Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. BA328916. Charles F. Palmer, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Yun K. Lee and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Adam Foster (appellant) appeals from the judgment following his negotiated plea of no contest to grand theft, i.e., having acquired or retained possession of an access card account information with respect to an access card validly issued to another person, without the cardholder’s or the issuer’s consent, with the intent to defraud. (Pen. Code, § 484e, subd. (d).) Before entering his plea, appellant made a motion to suppress illegally-seized evidence, which the trial court denied. (§ 1538.5.) Appellant was sentenced to the lower term of 16 months in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends on appeal that there was an “utter lack of reasonable suspicion” that he was armed, and consequently, the trial court should have suppressed evidence as the fruit of an unconstitutional pat down search.
We agree there is merit in his contention and reverse the judgment.
FACTS
At 1:30 a.m. on August 9, 2007, Officer Fred Williams of the Los Angeles Police Department and his partner were in the vicinity of Normandie Avenue in Los Angeles when they saw appellant riding his bicycle along Florence Boulevard. He was riding the bicycle without the use of a headlamp. The officers stopped appellant in a well-lit gas station to issue a citation for violating Vehicle Code section 21201, subdivision(d)(1), which prohibits a person from operating a bicycle on a highway after hours of darkness without the use of a headlamp.
Vehicle Code section 21201, subdivision (d)(1), provides, as follows: “(d) A bicycle operated during darkness upon a highway, a sidewalk where bicycle operation is not prohibited by the local jurisdiction, or a bikeway, as defined in Section 890.4 of the Streets and Highways Code, shall be equipped with all of the following: [¶] (1) A lamp emitting a white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle.”
The officers approached appellant in their car. Officer Williams asked appellant to dismount, and appellant complied. Officer Williams was the contact officer, and his partner was assigned the role of patting down the detainee where such action was required.
Also, even before appellant was contacted, Officer Williams had concluded that one of the officers should conduct a pat down search to protect “officer safety.” Officer Williams testified that the officers were concerned that appellant might be in possession of a weapon because the location, Florence and Normandie Avenues, was a high crime area. Specifically, Officer Williams testified that there were a lot of weapons, robberies, burglaries from motor vehicles and residential burglaries in the area. Also, it was nighttime, and appellant was wearing “very baggy” clothing that easily could have concealed a weapon. The officer was well aware of the nature of the neighborhood as he regularly patrolled there and he had grown up in that area.
Before commencing the pat down search, the officer’s partner asked appellant whether he had “anything on him that could poke [the officer] or stick him.” Appellant replied, “[Yes,] I have a pipe in my pocket.” Officer Williams, an experienced police officer, concluded that by this remark appellant was indicating he had a “crack pipe” in his pocket. After appellant told the officers what was in his pocket, Officer Williams’s partner arrested appellant for possessing narcotics paraphernalia and reached into appellant’s pocket and removed the pipe.
After the arrest, the partner ran appellant for “wants and warrants.” Officer Williams removed from appellant’s right pocket six credit cards and an identification card, all of which were in different names and, none of which was appellant’s name.
The probation report reveals that appellant was being “detained pending further investigation [and] incident to arrest” in the gas station. After removing the crack pipe from appellant’s pocket, the officer also removed six different credit cards bearing the different names of individuals other than appellant and a California driver’s license, also which was not in appellant’s name. The officers were able to contact one of the victims whose credit card was in appellant’s pocket. That victim indicated that three months earlier her wallet had been stolen from her husband’s hospital room.
The trial court listened to oral argument from the parties.
Appellant’s trial counsel cited the decision in People v. Dickey (1994) 21 Cal.App.4th 952 (Dickey). He argued that there was no legal basis for a “free” pat down search for officer safety when someone is detained for a Vehicle Code violation concerning riding a bicycle. He urged that what was required to justify the pat down search was that the officer must have specific and articulable facts that would lead a reasonable person to suspect that the detainee is armed and dangerous. The traffic stop had taken place in a well-lit gas station. The baggy clothing was not an “articulable” fact that alone was sufficient to justify a pat down search.
He asserted that the initiation of a pat down search in the circumstances was an unjustified intrusion and that the cocaine pipe and the fraudulent identification should be suppressed as the fruits of an illegal search.
The prosecutor responded that officer safety required the pat down, appellant’s reply indicated that appellant was in possession of narcotic paraphernalia, and in any event, Atwater v. Lago Vista (2001) 532 U.S. 318 (Atwater) justified the intrusion, and there was accordingly no illegality. Pursuant to Atwater, because appellant was under arrest for the traffic violation, the officers were entitled to search him.
The trial court considered the issue overnight.
The following day, the trial court denied the motion to suppress. It commented that there were sufficient articulable reasons to justify a pat down search for the purpose of protecting officer safety.
DISCUSSION
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 891.)
The scope of the intrusion permitted during a detention will vary with the particular facts and circumstances of each case and the prosecution has the burden of establishing a detention was lawful. (Florida v. Royer (1983) 460 U.S. 491, 500; People v. Soun (1995) 34 Cal.App.4th 1499, 1516; see also People v. Glaser (1995) 11 Cal.4th 354, 366.) During an ordinary traffic stop, an officer may not conduct a full field search of a driver. The officer may, however, conduct a pat down search, but only if he has a reasonable suspicion that the person may be armed and dangerous. (Knowles v. Iowa (1998) 525 U.S. 113, 117–118.)
The standard for the pat down search is, as follows. An officer may conduct a pat down search for weapons upon detaining a person where he has “a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (Michigan v. Long (1983) 463 U.S. 1032, 1049, fn. omitted; Terry v. Ohio (1968) 392 U.S. 1, 21; Dickey, supra, 21 Cal.App.4th at p. 956; In re Frank V. (1991) 233 Cal.App.3d 1232, 1240–1243; In re Stephen L. (1984) 162 Cal.App.3d 257, 260–262.)
The seminal decision in Terry v. Ohio explained the standard above. The court said: “Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit 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. [Citation.]” (Terry v. Ohio, supra, 392 U.S. at pp. 27, 30-31.)
Appellant argues that the case law, specifically, the decisions in Dickey, supra, 21 Cal.App.4th at pages 954-956 and People v. Medina (2003) 110 Cal.App.4th 171 (Medina) establish that the officer’s testimony in this instance is insufficient to justify the officer’s pat down search of appellant.
The deputy in Dickey found defendant and a passenger sitting in an El Camino parked on the side of a dirt road in Nipomo with the engine running. As the deputy drove up, he could see the defendant apparently making “‘furtive movements’” as he moved around in his driver’s seat. (Dickey, supra, 21 Cal.App.4th at p. 954.) The deputy asked the defendant what he was doing there, and the defendant replied that he was admiring the view of the valley and sand dunes. (Ibid.) The defendant identified himself by his true name, but could produce no driver’s license, and neither he nor his passenger produced identification. The defendant said that the car registration might be in a backpack the deputy could see inside the El Camino, but the defendant denied that the backpack belonged to him. The defendant twice refused to consent to a search of the El Camino, and the deputy became angry at the defendant’s lack of cooperation. (Ibid.)
The passenger also denied ownership of the backpack, but the defendant gave the deputy permission to search it. Inside the backpack, the deputy found a toothbrush and powder the deputy believed was baking soda, a possible cutting agent for narcotics. The defendant claimed that he used the baking soda to brush his teeth. At that point, the deputy wanted to search the El Camino and had the defendant and his passenger get out of the El Camino. The deputy observed that the defendant was “nervous and sweating.” (Dickey, supra, 21 Cal.App.4th at p. 955.) The deputy conducted a pat down search for weapons even though the defendant was not aggressive because the deputy believed that the defendant “‘potentially may have been armed.’” (Ibid.) The deputy felt no hard objects, just a soft object, and the deputy claimed the soft object led him to conclude that the defendant possessed a controlled substance. The deputy removed the item, and it was a baggie containing 3.19 grams of cocaine and some marijuana. (Ibid.)
The Dickey court held that the circumstances failed to justify the pat down search. The lack of identification, the refusal to consent to search, the nervousness and sweating, and the baking powder failed singly or in combination to lead the deputy to reasonably believe “‘“in the possibility that”’” the defendant had a weapon. (Dickey, supra, 21 Cal.App.4th at p. 956.) The court commented that the possession of a small amount of baking soda or powder does logically lead to a conclusion someone is armed and dangerous. (Ibid.)
In the decision in Medina, supra, 110 Cal.App.4th 171, the reviewing court confronted the issue of whether a police officer, as a matter of standard procedure and in the name of officer safety, may frisk a driver stopped for an equipment infraction on grounds that the stop occurred in a high crime area at night. In Medina, at approximately midnight, on Olympic Boulevard at Alvarado Street in Los Angeles, the officers had stopped the defendant for driving with a broken tail light. After the defendant got out of the car, the officers had him face an adjacent wall with his hands at the back of his head.
The officer testified at the hearing that there was nothing specific that made him believe that the 49-year-old defendant was armed. The pat down search was conducted as a matter of standard procedure. (Medina, supra, 110 Cal.App.4th at p. 176.) Also, the officer had decided to conduct the pat down search for weapons because they were in a “‘high-gang location.’” (Id. at p. 175.) The officer commenced the search by grabbing the defendant’s hands and asking the defendant whether he had any weapons, sharp objects, or “‘anything [the officer] should know of prior to the search.’” (Id. at pp. 175-176.) The defendant replied that he had a “‘rock’” in his pants. (Ibid.) The officer retrieved a rock of base cocaine from the defendant’s pocket.
During the hearing, the People made the same argument they make here: the search was reasonable, and the defendant was not searched until he revealed that he had a rock in his pocket. The court in Medina pointed out that a stop effected for a minor traffic violation does not reasonably suggest the presence of weapons, and a police officer may not conduct a pat down search unless there are objective circumstances indicating that the person is armed and dangerous. (Medina, supra, 110 Cal.App.4th at p. 177.) The time and location of the stop are insufficient by themselves to cast reasonable suspicion on a person and to justify the search. (Id. at pp. 177-178.)
The Medina court explained that as the officer had decided to restrain the defendant’s hands and search the defendant based solely on his presence in a high crime area at night, the detention (the seizing of the hands) and the seizure were unlawful. (Medina, supra, 110 Cal.App.4th at p. 178.) The court then addressed issues of attenuation. It concluded that the defendant’s statement could not be deemed an intervening independent act that broke the causal chain flowing from the prior illegality. (Medina, supra, 110 Cal.App.4th at p. 178.) Moreover, the officer’s inquiry suggested that his search would not be limited to a pat down as the officer asked whether the defendant possessed “‘anything [the officer] should know of prior to the search.’” (Id. at p. 178.) Thus, the defendant cannot be faulted for revealing what he believed inevitably would be discovered. And, the officer’s question was asked after the grasping of the hands. Detainees are under no obligation generally to reply to an officer’s inquiries. (Id. at p. 179.) But the circumstances were deemed to be coercive, and the defendant’s reply was not spontaneous. The court determined in the circumstances that the admission was obtained through the exploitation of the illegality, and the admission, as well as the seizure, should be suppressed. (Ibid.)
In the instant case, this court deems the decision in Medina to be controlling. And, the baggy clothing appellant was wearing does not require a different result. As the court in Medina explained, while factors such as baggy clothing may present a minimal factor that can be used with other more probative factors to show a reasonable belief in the need for a pat down search, the baggy clothing here was insufficient even in combination with the other pertinent circumstances to show the specific and objective factors necessary to conclude the traffic violator was armed and dangerous. (Medina, supra, 110 Cal.App.4th at p. 177.)
Further, in the decisions mentioning baggy or heavy clothing as a pertinent factor, there are other factors present that are more specific and more probative of the conclusion that the person is armed and dangerous. For example, in People v. Collier (2008) 166 Cal.App.4th 1374, the officers asked the defendant and his passenger to step out of the car as they smelled marijuana, which provided a rational suspicion of possession or transportation of drugs. And, persons who are in possession of drugs are frequently armed. (Id. at p. 1377.) In In re Frank V., supra, 233 Cal.App.3d at page 1241, during the detention, the defendant put his hands in his pockets after being asked to take them out. This conduct, along with his presence in a gang area, the officer’s observation that the defendant was at the curb with another youth walking away from a known gang house, and his heavy coat justified the pat down search. (Ibid.)
Here, appellant’s reply to the officer’s question occurred only after the officer made the decision to conduct the pat down search. As in Medina, the officer prefaced the pat down search with a question about what the officer might discover. The statement was made in coercive circumstances and was not spontaneous so as to break the causal connection flowing from the prior illegality. Consequently, appellant’s statement, as well as the officer’s observations of and seizure of the contraband, should be suppressed.
The decision in Atwater, supra, 532 U.S. 318, is of no assistance to the People. In Atwater, the court held that if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. (Id. at pp. 354-355.) In Knowles v. Iowa, supra, 525 U.S. 113, the court held that when an officer stops a motorist for a traffic violation, but decides to issue a citation rather than arrest the individual, a full search of the motorist’s vehicle violates the Fourth Amendment. (Id. at p. 114; see also People v. McKay (2002) 27 Cal.4th 601, 613, fn. 6 [Knowles held that the exception for searches incident to a custodial arrest cannot be applied where no custodial arrest has occurred].) As there is no suggestion in these facts that the officers intended to arrest appellant, the seizure of the item in appellant’s pocket cannot be justified as incident to an arrest.
DISPOSITION
The judgment is reversed. On remand, the trial court shall vacate the order denying appellant’s motion to suppress evidence (§ 1538.5) and enter a new order granting the motion to suppress.
We concur: BOREN, P. J., ASHMANN-GERST, J.