Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super. Ct. No. J20559
Mihara, Acting P.J.
The Santa Cruz County District Attorney filed an amended petition pursuant to Welfare and Institutions Code section 602, which alleged that appellant E.C. drove a vehicle without a driver’s license (Veh. Code, § 12500, subd. (a) - count one), possessed a dirk or dagger on his person (Pen. Code, § 12020, subd. (a)(4) - count two), and falsely identified himself to a police officer during a lawful detention (Pen. Code, § 148.9, subd. (a) - count three). The juvenile court denied appellant’s motion to suppress evidence. After a contested jurisdictional hearing, the juvenile court sustained the petition as to counts two and three and dismissed count one on the motion of the district attorney. The juvenile court then continued appellant as a ward of the court, found both offenses to be misdemeanors, and continued appellant’s probation with additional terms and conditions. On appeal, appellant contends that the juvenile court erred in denying his motion to suppress evidence. We find no error and affirm the order.
I. Statement of Facts
At about 4:00 p.m. on January 27, 2008, Officer Brian Fulgoni and Corporal Thul were in a marked patrol vehicle when they saw a late model BMW with “completely blacked out windows.” The officers stopped the vehicle, and Fulgoni approached the passenger, who was appellant, while Thul approached the driver. After appellant rolled down the window, Fulgoni detected the odors of alcohol and marijuana. As Fulgoni spoke with appellant, he appeared nervous, that is, “[h]e kept fidgeting. He wouldn’t look me in the eye; he wouldn’t keep his hands out of his pockets.” Appellant “would put [his hands] in his pockets, take them out, put them in, put them in his jacket, sit on them. He was doing a number of things with his hands that made [Fulgoni] think . . . there was something that [he] should know about.” Fulgoni asked appellant to take his hands out of his pockets several times and place them on the dash. Appellant would remove his hands and “then he’d put them right back.” When Fulgoni asked appellant for his name and date of birth, appellant would not talk to him, but kept looking at Thul. Fulgoni explained that appellant was wearing baggy clothes, he did not know who he was or who else was in the vehicle, appellant was not “being straight forward with” him, and appellant could have concealed a weapon in his clothing. After he asked appellant to step out of the vehicle, Fulgoni conducted a pat-down search for weapons “[f]or [his] safety.” Fulgoni found a “black handle with about a 3-inch spike on the end” in the pocket of appellant’s pants. Appellant then provided Fulgoni with a false name and date of birth.
II. Discussion
Appellant contends that the juvenile court erred in denying his motion to suppress evidence. Appellant claims that the pat-down search conducted by Fulgoni violated the Fourth Amendment, because the officer did not have a reasonable suspicion that appellant was armed and dangerous.
A. Standard of Review
“The standard of review of a trial court’s ruling on a motion to suppress is well established and is equally applicable to juvenile court proceedings. On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court’s ruling. We must uphold those express or implied findings of fact by the trial court that are supported by substantial evidence and independently determine whether the facts support the court’s legal conclusions.” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236, internal citations and quotation marks omitted.)
B. Legal Principles
The Fourth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment, protects the individual against unreasonable searches and seizures. (Mapp v. Ohio (1961) 367 U.S. 643, 643-660.) When a police officer engages in conduct that violates the Fourth Amendment, the evidence obtained through such conduct is subject to the exclusionary rule. (People v. Mayfield (1997) 14 Cal.4th 668, 760.)
A police officer may conduct a pat-down search during an investigation “where [the officer] has reason to believe that he is dealing with an armed and dangerous individual . . . . [T]he 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.” (Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry).) A Terry frisk, a limited exception to the probable cause requirement (Ybarra v. Illinois (1979) 444 U.S. 85, 93-94), “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” (Terry, at p. 17.) “[I]n 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.” (Terry, at p. 27.)
Appellant claims that “no evidence was presented that the deputy believed that appellant was reaching for or had a weapon.” There is no merit to this claim. Fulgoni testified that he conducted a pat-down search for weapons “for his safety.”
Relying on In re Frank V. (1991) 233 Cal.App.3d 1232 (Frank V.) and People v. Dickey (1994) 21 Cal.App.4th 952 (Dickey), appellant contends that the circumstances in the present case were insufficient to justify the search.
In Frank V., the officers were in a gang neighborhood at night when they observed two individuals leave the curb of a gang house. (Frank V., supra, 233 Cal.App.3d at p. 1241.) After the officer asked appellant to remove his hands from his pockets, he did so, but then started to put them back. (Frank V., at pp. 1237, 1241.) Based on these circumstances, the Frank V. court concluded there was sufficient justification for a pat-down search. (Frank V., at p. 1241.) In Dickey, the court held that “[t]he patdown search could not be justified based on the fact that appellant (1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, (4) or because baking powder was found in a film canister. None of these considerations, considered singly or in combination, would lead an officer to . . . reasonably believe in the possibility that a weapon may be used against him. . . .” (Dickey, supra, 21 Cal.App.4th at p. 956, internal citations and quotation marks omitted.)
Appellant argues that, unlike the appellant in Frank V., he was not in a gang neighborhood late at night, and his “movements with his hands [were] in the same category as the appellant in Dickey being ‘nervous and sweating.’” We disagree with appellant’s characterization of the record in the present case. Here, unlike the officers in Frank V. and Dickey, Fulgoni smelled alcohol and marijuana when he first approached appellant. In contrast to the situation in Frank V., Fulgoni asked appellant several times to remove his hands from his pockets and place them on the dash. Appellant would remove his hands and “then he’d put them right back.” There were other factors that were not present in either Frank V. or Dickey, that is, appellant was wearing baggy clothing and not “being straight forward with” the officer by refusing to look at or speak to him in response to questioning. Under these circumstances, “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry, supra, 392 U.S. at p. 27.) Thus, the juvenile court did not err in denying the motion to suppress evidence.
III. Disposition
The order is affirmed.
WE CONCUR: McAdams, J., Duffy, J.