Opinion
H041564
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. GEORGE BARRON VALERIO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1366998)
Defendant George Barron Valerio appeals from the denial of his motion to suppress evidence obtained from a pat down search during a traffic stop. As we will explain, the search was lawful because it was supported by specific facts indicating defendant might have been armed. We will therefore affirm the judgment.
I. BACKGROUND
On a September evening at around 10:45 p.m., Santa Clara police officer Luke Erickson was driving his patrol car through an industrial area known for commercial burglaries and stolen vehicles. He saw a green Honda in front of him with two people in it. He noticed its license plate was not adequately illuminated, a violation of the Vehicle Code. Officer Erickson ran a check of the car's registration records, which showed the name of the registered owner. When the Honda remained at a standstill for approximately ten seconds after a traffic light turned green, Officer Erickson began to suspect the driver might be intoxicated. He initiated a traffic stop, and within a few minutes a backup officer arrived to assist.
As Officer Erickson approached he noticed that the driver was acting nervous, moving erratically, and not making eye contact. He asked who owned the car, and the name the driver gave did not match that of the registered owner. Suspecting the vehicle might be stolen, he ordered the driver out, handcuffed him, and conducted a pat down search.
Officer Erickson then ordered defendant, who was in the passenger seat, to get out of the car. Defendant complied and Officer Erickson saw he was wearing a baggy t-shirt covering the waistband of his pants. Concerned that the shirt could be concealing a weapon, Officer Erickson told defendant to spread his feet with his hands behind his back, and conducted a pat down search. He felt something in defendant's pants pocket, and when he asked what it was, defendant responded, "drugs." The item in defendant's pocket turned out to be a usable amount of methamphetamine.
Defendant was charged with possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). At the preliminary hearing, he moved under Penal Code section 1538.5 to suppress the evidence found in his pocket on the ground that the pat down search violated the Fourth Amendment to the United States Constitution. The magistrate denied the motion and held defendant to answer. Defendant then brought a renewed motion to suppress under Penal Code section 1538.5, subdivision (i). The trial court denied the renewed motion, finding that the search was lawful. Defendant pleaded no contest and was placed on probation for two years, with various drug-related conditions.
We have taken the facts from the transcript of the preliminary hearing and the evidence presented at the hearing on the renewed motion to suppress. (See Pen. Code, § 1538.5, subd. (i) [When ruling on a renewed motion to suppress, the trial court must base its ruling on the transcript of the preliminary hearing and any evidence presented at the hearing on the renewed motion.].)
II. DISCUSSION
Defendant contends that his motion to suppress evidence should have been granted because the pat down search was not supported by a reasonable suspicion that he was armed, as required under the Fourth Amendment. We review the denial of a motion to suppress using a two-part standard. We defer to the trial court's factual findings that are supported by substantial evidence, and we use our independent judgment to determine whether those facts establish that the search was reasonable according to Fourth Amendment principles. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A pat down search, or frisk, is a law enforcement technique that has for decades been recognized as "a serious intrusion upon the sanctity of the person," with the potential to cause increased friction between police and the communities they serve. (Terry v. Ohio (1968) 392 U.S. 1, 14, fn. 11; 17 (Terry).) Courts must therefore be vigilant about guarding against pat down searches that invade personal security without the "objective evidentiary justification which the Constitution requires." (Id. at p. 15.) At the same time, the pat down search is a necessary tool for enhancing the safety of police officers confronting a subject who might be concealing a weapon.
In Terry, the Supreme Court decided that a limited search to check a person for weapons is permissible under the Fourth Amendment, even in the absence of probable cause to make an arrest. A pat down search may be conducted if an officer has reason to believe that he or she is dealing with "an armed and dangerous individual." (Terry, supra, 392 U.S. at p. 27.) The officer need not be absolutely certain the individual is armed; rather the issue is whether a reasonable person under the circumstances would believe so. (Ibid.)
While routine traffic stops generally pose less risk than an arrest, they can still present a significant danger to officer safety. (Knowles v. Iowa (1998) 525 U.S. 113, 117.) An officer is always permitted to order the driver and any passengers out of the vehicle when making a traffic stop. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111.) But to justify a pat down of any occupant, the officer must have a reasonable suspicion that the person is armed and dangerous. (Arizona v. Johnson (2009) 555 U.S. 323, 326-327.)
Here, Officer Erickson conducted the pat down search of defendant after making a stop for a minor Vehicle Code violation, and then learning information causing him to believe the car in which defendant was riding might be stolen. The officer's suspicion that the car might be stolen was based on specific facts which made that belief objectively reasonable: the area was known for vehicle theft, the driver appeared nervous, and the driver gave a different name for the car owner than the name appearing in the registration records. Though the frisk would not have been justified simply because defendant was a passenger in a vehicle stopped for a traffic infraction, it was justified based on the officer's reasonable belief defendant might be involved with a vehicle theft. A person who commits a traffic infraction is not necessarily likely to be carrying a weapon, but it is reasonable to assume that someone engaging in more serious criminal activity might be. For that reason, a routine traffic stop that evolves into suspicion of another crime may justify searching a passenger. (People v. Collier (2008) 166 Cal.App.4th 1374, 1377 [frisk of passenger allowed when odor of marijuana gave police reasonable suspicion that drugs were being transported in car].) And the nature of the suspected crime may support a further reasonable inference that a suspect could be armed. Automobile theft in particular has been recognized as an offense in which the perpetrators are likely to be carrying weapons, or tools that can be used as weapons. (See People v. Osborne (2009) 175 Cal.App.4th 1052, 1061.)
Defendant argues at length that the frisk was not justified because the officer suspected automobile theft, not automobile burglary, a distinction defendant views as dispositive. We are not persuaded. In our view, engaging in automobile theft increases the likelihood a person will be armed in the same way engaging in automobile burglary does. --------
We emphasize that a reasonable suspicion the car was stolen is the key to establishing the validity of this search. Although other facts noted by the Attorney General—that the stop occurred at night, in an industrial area, and defendant was wearing baggy clothing—add to the justification for the search under the totality of the circumstances, those other facts are not sufficient by themselves to justify a search. (A pat down of every person stopped for a traffic infraction in that area at night who was not wearing tight clothes would overstep the boundaries created by the Fourth Amendment. See, e.g., People v. Medina (2003) 110 Cal.App.4th 171, 177-178.) But the facts indicating to the officer that he might be confronting two subjects in a stolen vehicle support a reasonable belief those subjects might be armed. And a concern that one of the subjects might be armed justifies a pat down search to ensure officer safety, even considering the presence of a second officer who arrived during the encounter.
We acknowledge that defendant was a passenger in a suspected stolen vehicle, not the driver, and mere proximity to a person suspected of criminal activity is insufficient to justify a frisk. (Ybarra v. Illinois (1979) 444 U.S. 85, 92.) But as one of only two occupants of the car, it was the suspicion that defendant himself was involved in perpetrating the theft and therefore might be armed that justified the pat down search, not his proximity to someone else suspected of a crime.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Elia, J.