Opinion
C056846
8-6-2008
THE PEOPLE, Plaintiff and Respondent, v. SHAWN ALLAN EDWARDS, Defendant and Appellant.
Not to be Published
Based upon evidence seized by police from his pockets and his car, defendant Shawn Allan Edwards was charged with driving under the influence of drugs and with committing various drug-related offenses. Defendant moved to suppress this evidence on the ground that it was obtained in violation of his right to be free from unreasonable searches and seizures. After the trial court denied that motion, defendant entered a negotiated no contest plea to two charges and was placed on probation.
In this appeal, he contends that the trial court erred by denying his motion to suppress. We find no error and affirm the judgment.
BACKGROUND
Defendant was charged by a seven-count information with
(1) transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), (2) possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), (3) transporting OxyContin (Health & Saf. Code, § 11352, subd. (a)), (4) possessing OxyContin (Health & Saf. Code, § 11350, subd. (a)), (5) misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)), (6) misdemeanor use of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and (7) misdemeanor possessing a controlled substance without a prescription (Bus. & Prof. Code, § 4060).
All of the charges stem from the discovery by Yuba City Police Officer Aaron Moe of methamphetamine in defendants pockets following a traffic stop on October 12, 2005, and the discovery of OxyContin in defendants car following his arrest. Defendant moved to suppress all evidence derived from that discovery on the ground that it was accomplished in violation of his Fourth Amendment rights (Pen. Code, § 1538.5). The trial court conducted a hearing at which Officer Moe and his partner Christy Schoessler testified.
Officers Moe and Schoessler were members of a law enforcement team addressing vehicle theft. Driving in their marked patrol car, the officers first heard an oncoming Pontiac Grand Am spin its tires; then they saw that "it almost ran off the roadway" and that the driver had to make a rapid turning maneuver to correct the cars path. The officers initiated a traffic stop for reckless driving.
Defendant was alone in the car. As Officer Moe approached and explained the reason for the stop, he noticed defendant was sweating profusely in the cool evening air, his hands and fingers were "fidgety," and his speech was rapid. Officer Moes training in recognizing symptoms of drug usage quickly led him to conclude defendant might be under the influence of a stimulant like methamphetamine.
After getting defendants identification, and discussing the reason for the stop, Officer Moe asked defendant about his arrest history and whether he was on probation or parole; the officer later testified it is his "common practice" to pose the latter questions to "each person I contact on the street."
While "discussing that question with [d]efendant," Officer Moes attention was drawn by Officer Schoessler to an object partly concealed by a jacket on the back seat of the car: the wood-finished object was six to eight inches in length and four to six inches in width. Thinking the object might be the stock of a rifle or shotgun, Officer Moe asked defendant to get out of the car. Defendant was upset, but reluctantly complied.
Officer Moe asked defendant if could search the car for weapons or illegal drugs; defendant said no. As Officer Moe walked defendant to the passenger side of the patrol car, he asked defendant if he had any weapons or illegal drugs on his person; defendant said, "No. And I already told you I dont want you to search me."
Officer Moe believed defendant showed signs of being under the influence, and he was concerned that defendants being upset and his lack of initial cooperation in leaving the car might mean he had a weapon concealed in the car. Officer Moe intended to require defendant to perform field sobriety tests, the demonstration of which would put Officer Moe in a compromising physical position or proximity to the defendant. Officer Moe testified he thought he explained this reasoning to defendant.
Officer Moe then told defendant, that for the officers safety, he intended to do a patdown search of defendant to determine if he had any weapons concealed on his person. He asked again whether defendant had any such weapons. This time, defendant admitted he had a knife in his right front pants pocket.
When Officer Moe reached into defendants pocket, he first found an electronic gram scale with a white powdery residue on it that, based on his training and experience, Officer Moe believed to be methamphetamine; he set the scale on the hood of the patrol car. He then reached again into defendants right front pants pocket and drew out the knife.
Officer Moe continued the patsearch on the outside of defendants left pants pocket. He felt "a circular bulge" that he believed to be narcotics in packaging. When he asked defendant if the item was narcotics, defendant did not respond. Officer Moe removed the item from defendants pocket; it later proved to contain methamphetamine. Defendants left front pants pocket also contained a second knife.
Defendant was placed under arrest, and his car was searched. OxyContin tablets were found in the center console of his car.
After receiving testimony from Officers Moe and Schoessler, considering supplemental briefing, and hearing extensive argument, the trial court denied defendants motion to suppress. Defendant entered a no contest plea to the charges he transported methamphetamine and transported OxyContin. The remaining charges were dismissed. The trial court placed defendant on three years formal probation. Defendant filed this timely appeal.
DISCUSSION
Defendant challenges the search of his person as "not justified as either a search incident to arrest or as a patsearch for officer safety."
As with all Fourth Amendment inquiries, we evaluate the search in accordance with the ultimate standard of reasonableness by balancing the extent of the intrusion upon defendants privacy with the "degree to which it is needed for the promotion of legitimate governmental interests." (Wyoming v. Houghton (1999) 526 U.S. 295, 300 [143 L.Ed.2d 408, 414]; see also Michigan v. Summers (1981) 452 U.S. 692, 699-700 [69 L.Ed.2d 340, 348]; People v. Glaser (1995) 11 Cal.4th 354, 365.) "In reviewing the trial courts denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the trial courts application of the law to the facts. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 969.) "Because the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh evidence, and draw factual inferences is vested in the trial court, on appeal all presumptions favor the trial courts proper exercise of that power. [Citations.]" (People v. Bowers (2004) 117 Cal.App.4th 1261, 1271.)
Familiar standards govern our examination of the validity of the patsearch of defendant by Officer Moe. "A police officer may temporarily detain and patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the person is presently armed." (People v. Coulombe (2000) 86 Cal.App.4th 52, 56.) "`"The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence . . . ." [citation] . . . [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." [Citation.]" (People v. Limon (1993) 17 Cal.App.4th 524, 534.) "`A frisk following a detention for investigation "is an additional intrusion, and can be justified only by specification and articulation of facts supporting a reasonable suspicion that the individual is armed." [Citation.]" (People v. Suennen (1980) 114 Cal.App.3d 192, 199; United States v. Flippin (9th Cir. 1991) 924 F.2d 163, 165; People v. Tobin (1990) 219 Cal.App.3d 634, 638.)
"`In evaluating the validity of an officers investigative or protective conduct under Terry [v. Ohio (1968) 392 U.S. 1 (20 L.Ed.2d 889)], the "touchstone of our analysis . . . is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security." (Pennsylvania v. Mimms [(1977)] 434 U.S. [106,] 108-109 [54 L.Ed.2d [331,] 335].)" (People v. Thurman (1989) 209 Cal.App.3d 817, 824; see also People v. Rivera (1992) 8 Cal.App.4th 1000, 1006.) "Central to the Terry courts understanding of reasonableness is the requirement of `specificity in the information upon which police action is predicated . . . . [Citation.] Thus, `in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [Citation.]" (People v. Glaser, supra, 11 Cal.4th at p. 363.) However, the officer need not be certain that the individual is armed; the fundamental test 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." (Terry v. Ohio, supra, 392 U.S. at p. 27; see also United States v. Garcia (9th Cir. 1990) 909 F.2d 389, 391; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
Here, based on his observations of defendants profuse sweating, fidgety hands and overly rapid speech, Officer Moe believed defendant to be under the influence of a stimulant. Defendants driving was consistent with the possibility he could be under the influence of an intoxicant. The officer also observed a partially-obscured rectangular wooden object on the back seat of the car which he suspected could be the stock of a gun. Finally, the officer testified he wanted to give defendant field sobriety testing and that, before demonstrating the tests, concerns for officer safety indicated he should conduct a patdown search of defendant for weapons. Officer Moes conclusion was reasonable, and the intrusion was not unjustified under the circumstances. (Cf. People v. Glaser, supra, 11 Cal.4th at p. 363.)
While a Terry "patdown search must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer," "if contraband is found while performing a permissible Terry search, the officer cannot be expected to ignore that contraband." (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.) In search of defendants right front pants pocket, Officer Moe found both an electronic scale with a white powder residue — which he believed to be a controlled substance — and a knife. During his patsearch of defendants left pants pocket, Officer Moe felt a round object he believed to be narcotics in packaging. Defendants physical condition, and his poor driving, corroborated the officers belief that the object contained a controlled substance. Probable cause "`may be furnished by the officers actual tactile perception of narcotics during a pat-search for weapons [citation], or by the officers identification of an item which, when coupled with other circumstances, creates a reasonable inference that the item is contraband [citation]. [Citations.]" (People v. Limon, supra, 17 Cal.App.4th at p. 536; see also People v. Valdez (1987) 196 Cal.App.3d 799, 806.) The seizure of the package containing methamphetamine from defendants pocket was proper.
Defendant urges us on appeal to reject Officer Moes justification for the search — planned sobriety testing that would have put the officer in a compromising position — citing People v. Dickey (1994) 21 Cal.App.4th 952 (Dickey)). In Dickey, the appellate court found that articulable facts justifying a patdown did not exist where the suspect was nervous, sweating, had no identification, had a film canister with baking powder on it, and refused to consent to a vehicle search. (Id. at p. 956.) Defendant cites Dickey for the proposition that "[i]n every encounter with a citizen by the police, the citizen may potentially be armed" (ibid. at p. 956) and argues that officer concerns "`add nothing to the Terry analysis."
We find Dickey distinguishable and unpersuasive here. The driver in Dickey was not driving recklessly, the officer in Dickey did not testify to facts leading to his reasonable conclusion the driver was likely under the influence of a stimulant, and the officer in Dickey had not observed anything in the car he believed to be a weapon. (Dickey, supra, 21 Cal.App.4th at pp. 954-955.) Officer Moe was entitled for his own safety to conduct a brief Terry frisk of defendant. "The judiciary should not lightly second-guess a police officers decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (Dickey, supra, 21 Cal.App.4th at p. 957.)
Having concluded the patsearch was reasonable and proper, we need not consider defendants further arguments that the search was neither valid as incident to an arrest for reckless driving nor valid as incident to an arrest for being under the influence.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P. J.
CANTIL-SAKAUYE, J.