Opinion
NOT TO BE PUBLISHED
Super. Ct. No. MCRDCRF080010338.
NICHOLSON, J.
After his motion to suppress evidence was denied, defendant Jonathon Robert Viano pleaded no contest to possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) A count of possession of drug paraphernalia (Health & Saf. Code, § 11364) was dismissed in light of the plea. Imposition of sentence was suspended and defendant was placed on Proposition 36 probation for three years. (Pen. Code, § 1210.1.)
Defendant also pleaded no contest to an unrelated misdemeanor. (Case No. 09F606.) A second unrelated misdemeanor was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) (Case No. 9938.)
On appeal, defendant contends his suppression motion should have been granted because the patdown search of his person was not supported by reasonable suspicion. We affirm the judgment.
FACTS FROM SUPPRESSION HEARING
Deputy Jason Gassaway, an officer for the Shasta Interagency Narcotics Task Force, was the only witness at the suppression hearing.
On the afternoon of April 14, 2008, Deputy Gassaway conducted an undercover drug purchase from Linda Dunn and Danny Sliger, the targets of the investigation. Afterwards, task force officers executed a search warrant at their residence. Narcotics and stolen property were found during the search.
While Deputy Gassaway was in the kitchen documenting seized evidence, defendant entered the kitchen through an outside door. No knock preceded his entry. Deputy Gassaway grabbed defendant’s arm and, at Deputy Gassaway’s request, defendant identified himself and stated that he was residing there “due to some family problems at home.”
Deputy Gassaway asked defendant if he had any weapons on him; he said no. After advising that he would do so, Deputy Gassaway patted down defendant for weapons.
Deputy Gassaway testified that he conducted the patdown “for safety, officer safety. We had no idea who he was; he was associated to the house, said he lived there; there [were] drugs located in the residence as well as stolen property, and a lot of times people that are in the act of selling or using drugs have weapons on them.”
During the patdown, Deputy Gassaway “scrunched” the right front pocket of defendant’s shorts and felt objects that he believed, based upon his experience, to be a spoon and a syringe. Deputy Gassaway asked defendant what the objects were, but he did not answer. Deputy Gassaway then removed a spoon and a syringe from the pocket and placed defendant in handcuffs. Deputy Gassaway next removed and searched defendant’s wallet incident to his arrest, retrieving some methadone pills.
No weapons had been found at the residence before defendant arrived there. Deputy Gassaway’s common practice was to patsearch all persons found at a residence where a narcotics search warrant was being served.
The trial court first ruled that Deputy Gassaway had the authority to detain defendant when he entered the residence and acted as if he were an occupant during the service of the search warrant. The court next ruled that, when a home is being searched for drugs, there are reasons to believe that the residents are armed and dangerous. Finally, the court ruled that the full search of defendant (including his wallet) required a showing that he possessed evidence that had been described in the search warrant; this showing had been made. Thus, the motion to suppress the fruits of the patdown search was denied.
DISCUSSION
Defendant contends the trial court erred in upholding the patdown search without sufficient reasonable particularized suspicion to search him. He argues, as he did in the trial court, that suppression is required by our recent decision in People v. Sandoval (2008) 163 Cal.App.4th 205 (Sandoval). For reasons we explain, we find Sandoval to be distinguishable on its facts.
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v.Glaser (1995) 11 Cal.4th 354, 362 (Glaser); see People v. Weaver (2001) 26 Cal.4th 876, 924.)
Glaser demonstrates that defendant was properly detained at the time of the patdown search. In Glaser, the defendant was detained as he arrived at a private home shortly ahead of the officers’ intended execution of a search warrant. (Glaser, supra, 11 Cal.4th at pp. 360-361) Applying principles the United States Supreme Court had announced in Michigan v. Summers (1981) 452 U.S. 692 [69 L.Ed.2d 340] and Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry), the court found that the brief detention “was justified by the need to determine what connection defendant, who appeared to be more than a stranger or casual visitor, had to the premises, and by the related need to ensure officer safety and security at the site of a search for narcotics.” (Glaser, supra, 11 Cal.4th at p. 365; see id. at pp. 363-365, 367.) Glaser stated as a general rule: “When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, pursuant to [Michigan v. Summers, supra,] for the duration of the search. [Citation.]” (Id. at p. 374.) The trial court properly concluded that Deputy Gassaway’s detention of defendant during the execution of the search warrant at his residence was lawful.
Whether Deputy Gassaway was entitled to frisk defendant during the lawful detention depends on whether Deputy Gassaway had “a reasonable belief or suspicion that [defendant was] armed.” (Sandoval, supra, 163 Cal.App.4th at p. 213.) “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” (Terry, supra, 392 U.S. at p. 24.)
We consider, first, whether Deputy Gassaway held the requisite belief, and second, whether such belief was reasonable under the circumstances.
When asked “[w]hy did you pat [defendant] down for weapons,” Deputy Gassaway answered that he had done so “for safety, officer safety. We had no idea who he was; he was associated to the house, said he lived there; there [were] drugs located in the residence as well as stolen property, and a lot of times people that are in the act of selling or using drugs have weapons on them.”
On cross-examination, defense counsel asked Deputy Gassaway: “And it’s your common practice, to pat search all persons found at a residence where a narcotics search warrant is being performed, correct?” Deputy Gassaway replied, “Correct.” Overlooking Deputy Gassaway’s stated reasons for the patsearch, set forth above, defendant claims that Deputy Gassaway frisked him “only because it was common practice for him to do so.” (Italics added.) This claim disregards the record and has no merit.
Although Deputy Gassaway did not state in so many words that he believed or suspected that defendant had a weapon on him, Deputy Gassaway did state reasons to entertain such a belief: defendant resided and was found where drugs and stolen property had been located; thus, he could have been engaged in selling or using drugs. Deputy Gassaway knew that “a lot of times” people who engage in those activities “have weapons on them.” The necessary implication is that Deputy Gassaway believed or suspected that defendant was so engaged and so armed. Nothing in the evidence tended to distinguish the present case from the “lot of times” to which Deputy Gassaway had alluded; his failure to at least suspect that defendant had been armed would have been inexplicable.
Deputy Gassaway’s evident belief or suspicion distinguishes the present case from Sandoval, in which, “[b]efore conducting the patdown, the officer had no reason to believe defendant was armed or was committing a crime.... [T]he officer testified he did not suspect defendant was engaged in criminal activity and the officer had no reason to believe defendant was armed.” (Sandoval, supra, 163 Cal.App.4th at pp. 209, 212.) The defendant had been contacted outside the premises before the search commenced and before any contraband or stolen property was discovered. (Id. at pp. 208-209.) Perhaps for this reason, the officer’s explanation for the patdown search was nonspecific and was not tailored to the particular facts of the warrant search. (Ibid.)
The remaining question is whether Deputy Gassaway’s belief that defendant was armed was reasonable. We conclude it was.
We agree with defendant that a suspect’s mere presence at a location where narcotics are thought to be, or where an authorized narcotics search is taking place, is insufficient to believe that the suspect is armed. (Ybarra v. Illinois (1979) 444 U.S. 85, 93-94 [62 L.Ed.2d 238, 248] (Ybarra); Sandoval, supra, 163 Cal.App.4th at p. 210.) Here, however, defendant linked himself to the location by identifying it as his private residence; moreover, unlawful narcotics and stolen property had already been found at that location.
Glaser explained that “[t]he police interest in protecting against violence during the search of a home for narcotics has been widely recognized. ‘In the narcotics business, “firearms are as much ‘tools of the trade’ as are most commonly recognized articles of narcotics paraphernalia.”’ [Citation.] The danger is potentially at its greatest when, as here, the premises to be searched are a private home, rather than a place of public accommodation as in Ybarra. ‘[B]ecause of the private nature of the surroundings and the recognized propensity of persons “engaged in selling narcotics [to] frequently carry firearms to protect themselves from would-be robbers,” [citation] the likelihood that the occupants [of a residence] are armed or have ready accessibility to hidden weapons is conspicuously greater than in cases where, as in Ybarra, the public freely enters premises where legal business is transacted.’ [Citation.]” (Glaser, supra, 11 Cal.4th at pp. 367-368, fn. omitted.) This passage from Glaser well illustrates the reasonableness of Deputy Gassaway’s stated belief that “a lot of times people that are in the act of selling or using drugs have weapons on them.”
The antecedent discovery of narcotics and stolen property inside defendant’s residence, where he later was detained, cast a particularized suspicion upon him that had been absent in Ybarra and Sandoval. In Ybarra, no facts suggested that the defendant, a patron at a bar being searched pursuant to a warrant, would be armed. (Ybarra, supra, 444 U.S. at pp. 92-93.) In Sandoval, the officer knew from a prior search that the defendant had previously resided with the target of the probation search but, by the time of the patdown, knew only that the defendant was seated on some exterior steps. The officers thought, but did not know, that narcotics were located inside. (Sandoval, supra, 163 Cal.App.4th at pp. 208, 212.) Here, in contrast, defendant’s residence at, and presence inside, a private home where narcotics and stolen property had already been discovered supported a reasonable suspicion that he had done what users and sellers of narcotics often do: arm himself or maintain ready access to a weapon. (Glaser, supra, 11 Cal.4th at pp. 367-368.) As in People v. Thurman (1989) 209 Cal.App.3d 817 (Thurman), Deputy Gassaway could not “discount the possibility that one or more of the individuals found inside were personally armed.” (Id. at p. 823.)
Sandoval distinguished Thurman on the ground that in the latter case no officer had testified “he had no reason to believe the defendant was armed.” (Sandoval, supra, 163 Cal.App.4th at p. 212.) The present case is distinguishable from Sandoval for this same reason.
In sum, the patdown search of defendant was supported by a reasonable belief that he was armed and presently dangerous. His suppression motion was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., SIMS, J.