Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF018887, Sherrill A. Ellsworth and Matias Ricardo Contreras, Judges.
Judge Contreras is a retired judge of the Imperial Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Gary Wenkle Smith for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST Acting P. J.
Defendant and Appellant Timothy Karnes was charged with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and possession of methamphetamine for sale (Health & Saf. Code, § 11378). He moved to suppress the prosecution’s evidence against him pursuant to Penal Code section 1538.5, and later to dismiss the case pursuant to section 995. The trial court denied both motions. Defendant then pled guilty, pursuant to a plea agreement, and the trial court placed him on probation for three years.
All further statutory references will be to the Penal Code unless otherwise noted.
Defendant now contends the trial court erred in denying his motion to suppress evidence, as well as his motion to dismiss the case, since the search of his pocket was unreasonable under the Fourth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant moved under section 1538.5 to suppress all contraband seized by Officer Frank Tiburzio from his person or possession. The essence of defendant’s motion was that during the course of a consensual patdown search for weapons, Officer Tiburzio exceeded the scope of the search when he retrieved drugs out of defendant’s coin pocket. Defense counsel argued the motion at the time of the preliminary hearing on April 9, 2007. The following facts are derived from the preliminary hearing transcript.
On October 25, 2006, Officer Tiburzio was working as an undercover narcotics officer when he observed defendant drive a car into a store parking lot. The registration tags on the car had expired. Officer Tiburzio watched defendant enter and exit the store. He then approached defendant, identified himself, and asked if he could talk to defendant about his expired tags. The officer observed that defendant had a Hell’s Angels T-shirt and tattoo. He asked defendant if he was a member of the Hell’s Angels, and defendant said yes. Through his training and experience, Officer Tiburzio knew that Hell’s Angels could be violent, carry weapons, and sell narcotics. Therefore, the officer asked defendant if he could pat defendant down for officer safety, and defendant agreed. As Officer Tiburzio was patting defendant down, he felt a bulge in defendant’s right coin pocket. From his experience and training, Officer Tiburzio knew that Hell’s Angels were heavily involved in the sales of methamphetamine and that methamphetamine traffickers typically conceal narcotics in their coin pockets. When Officer Tiburzio was asked at the preliminary hearing if he recognized what the bulge in defendant’s coin pocket was, the officer responded: “With my training and experience, and experience of arresting people on several occasions with that particular packaging in the coin pocket, I recognized it as the same, and formed the opinion that the substance in his coin pocket was, in fact, bindled—possibly bindled controlled substance.” Officer Tiburzio further testified that when he touched the outside of defendant’s coin pocket, defendant “immediately flinched, became verbally responsive, verbally aggressive, and began to adamantly tell [the officer] that [he] could not search his coin pocket, and that he only gave [the officer] consent to pat him down.” Officer Tiburzio thought defendant’s reaction “was kind of almost a guilty response... [that] confirmed [his] suspicion of what was inside.” At that time, due to defendant’s behavior, Officer Tiburzio said he “clenched up on... the hold [he] had, and removed what [he] believed to be illegal narcotics.” The officer seized 3.5 grams of a substance, which later tested positive for methamphetamine.
On cross-examination, the following discussion ensued between defense counsel and Officer Tiburzio:
“Q: You had already searched him and determined he had no weapons when you searched his coin pocket; isn’t that true?
“A: Well, I was continuing my search. That was the latter portion of my search.
“Q: And when you got to the coin pocket, you felt something that you didn’t think was a weapon; did you?
“A: No.
“Q: In fact, you suspected it was narcotics?
“A: Yes, sir. [¶]... [¶]
“Q: Okay. So—but until you felt it—and I think you said you manipulated it with your hand; is that what your testimony was?
“A: Well, yeah, with my fingers, my right hand.
“Q: How did you do that? Did you squeeze it, put your hand in on one side, on the other side and squeeze it, or just push it?
“A: I squeezed it.
“Q: With fingers and thumb?
“A: With the fingers, yes, sir. [¶]... [¶]
“Q: So you just felt something in that pocket, but it definitely was not a weapon?
“A: Yes, sir.
“Q: And it wasn’t until you began to manipulate it that you suspected that it was something illegal?
“A: Yes, sir.
“Q: And in your mind it was narcotics?
“A: Yes, sir.”
Defense counsel repeatedly stated to Officer Tiburzio: “[P]rior to pulling it out of his pocket, you really didn’t know what it was; did you?” Officer Tiburzio then said that he had formed the conclusion it was an illegal substance, prior to pulling it out of defendant’s pocket. He then added there was no 100 percent certainty what the substance was, since “[e]verything has to be tested....”
After the testimonies were presented, defense counsel argued the motion to suppress. He cited Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson) in support of his argument that once Officer Tiburzio found something during the search he knew was not a weapon, he was not allowed to search further or retrieve the object.
The prosecutor responded that Officer Tiburzio properly seized the drugs that were in defendant’s pocket under the “plain feel” doctrine. The prosecutor argued that once Officer Tiburzio felt the object in defendant’s coin pocket, he knew it was drugs based on his training and experience. Specifically, the prosecutor argued that Officer Tiburzio knew it was drugs for a variety of reasons: 1) the officer had been trained and had “done this a number of times”; 2) he had actually felt what these narcotics feel like and he had found them in exactly the same place (the coin pocket) before; 3) defendant admitted he was a Hell’s Angel, and the officer knew from his training and experience that this was a gang that engaged in the distribution of these particular kinds of narcotics; and 4) right when Officer Tiburzio felt the object in defendant’s pocket, defendant reacted by tensing up and becoming defensive, saying “[y]ou can’t search there.” The prosecutor further addressed defense counsel’s argument that Officer Tiburzio “manipulated” the object in defendant’s pocket. The prosecutor explained what Officer Tiburzio was saying was that when he felt the outside of defendant’s pocket, that was the point when he determined the substance was a narcotic. Officer Tiburzio properly touched the object with his fingers on the outside of the pocket, and there was no evidence he went further than that. Defense counsel responded that Officer Tiburzio did not testify he knew what the object was, just that he suspected it was narcotics. Defense counsel added that, even if the officer had permission to search, the permission was terminated when defendant withdrew his consent.
The court stated it was impressed by Officer Tiburzio’s response that no one would really know what the substance was until it was analyzed. The court further noted Officer Tiburzio’s testimony that, with his experience, he knew it was drugs of some kind. The court then stated: “I think this plain feel situation is where an officer knows or is pretty sure that that’s contraband, he shouldn’t have to hold the person there, go get a search warrant, and have somebody review that to say, ‘Yep, it’s drugs, it’s contraband.’” The court concluded that Officer Tiburzio was not in violation of Dickerson, and that “he gave us enough articulable facts that I think justify that seizure.” The court denied the motion to suppress.
On June 4, 2007, defendant filed a motion to set aside the information pursuant to section 995 and essentially made the same argument as in the motion to dismiss. On July 6, 2007, argument on the motion to set aside was heard by a different judge, Judge Ellsworth. The prosecutor reminded the judge that she was required to draw every inference in favor of the magistrate’s ruling, and then narrowed the consideration down to the question of whether she found it reasonable that the magistrate concluded Officer Tiburzio “used his hands in a manner that was consistent with the pressing motion of a search for weapons and knew what he was feeling when he felt it, or did he have to educate himself [by further manipulating the object].” Defense counsel agreed that Officer Tiburzio suspected there might be narcotics but then argued that Tiburzio did not really know what it was, so he “went that one step further... and educated himself by manipulating it.” The prosecutor responded by noting that the word “manipulate” was used by counsel throughout the preliminary hearing, and that it was essentially used interchangeably with the word “touch.” Thus, the prosecutor stated: “[D]id [the officer] use his tactile sense to educate himself without first knowing what he had touched in the course of doing the search. If it went into the realm of education before he knew what it was, then it’s out.... [I]f he immediately knew what he touched or manipulated, whatever word you want to use, it’s in.” At that point, the judge asserted that she really needed to read the entire transcript of the preliminary hearing, as well as Dickerson and other case law cited, before coming to a decision. The court continued the hearing.
Defendant raised another issue as to a gang allegation; however, that issue is irrelevant to this appeal.
The continued hearing was held on July 31, 2007, at which time the court allowed further argument and engaged in more discussion with counsel. The court stated the crux of the issues was “whether or not [Officer Tiburzio] is educating himself, whether or not he immediately touches it and knows it’s narcotics or whether he has to look for it,...” Defense counsel then carefully read a portion of the preliminary hearing transcript out loud to the court regarding Officer Tiburzio’s testimony as to whether he knew what the object was when he touched it. (See ante.) The prosecutor responded by explaining that Officer Tiburzio described to the magistrate the procedure he used to search defendant, “where he used his fingers and thumb in pressing against the outside of the defendant’s pocket.” The prosecutor argued that the fingers and thumb could be used in conjunction to perform a lawful search of the outside of a person’s pocket. The prosecutor then stated that “based on what the magistrate saw... he believed that Deputy Tiburzio had engaged in a type of lawful search that I’ve just described[.]” The prosecutor asserted that the court had to draw every inference favorable to the magistrate’s decision. After extensive discussion, the court finally concluded the magistrate correctly found “that the deputy at that time knew it was narcotics and was not educating himself further by the manipulation of the coin pocket.” The court noted it was giving deference to the previous magistrate’s decision in denying the motion to dismiss.
ANALYSIS
Defendant’s Motions Were Properly Denied
Defendant argues the trial court erred in denying his motion to suppress evidence and motion to dismiss because the search of his pocket was unreasonable under the Fourth Amendment. Both motions were based on the same argument, that it was not immediately apparent to Officer Tiburzio the object in defendant’s pocket was methamphetamine, and the officer did not figure out what the object was until after he manipulated it further. Defendant makes the same argument on appeal and contends that the officer should have stopped the search since defendant withdrew his consent, and since any further search was impermissibly beyond the scope of a weapons search. We conclude that defendant’s motions were properly denied.
A. Standard of Review
“As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673.) Accordingly, on review of a motion to suppress, “‘all factual conflicts must be resolved in the manner most favorable to the [superior] court’s disposition on the [suppression] motion.’ [Citation.] But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.]” (Id. at pp. 673-674.)
B. The Search Was Reasonable
At the outset, we note that “[t]he touchstone of all Fourth Amendment determinations is reasonableness. [Citations.]... ‘Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. [¶] In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.’” (People v. Manderscheid (2002) 99 Cal.App.4th 355, 360.)
Defendant primarily relies upon Dickerson in again making the same argument he made in the previous two motions. In Dickerson, the police stopped the defendant as he was leaving a building known for cocaine traffic because he attempted to evade the police officers when he saw them. (Dickerson, supra, 508 U.S. at pp. 368-369.) A patdown search revealed no weapons, but the officer felt a “small lump” in the defendant’s pocket. (Id. at p. 369.) The officer did not immediately suspect this lump was contraband but examined it further and, according to the state court’s findings, “determined that the lump was contraband only after ‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’—a pocket which the officer already knew contained no weapon.” (Id. at p. 378.) In determining that this search invalidly exceeded the scope of a Terry search, the court in Dickerson drew upon the plain view doctrine. “The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no ‘search’ within the meaning of the Fourth Amendment—or at least no search independent of the initial intrusion that gave the officers their vantage point. [Citations.] The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. [Citations.] The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Dickerson, supra, at pp. 375-376, fn. omitted.) “[T]he Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures.” (Id. at p. 376, fn. omitted.)
Terry v. Ohio (1968) 392 U.S. 1.
In People v. Dickey (1994) 21 Cal.App.4th 952, upon which defendant also relies, the court found a patdown search invalid. There, a police officer approached the defendant, the driver of a car that was stopped in the roadway with its engine running. The defendant truthfully identified himself, but neither he nor the passenger had identification. The defendant could not produce a vehicle registration, but the officer ascertained by radio that the car was registered to him. (Id. at p. 954.) The defendant refused the officer’s request to search the car but consented to a search of a backpack, which he denied was his, and the officer found a film canister containing baking soda and a toothbrush. (Id. at pp. 954-955.) The defendant said he used the baking soda for brushing his teeth. The officer conducted a patdown search of the defendant, whom he said was nervous and sweating, and felt no hard objects. He did feel a bulge, which he squeezed and said it felt like a plastic baggie with something in it. (Id. at p. 955.) Dickey found there was no justification for the patdown search because there were no facts that “would lead an officer to ‘“... reasonably believe in the possibility that a weapon may be used against him....”’ [Citations.]” (Id. at p. 956.) The court further held that even if the search had been proper at the outset, its permissible scope was exceeded when the officer reached into the defendant’s pocket, since the incriminating character of the object was not immediately apparent. (Id. at p. 957.)
The People here rely upon People v. Dibb (1995) 37 Cal.App.4th 832 (Dibb), in which the appellate court upheld the trial court’s denial of a motion to suppress drug evidence found during a patdown search for weapons. The defendant was a passenger in a car stopped for Vehicle Code violations. The defendant consented to a search of his fanny pack, which contained ammunition, a scale with an odor of methamphetamine, a plastic bag, and a beeper. The defendant was wearing a beeper. The police officer conducted a patdown search that revealed no weapons, but under the leg of the defendant’s pants, he felt an “unusual” object which was “lumpy,” with “volume and mass.” (Dibb, supra, at pp. 834-835.) Dibb held that “[w]hether an officer’s suspicion that an object contained within a person’s clothing consists of narcotics, derived at least in part from a patdown of a person’s outer clothing, permits the officer to conduct a full-blown search of the individual or to seize the object felt depends on whether the officer had probable cause to arrest the person for narcotics possession; the warrantless search then becomes justified as a search incident to arrest. [Citation.]” (Id. at pp. 835-836.) This principle, Dibb explained, was in accord with the “plain feel” justification for seizure described in Dickerson. (Dibb, supra, at p. 836.) The court stated that “[t]he critical question [was] not whether [the officer] could identify the object as contraband based on only the ‘plain feel’ of the object, but whether the totality of the circumstances made it immediately apparent to [him] when he first felt the lump that the object was contraband.” (Id. at pp. 836-837.) The Dibb court found the seizure justified because the officer’s “tactile perception of the lump, combined with the other circumstances, created a reasonable inference that the lump was contraband. [Citation.]” (Id. at p. 837.) The “totality of the circumstances” included the beepers, the scale smelling of methamphetamine, and the plastic bag in the defendant’s possession, and the “unusual lump... located in an unusual location not commonly utilized to carry everyday items.” (Id. at p. 837.)
The instant case is close to the line. However, deferring to the trial court’s implied and express factual findings, we conclude the search was proper. Although Officer Tiburzio was not presented with circumstances such as those in Dibb to illuminate the character of the object he felt in defendant’s pocket, the trial court found that the officer immediately recognized as a controlled substance the object he felt. This finding is supported by the evidence. Officer Tiburzio had been involved in at least 20 investigations involving possession of narcotics, with the majority of them concerning methamphetamine. He had had at least 200 hours of advanced training on methamphetamine and had seen and touched methamphetamine before. From his experience and training, Officer Tiburzio knew that Hell’s Angels were heavily involved in the sales of methamphetamine and that methamphetamine traffickers typically concealed narcotics in their coin pocket. His patdown search of defendant revealed a bulge in defendant’s right coin pocket. When asked if he recognized what the bulge was, Officer Tiburzio responded: “With my training and experience, and experience of arresting people on several occasions with that particular packaging in the coin pocket, I recognized it as the same, and formed the opinion that the substance in his coin pocket was, in fact, bindled—possibly bindled controlled substance.” (Italics added.) Officer Tiburzio then testified that when he touched the outside of defendant’s coin pocket, defendant “immediately flinched, became verbally responsive, verbally aggressive, and began to adamantly tell [Officer Tiburzio] that [he] could not search his coin pocket, and that he only gave [the officer] consent to pat him down.” Officer Tiburzio felt that defendant’s reaction “was kind of almost a guilty response... [that] confirmed [the officer’s] suspicion of what was inside.” Thus, the seizure here was justified because Officer Tiburzio’s tactile perception of the lump, combined with the foregoing circumstances, created a reasonable inference that the lump was contraband. (Dibb, supra, 37 Cal.App.4th at p. 837.)
Defendant contends that once he withdrew his consent, Officer Tiburzio “no longer had any legal authority to continue with his search” and that any further search was beyond the scope of the permissible search. However, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Dickerson, supra, 508 U.S. at pp. 375-376, fn. omitted.) Thus, because it was immediately apparent to Officer Tiburzio the object in defendant’s coin pocket was contraband, the seizure of the object was permissible.
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.