Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR221155
Lambden, J.
Defendant Robert A. Young seeks reversal of the trial court’s denial of his motion to suppress evidence, contending that the court erred because a police officer’s patdown search of him was unjustified and overbroad. We affirm.
BACKGROUND
Defendant was charged with possession of a controlled substance, which charge was subsequently incorporated into a consolidated information that included counts regarding another, unrelated incident. Defendant moved to suppress evidence of the controlled substance, methamphetamine, in a motion to suppress pursuant to Penal Code section 1538.5.
Detomasi’s Testimony
At the December 2006 hearing on defendant’s motion, Officer Tony Detomasi of the Fairfield Police Department testified that he and two fellow officers, Gutierrez and Lanky, went to a Taylor Street residence to serve a felony arrest warrant for Vincent Smith, whom they had reason to believe lived there. They encountered Cheryl Reissner, who said she owned the residence. Reissner said Smith used to stay there, but no longer did and was not there. Gutierrez asked if they could enter the residence and make sure Smith was not there, and Reissner told them that would be no problem.
The officers entered the house and began their search. They came upon a bathroom adjoining the kitchen area with the door closed. Gutierrez knocked on the door and announced himself as a law enforcement officer. Detomasi heard “some rustling around inside,” and thought he heard a voice say, “one minute,” and indicate he needed to get his pants. Eventually, a man opened the bathroom door and came out.
Gutierrez told the man to go to the kitchen area and stand by Detomasi, and the man did so. Detomasi asked the man if he could conduct a pat search of him for weapons, but the man said Detomasi could not, that it was not necessary, and that he was exercising his right to deny the request.
Gutierrez then told Detomasi that “there was a knife in the bathroom” that the man had just exited. Detomasi testified that with the knife in mind, and not knowing who the man was, he explained to the man what a patdown search was, including that he did not need to go inside his pockets. The man told him the patdown search was fine, but that Detomasi did not have permission to put his hands in the man’s pockets. Detomasi began a patdown search of the man’s outer clothing. He testified that “[i]n the area of the right coin pocket I immediately recognized a, like a ball. It felt grainy like it was in a plastic type material, so, grainy material, inside of a plastic like cellophane. I could feel and hear the cellophane.” Detomasi also indicated the size and shape of the material was consistent with controlled substances, and that “right away I believed it was methamphetamine.” He removed the item, which he believed to be methamphetamine based on his training and experience, and handcuffed the man.
At the hearing, Detomasi identified defendant as the man who came out of the bathroom. However, he testified that at the time of the search he did not know whether or not the man who came out of the bathroom was Smith. Detomasi was sure he asked the man at some point if he was Vincent Smith, whom the officers sought to arrest, but was not sure when he did, although he thought it was not likely that it was after the search. He did not think the man showed him any identification, but he was not “a hundred percent sure.”
Although Detomasi never went into the bathroom, Gutierrez did at some point show him the knife, which was a folding type with a dark color, a little larger than average, but not a large knife.
Detomasi had been receiving training on drug recognition since 2000. Every couple of months, he documented every type of narcotic-related training he received from in-house training to “(POST) certified” training. He had undergone training every few months.
Reissner’s Testimony
Cheryl Reissner also testified at the hearing. She said she told the officers that Smith’s girlfriend had once lived there, but that Smith never had lived there. She denied police consent to search the house, but when she opened the screen door to give them her identification, an officer put his hand in the door to prevent it from closing. After she denied his request to enter again, he told her they could come in “because it’s probation.”
Reissner also testified that the knife in the bathroom was a folding, “box cutter like thing” that was used to cut “sheetrock, boxes, flooring,” with a “straight edge kind of razor,” and was covered with drywall “mud” and flooring glue. The knife was being used for on-going construction in the bathroom, and the bathroom itself showed indications of construction activity.
Defendant’s Testimony
Defendant testified that he was Cheryl Reissner’s boyfriend and had spent the previous night at the residence. When an officer knocked on the bathroom door, he told the officer his full name and, in response to the officer’s request that he come out, said that he was going to the bathroom; he finished and came out. One of the officers escorted him to the kitchen and asked him if he was Vincent Smith. Defendant said he was not and, in response to the officer’s request, showed him his identification. The other officer then found a utility knife in the bathroom, and the officer in the kitchen asked defendant if he could search him; defendant denied the request, citing his constitutional rights. The officer searched him without his permission, going down the sides of his pants to his ankles, back up, and pulled his pockets out, but could not pull out the coin pocket.
Argument and the Court’s Ruling
Defense counsel argued that the evidence showed defendant had not given permission to the patdown search, and that the presence of the knife in the bathroom did not provide Detomasi with a reasonable suspicion that defendant was armed.
The prosecution argued the officer had the right to patsearch the defendant based on reasonable suspicion because of the presence of the knife in the bathroom that defendant had just exited, and because defendant had consented to the search. The prosecution specifically pointed out that “[i]t was during the patdown [that Detomasi] was able to recognize through his training and experience that the item found in the coin pocket was, in fact, a controlled substance.”
The court found that “[t]he more credible evidence is the testimony of the officer which indicated that there was consent to search. I don’t have to get to the issue of whether or not [defendant] consented to a patdown search. I think the evidence that there is a felony warrant, a knife involved, that the officers had the right at that point to protect themselves and conduct a patsearch. [¶] So, the motion is denied.”
Defendant subsequently pled no contest to one count of possession of a controlled substance, and was granted Proposition 36 probation. He filed a timely notice of appeal.
DISCUSSION
I. Reasonable Suspicion
Defendant first argues the trial court erred in finding officer safety was a justification for the patdown search “because no evidence suggested that this concern was implicated when Detomasi actually carried out the search.” This is incorrect.
Penal Code section 1538.5 allows a defendant to move to suppress evidence obtained in an improper seizure. The Fourth Amendment of the federal Constitution requires we exclude evidence obtained from an unreasonable government search and seizure. (People v. Williams (1999) 20 Cal.4th 119, 125.) We analyze a police search based on an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” (Terry v. Ohio (1968) 392 U.S. 1, 21-22.) “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. [Citations.]” (Id. at p. 27.) To justify the search, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Id. p. at 21.)
This court’s standard of 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.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
There was substantial evidence that an officer of reasonable caution would conclude it was appropriate to search defendant based on the facts available to Detomasi at the time of the search. First, Detomasi entered the residence to serve a felony arrest warrant: “The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter.” (Maryland v. Buie (1990) 494 U.S. 325, 333.) “[A]n in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” (Ibid.) Thus, from the very beginning of the encounter, Detomasi had some reason to be concerned about his safety.
Second, the facts known to Detomasi at the time of the search supported his decision to pat down defendant. Detomasi, with Gutierrez, had come upon a closed bathroom, inside of which was an unidentified person who delayed coming out, and Detomasi heard a rustling during this delay. As defendant came over to Detomasi in the kitchen, Gutierrez informed Detomasi that there was a knife in the bathroom that defendant had just exited. Not knowing anything further, and not knowing whether or not defendant was the person sought by the felony arrest warrant, Detomasi decided to conduct the patdown search. Under these circumstances, Detomasi had a reasonable suspicion to do so based on the facts known to him, which were individualized and specific to the potential threat posed by the man before him.
Defendant makes several arguments. He suggests that a distinction must be drawn between arrest warrants and search warrants, and that an arrest warrant provides less justification for a patdown search. However, this is of little import in evaluating detentions made for officer safety (see People v. Hannah (1996) 51 Cal.App.4th 1335, 1343 [“[a]lthough true, it is a distinction which makes no difference”]), when it is most important to examine the “totality of circumstances.” (Ibid.)
Regarding the facts, defendant contends that the utility knife in the bathroom did not suggest he was armed when he was standing in the kitchen, and that “[i]f the presence of a knife in the next room justified the patsearch, virtually anyone could be patsearched by officers entering a residence to serve a warrant,” since all homes contain knifes and the like. He also asserts Detomasi’s explanation for the search indicated he was acting on a mere “hunch” and an “inchoate and unparticularized suspicion,” that “[n]othing in [defendant’s] behavior or appearance created a reasonable suspicion to justify a patsearch,” and that the serving of an arrest warrant at a home is an insufficient basis to “patsearch anyone they find inside.” In his reply brief, defendant contends that the lack of a certain connection between Smith and the residence, as evidenced by Reissner’s testimony that he never lived there, indicated no need for a concern about a potential for sudden violence, and that Detomasi’s initial request to search defendant “demonstrates that even the officers recognized that they did not have a reasonable belief in the need to conduct a patsearch.”
Defendant’s arguments are unpersuasive under our substantial evidence standard of review. Detomasi testified that the officers had reason to believe that Smith lived at Reissner’s residence, and that Reissner acknowledged that he used to stay there; given this evidence, it was reasonable for Detomasi to question the veracity of Reissner’s claim that Smith was not in the residence. Detomasi’s initial request to pat search defendant is not particularly relevant because Detomasi did not learn about the knife until after he made this request. Furthermore, Detomasi’s testimony indicates he did not know what kind of knife was found in the bathroom when he conducted the pat down search. As we have already stated, defendant’s hesitation in coming out of the bathroom, the rustling Detomasi heard, and the discovery of the knife in the bathroom, where a knife is not necessarily found in a residence, were behaviors and circumstances particular to defendant. It was also reasonable for Detomasi to suspect defendant might be the man the officers sought to arrest under the circumstances. These facts together were sufficient to create a reasonable suspicion that justified the pat down search. Therefore, defendant’s arguments about the lack of reasonable suspicion are not a basis for reversing the trial court’s denial of defendant’s motion to suppress evidence.
In light of our ruling, and the trial court’s stated reliance on reasonable suspicion for its ruling, we do not address another issue raised by defendant, that being whether there was substantial evidence that defendant consented to the search.
Our holding is based on the particular facts and circumstances of this case. We do not mean to suggest that police seeking to execute a felony arrest are permitted under all circumstances to “a patsearch of occupants of a home in which the subject of a warrant may reside,” a rule which the People suggest we adopt.
II. The Scope of the Search
Defendant argues that even if Detomasi had a reasonable suspicion which justified the patdown search, we must reverse the court’s denial because Detomasi’s actual search exceeded the scope of that justification. This is also incorrect.
“The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Terry, supra, 392 U.S. at 29.) Nonetheless, “ ‘[i]f, while conducting a legitimate Terry search . . . the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.’ ” (People v. Thurman (1989) 209 Cal.App.3d 817, 825, quoting Michigan v. Long (1983) 463 U.S. 1032, 1050.)
This case implicates “a so-called ‘plain-feel’ or ‘plain-touch’ corollary to the plain-view doctrine.” (Minnesota v. Dickerson (1993) 508 U.S. 366, 371, fn. 1 (Dickerson).) “If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Id. at pp. 375-376, quoted in In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.) It must be evident to an officer at once that he has encountered contraband in order for him to proceed further. (Dickerson, supra, at pp. 375-376.) He may not squeeze, slide, or otherwise manipulate a discovered object to determine what it may be. (See id. at p. 378.) If the object clearly cannot be a weapon, and the officer cannot immediately identify it without further manipulation, then he cannot proceed. (Id. at pp. 373, 379.)
In this instance, the trial court judge expressly found Detomasi’s testimony regarding consent to be the most credible. From this express finding and the court’s ultimate ruling it is apparent that the court found Detomasi’s testimony generally credible. We defer to the trial court on the issue of witness credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [“ ‘it is the exclusive province of the trial judge or jury to determine the credibility of a witness’ ”].) Detomasi indicated that as a result of feeling what amounted to the “contour and mass” (Dickerson, supra, 508 U.S. at p. 375) of the object in defendant’s coin pocket, i.e., a grainy ball enclosed in some sort of plastic, he believed “right away” that the object was methamphetamine; in other words, given his years of training and experience, it was immediately apparent to him that there was methamphetamine in defendant’s coin pocket. “A police officer’s expertise can attach criminal import to otherwise innocent facts.” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) Viewing this evidence “ ‘in the light most favorable to respondent’ ” and presuming “ ‘the existence of every fact the trier could reasonably deduce from the evidence’ ” (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10; People v. Butler (2003) 111 Cal.App.4th 150, 155-156), we conclude under the “plain-feel” standard in Dickerson, supra, 508 U.S. 366, that Detomasi’s search was not overbroad.
Defendant contends that “it is difficult to conjure up any plausible justification for patting down a coin pocket in search of a weapon.” We do not agree. It was reasonable for Detomasi, having been alerted by Gutierrez that a knife had been found, to look for a concealed knife or other sharp object, which reasonably could include something that might fit in an enclosure like a coin pocket. Furthermore, it was reasonable to believe that a weapon could be concealed underneath defendant’s clothing in the area of the coin pocket. In any event, we are unaware of any requirement that Detomasi was required to make snap judgments about which specific areas of defendant’s clothing might conceal a weapon, and to avoid searching some areas accordingly. Once it was reasonable to pat search defendant’s clothing, it was reasonable to do so over all of that clothing.
Defendant does not point to anything in the record that establishes the size of the coin pocket.
Defendant next argues that the “plain feel” corollary to the plain-view doctrine does not justify removal of an object that clearly was not a weapon. He contends that unlike the circumstances in other cases like In re Lennies H., supra, 126 Cal.App.4th 1232, and People v. Dibb (1995) 37 Cal.App.4th 832, and contrary to the attention to context in Dickerson, supra, 508 U.S. 366, Detomasi had no reason to be suspect that defendant was carrying drugs on his person. Also, defendant correctly points out that under Dickerson, supra, 508 U.S. 366, a pat search does not allow an officer to engage in squeezing, sliding and otherwise manipulating the contents of a person’s pocket. (Id . at p. 378.) He argues that given the “barren factual background, it would have been unjustified and unreasonable for Officer Detomasi to conclude ‘immediately’ that an object in [defendant’s] coin pocket was methamphetamine,” and that “as a matter of common sense, if [Detomasi] did not ‘squeeze, slide and otherwise manipulate’ the object at least enough to determine its shape and texture, he could not possibly have known that the object was a ‘grainy’ ‘ball.’ ” He also contends that “[g]iven the multitude of tiny objects that could be stored in a coin pocket, it would have been impossible for Detomasi to have determined that the object was a ‘grainy’ ‘ball’ without first manipulating it . . . .”
We do not agree with defendant’s arguments. The factual background was not necessarily “barren” to Detomasi at the time of the pat search. He had reason to believe a man wanted on a felony arrest warrant lived at the residence, and could reasonably suspect he might be searching that man. Detomasi had further reason to be suspicious of defendant because defendant had delayed coming out of the bathroom and engaged in some kind of rustling activity before he came out, which could cause an officer to reasonably suspect he was hiding something.
Most importantly, Detomasi testified that he had engaged in years of periodic drug recognition training and review of that training, and that upon feeling defendant’s coin pocket he knew “right away” that the object inside it was methamphetamine. Based on his testimony, and employing a substantial evidence standard of review, we conclude that a rational trier of fact could find that Detomasi was able to determine the object was a drug by its contour, mass, and plastic wrapping, and without manipulating it. We are unpersuaded by defendant’s “common sense” and “impossible to determine” arguments. Once Detomasi had provided his testimony, it was defendant’s burden to present some rebuttal evidence establishing that an officer with Detomasi’s training and experience could not detect the methamphetamine found in defendant’s pocket by simply touching it. Defendant failed to do so.
Finally, defendant contends in his reply brief that the trial court did not rule on “this issue,” apparently referring to whether Detomasi manipulated the ball before recognizing it as methamphetamine. “In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1119, italics added.) We imply a finding by the court that the scope of Detomasi’s search was appropriate based on its stated finding that the officers had the right to conduct the patdown search in order to protect themselves, its denial of defendant’s written motion, which motion cited law about the scope of patdown searches, and its consideration of the prosecution’s argument at hearing that the officer recognized the item in defendant’s coin pocket through his training and experience. We also “apply the general rule ‘that a trial court is presumed to have been aware of and followed the applicable law. . . .’ Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.” (People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115.)
Defendant’s reference in his trial court briefing to the law regarding the scope of patdown searches consisted of one sentence summarizing the law followed by a string citation. He did not relate this law to the facts of his case, and at hearing his counsel did not argue the “scope of search” issue to the trial court. Arguably, defendant forfeited raising this issue on appeal by his failure to properly raise it below, but we do not discuss or consider this issue further because the People do not raise it.
In short, we conclude defendant’s argument that Detomasi’s search was overbroad lacks merit.
DISPOSITION
The court’s denial of defendant’s motion to suppress evidence is affirmed.
We concur: Kline, P.J., Richman, J.