Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA068019, Mark S. Arnold, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, Acting P.J.
Antuan Lamar Norwood appeals from judgment entered following his negotiated plea to carrying a loaded and unregistered firearm. He contends his motion to suppress evidence should have been granted because the patdown search of his person was unlawful. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Information
Norwood was charged by information with carrying a loaded and unregistered firearm (Pen. Code, § 12031. subd. (a)(1)). The information specially alleged Norwood had committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)). He moved to suppress the firearm found on him during an officer’s patdown search (Pen. Code, § 1538.5).
2. Suppression Hearing
a. Summary of prosecution evidence
The suppression hearing was held on October 31, 2007. Gardena Police Officer Matthew Hassoldt testified he was alone on routine patdownrol on April 22, 2007. At 1:35 a.m., he saw a car leave the parking lot of Magic Carpet Bar, a known “hangout” for members of the Shotgun Crip Gang. In the past year, Hassoldt had responded to reported fights and shootings in the bar and parking lot. Hassoldt noticed the car’s front license plate was missing, and he initiated a traffic stop. Because the back window was tinted, Hassoldt did not have a clear view of the car’s interior, although there appeared to be several occupants. Hassoldt directed the driver to turn on the interior dome light and the occupants to raise their hands in the air. When his backup officer arrived, Hassoldt contacted the male driver, whose breath smelled of alcohol. The driver and three male passengers all wore loose-fitting clothing. Norwood was seated directly behind the driver. He was wearing a jacket, and baggy pants and shirt.
Officer Hassoldt decided to investigate the driver for possibly driving under the influence of alcohol and ordered him and the passengers out of the car. Everyone but Norwood emerged from the car. Hassoldt started towards the car to remove Norwood, when he heard his partner officer tell Norwood, “Show me your hands. Don’t try to take off your jacket.” Hassoldt removed Norwood from the car after gaining control of his hands and escorted him to the sidewalk. Hassoldt requested consent to search Norwood’s person; Norwood refused. Hassoldt decided to conduct a patdown search, based on Norwood’s “clothing, the location he was leaving and the fact that he was trying to remove his jacket inside the vehicle when he was originally told to keep his hands in the air where they could be seen.” In Norwood’s right jacket pocket, Hassoldt felt a hard object, which he immediately recognized was a firearm. Hassoldt retrieved the gun and handcuffed Norwood.
The defense produced an audio-tape of the traffic stop, but no transcript, which had been made by either Hassoldt or his partner officer. Defense counsel played the tape during his cross-examination of Hassoldt. The parties stipulated the portion of the tape played at the hearing would not be transcribed by the court reporter.
b. Summary of defense evidence
Norwood testified in his defense, corroborating most of Hassoldt’s testimony. According to Norwood, he and his companions were coming from a party, not from the Magic Carpet Bar. Norwood was riding in the car with one arm in a sleeve of his jacket. When Officer Hassoldt ordered everyone out of the car, Norwood asked to be able to put on his jacket first. The other officer told him, “No. Leave it like that.” Norwood complied fully with Hassoldt’s orders. He did not give the officer consent to search his person, telling him he was not on probation or parole. Norwood admitted the pants, t-shirt and jacket he was wearing were “large” or “baggie.”
After counsels’ argument, the trial court denied the suppression motion, finding the patdown search by Officer Hassoldt was lawful because the officer was justified in his belief that Norwood was armed.
The trial court also denied Norwood’s motion to set aside the information (Pen. Code, § 995).
3. Plea and Sentencing
On November 5, 2007, Norwood entered an open plea of no contest plea to carrying a loaded and unregistered firearm with an indicated sentence of 16 months. Norwood waived time for sentencing and for trial on the gang enhancement allegation until April, 30, 2008.
On April 30, 2008, Norwood waived his constitutional rights and admitted the gang enhancement allegation. He was sentenced to the lower term of 16 months. The court dismissed the gang enhancement in the interests of justice (Pen. Code, § 1385). This appeal followed.
On November 14, 2007, prior to being sentenced, Norwood prematurely filed a notice of appeal and obtained a certificate of probable cause.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891; People v. Ramos (2004) 34 Cal.4th 494, 505.)
2. The Patdown Search for Weapons Was Lawful
Norwood does not dispute the propriety of Officer Hassoldt’s decision to initiate a traffic stop or to order him out of the car. He argues, however, the subsequent patdown search for weapons was unlawful because it was not supported by “specific and articulable facts” indicating he may have been armed and dangerous, as required by Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (Terry). According to Norwood, none of the “innocuous” circumstances relied upon by Hassoldt, whether they are considered individually or collectively, would create a reasonable suspicion that Norwood was armed and dangerous.
During a lawful temporary detention, as occurred in this case, a police officer may conduct a limited, protective patdown search for weapons if the officer has “reason to believe that he is dealing with an armed and dangerous individual. . . . [T]he 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, supra, 392 U.S. at p. 27; People v. Avila (1997) 58 Cal.App.4th 1069, 1074; see Maryland v. Buie (1990) 494 U.S. 325, 334, fn. 2 [110 S.Ct. 1093, 108 L.Ed.2d 276] [“Despite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry did not adopt a brightline rule authorizing frisks for weapons in all confrontational encounters.”].) The “critical question” in assessing whether a patdown search or “frisk” for weapons is permissible is whether this is “the kind of confrontation in which the officer can reasonably believe in the possibility that a weapon may be used against him” or her. (People v. Superior Court (Los Angeles) (1972) 7 Cal.3d 186, 204 [routine traffic stop, without more, does not justify patdown search for weapons].) Although there need not be “absolutely certain” the individual is armed (Terry, at p. 27; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230), the officer must be able to “‘point to specific and articulable facts which, taken together with rational inferences from those facts,’ would warrant the intrusion. [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 229; People v. Medina (2003) 110 Cal.App.4th 171, 176.)
The purpose of a patdown “search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .” (Adams v. Williams (1972) 407 U.S. 143, 146 [92 S.Ct. 1921, 32 L.Ed.2d 612]; see Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [113 S.Ct. 2130, 124 L.Ed.2d 334].)
Officer Hassoldt testified his patdown search was prompted by the specific location Norwood was leaving, his clothing, and his conduct inside the car. While none of these facts, individually, might support a patdown search, in combination they surpass the requisite threshold of reasonable suspicion that Norwood may be armed, thereby permitting Hassoldt to take limited, self-protective measures to neutralize the threat of physical harm. (Terry, supra, 392 U.S. at p. 27 [“in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience”].)
Norwood was leaving the area of a business where gang members regularly congregated and violent crimes were not infrequent. We are mindful of the instruction from the United States Supreme Court that the mere presence of a suspect in a high crime area does not justify a weapons search: “Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted.” (Maryland v. Buie, supra, 494 U.S. at p. 334, fn. 2.) We are also aware that no evidence was introduced of Norwood’s affiliation with any criminal gang. Officer Hassoldt did not testify that Norwood was, in fact, known by him to be a gang member (see People v. King (1989) 216 Cal.App.3d 1237, 1241 [detention of known gang member carries increased risk detainee is armed]). Indeed, there was no indication the officer had any prior contacts with either Norwood or his companions. Nor did Hassoldt give an opinion that Norwood appeared to be a gang member because he exhibited certain characteristics commonly associated with gang membership (e.g., gang-related clothing or tattoos) or claimed to be a gang member or made gang signs (see People v. Margarejo (2008) 162 Cal.App.4th 102, 105).
Nonetheless, Hassoldt reasonably considered Norwood’s presence in an area known for gang activity as one fact in justifying a patdown search. Notwithstanding Maryland v. Buie, supra, 494 U.S. 325, in determining whether a limited weapons search of a detainee not otherwise known to the police is lawful, “the 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.” (People v. King, supra, 216 Cal.App.3d at p. 1241; accord, People v. Souza, supra, 9 Cal.4th at p. 240 [area’s reputation for criminal activity “is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment”].)
More importantly, Officer Hassoldt also relied on specific information about Norwood, himself, not merely generalizations concerning the location of the detention: Norwood was wearing loose-fitting or baggy clothing, including a large jacket, capable of concealing a weapon. (See People v. Lopez (2004) 119 Cal.App.4th 132, 137.) With the exception of Norwood, all of the car’s occupants complied with Hassoldt’s instructions to show their hands and to leave the car. Officers may reasonably require traffic detainees to keep their hands in sight. (See In re Frank V. (1991) 233 Cal.App.3d 1232, 1241.) Norwood not only failed to comply with this order, but he also attempted to remove his jacket before stepping outside on that early October morning. Such conduct, which reasonably suggested Norwood’s desire to keep the jacket away from the officers, further supported the rational inference he was armed, and the weapon was concealed in his jacket. (Id. at pp. 1237, 1241 [Officer’s patdown search was reasonable of defendant detained after leaving a known gang house with his hands in the pockets of his “bulky” jacket, took his hands out of his pockets as ordered by the officer, and then started to reach back into his pockets. Patdown search yielded a gun in the jacket pocket].)
Because the patdown search was lawful and Officer Hassoldt confined his search to what was minimally necessary to discover the gun and to disarm Norwood, the gun was properly obtained as evidence.
DISPOSITION
The judgment is affirmed.
We concur: ZELON, J., JACKSON, J.