Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. 06-6819
NEEDHAM, J.
Appellant Terrell J. was declared a ward of the juvenile court and was placed on probation after he admitted possession of a concealable firearm by a minor in violation of Penal Code section 12101, subdivision (a)(1). He contends the court should have granted his motion to suppress evidence of the firearm as having been seized during an unlawful patdown search. We agree and reverse the judgment.
I. Factual and Procedural Background
At about 9:00 p.m. on October 29, 2006, San Francisco Police Inspector Labanowski was on routine patrol with three other officers: Sergeant Brown, Inspector Tampara and Officer Burrows. All four of them were wearing plain clothes with their badges displayed. Although the car did not have lights and a siren, it was “pretty noticeable” and a lot of people knew it was a police vehicle.
The officers drove through the area of McAllister and Friendship Streets, which is known for its high level of narcotics activity and was frequented by members of a gang known as “Swiss Cheese.” In Labanowski’s opinion, people selling narcotics often carry weapons. There had recently been a number of shootings and homicides in the area.
The officers noticed a group of five to ten “guys” who were “hanging out” near a car in a stall reserved for tenant parking on private property. A woman, later identified as Garcia, was sitting in the driver’s seat and appellant was sitting in the back seat behind her. The officers stopped and saw a man from the group approach the car and speak with someone inside before returning to the group and telling them they had to leave.
Inspector Tampara and Officer Burrows got out of the police car and contacted the group of men while Inspector Labanowski and Sergeant Brown walked to the parked car. Brown asked Garcia whether she lived there, and when she said she did not, informed her it was private property and asked to see her driver’s license. As she was retrieving her license, Labanowski noticed that appellant “became very nervous,” “moving his head from side to side and just kind of looking around the vehicle.” He was concerned for his own safety and that of his fellow officers, given that it was nighttime in a high crime area and that they were outnumbered by about two to one. Labanowski told Garcia and appellant to step out of the vehicle so he could perform a patdown search for weapons. During the patdown, he removed a small gun from appellant’s back pocket.
Labanowski explained that it was his “normal practice” to perform a patdown for weapons when he contacted individuals in high crime areas, although it depended on the “totality” of the situation. He acknowledged that he had no information that appellant was armed, that he had not seen any narcotics transaction, that appellant had not made any furtive gestures or threatening movements, and that nothing about appellant’s appearance suggested he was carrying a weapon.
The San Francisco District Attorney filed a wardship petition under Welfare and Institutions Code section 602 alleging that appellant had committed the misdemeanor of unlawfully possessing live ammunition (Pen. Code, § 12101, subd. (b)(1)), along with felony counts of carrying a concealed firearm (Pen. Code, § 12025, subd. (a)(2)), carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)), possession of a concealable firearm by a minor (Pen. Code, § 12101, subd. (a)(1)) and possessing a firearm on which the marks of identification had been changed or removed (Pen. Code, § 12091). Appellant filed a motion to suppress evidence under Welfare and Institutions Code section 700.1, arguing that the patdown was unlawful because there were no specific and articulable facts to support it. The trial court denied the motion and appellant admitted a violation of Penal Code section 12101, subdivision (b)(1), in exchange for a dismissal of the other counts. The case was transferred to Solano County, where appellant was placed on probation in his mother’s custody.
II. Discussion
Appellant contends the jurisdictional and dispositional orders must be reversed because the only evidence of his firearm possession and the resulting charges stems from an unlawful patdown search. We agree.
In reviewing the trial court’s ruling on a suppression motion, we uphold any express or implied factual findings supported by substantial evidence and independently determine, as a matter of law, whether the challenged police action violated the Fourth Amendment to the United States Constitution (Fourth Amendment). (People v. Maury (2003) 30 Cal.4th 342, 384 (Maury); In re Lisa G. (2004) 125 Cal.App.4th 801, 805.) In this case, the relevant facts are essentially uncontested.
The Fourth Amendment prohibits unreasonable searches and seizures by law enforcement. (Maury, supra, 30 Cal.4th at p. 384.) Although an arrest must be based on probable cause, “‘[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.’” (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.) In the seminal case of Terry v. Ohio (1967) 392 U.S. 1 (Terry), the United States Supreme Court held that a police officer may briefly detain a person if the officer has a reasonable suspicion the person is or is about to be engaged in criminal activity, and may conduct a limited patdown search for weapons if he or she has reason to believe the person is armed and dangerous. (Terry, supra, at pp. 21, 27.) “‘Such detentions are permitted, notwithstanding the Fourth Amendment’s requirements of probable cause and a search warrant, because they are “limited intrusions” that are “justified by special law enforcement interests.” [Citations.]’” (People v. Durazo (2004) 124 Cal.App.4th 728, 734.) A traffic stop is treated as an investigatory detention for Fourth Amendment purposes. (Ibid.)
In this case, Sergeant Brown effectuated a traffic stop/investigatory detention when he asked to see Garcia’s driver’s license after learning she did not live in the building where she was parked. (See People v. Spicer (1984) 157 Cal.App.3d 213, 218.) Appellant has not challenged the legality of this detention, and we assume without deciding that the officers were entitled to briefly detain Garcia to determine whether she was trespassing on private property. The officers were also entitled to ask appellant to step outside of the car for safety reasons while they investigated the possible violation. (Maryland v. Wilson (1997) 519 U.S. 408, 415 [officer making a traffic stop may order passengers to get out of the car pending completion of the stop].) But it does not follow that the officers were entitled to conduct a patdown search for weapons.
When an officer has lawfully detained a suspect, he or she may pat down the suspect’s outer clothing if there is reason to believe the suspect may be armed. (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320.) A weapons patdown 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, supra, 392 U.S. at p. 17.) “[A] frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.” (People v. Medina (2003) 110 Cal.App.4th 171, 176 (Medina).) More is required than an “inchoate and unparticularized suspicion or ‘hunch’” that a suspect is armed. (Terry, supra, at p. 27.)
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 that the following circumstances made it reasonable for Inspector Labanowski to believe that appellant might be armed and dangerous: (1) the car in which appellant was sitting was parked in a private lot; (2) it was nighttime and the area was known for narcotics and gang activity; (3) although there were two officers and two occupants of the car, the other people in the area outnumbered the total number of officers; (4) appellant became nervous when the police started questioning Garcia. We are not persuaded.
Appellant’s presence in a car that may have been technically trespassing in a private parking stall does not give rise to a reasonable inference that he was armed and dangerous. If unauthorized parking were itself enough to suggest more nefarious activity, a good percentage of the drivers in the city of San Francisco would find themselves under suspicion for criminal conduct at one time or another.
It is not clear whether there was any traffic violation at all. Garcia told police she did not live in the building, but the record does not disclose whether she had permission to park there from someone who did.
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.) “The ‘high crime area’ factor is not an ‘activity’ of an individual. Many citizens of this state are forced to live in areas that have ‘high crime’ rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends. The spectrum of legitimate human behavior occurs every day in so-called high crime areas. As a result, this court has appraised this factor with caution and has been reluctant to conclude that a location’s crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual. [Citations.]” (People v. Bower (1979) 24 Cal.3d 638, 645 (Bower), superseded on other grounds by state constitutional amendment, as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) Similarly, the “nighttime” factor is not activity by the individual, and has, at most, “minimal importance” in evaluating the propriety of an intrusion by police. (Bower, supra, at p. 645; see also Medina, supra, at p. 177.) We also observe that 9:00 p.m., the time at which the detention in this case occurred, is not particularly late and does not suggest nefarious activity.
The fact that officers are outnumbered by detainees is a circumstance that may justify a patdown for weapons. (See People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.) But in this case, the presence of another group of individuals, one of whom made brief contact with the car in which appellant was sitting, does not suggest that appellant was armed and dangerous. In Ybarra v. Illinois (1979) 444 U.S. 85, 93-94 (Ybarra), police entered a tavern in which the defendant was a customer with a warrant to search for drugs. Though not authorized by the warrant, they conducted a weapon search of all those present. (Id. at p. 88.) The court held that drugs discovered on the defendant during this process had to be suppressed because there were no specific facts suggesting he was armed: “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. . . .” (Ybarra, supra, at pp. 93-94.)
The only circumstance relating to appellant as an individual was his apparent nervousness when officers approached the car. This stems from Inspector Labanowski’s observation that appellant was “moving his head from side to side and just kind of looking around the vehicle.” There was no evidence of excessive anxiety, such as sweating, heavy breathing or fidgeting, and appellant’s conduct was not “sufficiently unusual or suspicious” to warrant a patdown for weapons. (People v. Lawler (1973) 9 Cal.3d 156, 162.) “Many individuals who are accosted and queried by a police officer become both upset and desirous of the earliest possible termination of an uncomfortable situation.” (Ibid.; see also People v. Loewen (1983) 35 Cal.3d 117, 125 [nervousness in presence of police officers did not supply reasonable suspicion necessary to support detention]; U.S. v. Beck (8th Cir. 1998) 140 F.3d 1129, 1139 [discussing limited significance of nervousness in supplying reasonable suspicion]; People v. Dickey (1994) 21 Cal.App.4th 952, 955-956 [fact that driver was nervous and sweating, did not have identification, did not consent to search of car, and possessed film canister with baking soda that could be used to “cut” drugs could not lead officer to reasonably believe that weapon would be used against him].)
The dissent suggests that appellant’s nervousness justified the patdown because he looked around the inside of the car in a manner that could lead a reasonable officer to conclude he possessed a weapon and was looking for a place to conceal it. But Inspector Labanowski did not articulate such a belief, and he acknowledged that appellant made no furtive or threatening gestures. The patdown in this case, according to Labanowski, was consistent with his acknowledged “normal practice” of patting down suspects contacted in high crime areas, suggesting that he impermissibly did so as a matter of routine. (See Medina, supra, 110 Cal.App.4th at p. 177.) Although Labanowski also testified that his decision to conduct a patdown depended on the “totality of the situation,” and whether he had information about the suspect, he acknowledged that in this case he did not witness any criminal activity and did not have any other information suggesting appellant might be armed.
At the time of the patdown, appellant was a passenger in a parked car. Although the car might have been unauthorized to park in the stall where it was located, appellant was not the responsible driver and any violation was de minimis at best. The area was one known for criminal activity, but the officers had no information suggesting appellant was in any way involved in such activity—he wasn’t doing anything suspicious, he wasn’t making any furtive gestures, he wasn’t a known gang member, he wasn’t a known drug dealer and he wasn’t associating with anyone who fell into these categories. Appellant’s apparent “nervousness” in the presence of the officers was the only circumstance that related to him as an individual, and it is too slim a reed to warrant the intrusion of a patdown search. We do not lightly second guess a police officer’s decision to perform a patdown, the lives and safety of police officers being, of course, a heavy consideration when balancing the competing interests under the Fourth Amendment. But in this case, the objective facts simply did not give rise to a reasonable belief that defendant was armed, and the People failed to carry their burden of proving the patdown was reasonable under the circumstances. (People v. Williams (1999) 20 Cal.4th 119, 130.)
Having determined that the patdown of appellant was unlawful, it necessarily follows that the gun seized from his back pocket should have been suppressed. (See Medina, supra, 110 Cal.App.4th at pp. 178-179.)
III. Disposition
The judgment is reversed. On remand, the juvenile court shall enter an order granting appellant’s motion to suppress.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SIMONS, Acting P.J. - Dissenting
I respectfully dissent. Appellant does not challenge the legality of his detention, and the majority concludes, and I agree, that the officers were entitled to direct appellant to exit the vehicle for safety reasons. (Maj. opn., ante, p. 4.) We part ways on whether the officer’s further decision to conduct a patsearch for safety reasons was reasonable.
When a suspect is lawfully detained, an officer may conduct a patsearch if the “officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.” (People v. Medina (2003) 110 Cal.App.4th 171, 176.) The facts relied upon by the trial court in upholding the frisk of appellant that led to the discovery of the semiautomatic handgun are undisputed and, in conjunction with the rational inferences derived therefrom, support the officer’s decision to conduct the search.
Appellant and Ms. Garcia were sitting in a parked vehicle, at night, on private property, in a section of San Francisco where narcotics are sold and a gang called the “Swiss Cheese” operates. Inspector Labanowski, an experienced narcotics police officer, testified that there is a correlation between the sale of narcotics and the possession of weapons. In fact, the officers were patrolling that area because of the numerous shootings and homicides that had occurred there. When first observed, Ms. Garcia was sitting in the driver’s seat and appellant was sitting directly behind her in the rear seat. In addition, a group of approximately five to 10 men were “hanging out” near the car in which appellant was seated. After the officers arrived, but before they exited the police vehicle, one of the men in the group, Mr. Hughes, walked over to the car, leaned in the window and talked to one of the occupants. After that conversation, Hughes walked back to the group and told them they had to leave.
Two officers exited Labanowski’s car and contacted the group of men while Labanowski and Sergeant Brown approached the parked car. While Brown and Garcia discussed why she was improperly parked on private property, Labanowski noted that appellant “became very nervous,” “moving his head from side to side and just kind of looking around the vehicle.” To Labanowski, appellant’s looking around “just . . . didn’t seem right to [him].” Directly after this observation, based on the totality of the circumstances, Labanowski became concerned for his safety and the safety of the other officers present. He ordered Garcia and appellant from the car in order to frisk them for weapons. That frisk revealed the semiautomatic firearm in appellant’s back pocket.
In light of the facts and the rational inferences created by them, it seems wrong to conclude that Labanowski was incorrect in deciding there was a reasonable suspicion that appellant was armed. The majority relies on People v. Bower (1979) 24 Cal.3d 638, 645, to minimize the significance of the fact that this encounter occurred in the nighttime in a high crime neighborhood. (Maj. opn., ante, pp. 5-6.) But these officers were substantially outnumbered at a location they were assigned to patrol because of the shootings and homicides that had occurred there. And the generalized concern for safety that this creates for any encounter in this neighborhood was properly focused on appellant because of his actions. He did not simply respond to the police contact in a nervous fashion; he looked around the inside of the vehicle in a manner that troubled Labanowski and could lead a reasonable officer to conclude appellant possessed a weapon (or some other contraband) and was looking for a place to conceal it in the car.
The majority cites Terry v. Ohio (1968) 392 U.S. 1, 17, for its conclusion that a weapons patsearch is “a serious intrusion upon the sanctity of the person.” (Maj. opn., ante, p. 4.) In People v. Ledesma (2003) 106 Cal.App.4th 857, 867-868, we discussed Terry while upholding a protective sweep: “In fashioning the limits imposed by the Fourth Amendment, we cannot lose sight of the fact that police work is an often dangerous enterprise. When the federal Supreme Court balanced officer safety and personal privacy in [Terry], it concluded that a preventative search should be tested under a relatively relaxed standard, reasonable suspicion. The policy that drove that decision resonates in our case. ‘We are now 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. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. . . . [¶] In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves . . . in situations where they may lack probable cause. . . . When an officer is justified in believing [that danger exists], it would appear to be clearly unreasonable to deny the officer the power to take necessary measures . . . to neutralize the threat of physical harm.’ [Citation.]” I believe the frisk of appellant was an appropriate and necessary step taken to neutralize a reasonable threat of physical harm and would affirm the trial court.