Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2006023696, Bruce A. Clark, Judge.
Vincent James, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Rafael Naranjo was convicted by plea of possession of heroin for sale and sentenced to two years state prison. (Health & Saf. Code, § 11351.) He appeals, contending that the trial court erred in denying his motion to suppress evidence. (Pen. Code, § 1538.5) We affirm.
Facts and Procedural History
On the afternoon of June 20, 2006, Oxnard Police Officer Roger Whitney stopped a pickup in an alley because the passenger, Christian Lara, had an outstanding warrant. Officer Whitney arrested Lara and found a loaded .22 caliber derringer in Lara's pocket.
Officer Kevin Killian advised appellant, the driver of the pickup, that Officer Whitney had to search the passenger area for additional weapons or ammunition. Appellant denied that he had a gun, was extremely nervous, and repeatedly touched his pants pocket.
Appellant was asked to step out of the pickup and was patted down for weapons. Officer Killian noticed a large bulge in appellant's front pants pocket. When the officer ran his hand over the pocket area, appellant tensed up, as if to run or fight. Officer Killian thought the bulge might be a weapon and asked what was in the pocket. Appellant did not respond.
Officer Killian removed the object from the pocket and dropped it, noticing a strong vinegar odor. The object weighed 2.8 ounces and was several bindles of black tar heroin tightly wrapped together in cellophane and a plastic bag.
At the preliminary hearing, appellant brought a motion to suppress the evidence. Appellant agreed the officers had good cause to conduct a Terry pat down for weapons (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] but argued the search was impermissible in its scope when Officer Killian removed the object from his pants pocket.
The magistrate found that Officer Killian reasonably believed the bulge was a concealed weapon based on the circumstances of the traffic stop which "includ[ed] the warrant, the lawful arrest of the passenger for a warrant, [and] the finding of a concealed, loaded firearm in the pants pocket of the passenger. [¶] That information was known to Officer Killian at the time he contacted the defendant. Defendant certainly had pants on that could have contained a similar type of weapon. The officer then pats him down, which he is legally authorized to do, feels an object. In the officer's opinion it could have been a weapon. [¶] The defendant didn't help matters at all because the officer asked him what was in his pocket. . . . [¶] And the defendant's failure to answer the question under the circumstances in this case . . . is something that I can consider as a factor that goes into the reasonableness of the search of the pocket. [¶] And it's for that reason that I find the 1538.5 is denied. I think the officer had reasonable cause to reach into the pocket and pull out what -- what later turns out to be narcotics."
Appellant renewed the motion to suppress evidence in the superior court, which was denied before he entered a change of plea. (Pen. Code, § 1538.5, subd. (i).)
Weapon-Like Object
On review, we defer to the trial court's express and implied factual findings which are supported by substantial evidence and determine whether on the facts so found, the search was reasonable. (People v. Glaser (1995) 11 Cal.4th 354, 362.) "[O]fficers may undertake a properly limited search for weapons, if 'a reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger.' " (Id., at p. 364.) In deciding to conduct a pat down search for weapons "[t]he officer need not be absolutely certain that the individual is armed . . . .'" (Terry v Ohio, supra, 392 U.S. at p. 27 [20 L.Ed.2d at p. 909].)
Citing People v. Collins (1970) 1 Cal.3d 658, appellant argues that a pat down for weapons is limited to intrusions reasonably designed to discover guns, knives, clubs, or dangerous weapons. In Collins, the officer felt a "little lump" in the suspect's pocket and retrieved a plastic bag of loosely packed marijuana. (Id., at p. 660.) The court held: "Feeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances," does not warrant an officer's intrusion into the suspect's pocket to retrieve the object." (Id., at p. 662, emphasis added; see also Minnesota v. Dickerson (1993) 508 U.S. 366, 369 [124 L.Ed.2d 334, 341] [officer felt "small lump" in suspect's jacket that was 0.2 grams of cocaine].)
Here the circumstances were unusual and specific enough to warrant an "intrusion" into appellant's pocket. Officer Killian knew that the passenger was carrying a small, loaded pistol. Appellant was extremely nervous, still in the pickup, and kept touching his pants pocket. Fearing that appellant was armed, Officer Killian patted appellant down for weapons and felt a large lump. Officer Killian stated that it was "a large, fairly hard bulge, which was not consistent with anything that I knew of that people typically carr[y] in their pockets" and "absolutely" thought it could be a weapon.
On cross-examination, the officer was asked whether the bulge was the size of a golf ball and whether it could have been a nonweapon-like object. Officer Killian explained: "There was a good chance that it was a weapon. I did not – I did not believe anything at this point because the object was 100 per cent unidentifiable to me. [¶] . . . And the thought that went through my mind at the -- at the time and place of the traffic stop was if the passenger has a gun, the driver very well could have a gun. And I have in the past encountered individuals with guns, who carry them wrapped in bandannas in order to make their silhouette undetectable from the outside."
The officer pointed to specific, articulable facts that supported the suspicion that appellant was "armed with an atypical weapon which would feel like the object felt during the patdown." (People v. Collins, supra, 1 Cal.3d at p. 663.) The bulge was large, hard, and resembled a small firearm wrapped in cloth. Unlike People v. Collins, supra, the object was not "soft" nor was the pat down search based on fanciful speculation. (See e.g. Minnesota v. Dickerson, supra, 508 U.S. at p. 379 [124 L.Ed.2d at p. 348]; People v. Armenta (1968) 268 Cal.App.2d 248, 251 [rejecting contention that soft object which might have been a "rubber water pistol loaded with carbolic acid" as protected from pat down search].)
Officer Killian testified that the object felt like a weapon and admitted that he was not one hundred percent sure what the object was. In a day when small pistols can be concealed in the palm of the hand, it would be a perversion of the Fourth Amendment to conclude that the officer acted unreasonably in removing the object from appellant's pocket after a loaded pistol was found on the passenger and appellant refused to identify the large hard object in his pocket. "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.]" (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
The judgment (order denying motion to suppress evidence) is affirmed.
We concur: GILBERT, P.J., PERREN, J.