Opinion
D060310
12-20-2011
THE PEOPLE, Plaintiff and Respondent, v. DOUGLAS SHERMAN MCDOWELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FVA1001300)
APPEAL from an order of the Superior Court of San Bernardino County, Dwight G. Moore, Judge. Reversed.
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), Douglas Sherman McDowell pleaded no contest to two counts of attempted grand theft (§§ 487, subd. (a), 664). Under the terms of his negotiated plea, the trial court withheld pronouncement of judgment, and placed McDowell on supervised probation for three years.
All further undesignated statutory references are to the Penal Code.
McDowell appeals, contending the trial court erroneously denied his motion to suppress evidence because the police search that revealed the evidence violated his Fourth Amendment rights, and the "good faith" exception to the exclusionary rule and the rationale of recent cases applying the exception are inapplicable. We agree and reverse the order.
I
FACTS
On August 15, 2010, Rialto Police Officer Michael Reyes responded to a report that someone might have been stealing parts from air conditioner units mounted on the roof of a commercial building. Less than a minute after receiving the dispatch, Officer Reyes came upon McDowell, wearing dirty, dark clothing and sweating profusely, in a parking lot adjacent to the commercial building. Because Officer Reyes suspected McDowell was involved in the reported theft, he stopped him, ordered him to lie down on his stomach, and patted him down for weapons. During the patdown, Officer Reyes found a flashlight in the pocket of McDowell's sweatshirt and detected a soft, cloth fanny pack strapped to McDowell's torso underneath his sweatshirt. Officer Reyes opened the fanny pack and found "tools." After a backup officer arrived, McDowell was arrested on suspicion of theft.
McDowell moved to suppress all evidence gathered from the assertedly illegal search of his fanny pack. The trial court denied McDowell's motion, and he pleaded no contest to one count of attempted grand theft (§§ 487, subd. (a), 664). McDowell then filed this appeal from the order granting probation. (§§ 1237, subd. (a), 1538.5.)
II
DISCUSSION
A. Standard of Review
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) B. The Police Search of McDowell's Fanny Pack Violated His Fourth Amendment Rights
The People concede that Officer Reyes's search of McDowell's fanny pack exceeded the bounds of a permissible pat-search of a detainee but assert the illegal search was a "de minimis" intrusion of McDowell's Fourth Amendment rights and therefore not unconstitutional. McDowell argues, and the trial court ruled, that Officer Reyes's search of the fanny pack was illegal. We agree with the trial court.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches . . . ." (U.S. Const.,
4th Amend.) When a police officer reasonably suspects a crime has been committed and the person he has detained may be armed and dangerous, the officer may "conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Terry v. Ohio (1968) 392 U.S. 1, 30 (Terry), italics added.) "[A]n officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down." (People v. Collins (1970) 1 Cal.3d 658, 663 (Collins).) The purpose of restricting the patdown to the surface of a suspect's clothing is to "ensure that the scope of such a search cannot be exceeded at the mere discretion of an officer, but only upon discovery of tactile evidence particularly tending to corroborate suspicion that the suspect is armed." (Ibid.)
This guarantee has been incorporated into the Fourteenth Amendment, and is applicable to the states. (Mapp v. Ohio (1961) 367 U.S. 643, 655.) The state Constitution contains a similar guarantee against unreasonable government searches (Cal. Const., art. I, § 13); but, since voter approval of Proposition 8 in June 1982, state and federal claims relating to exclusion of evidence on grounds of unreasonable searches are measured by the same standard. (People v. Racklin (2011) 195 Cal.App.4th 872, 877.)
Here, McDowell had a reasonable expectation of privacy in his fanny pack protected by the Fourth Amendment because his fanny pack is a " 'common repositor[y] for one's personal effects.' " (People v. Fick (1980) 107 Cal.App.3d 892, 895; accord, United States v. Ross (1982) 456 U.S. 798, 822 [4th Amend. provides protection to owner of zippered pouch that conceals contents from plain view].) Officer Reyes's initial protective patdown of McDowell's outer clothing revealed only the fanny pack and a flashlight, nothing that felt like a knife, gun, club or atypical weapon. The record is devoid of any facts that would reasonably support a suspicion that McDowell was armed. Therefore, Officer Reyes's search of McDowell's fanny pack by simply opening it and looking inside, without first feeling it or otherwise observing it to determine if it contained a weapon, exceeded the bounds of a permissible protective search because Officer Reyes lacked any "tactile evidence particularly tending to corroborate suspicion that [McDowell was] armed." (Collins, supra, 1 Cal.3d at p. 663.)
Accordingly, we reject the People's assertion, unsupported by any citation to authority, that Officer Reyes's search of McDowell's fanny pack was not unconstitutional because it was merely a "de minimis" intrusion on his Fourth Amendment rights. Instead, based on controlling authority discussed above, we agree with the trial court that Officer Reyes's search of McDowell's fanny pack was illegal. C. The Evidence from the Search of McDowell's Fanny Pack Should Have Been Suppressed
In denying the motion to suppress, the trial court ruled that the evidence discovered as a result of the illegal search of McDowell's fanny pack did not have to be excluded because exclusion would not advance the deterrent effect of the exclusionary rule. The court relied on the rationale of cases applying the "good faith" exception to the exclusionary rule, particularly Herring v. United States (2009) 555 U.S. 135 (Herring). On appeal, the People defend this aspect of trial court's ruling, including its reliance on Herring. McDowell argues the rationale of Herring and other cases involving the "good faith" exception does not apply where, as here, an officer exceeds the scope of a patdown of a detainee permitted under Terry, supra, 392 U.S. 1. On the record before us, we agree with McDowell.
The United States Supreme Court has applied this "good faith" exception to the exclusionary rule when police conduct a search in objectively reasonable reliance on (1) a warrant later held invalid (United Stated v. Leon (1984) 468 U.S. 897, 922); (2) subsequently invalidated statutes (Illinois v. Krull (1987) 480 U.S. 340); (3) erroneous information concerning an arrest warrant in a database maintained by judicial employees (Arizona v. Evans (1995) 514 U.S. 1); (4) erroneous information in a warrant database maintained by police (Herring, supra, 555 U.S. at p. 137); and (5) binding judicial precedent later overturned (Davis v. United States (2011) ______ U.S. ______[180 L.Ed.2d 285, 131 S.Ct. 2419] (Davis)).
The general rule regarding exclusion of evidence found in a search of a suspect detained on reasonable suspicion of involvement in criminal activity is that "[i]f [a] 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." (Minnesota v. Dickerson (1993) 508 U.S. 366, 373; see also Sibron v. New York(1968) 392 U.S. 40, 65, 68 [when a search that discovered heroin "was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception— the protection of the officer by disarming a potentially dangerous man," the court reversed defendant's conviction for unlawful possession of heroin "on the ground that the heroin was unconstitutionally admitted in evidence"].) As we have explained and as the People concede, Officer Reyes's opening of McDowell's fanny pack exceeded the scope of the search permitted by Terry, supra, 392 U.S. 1. (See pt. II.B., ante.) Thus, under the general rule requiring exclusion of such illegally obtained evidence, the trial court erred in denying McDowell's suppression motion. (See Dickerson, at p. 373; People v. Dickey (1994) 21 Cal.App.4th 952, 957 (Dickey) [evidence obtained in violation of Terry must be suppressed].)
The People urge us not to apply this general rule requiring exclusion of illegally obtained evidence, and instead to apply the rationale for the "good faith" exception to the exclusionary rule discussed in Herring, supra, 555 U.S. 135, and similar cases. Under Herring, the decision whether to apply the exclusionary rule "focuse[s] on the efficacy of the rule in deterring Fourth Amendment violations in the future": "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." (Id. at pp. 141, 144.) "In addition, the benefits of deterrence must outweigh the costs." (Id. at p. 141.) As recently and succinctly explained by the United States Supreme Court:
"The basic insight of [the 'good faith' exception] line of cases is that the deterrence benefits of exclusion 'var[y] with the culpability of the law enforcement conduct' at issue. [Citation.] When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Citation.] But when the police act with an objectively 'reasonable good-faith belief that their conduct is lawful [citation], or when their conduct involves only simple, 'isolated' negligence [citation], the ' "deterrence rationale loses much of its force," ' and exclusionThus, under Herring and related cases, a court must consider the level of culpability of the police before ordering the suppression of evidence obtained in violation of a defendant's Fourth Amendment rights.
cannot 'pay its way.' " (Davis, supra, ______ U.S. at p. ______ [180 L.Ed.2d at p. 295, 131 S.Ct. at pp. 2427-2428].)
Even if we assume the type of cost-benefit analysis undertaken in Herring, supra, 555 U.S. 135, and other similar cases is appropriate here, the record is not sufficiently developed for us to undertake such an analysis. At the hearing on the suppression motion, Officer Reyes testified that he "conducted a weapons patdown," and the only
justification he gave for opening McDowell's fanny pack was concern for his safety.Officer Reyes was not asked and did not testify about his knowledge or belief regarding the permissible scope of a Terry patdown. He was not asked and did not testify about the scope of other Terry patdowns he has conducted. No other evidence regarding the reasons for Officer Reyes's conduct or his culpability in searching McDowell's fanny pack was introduced at the hearing on the suppression motion. On this limited record, we cannot determine whether in searching McDowell's fanny pack Officer Reyes exhibited "deliberate, reckless, or grossly negligent" disregard for Fourth Amendment rights (Herring, at p. 144); whether he "act[ed] with an objectively 'reasonable good-faith belief' that [his] conduct [was] lawful" (Davis, supra, ______ U.S. at p. ______[180 L.Ed.2d at p. 295, 131 S.Ct. at p. 2427]); or whether the search "was the result of isolated negligence" (Herring, at p. 137). We therefore must decline the People's invitation to apply the Herring rationale to uphold the trial court's denial of McDowell's suppression motion. D. McDowell Must Be Given an Opportunity to Withdraw His Plea
Officer Reyes testified: "I didn't know if [McDowell] was armed. I didn't know it was dark. It was late at night. And I-- I -- just for my safety."
It seems doubtful Officer Reyes could have had an objectively reasonable good-faith belief his search of McDowell's fanny pack was lawful. Because "the Terry rule has been extant [since 1968] and is well known to the police" (Dickey, supra, 21 Cal.App.4th at p. 957), Officer Reyes eitherhad knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" ' " (Herring, supra, 555 U.S. at p. 143).
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McDowell's decision to plead no contest may have been impacted by the denial of his motion to suppress key evidence against him. (See People v. Ruggles (1985) 39 Cal.3d 1, 13; People v. Miller (1983) 33 Cal.3d 545, 556.) Accordingly, he should be given an opportunity to withdraw his no contest plea. (See People v. Ramirez (2006) 140 Cal.App.4th 849, 854.)
DISPOSITION
The order is reversed. The matter is remanded to the trial court with directions to grant McDowell's motion to suppress the evidence seized from his fanny pack when police stopped him. McDowell may make a motion to withdraw his no contest plea within 30 days of the date of issuance of the remittitur for this opinion. If McDowell elects not to withdraw his plea, the trial court shall reinstate the order. (People v. Ruggles, supra, 39 Cal.3d at p. 13.)
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.