonly used to carry everyday items. (See Dibb, supra, 37 Cal.App.4th at pp. 835, 837 [contraband found between defendant's knee and calf was in a location "not commonly utilized to carry everyday items"].) Taken together, these facts would "lead a person of ordinary care and prudence to entertain an honest and strong suspicion that [Davis] [was] guilty of a crime." (Kraft, supra, 23 Cal.4th at p. 1037.)
Unlike other cases cited by Davis where contraband was discovered in a defendant's pocket and courts found the search unlawful, here the wad of cash was in an unconventional location on his person-despite the fact that Davis had a backpack with him and could have stored innocuous items there instead. (Cf. Dickerson, supra, 508 U.S. at p. 378 [officer overstepped lawful search boundaries when he manipulated the contents of defendant's pocket]; People v. Collins (1970) 1 Cal.3d 658, 662 ["Feeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object."]; Dickey, supra, 21 Cal.App.4th at p. 957 [retrieving a soft object from defendant's pocket was unlawful because its incriminating character was not immediately apparent].) The totality of circumstances here-given the bank robbery, the bait money tracker's location, Davis's solitary presence in the vicinity, the suspect's description, and the fact that the "wad" was hidden in his groin area-would have caused a reasonable and prudent officer to entertain an honest and strong suspicion that Davis was guilty of a crime. (Cf. United States v. Sandoval-Venegas (9th Cir. 2002) 292 F.3d 1101, 11051106 [detective had probable cause to arrest bank robbery defendant based on other detective's corroboration, suspect's description, tracking device, and previous elimination of other suspects].) Drawing all reasonable inferences in favor of the trial court's ruling, we conclude that the totality of the circumstances gave the searching officer probable cause to arrest Davis even before the officer looked in his pants. Accordingly, we find no error in the court's ruling.
DISPOSITION
The judgment is affirmed.
WE CONCUR: KELETY, J., RUBIN, J.