Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County No. JW095800, Robert J. Anspach, Judge.
Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
A juvenile petition alleged Enrique S., a minor, possessed a dirk or dagger in violation of Penal Code section 12020, subdivision (a), a felony. After Enrique’s motion to suppress was denied, the juvenile court found the allegation true at a contested jurisdictional hearing. At the dispositional hearing, the court reduced the count to a misdemeanor and placed Enrique on probation. Enrique’s sole contention is that the juvenile court erred in denying his motion to suppress evidence seized during a patdown search. As we shall explain, we agree with Enrique and will reverse.
We note there is a conflict in the record regarding whether the court declared Enrique a ward of the court. The minute order for the dispositional hearing states that Enrique was “granted probation without have been declared a ward of the court not to exceed six months,” while the reporter’s transcript shows the court stating that “[t]his Minor is adjudged a ward of the court and is released to the custody of his mother under terms of probation not to exceed his 21st birthday.” Given our reversal of the court’s orders, we need not resolve the conflict.
The facts are taken from Officer Paxson’s testimony presented at the hearing on Enrique’s motion to suppress evidence.
At 11:45 p.m. on April 12, 2007, California Highway Patrol Officer Brian Paxson and his partner initiated an enforcement stop on a car for a traffic infraction. The car pulled into a trailer park just off South Union and Adams Street, where a security gate was blocking the entrance. During the stop, the officers discovered the female driver did not have a license, so they asked dispatch to send a tow truck so the car could be impounded. A total of four people were in the car. A female was in the right front seat, another female was in the right rear seat, and a male, Enrique, was in the left rear seat. The area was lit by flashlight and the patrol car.
While Officer Paxson testified at the suppression hearing that the incident in question occurred in March, the petition lists the date and time of Enrique’s detention as April 13, 2007 at “00:02” a.m.
The officers told all of the car’s occupants to exit so an inventory of the car could be performed. The driver and right front passenger both got out. Then Enrique was directed out, and according to Officer Paxson, “due to the amount of occupants in the vehicle, a preliminary frisk was done on [Enrique] due to his baggy clothes and sagging pants, baggy jersey.” Enrique had on an “oversized baggy jacket with a basketball jersey underneath, and baggy pants.” Officer Paxson had run across people with this type of clothing on before. When asked if in his past experience people wearing that type of clothing had weapons on them, he responded “[i]t does have potential for that.” Officer Paxson testified his “officer safety was heightened more so than normal due to the area and the time of night.” At this point, Officer Paxson’s partner was there. By the end of the incident, a Bakersfield Police Department vehicle had arrived on the scene. Officer Paxson, however, was not sure when that vehicle arrived.
During the preliminary frisk of Enrique, Officer Paxson felt something in the right leg pocket area that he thought was a knife. As Officer Paxson looked down on the open pocket, he saw a sharp metallic object that appeared to be the tip of a knife. Officer Paxson took the object, which turned out to be a fixed blade knife with its blade up, out of the pocket and placed Enrique under arrest. Officer Paxson also patted down the driver.
The prosecutor asked Officer Paxson the following question: “Now, you said you were impounding the vehicle due to inventory search. What were you allowing [Enrique] to do?” Officer Paxson responded: “Due to the fact we couldn’t determine whose property was what in the vehicle because there were four of them and we allowed the occupants to determine whose property was what in between so that they, once they had something out of the vehicle it wouldn’t be listed on the impound form, as well. Wanted to make sure what they got out of the vehicle wasn’t on our inventory of the vehicle.” If the property had not been there or there wasn’t anything in the car that was of interest to the occupants, “it would have all gone listed.”
The following exchange between defense counsel and Officer Paxson occurred on cross-examination:
“Q Okay, with respect to [Enrique], was there anything specific, was there anything specifically that caused you to believe that he was armed and dangerous?
“A Other than not being able to, or not having a weapon in plain view, yes.
“Q Now, you mentioned something about looking into his pocket or seeing down his pocket. Was this after you started the patdown?
“A That was during and after I had felt what it was that I felt.
“Q Okay, so you were patting [Enrique] down because you thought he might possibly be armed, would that be a fair statement?
“A Yes.”
After argument by the prosecutor and defense counsel, the court denied the motion, explaining: “I think the standard is simply, you know, whether this officer had a reasonable basis to believe that his safety may be in jeopardy, taking in consideration the clothing of the minor, time of night, four individuals involved and then being allowed to freely move around would cause him to have reasonable concern.”
DISCUSSION
Standard of Review
Appellate review of the trial court’s denial of a motion to suppress evidence is governed by well-established principles. We must defer to the trial court’s factual findings where supported by substantial evidence, but we exercise our independent judgment as to the reasonableness of the challenged search and seizure. (People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
The Legality of the Patdown Search
Enrique contends the patdown search was unlawful under Fourth Amendment standards because the officer could not have reasonably believed at the time of the search that he was armed and dangerous. Enrique contends that because the search was unlawful, the knife seized must be suppressed.
The leading United States Supreme Court case regarding the legality of patdown searches is Terry v. Ohio (1968) 392 U.S. 1 (Terry). Acknowledging patdown searches for weapons constitute a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment” (id. at p. 17), the court held that a patdown search is justified only when the officer reasonably believes, based on the totality of the circumstances, that the particular person he or she is questioning or detaining is armed and dangerous. (Id. at pp. 24, 27.) Although an officer need not have probable cause to arrest before conducting a patdown search (Minnesota v. Dickerson (1993) 508 U.S. 366, 373), he or she must have a reasonable suspicion, based on objective facts known to him or her at the commencement of the search, that the particular individual is armed. (People v. Medina (2003) 110 Cal.App.4th 171, 176 (Medina).)
In the context of a routine traffic stop, an officer may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” (Knowles v. Iowa (1998) 525 U.S. 113, 118.) Minor traffic offenses do not ordinarily suggest the presence of weapons, and an officer may not conduct a patdown unless the objective circumstances furnish reasonable grounds for doing so. (See People v. Miranda (1993) 17 Cal.App.4th 917, 927.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Terry, supra, 392 U.S. at p. 27.)
The People argue the following circumstances made it reasonable for Officer Paxson to believe Enrique might be armed and dangerous: (1) it was nearly midnight in a high crime area; (2) there were four occupants in the vehicle and only two officers; (3) it was dark and the only light came from a flashlight and the patrol car; and (4) Enrique was wearing baggy clothes which could easily conceal weapons. We are not persuaded.
First, there is no evidence to support the assertion that the car was stopped in a high crime area. While Officer Paxson testified his concern for officer safety was heightened “due to the area,” absolutely no evidence was presented concerning crime in the area of the traffic stop. It is impossible to tell from Officer Paxson’s testimony what his basis for concern about the area was – it could have been factors other than high crime, such as darkness, a remote area, or heavy foot or vehicle traffic.
Moreover, the location and time of the encounter, though relevant to our analysis, “are insufficient by themselves to cast reasonable suspicion on an individual.” (Medina, supra, 110 Cal.App.4th at p. 177 [holding patdown search of driver for officer safety following traffic stop for broken taillight unlawful when based solely on the driver’s presence in a high crime area late at night]; People v. Limon (1993) 17 Cal.App.4th 524, 534.) Indeed, if those factors alone were sufficient to justify the patdown search, then the police could lawfully patdown search every occupant of a vehicle that is stopped in a high crime area after dark. Such a result plainly would not pass Fourth Amendment scrutiny. Furthermore, “‘nighttime’” and “‘high crime area’” factors do not constitute activity by a citizen that casts reasonable suspicion on an individual and must be evaluated with caution in determining the propriety of police intrusion. (People v. Bower (1979) 24 Cal.3d 638, 645.)
That the officers may have been outnumbered is a circumstance which may justify a patdown search for weapons. For example, in People v. Castaneda (1995) 35 Cal.App.4th 1222, the court held that an officer who was investigating a citizen’s report of a possible prowler at 11:20 p.m. in a commercial area lawfully detained and patted down the defendant who had been sitting in the driver’s seat of a car parked in that area . (Id. at pp. 1229-1230.) In so holding, the court concluded the officer reasonably could suspect the defendant was armed because burglars frequently carry weapons, and reasonably could fear for his safety because the officer was alone with the defendant and another person who was in the defendant’s car. (Id. at p. 1230.)
In this case, however, while Officer Paxson reasonably could have feared for his safety as he and his partner were outnumbered, it was dark and the hour late, no evidence was presented from which he reasonably could believe Enrique was armed. The officers were not investigating a crime that had the potential for carrying weapons. The mere fact there were more car occupants than officers, even taking into account the late hour and darkness, does not suggest that Enrique was armed and dangerous. Adding Enrique’s baggy clothing to these facts is not enough to justify the patdown search, as baggy clothing, without more, does not constitute a specific fact justifying an inference that Enrique was armed and dangerous.
We note that even the juvenile court observed that baggy clothes are not uncommon among teens when it stated during argument on the motion: “I haven’t been to high school campuses lately, but I bet 90% of them wear baggy clothes.”
The United States Supreme Court’s decision in Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra), is instructive. There, police with a search warrant to search the bartender for narcotics entered a tavern in which the defendant was a customer and conducted a weapon search of all those present. (Ybarra, supra, at p. 88.) During the patdown search of the defendant, who was wearing a three-quarter length lumber jacket, the police found drugs. (Id. at pp. 89, 93.) The court held the drugs had to be suppressed because there were no specific facts suggesting the defendant was armed. (Id. at pp. 92-93.) That the defendant was wearing a lumber jacket, clothing which the court recognized could be expected on almost any tavern patron in Illinois in early March, did not justify the patdown search. (Id. at p. 93.) The court noted the defendant’s hands were empty, he gave no indication that he possessed a weapon, made no gestures or other actions indicative of intent to commit an assault, and did not act threatening. (Ibid.) The court concluded that the police failed to articulate any specific fact justifying the patdown search: “Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” (Ybarra, supra, at pp. 93-94.)
In People v. Dickey (1994) 21 Cal.App.4th 952 (Dickey), the court held that a police officer’s patdown search for officer safety because the defendant, who was the driver of a car the officer found stopped in the middle of a rural road, “‘potentially may have been armed,’” was unjustified where the officer could point to no specific facts showing the defendant may have been armed and dangerous. (Id. at p. 956.) In particular, the court noted the patdown search could not be justified on the basis the defendant had no identification, refused to consent to a search of his car, was nervous and sweating, or because a canister of baking soda, a cutting agent for narcotics, was found in a backpack the defendant allowed the officer to search, as none of these facts, “considered singly or in combination, would lead an officer to ‘“… reasonably believe in the possibility that a weapon may be used against him ….”’” (Id. at pp. 955-956.)
As these cases make clear, an officer must have more than a general concern for officer safety due to the circumstances of the encounter before he or she may conduct a patdown search – there also must be facts particular to the individual that support a reasonable belief the individual is armed and dangerous. Here, as in Ybarra and Dickey, Officer Paxson articulated facts that led him to be concerned for his safety generally, but not any specific facts justifying a patdown search of Enrique. Although Officer Paxson confirmed he searched Enrique because he thought he possibly might be armed, he did not testify to any facts from which it reasonably could be inferred that Enrique was armed. As the court stated in Dickey, “[i]n every encounter with a citizen by the police, the citizen may potentially be armed.” (Dickey, supra, 21 Cal.App.4th at p. 956.)
The federal cases the People rely on do not compel a different result, as they all involve situations where an officer was investigating criminal activity that could have involved weapons. In United States v. Douglas (8th Cir. 1992) 964 F.2d 738, the court held an officer, who suspected the defendant had been involved in an auto break-in after observing the defendant’s activities, was warranted in the belief that his safety was in danger in light of the facts it was late at night, he was alone with the defendant in a dimly lit parking lot, the defendant was a large man, wearing a long winter coat which might have concealed a weapon, and the officer wanted to inspect the car in which he had seen the defendant. (Id. at pp. 740-741.) In United States v. Buchannon (8th Cir. 1989) 878 F.2d 1065, the court concluded the officer was justified in patting down the defendant, whose car the officer had pulled over after other officers observed him leaving a suspected drug dealer’s house and who was making movements toward the passenger side of the car while driving, because the officer was alone and the defendant was a large man, wearing a long winter coat which might have concealed a weapon. (Id. at pp. 1066, 1067.) In United States v. Moore (4th Cir. 1987) 817 F.2d 1105, the court held factors such as the late hour, a dark street, the officer being alone, and the suspected crime being a burglary, a felony that often involves weapons, enough to justify a patdown search for weapons. (Id. at p. 1108.)
Here, by contrast, the officers were not investigating a crime that often involves weapons; they were making a stop for a traffic infraction. The facts of the late hour, darkness, being outnumbered, and Enrique’s baggy clothing, whether considered separately or together, would not lead an officer to reasonably believe Enrique was armed and dangerous.
The juvenile court also relied on the fact the officers were going to allow Enrique to “freely move around” in denying the motion. The People do not assert this fact justifies the patdown search. They would be hard pressed to do so, as it does not support an inference that Enrique was armed.
Our conclusion might be different had Officer Paxson articulated facts specific to Enrique other than his baggy clothing. But he did not do so. Officer Paxson never stated, for example, that he noticed a suspicious bulge in Enrique’s clothing, that Enrique behaved in a suspicious manner, that he seemed intoxicated or belligerent, that he or his companions were gang members known for carrying weapons, or anything of that sort. The traffic infraction, which was never identified at the suppression hearing, did not constitute criminal activity inherently dangerous or violent. In short, the totality of the circumstances did not support the patdown search. We recognize that “[t]he judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.” (Dickey, supra, 21 Cal.App.4th at p. 957.) In this case, however, there simply were not specific and articulable facts presented at the suppression hearing suggesting that Enrique posed a danger.
DISPOSITION
The jurisdictional and dispositional orders are reversed. On remand, the trial court shall enter an order granting Enrique’s motion to suppress.