Opinion
F053347
4-1-2008
THE PEOPLE, Plaintiff and Respondent, v. FAUSTINO DIAZ MARTINEZ, Defendant and Appellant.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Levy, J., and Kane, J.
FACTS AND PROCEEDINGS
Appellant, Faustino Diaz Martinez, was charged in an information filed June 19, 2006, with possession of a controlled substance (Health & Saf. Code, § 11377, count one) and resisting arrest (Pen. Code, § 148, subd. (a)(1), count two). The information further alleged a prior serious felony conviction within the meaning of the three strikes law (§ 667 subd. (d)) and three prior prison term enhancements (§ 667.5, subd. (b)). On August 28, 2006, the trial court denied appellants suppression motion (§ 1538.5). On February 16, 2007, appellant waived his constitutional rights and entered a guilty plea to count one. He also admitted the prior serious felony conviction and the prior prison term enhancements.
Unless otherwise specified, all further statutory references are to the Penal Code.
The court sentenced appellant on June 8, 2007, to a prison term of two years on count one, which it doubled pursuant to three strikes, to four years. The court struck the prison priors. Criminal proceedings were suspended and appellant was referred to the California Rehabilitation Center (CRC) for four years. On June 13, 2007, it was determined that appellant was not statutorily eligible for placement in CRC and he was sent to the California Department of Corrections to serve his sentence. Appellant contends the trial court erred in denying his suppression motion.
FACTS
On April 5, 2006, at about 11:43 p.m., Deputy Sheriff Casey Hill of the Stanislaus County Sheriffs Department was on patrol when he saw appellant walking near the intersection of Broadway and Elm Streets in Salida. Hill made a U-turn and drove towards appellant, shining his spotlight on the ground in front of appellant to illuminate the area. Appellant was not doing anything illegal.
Hill noticed appellant had his hands inside his coat pockets. For safety, Hill asked appellant to remove his hands from his pockets. Appellant initially complied, but then placed his left hand quickly back into his pocket. Appellant told Hill, "Im not going back."
Hill conducted a patdown search of appellant by attempting to secure appellants arms. Hill tried to place his arms around appellants arms to secure appellants left arm in his pocket. When Hill reached for appellants left arm, appellant swung toward Hills head with his right arm causing both men to fall to the ground. Hill handcuffed appellant and asked him if he needed medical assistance. Hill searched appellant and found a baggy containing methamphetamine in appellants left jacket pocket.
Hill called an ambulance in case appellant needed medical assistance.
The parties stipulated the baggy contained .17 grams of methamphetamine, a usable amount.
Hill explained appellant could have rejected Hills request to show his hands because appellant had not done anything suspicious yet.
DISCUSSION
Appellant argues he was illegally detained and searched by Hill. Appellant asserts that Hill had no reason to conduct a patdown search. We disagree and will affirm the finding of the trial court.
The propriety of a patdown search is assessed in Terry v. Ohio (1968) 392 U.S. 1 (Terry), which held that a police officer who lacks probable cause to arrest can undertake a patdown search only "where he has reason to believe that he is dealing with an armed and dangerous individual ...." (Id. at p. 27.) "The sole justification of the search ... is the protection of the police officer and others nearby, and it must therefore 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." (Id. at p. 29.) The "officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts," reasonably support a suspicion that the suspect is armed and dangerous. (Id. at p. 21.) However, "[t]he 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." (Id. at p. 27.)
A person may be subjected to a limited intrusion upon his or her personal liberty for the purpose of protecting officers, even where the police do not suspect that person was involved in any crime. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415 [passengers ordered out of car for officer safety]; People v. Hannah (1996) 51 Cal.App.4th 1335, 1340-1347 (Hannah) [request for suspect to sit down a minimal intrusion and reasonable for officer safety]; People v. Samples (1996) 48 Cal.App.4th 1197, 1211-1212 [officer safety justifies request that passenger exit vehicle during traffic stop].)
Ordering one to remove his or her hands from pockets is not a detention. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1238 (Frank V.).) Such an order has been characterized as a minimal intrusion. (Id. at pp. 1238-1239; People v. Strafford (1972) 28 Cal.App.3d 405, 410.) For a patdown search, there must be specific, articulable facts that one is armed. (People v. Williams (1992) 3 Cal.App.4th 1100, 1104.) One court found that the articulable facts for a patdown did not exist where the suspect was nervous, sweating, had no identification, had a film canister with baking powder on it, and refused to consent to a vehicle search. (People v. Dickey (1994) 21 Cal.App.4th 952, 956 (Dickey).)
Here, in contrast to Dickey, the contact between Hill and appellant was consensual up to the moment appellant followed Hills request to remove his hands from his pockets. Only after appellant made a comment that could have been understood by an objective observer to be threatening ("Im not going back") and placed his left hand back into his pocket did Hill attempt to pat him down. Under these circumstances, along with the fact that it was evening, Hill was justified in briefly detaining appellant by holding his arms in order to check his pockets for weapons. Hill was entitled for his own safety to conduct a brief Terry frisk of appellant. "The judiciary should not lightly second-guess a police officers decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (Dickey, supra, 21 Cal.App.4th at p. 957.)
Appellant cites Brendlin v. California (2007) 551 U.S. ___, (Brendlin), for the proposition that appellant would have felt detained at the initial stages of his encounter with Hill. We find the facts of Brendlin inapposite to those in the instant action. The detainee in Brendlin was a passenger in a vehicle that had been stopped by officers. (Id. at pp. 2403-2405.) Brendlin found that both the driver and passenger were seized when the vehicle was stopped. (Id. at p. 2410.) The appellant here was on foot and could have walked away rather than talking to Hill. (See In re Manuel G. (1997) 16 Cal.4th 805, 821 [officer seeking to talk to someone on street has not created a detention].)
Appellants response to the attempted Terry frisk was to try to hit Hill in the head. In trying to accomplish this task, appellant caused himself and Hill to fall to the ground. Hill was then justified in handcuffing appellant and arresting appellant for violation of section 148, subdivision (a)(1). The search of appellant occurred incident to a lawful arrest. (See In re Humberto O. (2000) 80 Cal.App.4th 237, 241.)
Because we find Deputy Hills Terry stop and frisk to be reasonable for officer safety, we reject appellants argument at page 3 of his reply brief that he was entitled to use reasonable resistance to what he characterizes as an "illegal frisk search." It does not appear, in any event, that trying to hit a peace officer in the head is a form of reasonable resistance to a search regardless of its constitutionality.
DISPOSITION
The juvenile courts judgment is affirmed.