Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN221981 Marshall Y. Hockett, Timothy Casserly, and K. Michael Kirkman, Judges.
HUFFMAN, Acting P. J.
Jordan Ziebarth was charged with carrying a concealed firearm while an active participant in a criminal street gang. (Pen. Code, § 12025, subds. (a)(1) & (b)(3).) Following the denial of his motion to suppress evidence under section 1538.5, Ziebarth entered a guilty plea and admitted the street gang allegation. He was granted probation on various conditions including 365 days in local custody.
All further statutory references are to the Penal Code unless otherwise specified.
Ziebarth appeals contending the trial court erred in denying his motion to suppress evidence on Fourth Amendment grounds. We find no error and affirm.
STATEMENT OF FACTS
Since this appeal arises from a plea of guilty and challenges only the ruling on the motion to suppress, we will set forth a summary of the facts on which the motion was based as they are contained in the transcript of the preliminary hearing.
On the morning of December 8, 2006, Oceanside Police Department gang suppression detective Anderson and his partner were in an unmarked patrol car near the intersection of Gold and Flora Drive in Oceanside. They were in the process of photographing newly discovered gang graffiti. That area of Oceanside was known by police as an area of significant gang activity, including robberies and homicide.
As Anderson was seated in the patrol car, he heard the sound of squealing tires behind him. He looked toward the sound and observed a lone pickup truck traveling in his direction at a high rate of speed. The location was in a residential area where the speed limit was 25 miles per hour. As the truck passed the patrol car Anderson made eye contact with Ziebarth, who was the driver of the truck. The truck closely cut the corner and turned onto Flora Drive where it stopped across the street from a residence at 609 Flora Drive. Anderson was familiar with that residence, which he knew was occupied by a person on probation, a parolee and a person on trial for a gang-related homicide.
Anderson observed Ziebarth walk toward the residence and noted Ziebarth was wearing clothing consistent with the type of clothing worn by gang members in that area.
Anderson believed Ziebarth had been speeding and, although Anderson could not chase a speeding suspect in an unmarked car under department policy, he believed he could issue a citation given that Ziebarth had stopped his truck and pursuit was not necessary. Accordingly, Anderson stopped Ziebarth outside of the Flora Drive dwelling and asked for identification. Ziebarth responded he did not "have any."
Anderson and his partner approached Ziebarth and noted he appeared nervous. Ziebarth appeared to the officers to be likely to flee. The manner of his stance, wide open eyes, position of his hands and general appearance lead the officers to believe flight was likely. The officers were further concerned about the location, given their knowledge of the house and gang activity which had occurred there. The gate to the residence was open and the officers placed themselves between Ziebarth and the possible escape route. Anderson placed one hand on Ziebarth's elbow and touched his waist with the other hand. He felt an object that appeared to be a weapon, retrieved the item and found it to be a semiautomatic .22 caliber pistol. The weapon was seized and Ziebarth was arrested.
DISCUSSION
Ziebarth contends the trial court erred in denying his motion to suppress evidence under section 1538.5. Essentially, he argues the officers were not justified in detaining or frisking him and therefore the firearm was not lawfully discovered. While not specifically articulated as a ground of suppression Ziebarth notes the detectives were not ordinarily engaged in enforcement of traffic laws and, under department policy, could not have pursued him in their unmarked vehicle. To the extent Ziebarth grounds his argument in part on a claim the officers were motivated by suspicion of gang activity more than enforcement of the traffic laws, he cites no authority for such challenge. In any event the existence of an underlying motivation to investigate gang activity would not make the police action unlawful. (Whren v. U.S. (1996) 517 U.S. 806.)
When an appellate court reviews the trial court's ruling on a motion to suppress evidence it applies the substantial evidence standard to the finding of the historical facts. The legal conclusions based on those facts are reviewed under the standard of independent review. (People v. Leyba (1981) 29 Cal.3d 591, 597; People v. Williams (1988) 45 Cal.3d 1268, 1301.)
Police may temporarily seize a person for the purpose of investigating suspected criminal activity if the officers are aware of sufficient facts that would support a reasonable suspicion that criminal activity may be afoot. The police may subject the person to a frisk for possible weapons if there is a reasonable basis to fear that there is a danger of weapons that may pose a risk of injury to the officers or others. (Terry v. Ohio (1968) 392 U.S. 1, 22; In re Tony C. (1978) 21 Cal.3d 888, 892.)
The trial court found there was adequate justification for Anderson to detain Ziebarth. Anderson had observed Ziebarth drive at excessive speeds in a residential area. He was clearly entitled to contact Ziebarth for purposes of issuing a traffic citation. Ziebarth argues, however, that even if the stop was valid police cannot subject a motorist to a frisk based only on the traffic violation. While Ziebarth is correct that police may not ordinarily frisk a suspected traffic violator, the facts of this case illustrate the officer's concern for weapons was not based solely on the traffic stop.
When he was encountered by police, Ziebarth denied he had identification, he was nervous and manifested behavior that would lead a reasonable officer to believe Ziebarth was about to flee. Ziebarth's appearance, his behavior, and the particular location all justified a reasonable officer to suspect Ziebarth was involved with the gang activity associated with the residence where he had been stopped and the gang members who occupied that residence. A reasonable officer, under the circumstance could fear that Ziebarth, involved in gang activity was about to flee and may well be armed. Any effort to prevent his flight would run the risk of violence and would expose the officers to the risk of injury if the suspect did in fact have a weapon.
Based on this record the trial court could reasonably find the officers' action appropriate and necessary in order to investigate the potential criminal activity occurring in their presence. Both the stop and the frisk were reasonable and consistent with the standards announced in Terry v. Ohio, supra, 392 U.S. 1. The trial court properly denied the motion to suppress evidence on Fourth Amendment grounds.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J., AARON, J.