Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 10F00149
HOCH, J.Defendant Clint Lindsey Miller was charged with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). After the magistrate denied defendant’s motion to suppress evidence (Pen. Code, § 1538.5), a jury convicted defendant. The trial court suspended imposition of judgment and sentence and placed defendant on formal probation for five years.
Undesignated statutory references are to the Penal Code.
Defendant appeals, contending his motion to suppress evidence should have been granted. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant does not allege error at trial, we recite only the evidence before the magistrate on the motion to suppress.
Evidence
Sacramento County Sheriff’s Deputy Shaun Hampton, the arresting officer, testified as the sole witness at the hearing on defendant’s motion. A DVD made from his patrol car was also offered in evidence and played in open court.
On the evening of January 1, 2010, Deputy Hampton was on patrol with his canine in a marked police car. A nine-year veteran of the Sheriff’s Department, he is trained as to the symptoms shown by persons under the influence of methamphetamine. Deputy Hampton has been involved in over 500 investigations for possession of methamphetamine, including speaking to more than 100 people who admitted to being under the influence of methamphetamine during the conversation. These symptoms of drug intoxication include excessive or erratic body movements, sweating profusely, excessive and speedy talking, elevated heart rate, and dilated pupils. However, Deputy Hampton is not certified to conduct investigations and make arrests for driving under the influence. Also, sheriff’s deputies do not have the necessary equipment for DUI arrests. To make such an arrest, Deputy Hampton would have to call out the California Highway Patrol (CHP), with which the sheriff’s department has an arrangement, to perform this task. On the night in question, Deputy Hampton knew from listening to his car radio that CHP was “very, very busy.”
At 10:33 p.m., Deputy Hampton, heading southbound on Watt Avenue in Sacramento County, stopped for a red light at El Camino Avenue. He saw two cars turning northbound onto Watt Avenue, driving quickly through the intersection, appearing to be “traveling in tandem” or racing. One continued northbound; the other, driven by defendant, turned eastbound onto Robertson Avenue. Deputy Hampton made a u-turn and caught up with defendant’s car.
As defendant continued on Robertson Avenue, a single-lane undivided road with large parcels of property on both sides, he was traveling at a very high speed for the suburban but “slightly rural” neighborhood. Deputy Hampton recalled that the speed limit was 25 to 30 miles per hour.
On reaching the intersection of Robertson Avenue and Montclaire Street, which is controlled by a stop sign, defendant turned left (northbound) on Montclaire without fully stopping at the sign. Deputy Hampton recalled driving at 50 to 60 miles per hour to catch up to defendant.
After turning onto Montclaire, Deputy Hampton activated his vehicle’s lights to conduct a traffic stop to investigate defendant’s Vehicle Code violations and find out if defendant had an emergency. When defendant’s car came to a stop, Deputy Hampton observed that its registration tabs had expired in 2008.
As Deputy Hampton walked over to defendant’s car, he could not see through the back window how many persons were inside because the car’s interior was dark and the windows were tinted. Once Deputy Hampton reached the car, he saw that another person (later identified as defendant’s son who, based on the DVD, is taller than defendant) was a passenger.
Deputy Hampton first asked defendant to stay in the car, because defendant had opened his door as if to get out. This act “really caught [Hampton’s] attention, ” since most people stopped by the police do not try to get out of their cars.
Next, Deputy Hampton asked defendant for identification and proof of registration. The registration card defendant gave Deputy Hampton showed that the car’s registration had expired in 2008.
During this encounter, Deputy Hampton noticed that defendant “was moving very abruptly and would not -- could not stop moving.” Deputy Hampton had to tell him several times to put his hands on the wheel, because they had to be in sight when Deputy Hampton went around to the front of the car to check its VIN. The way defendant was “moving within the vehicle, moving about the vehicle, ” made Deputy Hampton “a little bit suspicious whether or not he was armed or had any weapons of necessity nearby.” Defendant was “moving his hands and most notably his feet, rocking in the seat”; it “really appeared to be strange” to Deputy Hampton, and also like “a symptom [Hampton had] observed in the past of someone who is under the influence of methamphetamine.” However, defendant was not making “furtive movements” or trying to reach under the seat.
On cross-examination, Deputy Hampton admitted that he had not mentioned this fact in his written report.
In addition, defendant spoke very quickly, and Deputy Hampton had to repeat the same questions several times to get the answers. Although defendant could simply have been nervous about the police contact, Deputy Hampton concluded that was not the case after observing defendant’s symptoms.
Still alone on the scene, Deputy Hampton returned to his patrol car to conduct a records check of defendant and his son. It showed that defendant had a valid driver’s license and was not on probation, but his car registration had indeed expired; an application was in process, but it had missed the six-month deadline.
Around that time, one of Deputy Hampton’s partners, Deputy Wilcox, arrived to cover him. Deputy Hampton told him that defendant’s car had been out of registration for six months, which meant it could not lawfully be operated on the road and was subject to towing. Deputy Hampton also told Deputy Wilcox that defendant was acting as if “under the influence.”
Having decided to tow defendant’s car, Deputy Hampton asked defendant to get out and submit to a brief pat search to make sure he was not armed. After that, Deputy Hampton intended to do an inventory search of the car and to ask defendant and his son if they wanted a ride or to contact someone to pick them up.
Deputy Hampton wanted to do a pat search for weapons because “[defendant’s] behavior was -- to be quite honest it was weird. And it was alarming for me having to go up there and have to tell him to put his hands on the steering wheel several times. [¶] Typically when I contact people I tell them to put their hands on the steering wheel [and] they do that. And that’s for my safety. [¶] I felt a little uneasy with that and having him standing there with me for an extended amount of time while I completed a vehicle citation and tow form, I would feel extremely uneasy with him standing there unsearched.”
Defendant complied with Deputy Hampton’s request to step out of the car, keeping his hands in front of him. Deputy Hampton brought defendant to the rear of the car and out of the traffic lanes.
After causing defendant to put his hands behind his head, Deputy Hampton began the pat search at the top of defendant’s body and moved down.
Deputy Hampton detected something heavy in defendant’s right front coat pocket. Squeezing the item, Deputy Hampton asked if it was a cell phone; defendant said it was.
Just after switching from one side of defendant’s body to the other, Deputy Hampton noticed a plastic baggie with a white substance inside, which he believed to be methamphetamine, fall from defendant’s pant leg onto the ground. Deputy Hampton did not stop the search then because he did not want to alert defendant that an arrest for narcotics was imminent. In Deputy Hampton’s experience, to tell a suspect he would be arrested before he had been handcuffed was likely to lead to a violent confrontation. Thinking defendant might still have narcotics or weapons on his person, Deputy Hampton completed the search in a “very thorough” manner, but did not find any other unlawful items.
Placing defendant in handcuffs, Deputy Hampton escorted him to the curb and seated him on the ground in front of his patrol car. He then took defendant’s son out of the car, pat-searched him without finding anything of evidentiary value, and seated him beside defendant. After that, he retrieved the fallen baggie.
Once defendant was seated on the ground, Deputy Hampton zoomed the camera lens of his patrol car in on defendant. The DVD showed that defendant was moving his feet constantly, while his son, seated next to him, was almost perfectly still. Deputy Hampton assessed defendant’s behavior as “extremely bizarre[, ] as somebody who is under the influence of methamphetamine.”
The substance in the baggie field-tested presumptive positive for methamphetamine. Its total weight (including packaging) was 6.3 grams.
Deputy Hampton arrested defendant for possession of methamphetamine, but did not conduct a DUI investigation because he was not certified to do so.
The Magistrate’s Ruling
After hearing argument, the magistrate denied defendant’s motion. Having read the case law cited by the parties and reviewed the DVD, the magistrate found: (1) defendant’s initial detention was valid; (2) the totality of the circumstances after the initial detention justified a pat-search under Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry); and (3) the search, as shown on the DVD, was not unduly intrusive. In reviewing the totality of the circumstances, the magistrate considered the fact that defendant’s conduct indicated that defendant was under the influence of a controlled substance, the officer was outnumbered, after the second officer arrived there would only be one officer to guard against possible violence because the other officer would be “preoccupied with paperwork, ” and the detention took place in an isolated area at night.
The magistrate noted that the scene on the DVD showing defendant’s movements after he was handcuffed and seated on the ground was some corroboration for Deputy Hampton’s testimony describing defendant’s erratic conduct prior to the pat-search.
The magistrate acknowledged that the search became “more aggressive” after the baggie dropped out of defendant’s pant leg, but added: “But in terms of reaching around the front, patting him down the back of the leg and up the top of the leg and down the back looked pretty much like the kind of search they used to give me for the first month I walked in here every day. I mean the pat-down [sic] search that you would expect.”
DISCUSSION
Standard of Review
On review of a motion to suppress evidence, we view the facts most favorably to the respondent and uphold the magistrate’s factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods); People v. Watkins (2009) 170 Cal.App.4th 1403, 1408 (Watkins).) However, we decide independently whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) Because we decide this issue independently, we may affirm the magistrate’s ruling without regard to whether the magistrate’s reasoning was correct in all particulars. (See California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.)
Law of Patdown Searches
An officer may conduct a patdown search for weapons if the officer has reason to believe a suspect is armed and dangerous, regardless of whether the officer has probable cause to arrest the person for a crime. (Terry, supra, 392 U.S. at p. 27 [20 L.Ed.2d at p. 909].) “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.” (Ibid.)
The search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” (Terry, supra, 392 U.S. at p. 26 [20 L.Ed.2d at p. 908].) “‘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.]” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 344].) Therefore, “[t]he officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.]” (People v. Dickey (1994) 21 Cal.App.4th 952, 956 (Dickey).)
“The judiciary should not lightly second-guess a police officer’s 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. [Citations.]” (Dickey, supra, 21 Cal.App.4th at p. 957.)
“[I]f [a Terry] search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid. [Citation.] However, if contraband is found while performing a permissible Terry search, the officer cannot be expected to ignore that contraband. [Citation.]” (People v. Avila (1997) 58 Cal.App.4th 1069, 1075 (Avila).)
Analysis
Defendant contends “[t]he search was unlawful because it was conducted without a warrant, without probable cause and without a reasonable suspicion that [defendant] was armed and dangerous.” We need not address the first two points, since neither a warrant nor probable cause for arrest is required to justify a Terry search. (Terry, supra, 392 U.S. at pp. 20, 27 [20 L.Ed.2d at pp. 905, 907].) As to the third point, defendant is mistaken.
Deputy Hampton stopped defendant for Vehicle Code violations (the validity of which stop defendant does not contest) in an isolated and dark area. The first thing defendant did after pulling over was to open his door as if trying to get out -- conduct which Deputy Hampton, as an experienced officer, found unusual. Walking over to defendant’s car, Deputy Hampton could not see into the car because it was unlit inside and the windows were tinted. On reaching the driver’s side of the car, Deputy Hampton saw that there were two people inside; thus, he knew that he was outnumbered. Defendant was talking quickly, had difficulty focusing on and responding to Deputy Hampton’s questions, was moving his hands and feet rapidly and rocking back and forth in his seat, and had to be told repeatedly to put his hands on the wheel in plain view and keep them there. In addition to being unusual and alarming, this conduct, in Deputy Hampton’s experience, was also consistent with being under the influence of methamphetamine. Defendant’s conduct caused Deputy Hampton to have a reasonable suspicion, based on specific and articulable facts, that defendant might be armed and dangerous. These circumstances justified the patdown search.
The DVD, which we have viewed at the parties’ request, shows that the roads on which Deputy Hampton pursued and stopped defendant were almost without lighting, except for that emanating from the cars themselves. However, after defendant was pat-searched, handcuffed, and seated on the ground, a house can be seen in the background with lights on and people coming and going.
Furthermore, the Vehicle Code violations Deputy Hampton had observed would require him to fill out extensive paperwork, including traffic citations and a towing form, and to conduct an impound inventory search of the car. Deputy Hampton knew that if he did not promptly carry out a Terry search, he would remain exposed to the risk that defendant might be armed. These circumstances further justified the patdown search. Defendant asserts for the first time in his reply brief that Deputy Hampton could simply have written him a “fix-it ticket” for the expired registration and let him go. This assertion ignores both defendant’s more serious Vehicle Code violations and Deputy Hampton’s suspicion that defendant was under the influence of methamphetamine.
Defendant asserts that the totality of the circumstances did not support a reasonable suspicion that he might be armed and dangerous. His method of analysis consists mainly of citing cases that are distinguishable on their facts.
In People v. Adam (1969) 1 Cal.App.3d 486, the People asserted that if the defendant could properly be asked to step out of his car he could also be searched for weapons, disregarding Terry’s requirement that specific and articulable facts exist to justify a patdown search. The appellate court rejected this argument. (Adam, supra, 1 Cal.App.3d at pp. 489-492.) No such argument has been advanced by the People here. Therefore, this case is not relevant.
In Dickey, supra, 21 Cal.App.4th 952, the appellate court invalidated a patdown search under the following circumstances: An officer detained the defendant, who was parked on a rural road in the daytime and had not committed any observed Vehicle Code violations. The defendant could not produce a driver’s license or vehicle registration papers, but the officer determined the car was registered to the defendant. The defendant twice refused permission to search his car. The officer was unable to find anything in plain view to justify a search. The defendant permitted the officer to search a backpack in the car, though the defendant said it was not his. Inside, the officer found a toothbrush and a film canister containing a powder which the defendant said he used to brush his teeth, but which the officer suspected to be baking soda, a cutting agent for narcotics. The officer asked the defendant and his passenger to accompany him to the rear of the car. The defendant was nervous and sweating despite the fact that it was a cool day. The officer admitted the defendant was “not aggressive, ” but nevertheless patted him down “for my safety.” The patdown search uncovered a baggie containing narcotics. (Id. at pp. 954-955.)
The appellate court found that the patdown search could not be justified based on the fact that the defendant (1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, or (4) because baking powder was found in a film canister. (Dickey, supra, 21 Cal.App.4th at p. 957.) The court held that these circumstances, individually or together, did not create a reasonable suspicion the defendant might be armed and dangerous. (Id. at pp. 956-957.) The court also rejected the premise that the defendant’s alleged “moving around in the driver’s seat” amounted to a suspicious “furtive gesture.” (Id. at p. 956, fn. 2.) Here, there are objective grounds of concern for officer safety that were absent in Dickey: defendant’s initial unusual act of opening the car door after pulling over; his repeated failure to comply with the command to keep his hands in sight on the wheel; his excessively rapid speech; his inability to focus on the officer’s questions; his nonstop hand and foot movements; and the dark, isolated setting. (See, e.g., People v. Barnes (1983) 141 Cal.App.3d 854, 855-856 [unusual response to officer’s initial questioning after early-morning traffic stop]; People v. Satchell (1978) 81 Cal.App.3d 347, 354 [darkness which might allow “preparatory movements” by defendant and companions to go unnoticed].)
In Santos v. Superior Court (1984) 154 Cal.App.3d 1178, the officer admitted he did not pat-search the defendant because he thought the defendant was armed, but only because of “[s]tandard procedure, officer’s discretion and [his] training.” (Id. at p. 1185.) Because Deputy Hampton articulated specific facts to support a reasonable suspicion defendant was armed, Santos is inapposite.
Likewise, in People v. Lawler (1973) 9 Cal.3d 156, the court found that nothing in the record showed the officer believed the defendant was armed and dangerous when he conducted a patdown search of the defendant’s sleeping bag. (Id. at pp. 161-162.) Therefore, Lawler is also inapposite.
In People v. Medina (2003) 110 Cal.App.4th 171 (Medina), the court held a driver could not lawfully be detained and frisked, “as a matter of standard procedure and in the name of “‘officer safety, ’” solely because the stop occurred in a high-crime area at night. (Id. at p. 174.) As in the other cases we have discussed, the officer failed to articulate any specific facts suggesting the defendant was armed. (Id. at p. 175.)
Defendant relies on Medina to claim that the magistrate erred by stating: “[T]he result changes when the stop is at night... the analysis changes when the stop is at night.” However, Medina acknowledges that the time of night is a “‘pertinent factor in assessing the validity of a detention.’” (Medina, supra, 110 Cal.App.4th at p. 177, quoting People v. Souza (1994) 9 Cal.4th 224, 240-241.) And because we review the reasonableness of the search independently, we need not decide whether the magistrate’s verbal formulation was precisely correct. (California Aviation, Inc. v. Leeds, supra, 233 Cal.App.3d at p. 731.)
In addition to citing inapposite case law, defendant tries to recharacterize the facts most favorably to himself. He asserts that Deputy Hampton was not “outnumbered” -- rather, “[defendant] and his teenage son faced two uniformed, armed police men with a barking police dog nearby.” However, Deputy Wilcox was not there when Deputy Hampton initially contacted defendant. And since defendant did not argue below that the dog’s presence made Deputy Hampton’s concerns for his safety groundless, he may not so argue for the first time on appeal. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.)
Defendant also asserts that the location of his detention was not a “dark isolated area” but “a nice, medium-density residential neighborhood full of well-illuminated, single-family houses still decorated for Christmas” with “a party in progress at the house where [defendant] was being detained on the front lawn.” However, having viewed the DVD, on which defendant relies, we agree with the magistrate’s characterization that the area where defendant was detained was dark, with “no street light or anything like that otherwise illuminating the scene.”
Finally, defendant asserts that Deputy Hampton would not have acted as he did if he had truly believed himself to be in danger from defendant: he would not have “closed [defendant]’s car door on his way back to his own car and left [defendant] and his son sitting there unobserved in the car with tinted windows for seven minutes following his first contact with them, ” or “simply run a records check without calling for back up assistance, ” or “re-approached with... guns holstered, left... the police dog in the car or left [defendant]’s son sitting inside of [defendant]’s car while [defendant] was searched.” Defendant cites no authority that Deputy Hampton’s conduct was not consistent with proper police procedure under the circumstances. Because these assertions are merely his appellate counsel’s opinions, unsupported by authority, we disregard them. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Defendant also contends the search was overly intrusive under the Terry standard. His argument depends solely on his characterization of what the DVD shows. Having viewed the DVD, we disagree with defendant’s characterization and agree with the magistrate’s factual finding that the search did not become more aggressive until after Deputy Hampton had spotted the baggie falling from defendant’s pants leg. (Woods, supra, 21 Cal.4th at p. 673; Watkins, supra, 170 Cal.App.4th at p. 1408.) At that point, having obtained probable cause to arrest defendant for drug possession, Deputy Hampton could lawfully conduct a full search of defendant’s person incident to arrest. (Avila, supra, 58 Cal.App.4th at p. 1075 & fn. 4.)
For all the above reasons, we conclude that Deputy Hampton’s decision to perform a Terry search was reasonable under the Fourth Amendment and that the search was not unduly intrusive.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., NICHOLSON, J.
The first segment of the DVD also shows that, as Deputy Hampton testified, defendant was traveling at a high rate of speed until Hampton turned on his lights to effectuate the stop.