Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD215021, David J. Danielsen, Judge.
McDONALD, J.
Defendant Franklin Graham was charged by information with possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) (count 1) and carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)) (count 2). After his section 1538.5 motion to suppress evidence was denied, he entered a plea of guilty to count 1, and count 2 was dismissed by the People. The court granted him probation, subject to conditions. Graham timely filed a notice of appeal based solely on denial of his section 1538.5 motion to suppress evidence.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND
On July 21, 2008, at about 11:00 a.m. San Diego Police Officer Stanley stopped a vehicle driven by Graham because it did not have a front license plate, a violation of the Vehicle Code. The vehicle was occupied by three people in addition to Graham, one male in the front passenger seat and two (a male and a female) in the back seat. The front passenger initially gave Stanley a false name but when the passenger got out of the vehicle at backup Officer Prokop's request, Stanley observed a syringe cap and a wallet in the vacated seat. The wallet contained the passenger's photograph and identifying information. A record check revealed the passenger was on probation and subject to an outstanding arrest warrant. The male back seat passenger told Stanley he was on parole but a search of his person revealed no weapons or contraband. The female back seat passenger possessed no weapons or contraband.
Stanley then requested that Graham get out of the vehicle. Graham did so and then stood facing Stanley, who told Graham he was not under arrest but that a patdown search for weapons would be conducted. At this time Officer Conde was standing on the passenger side of the vehicle and observed Graham from the rear, facing Stanley. Conde observed what appeared to be a handle extending out of Graham's right back pant's pocket. This object concerned Conde because it could have been the handle of a weapon, although he did not know what it was. Conde walked around the vehicle and removed the object from Graham's pocket before Stanley began a patdown search of Graham. The object was a knife with a seven-inch blade. Graham was then arrested for carrying a concealed weapon. Graham was then searched incident to his arrest and Stanley found a small plastic bindle of heroin in Graham's pocket.
DISCUSSION
Graham contends the search conducted by the officers that resulted in the seizure of the knife and heroin violated his right to be free of unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. He asserts it was unreasonable to remove him from the vehicle, there was no justification for a patdown search, and without a patdown search it was unreasonable for Conde to remove the knife from his pocket.
In People v. Hoyos (2007) 41 Cal.4th 872 at page 893, the California Supreme Court, relying on Pennsylvania v. Mimms (1977) 434 U.S. 106, stated that "once a vehicle has been lawfully detained for a traffic violation, a police officer may order the driver to exit the vehicle without any articulable justification." No violation of the Fourth Amendment occurred in requiring Graham to get out of his vehicle.
As soon as Graham got out of his vehicle and stood facing Stanley with his back to Conde, Conde observed an inch-long object that appeared to be a handle of something in Graham's back pocket. Conde did not know what the object was but considered it might be a weapon. At this time the officers were aware that two of the occupants of the vehicle were on parole or probation and one was subject to an outstanding arrest warrant. Under these circumstances, it was reasonable for Conde to identify the exposed object in Graham's pocket, which he did, not by inserting his hand into Graham's pocket, but by merely placing his hand on the exposed object and determining it was a seven-inch knife. The object was observable without a patdown search, which was unnecessary to a determination of whether Graham possessed a weapon. Conde's action was less intrusive than a full body patdown search and we conclude it was reasonable under the circumstances. There was no violation of Graham's Fourth Amendment rights and we agree with the trial court that Graham's section 1538.5 motion should be denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.