Opinion
A148630
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. KYLE EDWARD GILLESPIE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-2016-84962)
Kyle Edward Gillespie pled guilty to possession of methamphetamine while armed with a loaded firearm after the trial court denied a pretrial motion to suppress evidence. This appeal challenges the denial of the suppression motion. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on March 18, 2016, with one count of possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, subd. (a)). He entered a plea of not guilty on March 29, 2016. On May 3, 2016, he filed a motion to suppress evidence. A hearing on the motion was held on May 17, and on May 19, the motion was denied. Following the denial of the suppression motion, appellant withdrew his plea of not guilty and entered a plea of guilty.
Appellant additionally entered guilty pleas to three charges in a separate case (No. 16-85373) concerning offenses committed on April 5, 2016, while he was released on bail in the present case: Driving under the influence of drugs with two prior convictions for the same or similar conduct (Veh. Code, § 23152), carrying a concealed weapon in a vehicle (Pen. Code, § 25400, subd. (a)(1)), and possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060).
On June 16, the court suspended imposition of sentence and placed appellant on 36 months of formal probation, with terms and conditions including 210 days in jail, and 180 days in a residential treatment program.
Appellant was placed on summary probation in case No. 16-85373, with a consecutive 120 days in jail.
Appellant filed a timely notice of appeal on June 17, 2016.
STATEMENT OF FACTS
Shortly after 1:00 p.m. on March 1, 2016, Ukiah Police Officers Kevin Murray and Noble Waidelich responded to a call about two adult males consuming alcohol in public in front of a house in a residential area. Drinking or having an open container in that location violated Ukiah City Code 6000, an ordinance regarding consumption of alcohol in public. Both officers were wearing body cameras that were on during the incident.
Murray testified at the suppression hearing that he recognized one of the men from prior law enforcement interactions as Nicholas Lanzit. The other he identified in court as appellant. Murray noticed an open, partially consumed 32-ounce bottle of Pacifico beer on the ground about two to three feet from appellant, and smelled a "slight odor" of alcohol but could not tell who it was coming from. Speaking at first mainly with Lanzit, Murray told the men why he was there and asked if they had been drinking; Lanzit said yes and Murray did not recall appellant's answer. The men acknowledged that they did not know the occupants of the house in front of which they were standing. Asked what they were doing there, the men said they had found the area because there was "WIFI"; appellant had called for a taxi because he had a large bag with him and did not want to walk.
On the recording of the encounter entered into evidence as Exhibit A, when Officer Murray pointed out the open beer bottle and odor of alcohol, Lanzit stated that he had taken "one sip" of a beer and poured it out on the street, but that the bottle on the ground was not his.
At the outset of the encounter, Murray asked for appellant's identification and called the information into dispatch. As he was talking with Lanzit, Murray noticed a pocket knife clipped inside Lanzit's right front pocket and told him he was going to take it for the remainder of the contact for safety purposes. At the same time, Murray noticed Sergeant Waidelich, who was closer to appellant, remove a pocket knife that was clipped to appellant's pants. Murray told Lanzit he wanted to pat him down for additional weapons and Lanzit had no objection. Murray testified, "It's one of the kind of standard schools of thought is the plus one school of thought when it comes to weapons. When there's one there's sometimes two. If there's two there's a lot of times three. So it's that plus one. So any time you find one you begin to start thinking about finding that second one so . . . ." The open container and report of drinking was also a factor in deciding to conduct a pat search, because people's behavior when under the influence of alcohol is unpredictable; Murray stated that he was not saying either of the men was intoxicated, "but so early on in the contact it was hard to tell." Murray later acknowledged that neither of the men appeared to be intoxicated. He did not find anything on Lanzit.
The video does not show Sergeant Waidelich removing the knife but his voice can be heard saying he was going to "take this knife out of your pocket" and appellant saying, "no problem."
At the suppression hearing, Murray testified that Lanzit was on probation with a search and seizure condition. On the video, Murray asked Lanzit if he was still on probation and Lanzit said he was not. When Murray asked if Lanzit had any weapons on him, Lanzit said no, just a " 'tiny' boxcutter' " in his pocket; Murray asked for permission to search him and Lanzit told him to "go ahead."
Murray testified that initially appellant was "very overly friendly," calm and cooperative, but when Murray began pat searching Lanzit, he noticed "an extreme demeanor change" in appellant. Appellant at first was about three feet, or arms-length, from Lanzit, facing toward Murray. As Murray began to search Lanzit, appellant began "to distance himself" from Murray and the search, moving to about six or seven feet further away, with his back "almost to" Murray.
Murray decided to pat search appellant. He testified, "First, he was in possession of a knife. At the time he was detained on suspicion of consuming alcohol in public. They had no—they didn't know the occupants of the residence. As I began a pat search, his demeanor immediately changed so much that it caught my attention while I was searching another suspect. He moved himself away and began to distance himself. All those things kind of went into, okay, we might be looking at another weapon here." Murray told appellant he was going to pat search him for weapons and appellant immediately responded, " 'I'm not on probation.' " This furthered Murray's suspicion because it was "not a normal response" for someone who does not have a weapon and is told " 'I'm just pat searching you for weapons.' " Appellant was "very hesitant" to allow a pat search.
Murray took hold of appellant's right hand; appellant was hesitant to give the officer his left hand but ultimately did so, and Murray held both behind appellant's back. He began a "cursory sweep" of appellant's front waistband with his right hand and felt "the distinct object which I knew to be the grip of a handgun." He called out to Sergeant Noble that appellant was armed with a gun and, with Noble's assistance, placed appellant in handcuffs. Murray removed a Glock 40-caliber Model 23, fully loaded with a loaded round in the chamber, from appellant's waistband. Appellant was arrested and Lanzit was told to leave. Appellant was searched, as was the bag appellant had had at his feet. In the bag, Murray found additional ammunition, magazines for a Ruger 380 handgun and some white crystalline substance that Murray recognized as methamphetamine. Subsequently, the substance presumptively tested positive for methamphetamine, with a weight of approximately .4 grams.
Murray had been a police officer for almost eight years and had training and on-the-job experience with cases involving possession of firearms, including "[h]ow to take possession of them, book them, how to identify them, clear them . . . ." Asked if he was concerned about officer safety even though the pocket knives were not themselves illegal, he responded, "Of course. [¶] . . . [¶] For me it is especially. I've been physically assaulted on the job and been seriously wounded and officer safety is of the utmost importance to me." This previous experience "for sure" played a role in Murray's concern during the present incident. He testified, "When I was assaulted in the past a lot of the same indicators that [appellant] was showing were present but I didn't recognize them at the time. So these are all things based on my training and experience that when I see these things they take much more effect on me and make me that much more cautious."
On May 19, the court stated that it had reviewed the tape several times and explained its ruling denying the motion to suppress. The court stated, "When the officer arrived he saw evidence of the basis for the call. The beer bottle, the odor of alcohol. Both males were carrying knives, albeit pocket knives, which were removed at the initial contact." The court noted that appellant's statement, "I'm not on probation," and his initial reluctance could not be the sole basis to justify the search, and that the change in demeanor Murray described also would not be sufficient, but concluded that the presence of the pocket knife was "a sufficient and reasonable basis to justify the pat down search." Citing People v. Brown (1989) 213 Cal.App.3d 187, in which a pat down was found justified where the defendant had a pair of scissors and a knife in his hands, the court stated, "[s]o when I look at the totality of the circumstances involved here, along with the officer's testimony regarding his experience and training, I do find that the officer's action was reasonable under Terry and its progeny, and so he did have the right to conduct the pat down search."
At the conclusion of the parties' evidence at the suppression hearing, as the court prepared to ask a question, defense counsel told the court that there was "a view of the entire thing." The court asked whether the "outer change in [appellant's] demeanor and what that really looked like . . . come[s] across on the camera" and Murray responded, "Oh, yes." The court then declined to ask further questions.
DISCUSSION
In reviewing the trial court's ruling on a motion to suppress evidence, we "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. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; People v. Lawler (1973) 9 Cal.3d 156, 160.)" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"A limited, protective patsearch for weapons is permissible if the officer 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.' (Terry v. Ohio (1968) 392 U.S. 1, 27; see People v. Avila (1997) 58 Cal.App.4th 1069, 1074 ['[T]he officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger. [Citation.]'].) ' "[W]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a patdown search "to determine whether the person is in fact carrying a weapon." [Citation.] "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . ." [Citation.]' (Minnesota v. Dickerson (1993) 508 U.S. 366, 373.)" (In re H.H. (2009) 174 Cal.App.4th 653, 657-658.)
Appellant contends the circumstances known to the officers at the time of the search did not support a reasonable belief that appellant was armed and dangerous. He points out that the officers were not investigating a violent crime; appellant was friendly and cooperative with the officers and made no furtive gestures; neither appellant's refusal to consent to a pat search nor his nervousness were sufficient to support a reasonable belief that he was armed; and the fact that appellant had been carrying a folding pocket knife did not suggest he posed a danger to the officers.
In the circumstances presented here, appellant's possession of a weapon—albeit a folding pocket knife—was sufficient to support Officer Murray's belief that a pat search was necessary for officer safety. (People v. Brown, supra, 213 Cal.App.3d at p. 191 ["Because defendant was carrying two weapons, it was prudent to suspect defendant might be carrying other weapons as well."].) Law enforcement 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.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273.) Murray testified that police officers are trained to consider that where there is one weapon, there are likely to be more, and appellant and Lanzit had each been in possession of a pocket knife. While appellant's demeanor at the beginning of the encounter was relaxed and friendly, when Murray began to search Lanzit, appellant's demeanor changed significantly enough that it caught Murray's attention while he was engaged in searching Lanzit. Precisely what occurred at this moment is not portrayed on the recording provided to this court, but it is apparent from the recording that, as Murray testified, during the search of Lanzit, appellant moved from where he had been standing at the outset of the encounter to a position a number of feet further removed from that search, and became visibly distressed as soon as Murray said he was going to pat search appellant for weapons.
Appellant distinguishes People v. Brown, supra, 213 Cal.App.3d 187, as involving a pat search justified not only by the fact that the defendant was holding a knife and a pair of scissors but also that he was in a neighborhood known for drug trafficking and ran when he saw the police car, whereas here appellant was in a quiet residential neighborhood and made no attempt to flee, and the folding knife was in his pocket, not his hand. Brown discussed the facts that the defendant was in a high-crime area and ran when he saw the police car in determining that his detention was lawful: "Officer Barner listed several factors which caused him to suspect defendant was involved in criminal activity. First, defendant was in an area known for drug-related crime and appeared to be concealing something in his hand. Second, defendant fled upon seeing Barner's patrol car. While these two factors by themselves would have been insufficient to justify defendant's detention (People v. Aldridge (1984) 35 Cal.3d 473, 478), the addition of a third factor, defendant's possession of weapons, supports the officer's detention of defendant." (Brown, at pp. 190-191.) With respect to the pat-search, the court stated simply that it was a "reasonable protective measure incident to a valid detention" because it was prudent to suspect he might be carrying additional weapons. (Id. at p. 191.)
The "plus one" rule Murray described is apparently not unique to this case. (See United States v. Yamba (3d Cir. 2007) 506 F.3d 251, 255 [officer testified "pat-down was for officer safety. I already had one knife. I knew there was a weapon in the car, and a lot of times we as police officers like to add plus one. Where there's one weapon, there's likely another weapon"].)
This change in demeanor was not just the nervousness that might be expected from any citizen during an encounter with the police. (People v. Lawler, supra, 9 Cal.3d 156, 162; People v. Dickey (1994) 21 Cal.App.4th 952, 955-956.) Lawler involved a search of the defendant's sleeping bag, which was on the sidewalk where the he and his hitchhiking companions were questioned. (Lawler, at pp. 159, 161.) The officer testified that "he felt a 'routine' search for weapons was in order" because the defendant appeared nervous and "kept 'grabbing' at his sleeping bag as if he wanted to leave." (Id. at pp. 162-163.) The court viewed the defendant's nervousness as an understandable reaction to "extended police questioning because of a 'traffic violation' " and found no basis for a pat-down search in his desire to end the encounter; questioned why the officer, if concerned that the defendant was armed, did not pat search the defendant rather than the sleeping bag; and viewed the officer's testimony as "betray[ing] the presence" of an impermissible police practice of routinely searching detained individuals. (Id. at pp. 161-163.)
In People v. Dickey, supra, 21 Cal.App.4th at page 954, the officer's testimony suggested no basis for a concern that the defendant was armed and dangerous. The officer had observed the defendant in a car stopped on a one-lane dirt road in a rural area making " 'furtive movements, moving around in the driver's seat.' " (Ibid.) After exiting the car as directed, the defendant refused to consent to search of the car; the officer acknowledged he was angry about this and that he told the defendant he was " 'just wasting time or trying to put things off' " and that he would "just look for items in plain view in the car to justify the search." (Id. at p. 954.) The officer removed a backpack from the car, which the defendant and his passenger denied ownership of and the defendant gave permission for the officer to search. (Ibid.) After finding inside it a toothbrush and a film canister containing baking soda (which the officer believed to be a cutting agent for drugs and the defendant explained was what he used to brush his teeth), the officer decided to search the defendant, who was "nervous and sweating despite the fact that it was a cool day," because he " 'potentially may have been armed.' " (Id. at p. 955.) These circumstances reflected no basis for the officer to reasonably believe the defendant was armed.
Here, appellant's demeanor did not suggest general nervousness due to police questioning. Appellant was calm and friendly until Officer Murray began to search Lanzit, at which point he appeared to attempt to distance himself physically, and then became distinctly distressed when told he would be pat searched for weapons. His change of demeanor and repeated protestation that he was not on probation communicated not just a refusal of consent to a search—which, as the trial court noted, would not be sufficient, in and of itself, to support a reasonable belief that he was armed (In re H.H., supra, 174 Cal.App.4th at p. 658)—but also reason to believe he was in fact in possession of additional weapons. His agitation, combined with Murray's knowledge that appellant and Lanzit had each been in possession of a weapon and the officer's training to expect additional weapons after finding a subject in possession of one, provided a sufficient basis for the pat search.
In re H.H., supra, 174 Cal.App.4th 653, the officer's concern that the minor might be armed was based solely on the fact that the minor, who had been stopped for riding a bicycle without proper lighting equipment, while complying with the officer's request to take off his backpack, said " ' "I'm not on probation." ' " (Id. at pp. 655-656.) --------
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.