Opinion
B228893
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SHAPSIS, Defendant and Appellant.
Joseph F. Walsh, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA364359)
APPEAL from a judgment of the Superior Court of Los Angeles County. Clifford L. Klein, Judge. Affirmed.
Joseph F. Walsh, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Michael Shapsis pled nolo contendere to possession of a controlled substance for sale (Health & Saf. Code, § 11351) after the trial court denied his Penal Code section 1538.5 motion to suppress evidence. He was sentenced to two years in state prison.
Appellant appeals the denial of his motion to suppress evidence. We affirm.
FACTS
The facts are derived from the hearing on defendant's motion to suppress evidence.
On February 14, 2009, at approximately 10:45 p.m., Los Angeles County Sheriffs Deputy Clifford Anger, and his partner Deputy Babakin, were on patrol on Crescent Heights Boulevard in the City and County of Los Angeles. Deputy Anger observed a Honda Civic with an inoperative brake light traveling in excess of the posted speed limit. The officers initiated a traffic stop of the Civic.
There were four individuals in the vehicle. Appellant was in the right front passenger seat. Deputy Anger smelled the "strong odor of burnt marijuana emitting from the vehicle's interior." He asked the driver of the Civic if he possessed any marijuana inside the vehicle. The driver said he had a small amount of marijuana and a smoking pipe in the vehicle. Deputies Anger and Babakin then detained the occupants of the vehicle to conduct a narcotics investigation. Deputy Anger ordered the four occupants out of the car, one at a time, and conducted a patdown search of each for weapons. The driver was patted down first and $3,800 in cash was recovered from him.
While conducting a patdown of appellant, Deputy Anger felt a large object in appellant's sock on his right leg. The object was hard and a bit larger than a tennis ball. Deputy Anger asked appellant what was in his sock but appellant did not respond. Deputy Anger did not have any fear that the object was a weapon but based on the fact that appellant was being detained pending a narcotics investigation, coupled with the fact that suspects often hide narcotics in their socks in an attempt to hide them from law enforcement, Deputy Anger lifted appellant's jeans. Deputy Anger observed a clear Ziploc plastic baggie protruding from the top of appellant's sock. Deputy Anger retrieved the baggie which contained a hard chunk of a white powdery substance resembling cocaine. The contents were later determined to be 66.8 grams of cocaine.
Subsequent to appellant's arrest, Deputy Anger conducted a wanted persons inquiry on his mobile digital terminal (MDT) inside his police vehicle, from which he determined that appellant had a warrant for his arrest.
At the Penal Code section 1538.5 hearing, defense counsel argued that Deputy Anger's patdown search was unlawful because no facts were established to indicate that appellant was armed and dangerous and Deputy Anger did not have a reasonable basis for believing the object in appellant's sock was a weapon or contraband. Counsel also contested the existence of an outstanding warrant.
The People argued that the circumstances surrounding the traffic stop justified the patdown search. Those circumstances were: traffic stops are inherently dangerous; there were four occupants of the vehicle versus two police officers; the incident was late at night; Deputy Anger detected the odor of burnt marijuana emanating from the vehicle; and based on Deputy Anger's training and experience in narcotics investigations, a further search of appellant's sock was justified. The People also argued that the evidence would have been inevitably discovered during appellant's lawful detention.
The trial court denied the motion. The court found that there was a lawful reason for the traffic stop. Upon discovering the odor of marijuana emanating from inside the vehicle, the traffic stop then became a narcotics investigation. Deputy Anger was permitted to conduct a patdown search of the occupants because of the "inherent dangers" associated with narcotic investigations.
The trial court then addressed the scope of the search and found that Deputy Anger's retrieval of the hard object from appellant's sock was permitted because there was a reasonable basis for believing the object was contraband.
DISCUSSION
Standard of Review
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) When a motion to suppress has been denied, we must view the evidence in the light most favorable to the order denying suppression. (People v. Colt (2004) 118 Cal.App.4th 1404, 1407.)
The Initial Stop
In the context of an ordinary traffic stop, an officer may conduct a patdown search only if the officer has a reasonable suspicion that the person may be armed and dangerous. (Knowles v. Iowa (1998) 525 U.S. 113, 117-118.) "The courts have long recognized that an automobile is an inherently dangerous place for the police to approach and at which to question individuals, containing as it does numerous possibilities for hidden weapons. That is why both the United States Supreme Court and the courts of this state have permitted the police to ask those they wish to question to exit automobiles." (People v. Samples (1996) 48 Cal.App.4th 1197, 1210-1211.)
There were specific and articulable facts here to conduct a limited patdown based on officer safety and the presence of drugs. The testimony established that this was an "inherently dangerous" situation involving a traffic stop, as it was late at night and there were four occupants in the vehicle. And, as in People v. Collier (2008) 166 Cal.App.4th 1374 (Collier), the traffic stop here was "no ordinary traffic stop" as soon as Deputy Anger observed the strong odor of burnt marijuana from inside the vehicle.
In Collier, the defendant was a passenger in a lawfully stopped vehicle that smelled of marijuana. There were two occupants in the vehicle, and the stop occurred in the afternoon. The officers asked the defendant to get out of the vehicle so they could search the interior. The officers noted the defendant was wearing baggy clothing that might conceal a weapon. The court recognized that "'guns often accompany drugs.' [Citation.] '[I]n connection with a lawful traffic stop of an automobile, when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others.' [Citation.]" (Collier, supra, 166 Cal.App.4th at p. 1378, quoting U.S. v. Sakyi (4th Cir. 1998) 160 F.3d 164, 169.) The court concluded that although there were no furtive gestures or gang evidence, the "patdown was reasonably necessary because the officers had probable cause to search the car interior and had decided to do so." (Collier, supra, at p. 1378.)
Appellant contends that Collier can be distinguished, arguing that there was no basis here to suspect appellant was armed. We disagree. Appellant provided the officers a reasonable basis for suspecting the presence of weapons. He was a passenger in a vehicle smelling of marijuana, and though his presence in the vehicle was not probable cause to arrest him for a drug offense, it furnished a reasonable suspicion that he may have been involved in some criminal activity such as possessing or transporting drugs. (People v. Fisher (1995) 38 Cal.App.4th 338, 345.) We find no significance, as appellant argues, that the defendant in Collier wore baggy pants, while appellant did not. An individual's manner of dress is just one factor in the totality of the circumstances that may be considered to determine whether there is a reasonable basis for suspecting the presence of weapons. The patdown search here was justified by concerns for officer safety and the presence of drugs. Deputy Anger could not be expected to conduct a narcotics investigation with a reasonable fear that appellant might be armed and dangerous. The Fourth Amendment to the United States Constitution has never been interpreted to "'require that police officers take unnecessary risks in the performance of their duties.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 quoting Terry v. Ohio (1968) 392 U.S. 1, 23.)
Appellant's reliance on People v. Sandoval (2008) 163 Cal.App.4th 205 and People v. Medina (2003) 110 Cal.App.4th 171 is misplaced as those cases are factually distinguishable. Sandoval did not involve a traffic stop. Nor was there any indication that the defendant was engaged in any ongoing criminal activity. He was sitting in front of a residence while police officers conducted a probation search of the residence. Although the defendant was not a resident of or visitor to the house, the police officers recognized him as someone who had possessed narcotics in the past and conducted a patdown search of him. The trial court found that "[b]efore conducting the patdown, the officer had no reason to believe defendant was armed or was committing a crime." (People v. Sandoval, supra, at p. 209.) Here, Deputy Anger had reason to believe that appellant was involved in the criminal activity of using, possessing, or transporting marijuana.
In Medina, the defendant was stopped at approximately midnight in a high-crime area because a taillight was broken. The police officer decided to conduct a search because the defendant was in a "'high-gang location.'" (People v. Medina, supra, 110 Cal.App.4th at p. 175.) The appellate court reversed the denial of the motion to suppress, finding insufficient facts to support the search. "[W]hile '[a]n area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment,' and '[t]he time of night is another pertinent factor in assessing the validity of a detention,' 'mere presence in a high crime area is not, standing alone, "sufficient to justify interference with an otherwise innocent-appearing citizen . . . . [Citation.]'" (Id. at p. 177.)
Likewise, appellant's reliance on Arizona v. Johnson (2009) 555 U.S. 323 is misplaced. There, police officers patrolling a gang neighborhood stopped a vehicle because of a suspended registration. One officer questioned the driver outside the vehicle. Another officer began questioning the defendant who was a passenger in the backseat. The defendant was wearing a bandana consistent with gang membership, and in possession of a police scanner. He informed the officer that he had served a prison sentence for burglary and had been out for about a year. The officer ordered the defendant out of the car and conducted a patdown search for weapons. The search revealed a gun and the defendant was arrested. (Arizona v. Johnson, supra, 129 S. Ct. at pp. 784-785.) The United States Supreme Court held that police may conduct a patdown search of a passenger in a vehicle that has been lawfully stopped for a traffic violation, provided the police "harbor reasonable suspicion that the person subject to the frisk is armed and dangerous." (Id. at p. 784.) The trial court's decision here is consistent with Johnson.
Scope of Search
Appellant contends that Deputy Anger's search of appellant's sock and removal of the plastic baggie exceeded the scope of patdown search permitted under Terry v. Ohio (1968) 392 U.S. 1. Appellant challenges the reasoning of the trial court in applying the so-called "plain feel" doctrine to conclude the object in appellant's sock was contraband. Specifically, appellant argues that it was not "immediately apparent" to Deputy Anger that the object was either a weapon or contraband. Appellant further argues that Deputy Anger's lifting of the pant leg was the type of "continued exploration" prohibited in Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson).
In Dickerson, the court quoted Terry v. Ohio, supra, 392 U.S. at page 26 that a protective search-permitted without a warrant and on the basis of reasonable suspicion less than probable cause-must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." (Id. at pp. 2, 26.) The defendant in Dickerson turned and walked in the opposite direction when he made eye contact with an officer observing a 12-unit apartment building characterized as a crack house from which defendant had just emerged. He was patted down and found to have no weapons. But the officer felt a small lump in his jacket pocket, which he examined with his fingers and thought was a lump of crack cocaine in cellophane. (Dickerson, supra, 508 U.S. at p. 368.) The officer then reached into the pocket and retrieved a small plastic bag containing one fifth of one gram of cocaine. The high court found the internal search of the defendant's pocket to be impermissible. Although the officer was entitled to place his hands on the defendant's jacket and to feel the lump he found in the pocket, the officer never thought the lump was a weapon and did not immediately recognize it as cocaine. After concluding that it contained no weapon the further manipulation and exploration of the pocket was found to be unrelated to the sole justification for the search. (Id. at pp. 377-378.)
The scope of the "plain feel" doctrine is illustrated in the following cases. In People v. Dickey (1994) 21 Cal.App.4th 952, the officer felt a small object in the defendant's pocket, reached in, and retrieved one baggie containing a small amount of marijuana and another containing a small amount of cocaine. At the suppression hearing, the officer testified: "'The consistency and feel of the bulge led me to believe that it might be a controlled substance.'" He added: "'I felt the bulge, and it felt not round, but elongated and it had a texture or just a good feeling to it, and I just squeezed from the outside of it and felt it was a plastic—felt like plastic or felt like a plastic baggie with something in it.'" (Id. at p. 955.) The appellate court concluded that the officer's testimony indicated that the incriminating nature of the soft object was not immediately apparent. The officer exceeded the scope of a Terry search by manipulating the object before removing it. As a result, under Dickerson, retrieval of the soft object was unlawful. (People v. Dickey, supra, at p. 957.)
In People v. Lee (1987) 194 Cal.App.3d 975, the officer had lawfully detained the defendant on a reasonable suspicion he was selling drugs. During the patdown search for weapons, the officer felt a clump of small resilient objects. The officer knew these were not weapons, but he believed they were heroin-filled balloons. The officer reached inside the pocket and removed the heroin. (Id. at p. 980.) The court held the scope of the search to be lawful. The court held that the officer was not engaging in "fanciful speculation" but had formed a "definite belief based on articulable facts and on considerable training and experience in the tactile characteristics of narcotics-filled balloons." (Id. at p. 984.) The crucial issue in each case is that the incriminating nature of the object should be "immediately apparent" to the officer.
As in Lee, Deputy Anger was not only patting down for weapons, he had probable cause to suspect the presence of narcotics contraband. He was conducting a patdown search in the course of a narcotics investigation, when he felt a large object inside appellant's sock near the ankle. Deputy Anger testified that he believed appellant may have a weapon or something in his sock. As he explained: "I was conducting a patdown search for weapons, and upon feeling this hard-large, hard object in his sock, and due to the fact he was also being detained pending a narcotics and marijuana investigation, that's why I lifted up the pant leg." He further testified that it was consistent with his training and experience for individuals to conceal narcotics in their socks.
In People v. Dibb (1995) 37 Cal.App.4th 832, the defendant was a passenger in a car stopped for expired registration and seatbelt violations. He consented to a search of his fanny pack, which contained a pistol magazine, a gram scale that smelled of methamphetamine, a small plastic bag and a beeper. When the officer conducted a patdown for weapons, the officer felt something lumpy with volume and mass beneath the defendant's pants. At that point, the officer "ruled out a gun" but suspected a controlled substance based on the items in the fanny pack. While the defendant sat on the street curb, the officer pushed up defendant's pants, reached under the clothing, and seized the package which contained methamphetamine. (Id. at pp. 834, 835.) The question for the court was not whether the officer could identify the object as contraband based on only the "'plain feel,'" but whether the officer's "tactical perception of the lump, combined with the other circumstances, created a reasonable inference that the lump was contraband." (Id. at pp. 836, 837.) The court held that the search was reasonable. (Id. at p. 837.)
Similarly here, Deputy Anger's tactical perception of the large, tennis ball size lump, carried in appellant's sock, combined with the circumstances of the strong odor of marijuana, and the admission by the driver of marijuana in the car, created a reasonable inference that the lump was contraband. We are satisfied that the search was constitutionally permitted.
The People also argue that seizure of the narcotics was justified under the inevitable discovery doctrine. In light of our conclusion that the search was constitutional, it is not necessary to reach that issue.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____, J.
DOI TODD
We concur:
____, P. J.
BOREN
____, J.
ASHMANN-GERST