Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 202877
Siggins, J.
Following the denial of his motion to suppress evidence under Penal Code section 1538.5, defendant Alberto Tirrez pleaded guilty to possession of a firearm by a felon and possession of a concealed weapon. This appeal challenges the ruling on the motion to suppress. Because we conclude officers had a reasonable basis to detain and frisk Tirrez, we affirm.
BACKGROUND
The following facts are taken from evidence presented at the preliminary hearing. (See People v. Moore (2006) 39 Cal.4th 168, 171.)
San Francisco Police Officer Sean Padilla testified as follows. Around 1:30 a.m. on May 13, 2007, he was on patrol in a marked police car with his partner, Officer Cowhig. Padilla had been a police officer for five years.
As Padilla stopped at the intersection of South Van Ness Avenue and 24th Street, an area he knew to be territory of the Norteño street gang, he saw two Latino men standing on the corner. Padilla recognized that one of the men was Luis Ruiz, a member of the Norteño gang.
As Padilla continued through the intersection, he made a U-turn and saw several Latino males dressed in San Francisco 49ers and Giants clothing walking quickly away from the corner. Padilla had at least 40 hours of training on gangs and gang recognition. From this, he was aware that Norteño gang members commonly wear Giants and 49ers clothing, display the number 415, and identify with the colors black, orange, white and red. Padilla was concerned about the men congregating because he knew there was a lot of criminal gang activity in that area at night.
Padilla saw Ruiz and the other man walk toward a bar at the intersection’s west corner. Padilla approached and spoke briefly with Ruiz, who said he was going home. As they spoke, Padilla looked west and saw defendant walking away. Padilla had not previously seen defendant among the men who were standing on the corner. Defendant seemed to be looking back over his shoulder toward Padilla every three steps as he walked.
Padilla drove toward defendant on 24th Street, so that defendant was on the officers’ right side as they approached. Defendant was wearing a San Francisco Giants sweatshirt and a black and orange Giants hat. He was holding a cell phone to his ear with his left hand and his right hand was in his right jacket pocket. Padilla observed defendant pushing his hand forward in his pocket, and Padilla’s training and experience led him to think that defendant might be trying to conceal a weapon.
Padilla pulled up and told defendant to stop. Defendant initially ignored Padilla, but complied after a few steps. Defendant “kept his right hand or right body away from [Padilla] and kind of kept his left—his left flank toward” the officer. Padilla had defendant put his hands on his head and he noticed the number 415 on the back of defendant’s Giants hat. Padilla conducted a patsearch for weapons that revealed a gun in defendant’s waistband, under his clothing.
On cross-examination, Padilla clarified that defendant was not standing with the group of men he saw near Ruiz when he drove through the intersection.
Defendant was charged with one count each of possession of a firearm by a felon and possession of a concealed weapon. The complaint further alleged that defendant had two prior felony convictions, one for possession of cocaine base for sale and one for carrying a concealed firearm.
At the preliminary hearing, defendant moved to suppress the evidence against him on the ground that it was obtained in violation of his Fourth Amendment rights to be free from unreasonable search and seizure. The court denied the motion. Defendant twice renewed his challenge to the evidence, first in a Penal Code section 995 motion to set aside the indictment and in a motion to suppress under section 1538.5. Each time defendant relied upon the transcript from the preliminary hearing. Both motions were denied. Defendant entered guilty pleas to both charges and was sentenced to three years’ probation. This appeal was timely filed.
After the preliminary hearing, defendant was charged by information with the same charges alleged in the complaint.
DISCUSSION
I. The Detention Did Not Violate Defendant’s Rights
Defendant contends his Fourth Amendment rights to be free from unreasonable search and seizure were violated because Padilla had insufficient reason to detain him. Although this case presents a close question, in view of the totality of the circumstances we agree with the trial court that the search was legal.
A. Legal Principles
When a motion to suppress is submitted to the trial court on the preliminary hearing transcript, “the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.” (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We independently review the applicable law and its application to the facts (People v. Carter (2005) 36 Cal.4th 1114, 1140) and affirm the trial court’s ruling if correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
A detention is constitutionally reasonable if the circumstances known or apparent to the detaining officer include “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. . . . [T]he facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question.” (In re Tony C. (1978) 21 Cal.3d 888, 893; see also People v. Daugherty (1996) 50 Cal.App.4th 275, 285.) “The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶] . . . The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” ’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
B. Analysis
The court correctly ruled that the totality of the circumstances confronting Padilla supported the detention. First, there were a number of indications that defendant was associated with a criminal street gang. Along with other men who were in the vicinity at the time, defendant was wearing the San Francisco Giants clothing commonly worn by Norteños. Padilla recognized one of the men standing on the corner, Luis Ruiz, as a Norteño member. The area was known to Padilla as Norteño gang territory, and the officer was aware that criminal gang activity was common in the area at night. (See People v. Souza (1994) 9 Cal.4th 224, 241 [area’s reputation for criminal activity and time of night are pertinent considerations in assessing the validity of a detention]; Adams v. Williams (1972) 407 U.S. 143, 144, 147-148 [same, high crime area].)
While a person’s mere presence in a gang area at night does not alone justify an investigative stop (see Illinois v. Wardlow (2000) 528 U.S. 119, 124), here there was more. Padilla became suspicious when defendant was looking back at Padilla almost every third step as he was walking away from the officer. “Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Ibid.) When Padilla asked defendant to stop, defendant kept his right side away from Padilla and held his right hand in his pocket away from his body. In the officer’s training and experience, defendant’s manner suggested to the officer that he was hiding or holding a weapon. In combination with the presence of a known gang member in the vicinity, the gang territory, the early morning hour of the stop and defendant’s attire, these observations provided reasonable grounds to stop and search defendant for weapons. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1240-1241.) “ ‘The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.’ ” (Id. at p. 1241.)
Defendant focuses on each of the circumstances that contributed to Padilla’s decision to stop him as an isolated factor and argues that independently, each one does not support the reasonable suspicion required for an investigative detention. The United States Supreme Court has expressly repudiated this sort of “divide-and-conquer analysis” and made clear that factors that when taken by themselves are perfectly susceptible to an innocent explanation may, when taken together, support reasonable suspicion. (United States v. Arvizu (2002) 534 U.S. 266, 274.) In this case, the court properly based its analysis on the totality of the circumstances.
II. The Patsearch Was Constitutional
Defendant argues the patsearch was unlawful because the circumstances did not support a reasonable belief that he was armed and dangerous. Not so.
An officer who lawfully detains a suspect may conduct a patsearch for weapons only if the circumstances justify a reasonable suspicion that the detainee is armed and dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 24.) “A Terry frisk ‘is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.’ [Citation.] Accordingly, a frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.” (People v. Medina (2003) 110 Cal.App.4th 171, 176.) Defendant correctly observes that a person’s mere presence at night in a high crime area is not enough to support a patsearch. (Id. at pp. 177-178.) But, as we discussed in passing upon the legality of defendant’s detention, here Padilla faced additional considerations including indications of defendant’s gang affiliation, his suspicious behavior as he walked away and his gestures consistent with concealing a weapon. In light of all the circumstances, the court correctly ruled the patsearch was lawful and the evidence was admissible.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.