Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C-154977-10
Margulies, J.
Appellant B.L. was declared to be a ward of the court after he was caught carrying a loaded revolver during a police search. During surveillance of a residence prior to executing a search warrant, police officers observed appellant and five other persons, including the subject of the search warrant, come and go from the residence. When the group left the location together, they were stopped by the officers. As a safety precaution, the officers patsearched appellant for weapons, and he was found to be carrying the revolver.
Appellant contends the search was illegal because police lacked adequate justification for the search. We affirm the juvenile court’s refusal to suppress evidence of the revolver, but we remand the matter for recalculation of appellant’s maximum term of custody and time-served credits.
I. BACKGROUND
On May 21, 2009, the Alameda County District Attorney filed a wardship petition for appellant under Welfare and Institutions Code section 602, subdivision (a), alleging appellant carried an unlicensed concealed firearm (Pen. Code, § 12025, subd. (a)(2)) and a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1)) and was a minor in possession of a firearm capable of concealment on the person (Pen. Code, § 12101, subd. (a)(1)).
Berkeley Police Officer David Lindenau testified that on May 19, 2009, he was watching an address in Oakland, attempting to execute a search warrant for the residence and for Anthony Ellis in connection with a narcotics investigation. As Officer Lindenau waited for about an hour, six people went in and out of the residence, including appellant and Ellis, who spoke with each other. At some point, all six walked inside together. Later, all but Ellis emerged and waited outside the back door. When Ellis came out, the group began to walk down the street.
After the group passed Officer Lindenau, he directed other officers to detain them in order to determine their connection with Ellis. One of the officers involved in detaining the group, Dustin Morillas, conducted a patsearch of appellant and found a loaded revolver. Officer Morillas testified he searched appellant as a safety precaution because appellant was walking with a suspected narcotics trafficker and, in his experience, people involved with narcotics commonly carry firearms or have them nearby.
Appellant moved to suppress evidence of the firearm, contending the search was not based on probable cause or reasonable suspicion. The juvenile court denied the motion, noting, “It seems reasonable to me to make sure that when he’s arresting this guy he doesn’t get shot by some guy standing next to him. So he has, in my opinion, a right to pat-search for his own safety to see if there’s any weapons on any of these guys.” The court then found true the allegations of carrying a concealed weapon and a loaded weapon, and concluded the final allegation, minor in possession of a concealable weapon, merged into the concealed weapon allegation. At a subsequent hearing, the court remanded appellant to the custody of the probation department for suitable placement and found seven years to be his maximum term of custody. Appellant was credited with 50 days for time served.
II. DISCUSSION
Appellant contends his motion to suppress the revolver was erroneously denied and his maximum term of custody and time-served credits were improperly calculated.
A. Motion to Suppress the Revolver
“When... we review a ruling on a defense motion to suppress evidence, we defer to the trial court’s factual findings, but we independently apply the requisite legal standard to the facts presented.” (People v. Celis (2004) 33 Cal.4th 667, 679.)
The leading case on patdown weapons searches is Terry v. Ohio (1968) 392 U.S. 1 (Terry), in which an experienced police officer watched three men engage in elaborate surveillance of a retail store. (Id. at pp. 5–6.) Concerned the men had plans to rob the store and might have a gun, the officer stopped them. After addressing them and getting little response, the officer searched the three for weapons, finding handguns on two of them. (Id. at pp. 6–7.) In considering the legality of the search, the court noted it was “concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” (Id. at p. 23.) Given the close connection between crime and dangerous weapons, the court concluded the search was lawful, reasoning “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. 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.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Id. at p. 27, fn. omitted.)
Following Terry, two decisions from this district have held that law enforcement officers executing a search warrant in connection with suspected narcotics activity have the authority to conduct a patdown search for weapons when they encounter persons inside the location to be searched or in the immediate company of a person who is the subject of the warrant. The “reason to believe that [the officer] is dealing with an armed and dangerous individual” (Terry, supra, 392 U.S. at p. 27) arises from the commonly observed connection between illegal narcotics trafficking and weapons possession. In People v. Thurman (1989) 209 Cal.App.3d 817 (Thurman), the officers entered the apartment to be searched and found the defendant and two women in the front room. Although defendant was sitting passively on a couch and presented no obvious threat, the investigating officer performed a patsearch and found drugs. (Id. at pp. 820–821.) In response to the defendant’s claim the search was illegal, the court held, “We have no hesitation whatever in holding that [the officer] acted reasonably and prudently in conducting the pat search of appellant in the circumstances.... The officers whose duty required them to execute the warranted search were... well aware they were engaged in an undertaking fraught with the potential for sudden violence. They were necessarily cognizant of the very real threat that the occupants of the residence were within an environment where weapons are readily accessible and often hidden, nor could they discount the possibility that one or more of the individuals found inside were personally armed. [¶] [That defendant did not appear to present an immediate threat] does not in any measure diminish the potential for sudden armed violence that his presence within the residence suggested. To require an officer to await an overt act of hostility... before attempting to neutralize the threat of physical harm which accompanies an occupant’s presence in a probable drug trafficking residential locale, would be utter folly.” (Id. at p. 823.)
Similarly, in People v. Samples (1996) 48 Cal.App.4th 1197 (Samples), the officers executed a search warrant for a residence and two persons. Upon entering the residence, the officers were told the two subjects were gone but would be returning soon in a particular car. When the car drove up, the two subjects and another adult were in the backseat, while defendant and his wife were in the front seats. The police ordered defendant and his wife to leave the car and, although the officers had no indication defendant was armed, they conducted a patsearch for “ ‘officer safety’ ” and found drug paraphernalia. (Id. at pp. 1200–1201.) Considering the legality of the search, the court noted this was also a situation presenting the possibility of sudden violence and rejected the claim the defendant could not be searched unless he appeared to present a threat. (Id. at p. 1210.) Because “(1) there was apparently a close physical and functional association between appellant and the subjects of a search warrant, (2) the incident took place at night, and (3) involved two persons who were subjects of that warrant plus three other adults,” the court concluded “the vital officer safety consideration most prominently identified in Terry and recently stressed by us... in Thurman” required the finding that “the patdown search undertaken of appellant here was, in the ‘totality of the circumstances,’ eminently reasonable for Fourth Amendment purposes.” (Id. at pp. 1212–1213.)
Thurman and Samples require us to affirm the trial court’s conclusion that the patsearch of appellant was lawful. As in Thurman and Samples, the officers were executing a warrant connected with suspected unlawful narcotics activity. As those cases noted, and as Officer Morillas testified from his own experience, persons involved in illegal narcotics activity often carry or have access to weapons. The officers approached a group of six people, including appellant, who had been observed coming and going from a building suspected of involvement in the narcotics trade. One of the group was a subject of the search warrant, and the remainder had been seen talking to him and waiting for him outside the building. Given the “close physical and functional association between appellant and the subject[] of a search warrant” (Samples, supra, 48 Cal.App.4th at pp. 1212–1213), the large number of people present, their recent departure from a building suspected of narcotics involvement, and the fact that one of the group members was personally suspected of narcotics activity, the totality of the circumstances warranted Officer Morillas’s patsearch of appellant to protect his own safety and the safety of the other investigating officers.
Each of the cases cited by appellant in support of suppression is distinguishable. In Ybarra v. Illinois (1979) 444 U.S. 85, the police were executing a search warrant for a bartender suspected of narcotics possession at the bar where he worked, but there was no evidence the bartender had actually engaged in narcotics sales at the bar. (Id. at p. 88.) When the officers entered the bar, they searched all the patrons, the defendant among them. The Supreme Court found the search of the defendant illegal, concluding there was neither probable cause to believe he was involved in a crime nor reasonable suspicion he was armed. In so doing, the court noted that mere “propinquity” to others independently suspected of criminal activity does not give rise to probable cause justifying a search. (Id. at pp. 91–93.) The critical distinction between these circumstances and those in Ybarra is the public nature of the bar. Because there was no evidence of drug dealing at the bar, there was no reason to believe the bar patrons were involved in crime or presented a threat to the officers. The patrons may have been near the bartender, but there was no reason to believe they had any connection to him or his possible criminal activities. In contrast, appellant was one of a small group of people in the company of a suspected drug trafficker that had been observed, immediately before, coming and going from the residential building where drug dealing was believed to be conducted. Because of appellant’s particularized connection to narcotics trade, the officers had reason to believe he might have a weapon.
In People v. Gallant (1990) 225 Cal.App.3d 200, the officers executed a narcotics-related search warrant at a residence they knew to be occupied by two women. When they first arrived, no one was home; soon the women arrived and were arrested. A half-hour later, the defendant drove up to the house in a truck, walked to the front door, and knocked. An officer answered the door, ordered the defendant in, and conducted a patdown search. (Id. at pp. 203–204.) As the court explained in finding the search illegal, there was no reason to suspect the defendant was involved in drug dealing, since he was not an occupant of the house and was not otherwise behaving suspiciously. He was simply a visitor, and the mere fact that some persons who visit residences involved in drug dealing are themselves involved in the drug trade was an insufficient basis to conclude he was so involved. (Id. at p. 208.) In contrast, appellant did not simply visit the location. He was in and out, speaking with the suspected narcotics dealer and eventually leaving the home in his company. The circumstances associating appellant with drug trafficking were more direct and substantial than those in Gallant.
Finally, in People v. Sandoval (2008) 163 Cal.App.4th 205, the police found the defendant smoking a cigarette while sitting on the steps of a residence in which a probationer was to be searched because of reports of drug dealing in the residence. Although the officers testified they had no reason to suspect the defendant was armed or involved in any type of criminal activity, he was handcuffed and eventually searched. (Id. at pp. 208–209.) In finding the search illegal, the court emphasized the officers testified they had no reason to believe the defendant was armed or involved in criminal activity, distinguishing Thurman because the police there testified they were concerned the persons present in the residence might have guns. (People v. Sandoval, at p. 213.) Here, as did the officer in Thurman, Officer Morillas testified to his safety concern from appellant’s close connection with a suspected drug dealer.
B. Maximum Term of Custody and Time-served Credits
The juvenile court set appellant’s maximum term of custody at seven years. In his opening brief, appellant demonstrates, based on the terms for his current and prior offenses, that the court was authorized to impose a maximum term of confinement no longer than six years ten months. The Attorney General concedes the correctness of this calculation and consents to a remand for recalculation of the maximum term.
Appellant also argues the juvenile court incorrectly considered only his confinement for the current matter in calculating his time-served credits at 50 days. Although appellant’s total time in confinement cannot be determined with certainty on the current record, he contends he is entitled to well over a year of time-served credits. Again, the Attorney General concedes the correctness of appellant’s argument and consents to a remand for recalculation of time-served credits.
III. DISPOSITION
The matter is remanded to the juvenile court for recalculation of appellant’s maximum period of custody and time-served credits, and the juvenile court is directed to enter an amended judgment reflecting the correct calculation of both. The judgment is otherwise affirmed.
We concur: Marchiano, P.J.Dondero, J.