Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060618A
SIMONS, J.
Defendant John Louis Gee appeals his conviction by guilty plea to possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) He contends the trial court erroneously denied his motion to suppress evidence. (Pen. Code, § 1538.5.) We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 2006, at 11:00 p.m., Officer Boyajian was patrolling downtown Redwood City on the 900 block of Main Street; most businesses were closed, though there was one open motel and a couple of open restaurants in the nearby vicinity. At that time Boyajian witnessed defendant standing on the sidewalk. She testified that upon observing defendant, she pulled her vehicle over to the sidewalk and exited to speak with him. Boyajian asked defendant for permission to speak with him and was not blocking him in any manner. Defendant agreed to speak with her. Boyajian initially tried to determine why he was in the business district, positioned in front of closed businesses, at that time of night. Defendant answered Boyajian’s question but became “nervous” and “fidgety,” which he displayed by “looking around.” Boyajian stated “[h]e was kind of swaying back and forth, reaching his hands around his body.” These actions caused Boyajian to have concern for her safety so she asked him if he had any weapons on him, and he replied he did not. Boyajian then conducted a patsearch of defendant while holding both of his hands behind his back. Once the officer reached the right side of defendant’s body, he became evasive, and began twisting and squirming. Boyajian then felt a hard, tube-like object that she testified she believed might have been drug paraphernalia. The officer asked defendant what was in his pocket and he responded that he found the object in the hallway, but he did not identify what the object was. This answer led Boyajian to suspect that defendant was carrying an object he knew he was not supposed to possess. She then asked if she could retrieve the object to which defendant replied, “ ‘Yes. I guess you have to now.’ ” Boyajian then reached into the pocket and retrieved a cardboard covering. She testified that she immediately determined that there had to be something else in the pocket, as the cardboard was not what she originally felt. Upon further investigation Boyajian found a glass pipe used to ingest cocaine base. After finding the pipe, she continued with her search of defendant’s person and found a small, rock-like substance which she suspected was cocaine base. Boyajian testified that she then attempted to handcuff defendant, but he began to flee the scene. He was caught and taken into custody.
A patsearch was defined by Boyajian as “run[ning] my hand along each part of the body; the chest, the legs, the back, the small of the back, the waistband,” all while keeping her palm flat.
Defendant’s testimony differed greatly from the testimony given by Boyajian. He testified that on February 9, 2006, at approximately 11:00 p.m., he was assisting an older man by retrieving a shopping cart to help transport the older man’s baggage. Defendant testified that as he was about to get the shopping cart, Boyajian pulled up in the patrol car and asked him what he was doing. Defendant explained to her that he was helping the older man with his baggage. Following this explanation, Boyajian stepped out of the patrol vehicle and continued to speak with him. Defendant testified that he felt the conversation was forced on him and he repeatedly asked Boyajian if something was wrong, if there was a crime that had been committed, or if someone had reported certain behavior. At this time Boyajian asked defendant if he had a weapon and if she could search him for a weapon. He responded to both questions by saying “[n]ope.” At that point defendant maintained he tried to walk away, but Boyajian insisted that if defendant would not allow a search he had to be hiding something and then proceeded to do a patsearch. Boyajian verbally instructed defendant to stay still but did not physically restrain him. Defendant maintained he did not know what was in his pocket and was not trying to resist arrest but was simply stepping back from Boyajian once she released his hands.
The court relied principally on Boyajian’s testimony and demonstration regarding the arm gestures made by defendant in concluding there was reasonable cause for safety concerns on the part of Boyajian, permitting the patsearch evidence. The court also determined that based on the findings of the patsearch and defendant’s responses to Boyajian’s questions, the officer had a reasonable belief that the object she had felt in defendant’s pocket was drug paraphernalia. Furthermore, the court found that even if Boyajian’s reasonable belief was faulty, defendant gave consent to the officer to remove the object. The trial court then denied the motion to suppress the evidence found during Boyajian’s patsearch.
DISCUSSION
In reviewing a trial court’s decision to deny a motion to suppress evidence, “ ‘ “An appellate court’s review . . . is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. . . .” ’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 255.) In reviewing a denial of a motion to suppress evidence, the appellate court defers to the trial court’s findings of fact, both express and implied, that are supported by substantial evidence. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)
A patsearch is deemed reasonable if “ ‘criminal activity may be afoot and . . . the person with whom he is dealing may be armed and presently dangerous.’ [Citation.] ‘The officer need not be absolutely certain that the individual is armed . . . . [D]ue weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific and reasonable inferences that he is entitled to draw from the facts in light of his experience. [Citation.]’ [Citations.]” (In re Frank V. (1991) 233 Cal.App.3d 1232, 1240 (Frank V.).) Furthermore, in appellate review, it should also be recognized that “ ‘[c]ircumstances and conduct which would not excite the suspicion of the man on the street might be highly significant to an officer who had had extensive training and experience . . . .’ [Citation.]” (Id. at pp. 1240-1241.)
As an initial matter, appellant argues that Boyajian’s patsearch was conducted without reasonable suspicion that defendant was armed and dangerous. Defendant relies on Wyoming v. Houghton (1999) 526 U.S. 295, 303 and Minnesota v. Dickerson (1993) 508 U.S. 366, 373 to argue that because the Fourth Amendment provides unique, significantly heightened protection against searches of one’s person, a patsearch is only deemed reasonable when the officer is justified in believing that the individual whose suspicious behavior she is investigating at close range is armed and presently dangerous to the officer or to others. Defendant contends that there were insufficient articulable facts, combined with the rational inferences drawn from the facts, for Boyajian to reasonably believe that defendant was armed and dangerous. We disagree; substantial evidence supports the trial court’s decision.
First, despite defendant’s argument to the contrary, the officer properly considered the time and place of the contact. The court in Frank V. held that a search is deemed reasonable if criminal activity seems to be afoot, even if the police have not been notified that a crime is occurring. (Frank V., supra,233 Cal.App.3d at p. 1241.) Directing our attention to People v. Limon (1993) 17 Cal.App.4th 524, defendant argues that the encounter did not take place in an area known for drug use or violence and therefore the location does not justify a search. However, Boyajian first made contact with defendant in an area where the majority of the establishments were closed. Although there were a few restaurants and a motel open, the officer could reasonably be suspicious that illegal behavior was taking place, having observed defendant walking on the street numerous times throughout the evening at approximately 11:00 p.m.
Second, while mere nervousness alone may not create reasonable cause to patsearch (People v. Dickey (1994) 21 Cal.App.4th 952, 956), Boyajian observed and demonstrated specific motions made by defendant that led her to believe defendant was armed. And an officer may frisk someone if he or she is making a suspicious movement towards where a weapon may be hidden. (United States v. Colin (5th Cir. 1991) 928 F.2d 676, 678.) It is clear that the judge found the motions that Boyajian simulated for the trial court to be significant and a large contributor to the officer’s reasonable belief that defendant was armed. We, of course, defer to the facts as decided by the trial court, and its reliance on these gestures. (People v. Miranda, supra, 17 Cal.App.4th at p. 922.)
Furthermore, Boyajian’s experience must be taken into account. According to Frank V., the officer need not be certain that a person is armed, but may rely on reasonable inferences she is entitled to draw from the facts due to her own experience. (Frank V. supra,233 Cal.App.3d at pp. 1240-1241.) Boyajian had been an officer for over four years and would therefore have greater knowledge regarding criminal behavior than an average individual. It is reasonable to assume that she would detect suspicious behavior that might appear innocent to an untrained individual.
Finally, citing to New York v. Harris (1990) 495 U.S. 14 and Wong Sun v. United States (1963) 371 U.S. 471, defendant argues that the physical evidence resulting from Boyajian’s search must be suppressed because it was obtained through police exploitation of a search. Once again, we disagree. Boyajian was justified in searching defendant’s pocket based on the results of the patsearch and defendant’s suspicious responses to the officer’s questions. After withdrawing the piece of cardboard, Boyajian was entitled to go back into defendant’s pocket to find the item that she had felt in the patsearch. This effort led to the discovery of the drug paraphernalia and, ultimately, the cocaine base.
Because we uphold the legality of the search on other grounds, we need not address the question of consent.
Therefore, because the People demonstrated that the search in question was reasonable, the claim that the patsearch was unconstitutional fails.
DISPOSITION
The judgment is affirmed.
We concur: JONES, P. J., GEMELLO, J.