Opinion
D068957
12-16-2016
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND JOHN LOPEZ, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura G. Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN336707) APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley and Laura G. Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
The People charged Raymond John Lopez with carrying a concealed dirk or dagger (Pen. Code, § 21310; count 1), possession of a controlled substance (Health & Saf. Code, §11377, subd. (a); count 2), possession of paraphernalia used for narcotics (Health & Saf. Code, § 11364.1, subd. (a); count 3), and contempt of court by disobeying a court-ordered gang injunction (Pen. Code, § 166, subd. (a)(10); count 4). A jury found Lopez guilty on counts 2, 3, and 4. The jury deadlocked on count 1, and the court declared a mistrial as to that charge. The People then moved to dismiss count 1, and the court granted the motion to dismiss. The court sentenced Lopez to 364 days in jail on count 2 and to concurrent 180-day terms on counts 3 and 4. The court also awarded custody and good time credits totaling 713 days.
The trial court stated that, in light of his custody and conduct credits, Lopez would be released from custody that day, assuming that he had no other pending cases.
On appeal, Lopez claims that the trial court erred in denying his motion to suppress evidence underlying the charged offenses. Specifically, Lopez claims that a deputy sheriff's patdown search of his person was unreasonable under the Fourth Amendment of the United States Constitution, and that evidence found as a result of that patdown must be suppressed. Lopez contends that, even assuming that the patdown was lawful, the deputy acted unlawfully in opening a multi-tool case that the deputy found during the patdown, which contained drug paraphernalia. After the deputy discovered the drug paraphernalia and a screwdriver on Lopez's person during the patdown, the deputy arrested Lopez. Lopez maintains that the deputy's postarrest search of a cigarette box found in Lopez's backpack was not a lawful search incident to arrest. We affirm the judgment.
II.
FACTUAL BACKGROUND
Given that all of Lopez's claims pertain to his contention that the trial court erred in denying his motion to suppress evidence, we provide an abbreviated summary of the facts presented at trial in this section. In part III.A, post, we provide a summary of the factual and procedural background related to Lopez's motion to suppress evidence.
On September 12, 2014, at approximately 1:50 p.m., several law enforcement officers, including San Diego County Sheriff's Deputy Brandon Boisseranc, arrived at a residence in San Marcos to perform a probation compliance check on documented gang member Jose Loza. When the officers arrived, Lopez was sitting in a chair outside of the residence, near the front door, against the wall of the house.
Deputy Boisseranc approached Lopez and could see that he had a shaved head and several tattoos, including on his neck and on his right hand, and one that appeared to be on the top of his head. Deputy Boisseranc suspected that Lopez might be a gang member. Lopez had his left hand in his pocket, and Deputy Boisseranc could see bulges in Lopez's pockets. Deputy Boisseranc elected to perform a patdown of Lopez.
Deputy Boisseranc later determined that the tattoo on Lopez's hand stated, "VSM," which Boisseranc testified stood for the Varrio San Marcos gang.
Deputy Boisseranc patted down Lopez's right pocket and felt a "Leatherman-type . . . case" that he believed contained a "Leatherman-type tool." Boisseranc removed the case from Lopez' pocket. Upon looking at the case, Boisseranc could see that it contained a bulbous glass pipe that appeared to be a device for smoking methamphetamine.
The People showed the jury a photograph of the case, which Deputy Boisseranc described as a "nylon case."
When asked whether he was "able to see the meth[amphetamine] pipe through the canvas case when you found it in the pocket," Deputy Boisseranc responded, "Yes." The deputy explained:
"The pipe was stuffed in the case and there was . . . tissue hanging out, but it wasn't wrapped completely around the bulbous part of the pipe, so I could see the glass part of the pipe."
Deputy Boisseranc patted down Lopez's left pocket and felt what appeared to be a screwdriver. Deputy Boisseranc removed the item from Lopez's pocket and determined that it was a Phillips-head screwdriver, approximately six inches in length. The tip of the screwdriver looked as if it had been worn down or sharpened.
At the suppression hearing, Deputy Boisseranc testified that he placed Lopez under arrest immediately after finding the screwdriver.
On the ground "right next" to Lopez was a backpack. Deputy Boisseranc searched the backpack. In the main compartment, Deputy Boisseranc found a pill bottle that was labeled with Lopez's name. In the front zipper pouch, Boisseranc found a cigarette box. Inside the box, Deputy Boisseranc found a baggie that contained .1 grams of methamphetamine, a usable amount.
Approximately six years prior to the day of the search, Lopez was served with a gang injunction, which prohibited him from possessing drugs, drug paraphernalia, and "burglary tools with no legitimate purpose," including "screwdrivers," and dangerous weapons, including "screwdrivers without a legitimate purpose."
III.
DISCUSSION
The trial court did not err in denying Lopez's motion to suppress evidence
Lopez claims that the trial court erred in denying his motion to suppress evidence. A. Factual and procedural background
1. Lopez's initial motion to suppress evidence
Prior to the preliminary hearing, Lopez filed a motion to suppress evidence, including the screwdriver, methamphetamine, and drug paraphernalia, that Deputy Boisseranc found as a result of the patdown and the ensuing search of Lopez's backpack. Lopez argued that the People had the burden of justifying the warrantless intrusions.
The People filed an opposition in which they argued that, on the day in question, Deputy Boisseranc lawfully conducted a patdown for weapons because he reasonably feared that Lopez was armed and dangerous. The People further contended that, during the patdown, Deputy Boisseranc felt a hard object that he suspected was a case commonly used to carry knives. The People maintained that Deputy Boisseranc was justified in opening the case to determine whether it contained a weapon and in removing a screwdriver from Lopez's pocket. In addition, the People argued that, once Deputy Boisseranc arrested Lopez, Boisseranc was authorized to search Lopez's backpack as a search incident to the arrest.
2. Deputy Boisseranc's testimony at the combined preliminary hearing and hearing on the motion to suppress
A magistrate held a combined preliminary hearing and a hearing on the motion to suppress. Deputy Boisseranc was the sole witness to testify at the hearing. According to Boisseranc, on September 12, 2014, he and approximately seven other armed law enforcement officers arrived at the residence of Loza, a documented gang member, in order to perform a probation compliance check. When Deputy Boisseranc arrived, all of the other officers entered the residence in order to contact Loza and other people inside the house.
Deputy Boisseranc remained outside the residence because he saw Lopez sitting in a chair near the front door. Lopez had several tattoos, including on his neck and head. Boisseranc thought that some of the tattoos were gang tattoos and believed that Lopez was likely a gang member.
It appeared to Deputy Boisseranc that Lopez was "looking left and right over his shoulder." In addition, according to Boisseranc, Lopez had his hand in his left pants pocket and was "digging around in his left pocket." Lopez's right and left pants pockets appeared to have bulges in them. Boisseranc asked Lopez to take his hand out of his pocket. Lopez complied and kept both of his hands out of his pockets. Boisseranc asked Lopez whether Lopez would consent to Boisseranc patting him down for weapons or anything illegal. Lopez declined to consent to a patdown.
Boisseranc elaborated, "He's moving around, kind of digging around, grabbing at something. It wasn't like just putting your hand in your pocket just kicking back—sorry for the term. He was digging around, moving it around, which made me focus in on that."
Deputy Boisseranc then asked Lopez to stand up, turn around, and place his hands behind his back because Boisseranc was going to pat him down for weapons. When asked by the prosecutor why he conducted the patdown, Deputy Boisseranc responded:
"Well, as I initially said when I came up to [Lopez], I was alone. He had his hand in his pocket. I could see there was a bulge in his pocket. [¶] Based on his tattoos and the placement of his tattoos, I believed he was a gang member. [¶] Based in part, as well, that we were at a known gang member's house trying to conduct a [Fourth Amendment] waiver search of the said house and that said person, Mr. Loza, based on all those circumstances and the fact that [Lopez] was looking over his shoulder and side to side, I believed that he was a threat to my safety at the time."
While conducting the patdown, Deputy Boisseranc felt a bulge in Lopez's right front pants pocket, which he said felt like a Leatherman case or a multi-tool case. Boisseranc described a Leatherman case as "a case that . . . typically holds a Leatherman tool or multi-tool, which usually has pliers, knives, a little saw, screwdrivers, things like that, can opener." Deputy Boisseranc removed the object from Lopez's pocket, thinking that it was a multi-tool case. Upon removing the object, Boisseranc determined that "[i]t was either a multi-tool case or a small flashlight case." Boisseranc continued, "Inside was a glass bulbous pipe coated in a white crystalline substance." Boisseranc recognized the pipe to be the kind commonly used for smoking methamphetamine.
Boisseranc continued the patdown by feeling Lopez's left pants pocket. Boisseranc felt a bulge that felt like a screwdriver. Boisseranc removed the object and determined that it was a Phillips screwdriver. According to Boisseranc, the grooves at the tip of the screwdriver had either been removed or were worn down. At that point, Deputy Boisseranc placed Lopez under arrest. The prosecutor asked Boisseranc what he did after arresting Lopez. Deputy Boisseranc responded:
"I continued my search of his person and emptied out all of his belongings in his pockets and whatnot. [¶] And then he was sitting next to a backpack that was on the ground when I initially contacted him, so I elected to search the backpack incident to his arrest, believing it was his personal belongings."
Deputy Boisseranc found a prescription pill bottle in the backpack with Lopez's name on it. Boisseranc also found a cigarette box in the backpack. Inside the cigarette box was a small plastic Ziploc baggie that contained methamphetamine.
3. Oral argument and the magistrate's ruling
After hearing Deputy Boisseranc's testimony, the magistrate heard oral argument from both defense counsel and the prosecutor on the motion to suppress. Defense counsel argued that it was unreasonable for Deputy Boisseranc to conduct a patdown of Lopez because there was "nothing that [Lopez] was presenting by sitting there as being a threat to the deputies." The prosecutor argued that the deputy had acted reasonably under the circumstances in conducting the patdown, noting that Lopez had been "wiggling" his hands in his pockets before the patdown, among other factors.
Ultimately, the magistrate denied the motion to suppress, stating that the "critical fact" was "the movement of the hand in the pocket," which the magistrate stated was "sufficient . . . to create for the officer a reasonable concern for safety and the search, patdown, only a patdown." The magistrate continued:
"The patdown has to be geared towards finding a weapon or to make sure there is no weapon. That's all that was being done here. [¶] I don't think that there is any contention that the search exceeded the scope after that. So on that basis, I am going to deny the motion to suppress."
The magistrate then heard argument with respect to the preliminary hearing portion of the proceeding. At the conclusion of the hearing, the magistrate found that there was probable cause to believe that Lopez had committed all of the charged offenses and bound Lopez over for trial.
4. Lopez's second motion to suppress evidence
Lopez filed a motion to suppress evidence in the superior court that was identical in all material respects to his initial motion to suppress. The prosecution filed an opposition to the suppression motion, arguing the same points as in the opposition motion filed prior to the preliminary hearing.
At the hearing on the motion, defense counsel argued that, subsequent to the preliminary hearing, he had received the police report prepared by another officer who had accompanied Deputy Boisseranc to the Loza residence on September 12. According to defense counsel, the report, authored by Sheriff's Deputy Nicholas Danza, revealed that Deputy Danza and a probation officer were outside with Deputy Boisseranc at the time that Boisseranc contacted Lopez. Defense counsel stated that this contradicted Boisseranc's testimony that he had been alone outside with Lopez and for that reason had a heightened concern for his own safety. The court stated that it would hear testimony concerning the additional evidence.
The court held a hearing at which Deputy Danza testified. Danza stated that when he arrived at the Loza residence, there were two males in the front yard. One of the men was sitting in a chair near the front door and the other was working on a car. Deputy Danza identified Lopez as the man sitting in the chair. The men were about six to seven feet apart. Deputy Danza contacted the male who was working on the car. Deputy Danza did not recall how many officers were outside the residence at the time he made this contact. However, Danza stated that he "believe[d]," that Deputy Boisseranc and another officer were outside the residence. Deputy Danza was uncertain which officer made contact with Lopez because Danza was "focusing" on the man working on the vehicle. However, Deputy Danza also testified as follows:
"[The prosecutor]: So to the best of your knowledge, Deputy Boisseranc contacted [Lopez]?
"Deputy Danza: Correct.
"[The prosecutor]: And he was by himself?
"Deputy Danza: Correct."
At another point in his testimony, Danza stated that he believed that he was approximately seven feet away from where Deputy Boisseranc was with Lopez and that he believed another officer was between Deputy Danza and Deputy Boisseranc.
After hearing argument from counsel, the court denied the suppression motion. The court stated that it did not think that Deputy Boisseranc had made a "material misrepresentation" to the magistrate concerning whether he was the only officer outside the Loza residence at the time he contacted Lopez. Rather, the court stated, "I think this is Deputy Boisseranc's attempt to recall what he was confronted with outside in front of the house under those circumstances." The court continued, "So in light of that finding, I still think that the magistrate's denial of the [motion to suppress] was warranted and I find it [to be] the correct ruling, even in light of the additional information that was presented in this hearing." B. The law governing a motion to suppress
In People v. Romeo (2015) 240 Cal.App.4th 931, 941 (Romeo), the Court of Appeal outlined the law governing motions to suppress made before a magistrate and in the trial court:
"When a suppression motion is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences. [Citations.] If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court . . . . [Citations.] At that stage, the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing. [Citation.] The factual findings of the magistrate are binding on the court, except as affected by any additional evidence presented at the special hearing."
On appeal, this court accepts as established all implied or express factual findings by the magistrate and/or the trial court that are supported by substantial evidence, independently applies the law to the factual findings, and determines de novo whether the factual record supports the trial court's conclusion that the challenged search met the federal constitutional standard of reasonableness. (See Romeo, supra, 240 Cal.App.4th at pp. 941-942.) C. The trial court did not err in concluding that Deputy Boisseranc's patdown was lawful
1. The law governing patdown searches
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In the seminal case, Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry), the United States Supreme Court held that the Fourth Amendment provided "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." (Terry, at p. 27.)
The law is clear that in order for law enforcement to conduct a Terry patdown, the officer must have either lawfully detained the person or had some other legitimate basis for being in the immediate proximity of the person. (See, e.g., 4 LaFave, Search and Seizure (5th ed. 2012) § 9.6(a), pp. 838-843 (hereafter LaFave).) In this case, Lopez acknowledges that Deputy Boisseranc had a legitimate basis for being in his presence, namely that Deputy Boisseranc was assisting in the execution of a probation compliance check at a residence at which Lopez was visiting.
"There is no question that 'a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.' [Citation.] But because protection of the officer and others nearby is the sole justification, the search must be 'confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1082, quoting Terry, supra, 392 U.S. at pp. 26-27, 29.) Such searches are commonly referred to as "patdown[s]" (Terry, at p. 30) or "frisk[s]." (Arizona v. Johnson (2009) 555 U.S. 323, 326 (Johnson).)
2. Application
Deputy Boisseranc testified that he was assisting in the execution of a probation compliance check at the residence of a documented gang member, and that he believed Lopez was a gang member based on his tattoos and the fact that he was present at another gang member's residence. Further, Deputy Boisseranc stated that he knew that "gang members often arm themselves with weapons[,] either for protection or to help facilitate . . . crimes . . . ." Indeed, "[i]t is . . . common knowledge that members of criminal street gangs often carry guns and other weapons." (In re H.M. (2008) 167 Cal.App.4th 136, 146.) Even assuming that Lopez's suspected gang membership was not, by itself sufficient to permit a Terry frisk (see United States v. Reid (S.D.Cal. 2015) 144 F.Supp.3d 1159, 1163 ["[m]embership in a violent gang does not lead to the inference that an individual is engaging in violent behavior on a given occasion"]), Lopez's suspected gang membership clearly weighed in favor of the reasonableness of the patdown. (See, e.g., In re H.M., at pp. 146, 147 [" '[T]he fact that an area involves increased gang activity may be considered if it is relevant to an officer's belief the detainee is armed and dangerous. While this factor alone may not justify a weapon search, combined with additional factors it may.' "]; United States v. Miranda (5th Cir. 2010) 393 Fed.Appx. 243, 245-246 [officer's knowledge of defendant's gang activity supported officer's decision to frisk defendant and collecting cases in which Terry frisk supported by knowledge of defendant's gang activity].)
Further, according to Deputy Boisseranc, just prior to the patdown, Lopez had been "looking left and right over his shoulder" and "digging around in his left pocket." This evidence also supports the reasonableness of the frisk. (See In re H.M., supra, 167 Cal.App.4th at p. 144 ["Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."]; United States v. Cardona-Vicente (1st Cir. 2016) 817 F.3d 823, 828; United States v. Gaffney (8th Cir. 2015) 789 F.3d 866, 870 [both cases stating that the fact that suspect appeared "nervous" supported patdown].)
Perhaps most importantly, Lopez's right and left pants pockets appeared to have bulges in them and Boisseranc thought that the pockets might contain a weapon or weapons. In Pennsylvania v. Mimms (1977) 434 U.S. 106, 107, the United States Supreme Court considered the constitutionality of a frisk conducted after an officer observed a "large bulge under respondent's sports jacket." The Mimms court concluded that the officer's observation of the bulge constituted a reasonable basis for a frisk, reasoning:
"[T]he answer [to the question of whether the search was proper] is controlled by Terry. In that case we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous. Under the standard enunciated in that case—whether 'the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate'—there is little question the officer was justified. The bulge in the jacket permitted the officer to conclude that [the defendant] was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of 'reasonable caution' would likely have conducted the 'patdown.' " (Mimms, at pp. 111-112; see People v. Williams (1992) 3 Cal.App.4th 1100, 1105 [stating that "unidentifiable clothing bulges," may constitute factor supporting reasonableness of frisk]; LaFave, supra, § 9.6(a), at pp. 857-858, and fn. 81 ["Illustrative of the circumstances the courts have deemed sufficient [to conduct a frisk] are: . . . a characteristic bulge in the suspect's clothing"].)
In sum, Lopez's suspected gang membership and his exhibition of nervous behavior, combined with the bulges in his pants pockets, constituted a reasonable basis for Deputy Boisseranc to conduct a Terry patdown in order to determine whether Lopez was "armed and dangerous." (Johnson, supra, 555 U.S. at p. 323.)
Lopez's arguments to the contrary, although well-stated, are not persuasive. First, Lopez notes that a "blanket patdown search," of all individuals present during the execution of a probation compliance check is unconstitutional. Even assuming that this is the case, as Lopez also acknowledges, Boisseranc did not testify that he searched Lopez as part of a blanket patdown search. Rather, Boisseranc testified that he searched Lopez for reasons of officer safety. Further, the magistrate expressly found that Deputy Boisseranc's search was conducted for officer safety reasons. Deputy Boisseranc's testimony constitutes substantial evidence to support the magistrate's finding. Thus, the unconstitutionality of blanket patdown searches does not support reversal in this case.
Lopez notes that Deputy Danza testified, that in performing probation compliance checks, "[w]e usually handcuff everybody, detain them, pat them down for weapons." However, Lopez does not contend that Deputy Boisseranc engaged in a blanket patdown and, as Lopez acknowledges, Deputy Boisseranc testified that he frisked Lopez in response to the facts discussed in the text that caused him to think that Lopez was potentially armed and dangerous.
As noted previously, in denying the motion to suppress, the magistrate stated, "The patdown has to be geared towards finding a weapon or to make sure there is no weapon. That's all that was being done here."
Lopez also argues that Deputy Boisseranc's testimony that he was "alone with [Lopez]," was contradicted by Deputy Danza's testimony. The trial court was responsible for resolving any conflict between the two officers' testimonies, and the court found that Deputy Boisseranc had not made a "material misrepresentation" in testifying that he was alone at the time he contacted Lopez. The trial court's finding is supported by substantial evidence, namely, Deputy Boisseranc's testimony. Deputy Danza's testimony did not require that the trial court grant the motion to suppress.
Lopez also stresses that Deputy Boisseranc testified that Lopez did not place his hand in his pocket in response to the officers' arrival and that Lopez removed his hand from his pocket prior to being subjected to the patdown. Lopez also notes that he complied with Deputy Boisseranc's directions. While such facts may have lessened the "reasonable apprehension of danger" (Terry, supra, 392 U.S. at p. 26) on the part of Deputy Boisseranc, they did not obviate the reasonableness of the officer's patdown in light of the facts described above, in particular, Boisseranc's observation of bulges in Lopez's pockets.
Finally, we reject Lopez's contention that Deputy Boisseranc was required to use the "less intrusive option," of "simply . . . ask[ing Lopez] to leave the premises." Lopez's least intrusive approach is contrary to United States Supreme Court precedent. In City of Ontario v. Quon (2010) 560 U.S. 746, 763, the Supreme Court stated:
"This Court has 'repeatedly refused to declare that only the "least intrusive" search practicable can be reasonable under the Fourth Amendment.' [Citations.] That rationale 'could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,' [citation], because 'judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished,' [citation]." (See United States v. Walker (6th Cir. 2010) 615 F.3d 728, 733 [citing Quon and stating "the proper scope of a Terry-like search turns not on best (or least-intrusive) practices but on whether the method chosen was reasonable"].)
In any event, even assuming, strictly for purposes of this opinion, that Lopez is correct that an officer is "required to use a less intrusive option than a patdown search," where one is "readily available to the officer and is as effective at addressing any perceived safety concerns, without increased risk to the officer or others," his argument fails. The record does not permit us to conclude that asking Lopez to leave, without first determining whether he was armed and dangerous, would have been equally effective in addressing Deputy Boisseranc's safety concerns. For example, the record does not indicate whether Lopez could have been directed to leave the scene in a direction that would have permitted Boisseranc to keep Lopez in view. (Cf. Johnson, supra, 555 U.S. at p. 334 ["[The o]fficer . . . surely was not constitutionally required to give [defendant] an opportunity to depart the scene . . . without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her."].) In addition, if one of the bulges in Lopez's pockets had in fact been a firearm, asking him to leave would not have prevented Lopez from shooting at the officer(s).
Accordingly, we conclude that the trial court did not err in determining that Deputy Boisseranc's patdown was lawful. D. The trial court was not required to grant Lopez's motion to suppress on the ground that Deputy Boisseranc acted unlawfully in opening a case found in Lopez's pocket that contained drug paraphernalia
Lopez contends that even if the initial patdown search was constitutional, Deputy Boisseranc exceeded the scope of any legitimate frisk by opening the case that contained drug paraphernalia because there was no reasonable possibility that the case contained a weapon that posed a threat to the officer.
Before considering the merits of Lopez's contention, we address two preliminary issues. First, despite the fact that the record does not support the conclusion that Lopez raised this claim either in his initial motion to suppress heard by the magistrate or in his motion to suppress in the trial court, the People concede in their brief that Lopez's "trial counsel sufficiently raised and preserved" all of the issues that he raises on appeal. Accordingly, we assume for purposes of this decision that Lopez's trial counsel properly preserved this contention.
The magistrate stated on the record that Lopez was not arguing "that the search exceeded the proper scope" of a lawful patdown.
In light of our consideration of Lopez's claim on the merits, we need not consider Lopez's alternative contention that "if this Court determines [Lopez]'s suppression motion was insufficient to preserve the argument that Boisseranc's search exceeded the proper scope of a Terry patdown search, [Lopez] was denied effective assistance of counsel."
We also assume for purposes of this decision that Deputy Boisseranc "opened" the case containing the drug paraphernalia. Although Deputy Boisseranc did not expressly state that he opened the case during the hearing on the motion to suppress, it may be reasonably inferred from his testimony that he did so. Further, the People concede in their brief that Deputy Boisseranc opened the case. Accordingly, notwithstanding that Deputy Boisseranc testified at trial that he had not opened the case before seeing that it contained an object that appeared to be a methamphetamine pipe (see pt. II, ante), we assume for purposes of this decision that Deputy Boisseranc opened the case after removing it from Lopez's pocket during the patdown, before seeing any drug paraphernalia, and we consider Lopez's arguments that Boisseranc acted unlawfully in opening the case.
During the motion to suppress, Deputy Boisseranc testified in relevant part as follows:
"[The prosecutor]: Okay. What did you do when you felt [the case]?
"[Deputy Boisseranc]: I elected to remove it, thinking it was a multi-tool.
"[The prosecutor]: Okay. Did it end up being a multi-tool?
"[Deputy Boisseranc]: No.
"[The prosecutor]: What was it?
"[Deputy Boisseranc]: It was either a multi-tool case or a small flashlight case. Inside the case was a glass bulbous pipe coated in a white crystalline substance."
The People state, "Upon feeling an object Deputy Boisseranc believed to be a multi-tool case which typically contains small weapons, Deputy Boisseranc removed the item and opened it." (Italics added.)
Despite the People's concession that Boisseranc discovered the glass pipe by opening the case, the People argue that that the search of the case may be upheld pursuant to the "plain-touch" exception to the warrant requirement. Under that exception, "[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, italics added.) The plain-touch exception has no applicability to the facts of this case because there is no evidence in the record that Deputy Boisseranc felt the glass pipe and immediately recognized it as contraband.
1. Governing law
In Minnesota v. Dickerson (1993) 508 U.S. 366, 373 (Dickerson), the United States Supreme court discussed the law governing the scope of a patdown search:
"Terry . . . held that 'when 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.] [A] protective search—permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' [Citations.] If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed."
In Dickerson, while conducting a patdown, an officer felt a small lump in the pocket of the defendant's jacket. (Dickerson, supra, 508 U.S. at p. 369.) "[A]fter 'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket'—a pocket which the officer already knew contained no weapon," the officer determined that the lump was crack cocaine. (Id. at p. 378.) Under these circumstances, the Supreme Court concluded that the search exceeded the permissible scope of a Terry patdown, stating that "the officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to 'the sole justification of the search [under Terry:] . . . the protection of the police officer and others nearby.' " (Dickerson, at p. 378.)
2. Application
Lopez argues that it was unconstitutional for Deputy Boisseranc to open the case, which Boisseranc believed might contain a pocketknife among other small tools, because "knives that are part of multi-tools are quite small and do not pose a credible threat to an armed police officer." We reject this argument because a knife of any size may pose a threat to a police officer, whether the officer is armed or not. (See United States v. Hanlon (8th Cir. 2005) 401 F.3d 926, 930 [affirming denial of motion to suppress in case in which officer felt hard object in suspect's pocket and officer testified that he was "concerned that the admittedly small object in Hanlon's coin pocket could have been a pocketknife or some other type of weapon"].) Further, the language of Terry itself supports our conclusion. (See Terry, supra, 392 U.S. at p. 29 [stating a patdown is an "an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer"], italics added.)
Lopez also argues that it was unreasonable for Deputy Boisseranc to open the case because in order for Lopez to access any pocketknife that might have been in the case, Lopez would have "had to have gone into his pocket, removed the case from his pocket, opened the case to retrieve the multi-tool, and then opened up the multi-tool to extend the knife portion of it, and then attacked an armed police officer in the immediate vicinity of two other armed officers, with multiple other officers present nearby." Again, we are not persuaded. Lopez does not identify evidence in the record demonstrating that it would have been particularly difficult for him to open the case and retrieve any knife it might have contained, particularly since there is no evidence in the record that he was handcuffed at any time during the encounter. In United States v. Brakeman (10th Cir. 2007) 475 F.3d 1206, 1213 (Brakeman), the court concluded that an officer conducting a patdown acted lawfully in opening a glasses case that may have contained a pocketknife, even though at the time the officer opened the case, the defendant had been detained and the case was no longer in the defendant's possession. (Id. at pp. 1210, 1212-1213.) The Brakeman court reasoned:
In addition, Deputy Boisseranc testified at the hearing on the motion to suppress that Lopez was not placed under arrest until after Boisseranc had opened the case and had also removed a screwdriver from Lopez's pockets.
"The glasses case could have contained a weapon, such as the [pocket]knife [defendant] proclaimed to have.[] Consequently, [the officer]'s search could extend to its contents to ensure that nothing dangerous was inside. Even though [defendant] was detained and the glasses case was no longer in his possession, [defendant] might have broken free and seized the case; and if he were later released, he would have regained access when [the
officer] returned the unopened glasses case to him." (Id. at p. 1213.)
The Brakeman court had stated earlier in its opinion that "[w]hen [the officer] asked [defendant] whether he had any weapons on him, [defendant] responded that he had a pocketknife, but he said that he did not know where it was." (Brakeman, supra, 475 F.3d at p. 1210.)
Cases cited in Lopez's brief, such as State v. Woodford (Ohio Mun. 1971) 269 N.E.2d 143 and State v. Crook (Minn.App. 1992) 485 N.W.2d 726, in which courts concluded that a police officer unlawfully searched the inside of a defendant's hat on the basis that the defendant may have secreted a razor blade inside the hat (Woodford, at pp. 57-58; Crook, at p. 729) are factually distinguishable. It is far more reasonable for an officer to suspect that a case that the officer believes is a multi-tool case will in fact contain a multi-tool with a knife, than it is for an officer to think that a hat may contain a razor blade.
Accordingly, we conclude that Deputy Boisseranc did not exceed the proper scope of a Terry patdown in opening the case in which he found drug paraphernalia. E. Deputy Boisseranc's search of a cigarette box contained inside of Lopez's backpack was a lawful search incident to arrest
Lopez claims that Deputy Boisseranc's search of a cigarette box found inside of Lopez's backpack did not constitute a lawful search incident to his arrest because there was no reasonable probability that the box contained a weapon or destructible evidence that Lopez could have accessed at the time of his arrest.
Lopez did not present this contention in the trial court. Nevertheless, in light of the People's concession that Lopez's motion to suppress sufficiently preserved all of his appellate contentions, we consider Lopez's claim on the merits.
1. Governing law
In Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2174, 2175 (Birchfield), the United States Supreme Court discussed the historical basis for the so called "search-incident-to-arrest," exception, which permits warrantless searches when conducted incident to an officer's arrest of individual:
"The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation's founding, it was recognized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee's person. An 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth Amendment's adoption:
" '[A] thorough search of the felon is of the utmost consequence to your own safety, and the benefit of the public, as by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of.' [Citation.]
"One Fourth Amendment historian has observed that, prior to American independence, '[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.' [Citation.]
"No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches." (Id. at pp. 2174-2175.)
The Birchfield court noted that "[t]he exception quickly became a fixture in our Fourth Amendment case law," (Birchfield, supra, 136 S.Ct. at p. 2175), and also candidly acknowledged that the scope of the exception was difficult for the Supreme Court to define. (See ibid. ["in the decades that followed [the initial adoption of the exception by the court], we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile"].)
In Arizona v. Gant (2009) 556 U.S. 332, 338 (Gant), the Supreme Court provided its most recent articulation of the "permissible scope of . . . searche[s] incident to arrest." (Utah v. Strieff (2016) 136 S.Ct. 2056, 2063 (Strieff); see also Riley v. California (2014) 134 S.Ct. 2473, 2484 ["[t]he search incident to arrest trilogy [of cases] concludes with Gant].) The Gant court summarized the scope of a search incident to an arrest as follows:
Although the Gant court applied the search-incident-to-arrest doctrine in the context of a vehicle search, both the United States Supreme Court and California courts have applied Gant with respect to searches conducted outside the vehicle context. (See Strieff, supra, 136 S.Ct. at p. 2063; People v. Leal (2009) 178 Cal.App.4th 1051, 1063-1064 (Leal).)
"In Chimel [v. California (1969) 395 U.S. 752], we held that a search incident to arrest may only include 'the arrestee's person and the area "within his immediate control"—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' [Id. at p. 763.] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. See ibid. (noting that searches incident to arrest are reasonable 'in order to remove any weapons [the arrestee] might seek to use' and 'in order to prevent [the] concealment or destruction' of evidence (emphasis added). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." (Gant, at p. 339.)
The Gant court applied this law in reconsidering the scope of the search-incident-to-arrest rule as applied to vehicle searches under New York v. Belton (1981) 453 U.S. 454 (Belton). The Gant court noted that Belton had been "widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search." (Gant, supra, 556 U.S. at p. 341.) However, the Gant court "reject[ed] this reading of Belton and h[e]ld that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Id. at p. 343.) Ultimately, the Gant court concluded that the search at issue in that case was not lawful. (Id. at p. 344.) In reaching this conclusion, the Gant court reasoned:
In a footnote following this sentence, the Gant court stated, "Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains. [Citation.] But in such a case a search incident to arrest is reasonable under the Fourth Amendment." (Gant, supra, 556 U.S. at p. 343, fn. 4.)
"Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched [defendant's] car. Under those circumstances, [defendant] clearly was not within reaching distance of his car at the time of the search." (Ibid.)
2. Application
Lopez contends that, pursuant to Gant and Chimel, Deputy Boisseranc's search of the cigarette box inside his backpack was impermissible because there was "no chance" that Lopez could have "accessed the cigarette box, inside the sealed backpack, while detained in order to destroy evidence in the presence of a multiple officers." We disagree.
To begin with, although Lopez contends in his reply brief that he was "handcuffed" at the time of the search of the backpack, he provides no citation to the record for this assertion, and we find no evidence in the record supporting the assertion. Absent evidence in the record that Lopez was handcuffed at the time of the search, we may not assume that he was.
Further, while Lopez contends that he was "in the presence of multiple officers" at the time of the search, there is no evidence that any of the officers assisted Deputy Boisseranc with the arrest or search of the cigarette box in the backpack, and there is evidence that the other officers present at the scene were occupied with other responsibilities, including detaining at least one third party at the residence, at the time Deputy Boisseranc arrested Lopez and searched his backpack. The fact that another person was present at the property who could have assisted Lopez in the destruction of the evidence supports the lawfulness of the search. (See, e.g., Leal, supra, 178 Cal.App.4th at pp. 1060-1061.) In Leal, the court applied Gant, and concluded that a search of a defendant's residence was unlawful because the search was conducted while the defendant "was confined in a police car in handcuffs at some distance from the premises." (Leal, at p. 1060.) The Leal court was careful to note the distinction between the facts of that case, and those present in a case such as this:
"A different rule of reasonableness applies when the police have a degree of control over a suspect but do not have control of the entire situation. In such circumstances—e.g., in which third parties known to be nearby are unaccounted for, or in which a suspect has not yet been fully secured and retains a degree of ability to overpower the police or destroy evidence—the Fourth Amendment does not bar the police from searching the immediate area of the suspect's arrest as a search incident to an arrest. [Citation.]
"People v. Summers (1999) 73 Cal.App.4th 288, 289-291 [(Summers)], illustrates the point. The suspect was only in the process of being removed (id. at p. 290), 'there was a female present who was not previously known to the officers,' and there was 'another male roommate somewhere nearby' (ibid.).
". . . Summers properly stated the general rule, namely that when 'there is no threat to the officers because the suspect has been
immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there.' (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous." (Leal, at pp. 1060-1061.)
Unlike in Leal, and as in Summers, at the time of the search of the cigarette box in the backpack, the situation was "fluid, unstable, and dangerous." (Leal, supra, 178 Cal.App.4th at p. 1061.) At the time of the search of the cigarette box in the backpack, there is no evidence that Lopez was handcuffed or placed in a patrol car, Deputy Boisseranc had already removed drug paraphernalia and a potential weapon from Lopez's person, the record suggests that the backpack was directly next to Lopez, and at least one third party was present at the scene of a compliance check of a documented gang member. Under these circumstances, an application of Chimel and Gant's "reaching distance" rule (Gant, supra, 556 U.S. at p. 344), supports the conclusion that the search of the cigarette box in the backpack was lawful as a search incident to Lopez's arrest.
Deputy Boisseranc testified, "[H]e was sitting next to a backpack that was on the ground when I initially contacted him, so I elected to search the backpack incident to his arrest."
While Lopez cites United States v. Maddox (9th Cir. 2010) 614 F.3d 1046, in his reply brief, that case is plainly distinguishable. The facts of Maddox are similar to those in Gant in that the defendant was handcuffed and in a patrol car (Maddox, at p. 1048), at the time the officer searched a container on the defendant's key chain. (Id. at p. 1047.) The Maddox court reasoned, "With [defendant] handcuffed in the backseat of the patrol car, no possibility of [defendant] concealing or destroying the key chain and the items contained therein, and no sighting of weapons or other such threats, [the officer]'s search of [defendant]'s key chain was not a valid search incident to arrest." (Id. at p. 1049.)
Federal courts of appeal have applied Gant in upholding searches incident to arrest under circumstances in which defendants seemingly had far less potential to destroy evidence or obtain a weapons than in this case. For example, in United States v. Cook (9th Cir. 2015) 808 F.3d 1195, 1199 (Cook) at "the time of the search," the defendant was "face down on the ground with his hands cuffed behind his back." Nevertheless, the Ninth Circuit applied Gant in concluding that an officer had lawfully searched the defendant's backpack, which was "right next to him." (Cook, at p. 1200.) The Cook court stated that it could not "say here that there was no reasonable possibility that [the defendant] could break free and reach for a backpack next to him." (Ibid.) The Cook court stated that the fact that the defendant, "was already handcuffed is significant, but not dispositive," (ibid.) and the court relied heavily on the fact that the officers had a "reasonable fear that a bystander[] or additional unidentified co-conspirator might intervene." (Cook, at p. 1200.)
Earlier in its opinion, the Cook court stated that, prior to the search, "six law enforcement agents [were] at the scene—three near [the defendant] and three by [the defendant]'s car." (Cook, supra, 808 F.3d at p. 1197.)
The Cook court noted that, prior to the search, a "crowd had gathered" at the scene of the arrest. (Cook, supra, 808 F.3d at p. 1197.)
In United States v. Shakir (3d Cir. 2010) 616 F.3d 315, 319, the defendant was "handcuffed and restrained by two policemen at the time his bag was searched." Nevertheless, after stating that "handcuffs are not fail-safe," (id. at p. 320), the Shakir court concluded that "there remained a sufficient possibility that [the defendant] could access a weapon in his bag to justify its search." (Id. at p. 321.) The Shakir court reasoned in part:
"[Defendant] was standing up at the time of the search, he was in a public place with some 20 people around, and his bag was right next to him. In addition, the police had reason to believe that one or possibly more of [the defendant]'s accomplices was nearby, and [a] suspected accomplice . . . was restrained only by two unarmed private security officers." (Id. at p. 319.)
Similarly, in United States v. Perdoma (8th Cir. 2010) 621 F.3d 745, 750 (Perdoma), the Eighth Circuit upheld as a valid search incident to arrest a search of the defendant's duffel bag that was "in close proximity" to defendant, notwithstanding that defendant was "handcuffed" (id. at p. 748) at time of search. The court reasoned in part:
"The defendant in Gant parked at the end of a private driveway and was arrested, handcuffed, and locked in the back of a patrol car before his vehicle was searched. 'Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search.' [Citation.] By contrast, here the record suggests that [defendant] was held in close proximity to his bag while it was searched. [Citation.] Given our repeated recognition in the non-vehicle search-incident-to-arrest context that it may be possible for an arrestee restrained in a room to reach items in that room, and without any argument as to why the Supreme Court's reasoning with respect to reaching into a vehicle in Gant should control in [defendant]'s circumstances, we cannot say that the simple fact of [defendant]'s arrest and restraint left [defendant] 'clearly . . . not within reaching distance of his [bag] at the time of the search.' " (Id. at pp. 752-753, fn. omitted.)
In the omitted footnote, the Perdoma court stated:
"Moreover, in Gant, the only other two individuals in the area already had been secured in separate patrol cars. [Citation.] [The defendant]'s arrest and search occurred in a public bus terminal with at least twenty to thirty other people moving freely inside [citation], a situation not present in Gant." (Perdoma, supra, 621 F.3d at p. 753, fn. 6.)
Lopez also argues that Deputy Boisseranc's search of the backpack and its contents was invalid because Boisseranc's purpose in conducting the search was not tethered to the rationales underlying the search-incident-to-arrest doctrine, noting that Boisseranc did "not testify that he searched the backpack because he feared there might be an accessible weapon or destructible evidence in the backpack." An officer's subjective intent is irrelevant in evaluating the lawfulness of a search incident to an arrest. (See United States v. Robinson (1973) 414 U.S. 218, 236 (Robinson) ["Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed."], fn. omitted.) Accordingly, Deputy Boisseranc's subjective intent in searching Lopez's backpack and its contents does not provide a basis for suppressing the fruits of that search.
Accordingly, we conclude that Deputy Boisseranc's search of a cigarette box found inside of Lopez's backpack was a lawful search incident to Lopez's arrest.
In light of our conclusion that the search of the backpack and its contents was lawful under Gant's "reaching distance" rule (Gant, supra, 556 U.S. at p. 344), we need not consider whether Deputy Boisseranc's search of the backpack and its contents may be upheld on the ground that the backpack had "such a close association with the arrestee's person that the search-of-person rule in . . . Robinson[, supra,] 414 U.S. [at p.] 236" (3 Lafave, supra, 2015-2016 Supp., § 5.5(a), at p. 43), rather than the rule articulated in Gant, applies. Under Robinson, "[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect." (Robinson, at p. 235.) Thus, we need not consider the continued validity of the reasoning of cases cited in the People's brief such as People v. Flores (1979) 100 Cal.App.3d 221. In Flores, the Court of Appeal noted that the " 'search incident to arrest' rule has been interpreted to include a woman's purse as a normal extension of the person subject to search as an item 'customarily carried by an arrested person . . . [and] within the area of her immediate control,' " (id. at p. 230) and upheld a search of "personal shoulder bag, designed to perform essentially the same function as a purse, [which] was 'immediately associated' with the defendant at all relevant times . . . ." (Id. at p. 232.) --------
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. IRION, J.