Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD224073, Frederick Maguire and Kathleen M. Lewis, Judges.
HALLER, J.
Andie Shoate pleaded guilty to possession of a firearm by a felon. He argues the trial court erred in denying his motion to suppress the gun found in his possession. We reject this contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2009, the police performed a traffic stop of a vehicle that did not have a front license plate and whose occupants were not wearing seat belts. Shoate was seated in the front passenger seat. As we detail below, after the officer was informed that Shoate was on parole for manslaughter and observed other matters that raised concerns for officer safety, the officer conducted a patdown search of Shoate for weapons. Shoate was wearing a gun holster. The officer then searched the vehicle and found a gun under the driver's seat.
Shoate was charged with possession of a firearm by a felon. After the trial court denied his motion to suppress the gun, Shoate pleaded guilty to possession of a firearm by a felon and admitted two strike prior convictions and one prior prison term enhancement. The trial court struck one strike prior, and sentenced him to seven years in prison.
DISCUSSION
Shoate asserts the trial court erred in denying his Penal Code section 1538.5 motion to suppress the gun because it was the fruit of an illegal patdown search.
Testimony at the Suppression Hearing
At the suppression hearing, Officer Pedro Arce described the circumstances giving rise to the patdown search. At about 11:25 p.m. on November 26, Officer Arce noticed a car with no front license plate and saw that the driver and passenger were not wearing seat belts. Officer Arce made a traffic stop and informed the vehicle's occupants why he had made the stop. He asked the driver (Marta Atsebaha) for her license, registration, and insurance, and asked the passenger (Shoate) for his identification.
While Atsebaha was looking for her documents, Officer Arce asked them if they were on probation or parole. Shoate responded that he was on parole for manslaughter. Both Atsebaha and Shoate appeared nervous; they avoided eye contact and were fidgety. Shoate's eyes were droopy and red and he appeared to be under the influence of alcohol or drugs. It took Atsebaha about four minutes to find her documents. While he was waiting for the documents, Officer Arce asked her if he could search the car to be sure there were no weapons or drugs in it. Atsebaha started to say yes, but Shoate interrupted and said, "No, you cannot, " which caused Atsebaha to change her mind and say no. After Atsebaha and Shoate provided the requested documents, Officer Arce went back by his vehicle to conduct a records check, which confirmed that Shoate was on parole.
While Officer Arce was obtaining the records check, he noticed "side-to-side movement" by both Atsebaha and Shoate in their car. At this point, Officer Arce decided to request additional units "for cover" because Shoate and Atsebaha were acting nervous; Shoate was on parole and had a "history of violent tendencies"; and Officer Arce saw them moving in the car.
After a back up unit arrived, Officer Arce told Shoate to exit the vehicle so he could do a patdown search for weapons. Similar to his reasons for requesting back up units, Officer Arce testified that he performed the patdown search because the car's occupants were acting nervous; he saw movement in the car while he was doing the records check; and based on his training he knew that people who "have been arrested for violent tendencies" often carry weapons. During the search, Officer Arce found that Shoate was wearing an empty gun holster attached to his belt. Officer Arce twice asked Shoate where the gun was; first Shoate stated that he had to carry a gun for work, and the second time stated he did not have a gun. The police also performed a patdown of Atsebaha, and Officer Arce searched the car for a possible gun. He found a loaded gun just under the driver's seat on the floorboard.
According to Officer Arce, Atsebaha at first told the police she knew nothing about the gun, but eventually stated that Shoate slid it under her seat. She explained that Shoate told her he put the gun there because the police could not search her side of the car, and he told her that she should not say anything about it.
Atsebaha testified at the suppression hearing on behalf of the defense. She claimed that she immediately provided the requested documents to the officer; she told the officer he could not search her car; she did not start to give consent and Shoate did not interrupt her; she did not know how the gun ended up under the front seat of her car; she did not see Shoate place the gun there; and Shoate did not make any statements to her about placing it there and she did not remember telling the officer that he did.
Atsebaha also testified that when Shoate told the officer he was on parole, the officer asked him what his conditions were and Shoate answered that "he was not a Fourth waiver." When questioned about this, Officer Arce testified that he did not remember whether Shoate told him he did not have a search waiver. He testified that at some point he found out that Shoate did have a search waiver, but he did not recall if he received this information during the initial records check or after he arrested Shoate.
Trial Court's Ruling
In its written and oral arguments opposing the suppression motion, the prosecutor argued that the patdown search was a permissible parole search. The prosecutor asserted that an officer's knowledge that a person is a parolee is sufficient to permit a parole search; the officer does not need to specifically know whether the parolee has a search condition as a term of parole; and the officer here knew Shoate was on parole from Shoate's admission to him and from the records check. Further, in oral arguments at the suppression hearing, the prosecutor asserted that the patdown search was also permissible for purposes of maintaining officer safety. The prosecutor cited the facts showing that the officer knew Shoate was on parole for a violent crime; Shoate did not want the officer to search the car for weapons; the officer saw Shoate fidgeting in the car while he was conducting the records check; the officer still needed to write the citation; and the officer called for back up units because of his concern for safety. The prosecutor concluded, "All of this is reasonable, in light of officer safety and for him to be expected to then come back to the vehicle, with all of these red flags, and act as if nothing is going on and start writing citations would be very dangerous to the officer."
Shoate's counsel argued that the officer could have issued a citation as soon as Atsebaha provided him with the requested documentation, and instead he went on a "fishing expedition" by inquiring about whether they were on parole or probation. Further, Shoate told the officer he did not have a search waiver, and once again the officer did not issue the citation but instead "continued on his fishing expedition" by going back to his car to acquire more information, asking for permission to search the car, and patting down Shoate.
The trial court denied the suppression motion, reasoning that the officer could properly conduct a patdown search for weapons. The trial court stated that during the traffic stop the officer could legitimately ask for identification from the vehicle's occupants, inquire whether anyone was on probation or parole and if there were drugs or weapons in the car, and run a records check on the occupants. The court found it was reasonable that the officer's "radar would go up" because the stop was at night; the officer was alone; Shoate told him he was on parole for manslaughter; Shoate appeared nervous and under the influence; and the officer became "a little nervous" when he saw the car occupants moving around while he was doing the records check.
Regarding the parole search issue, the court concluded there was not enough evidence to show that Officer Arce knew that Shoate had a search condition as a term of his parole. However, the court cited cases (People v. Middleton (2005) 131 Cal.App.4th 732; People v. Solorzano (2007) 153 Cal.App.4th 1026) holding that the police do not need to know whether a parolee is subject to a search condition to justify a parole search because all California parolees have such a condition in their parole terms.
Analysis
Shoate asserts that the two proffered justifications for the patdown search were inapplicable because (1) the facts did not support a reasonable belief that he was armed and dangerous, and (2) the officer did not know whether he was subject to a search condition as a term of his parole. Regarding the parole search justification, he argues that Middleton's holding that an officer's knowledge of parole status is sufficient to permit a warrantless search is premised on the incorrect assumption that every California parolee is subject to a search condition as a term of parole. (See People v. Middleton, supra, 131 Cal.App.4th at p. 739.)
On appeal, Shoate does not dispute that during the traffic stop the officer could properly ask him whether he was on parole. (See People v. Gallardo (2005) 130 Cal.App.4th 234, 239 [police may properly run warrant check and ask questions unrelated to traffic stop as long as detention is not unduly prolonged; mere questioning does not constitute a search or seizure and detained person need not answer unrelated questions]; accord Arizona v. Johnson (2009) 555 U.S. 323, ____ [129 S.Ct. 781, 788].)
We need not address the parole search issue because we conclude that the patdown search for weapons was justified based on concerns for officer safety.
On appeal from a ruling on a suppression motion, we defer to the trial court's express and implied factual findings if they are supported by substantial evidence, and we exercise our independent judgment in determining whether, on the facts so found, the search and seizure was reasonable under the Fourth Amendment. (In re H.M. (2008) 167 Cal.App.4th 136, 142.) To protect officer safety during a routine traffic stop, an officer " 'may perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.' " (Arizona v. Johnson, supra, 129 S.Ct. at p. 787.) The courts recognize that "traffic stops are 'especially fraught with danger to police officers[, ]' " not " 'from the ordinary reaction of a motorist stopped for a [traffic] violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.' " (Id. at pp. 786-787.) Accordingly, pending completion of the traffic stop, the police may lawfully order the driver and passengers out of the car because the "government's 'legitimate and weighty' interest in officer safety... outweighs the 'de minimis' additional intrusion of requiring a driver [or passenger], already lawfully stopped, to exit the vehicle." (Id. at p. 786.) Further, once outside the stopped vehicle, the vehicle's occupants "may be patted down for weapons if the officer reasonably concludes that [they] 'might be armed and presently dangerous.' " (Ibid.)
"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." (Terry v. Ohio (1968) 392 U.S. 1, 27.) The officer's "inchoate and unparticularized suspicion or 'hunch' " does not suffice; rather there must be "specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience." (Ibid.; In re H.M., supra, 167 Cal.App.4th at pp. 143-144.)
Here, during the traffic stop the officer learned that Shoate was on parole for manslaughter, and he observed that Shoate was acting nervous, appeared to be under the influence, and was moving around in the car when the officer went to run the records check. Concerned for his own safety, the officer called for back up units. A reasonably prudent officer could surmise that Shoate might be armed based on his conviction for a homicide that may have involved violence. The concern for officer safety was augmented by the fact that Shoate appeared to be nervous and under the influence, which could increase the potential for irrational behavior. Further, Shoate's movements in the car after the officer stepped away raised the possibility Shoate was retrieving a weapon. The officer had not yet issued citations for the traffic violations, and to do this he needed to be in close proximity to Shoate. These circumstances reflect specific and articulable facts justifying the patdown search to ensure that Shoate did not have a weapon on his person that could suddenly be used against the officer as he completed his duties related to the traffic stop. Shoate does not dispute that once the officer found the empty holster attached to Shoate's belt, the officer was entitled to search the car for a possible gun.
For the first time in his reply brief, Shoate argues that officer safety cannot be used to justify the patdown search because the prosecutor did not present this argument to the trial court. An argument raised for the first time in a reply brief may be deemed waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) In any event, the contention fails on its merits. As set forth above, the record shows that although the prosecutor did not mention the officer safety issue in his written opposition to the suppression motion, he explicitly raised the issue in his oral arguments before the trial court after the presentation of evidence at the suppression hearing.
Further, contrary to Shoate's contention in his reply brief, the facts developed and adjudicated at the suppression hearing covered the officer safety issue. Officer Arce described his belief that he needed to call for back up units and to conduct a patdown search because of his concerns about Shoate's violent background and Shoate's and Atsebaha's nervousness and movements while he was away from their car. In its ruling denying the suppression motion the trial court delineated the facts that justified the officer's safety-related concerns, and concluded the officer reasonably had his "radar" up. When the trial court cited the facts relevant to officer safety in its ruling denying the motion, Shoate's counsel did not object that he was not given notice that these facts might be relied upon as a basis to justify the patdown search. (See People v. Williams (1999) 20 Cal.4th 119, 136 [requirement that issues must be raised below is designed to ensure that each party has opportunity to adequately litigate the facts]; People v. Ray (1999) 21 Cal.4th 464, 470, fn. 2.)
The record shows the factual basis for the officer safety issue was developed and ruled upon at the suppression hearing, and the denial of the suppression motion may properly be based on this ground. (People v. Wilkins (1993) 14 Cal.App.4th 761, 770, fn. 5; see Green v. Superior Court (1985) 40 Cal.3d 126, 137-139; People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.