Opinion
A164443
10-18-2022
In re Damian H., A Person Coming Under the Juvenile Court Law. v. DAMIAN H., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Sup. Ct. No. J21-00148)
DEVINE J. [*]
Damian H. appeals from dispositional orders declaring him to be a juvenile court ward based on jurisdictional findings that he unlawfully possessed a loaded firearm. Damian's sole claim on appeal is that the juvenile court erred in denying his motion to suppress the firearm at issue due to an unlawful patdown search of his person following a vehicle stop. We disagree and affirm.
I. BACKGROUND
On April 6, 2021, the Contra Costa County District Attorney filed a juvenile wardship petition with respect to Damian pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that the minor unlawfully possessed a loaded firearm, a .40 caliber Smith and Wesson semiautomatic handgun (Pen. Code, § 25850, subds. (a) & (c)(4), count one), and unlawfully possessed and concealed that same firearm in a vehicle (Id., § 25400, subds. (a)(1) & (c)(4), count two). Damian subsequently filed a motion to suppress evidence under section 700.1, contending that the allegations in the petition arose from a warrantless detention, arrest, and search of his person by Pittsburg police officers on February 5, 2021. He argued that evidence of the seized gun must be suppressed. The People responded that the car in which Damian was a passenger was lawfully stopped and that the patdown that uncovered the loaded gun was supported by a reasonable suspicion that Damian was armed and dangerous.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
At the suppression hearing on July 26, 2021, Pittsburg Police Officer Zachary Wilhite testified regarding the traffic stop. At approximately 2:21 p.m., Officer Wilhite-who was wearing his uniform and driving in a marked police vehicle-observed a silver Audi with all of its windows tinted black except for the windshield. The car was being driven in what was, in his opinion, one of the highest crime areas of east Contra Costa County. Based on his training and experience, as well as his personal observations, Officer Wilhite was concerned because having excessive tinting on the driver and front passenger windows was a violation of the Vehicle Code; heavily tinted windows create officer safety concerns; windows are sometimes tinted to avoid detection by law enforcement; and, when he positioned his patrol car behind the Audi, the driver suddenly changed direction, abruptly turning into a parking lot.
After contacting the Audi's four occupants, Officer Wilhite recognized the driver of the Audi as having previously been a passenger in another vehicle that had been used during a potentially gang-related shooting of two individuals in Atlantic Plaza, leading to one death. He recognized the passenger in the front seat as the driver's girlfriend based on that same prior homicide investigation. Damian was a passenger in the rear seat, along with the fourth individual. Officer Wilhite did a records check on all four of the vehicle's occupants. He was aware that all of the occupants of the vehicle were under the age of 21, which caused him concern because he could smell marijuana coming from the inside of the vehicle. Possessing and/or smoking marijuana is statutorily prohibited under the age of 21.
On our own motion, we take judicial notice of the readily ascertainable fact that the Atlantic Plaza homicide occurred in September 2020. (Evid. Code, §§ 452, subd. (h), 459, subd. (a).)
The juvenile court sustained Damian's objection under People v. Madden (1970) 2 Cal.3d 1017 and People v. Harvey (1958) 156 Cal.App.2d 516 to Officer Wilhite's testimony that he ran a records check on all four of the vehicle's occupants and struck testimony reciting what the officer learned from the records check. (See People v. Romeo (2015) 240 Cal.App.4th 931, 943 [under Harvey-Madden rule, an officer may detain a suspect based on information received through official channels, but, upon proper objection, the People must prove the source of the information has sufficient indicia of reliability].) Since Officer Wilhite testified on cross-examination that, prior to the traffic stop, he had never "seen Damian," the record is unclear as to whether the officer was aware of Damian's age prior to the records check.
With respect to Damian, Officer Wilhite testified that he was standing at the passenger side of the vehicle making small talk with the occupants while waiting for a cover officer to arrive. During this time, Damian had a cell phone in one hand and a bottle of Gatorade in the other. However, at multiple different points, Officer Wilhite observed Damian using his left arm, bent to a 90-degree angle, appearing "to subtly reference pat an object, which [the officer] couldn't see, inside his jacket." The law enforcement term for this type of behavior is "security touching." While offering this testimony, Officer Wilhite was demonstrating "a nudging motion with his left elbow as to secure an object on a waistband." At the same time, Damian was observed by Officer Wilhite to be surreptitiously looking to see if the officer was watching him while he was doing the movement.
At that point, Officer Wilhite believed it was necessary for officer safety to pull the occupants out of the vehicle and perform pat searches because he had observed similar demeanor on multiple prior occasions, and it led him to believe that Damian had a gun. According to Officer Wilhite, "[f]rom a police officer's perspective, people who have guns on them around police officers more often than not can't help but to do things like touch the gun." He observed that even an off-duty police officer may security touch his or her concealed firearm, "making sure it's where it needs to be."
During his patdown of Damian, Officer Wilhite initially felt a heavy object in the minor's left front pocket. He could not immediately discern whether the object was a weapon, so he pressed it towards Damian's stomach to help with the identification. At that point, "having felt that same feeling many times before," Officer Wilhite identified the object as a handgun and based on its weight, "was relatively confident it was more than likely a real gun." After detaining Damian in handcuffs, Officer Wilhite removed the handgun-which was oriented downward in Damian's left jacket pocket with the handle facing toward the arm Damian was using to security touch-and determined it was a real gun with "a live round inserted into the top of the magazine."
In ruling on the motion to suppress, the juvenile court initially indicated it found Officer Wilhite's testimony credible. After concluding that there was probable cause for the traffic stop and that it was permissible to order the passengers out of the vehicle, the court turned to the "key issue" of whether Officer Wilhite had reasonable and articulable grounds to suspect that Damian possessed a dangerous weapon under the totality of the circumstances. Noting that speculation was not sufficient, the court found relevant (but not dispositive) the facts that the car was in a high crime area and that the driver of the car had previously been arrested in connection with a potentially gang-related homicide.
The "very specific and detailed description of Damian's conduct" by Officer Wilhite-the security touching while trying to avoid being obvious that he was checking on the officer-led the juvenile court to conclude that the officer had reasonable and articulable grounds to search Damian when taking in consideration all the information as a whole. This was especially true given Officer Wilhite's "pretty considerable experience" observing very similar conduct. The court finally noted, "for what it's worth," that the officer could have searched all four occupants of the vehicle for marijuana given the odor of marijuana he smelled, but reiterated that the primary issue was the validity of the search for weapons.
At the contested jurisdictional hearing on November 17, 2021, the juvenile court sustained count one and dismissed count two. At the dispositional hearing on January 12, 2022, the court declared Damian a juvenile court ward with no termination date and ordered him to reside in the home of his mother or grandparents for 60 days under home supervision and to complete 50 hours of community service by January 2023. The court additionally imposed a curfew, prohibited Damian from possessing firearms, ordered Damian to submit to drug and alcohol testing and to searches, and ordered the minor to participate in counseling as directed by the probation officer. This timely appeal followed.
II. DISCUSSION
Damian acknowledges that the initial detention in this case was lawful because the vehicle's overly tinted windows violated Vehicle Code sections 26708 and 26708.2. In addition, he concedes that, following a lawful traffic stop, a police officer may order the driver and any passengers out of the vehicle pending the completion of the stop. (See People v. McDaniel (2021) 12 Cal.5th 97, 129-130, citing Maryland v. Wilson (1997) 519 U.S. 408, 410 and Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 (Mimms).) Thus, Damian's sole appellate claim is that the juvenile court erred in denying his suppression motion because Officer Wilhite had no specific and articulable facts to support a reasonable suspicion that Damian was armed and dangerous when the officer patted him down for a weapon. We disagree.
The Fourth Amendment of the United States Constitution guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (Terry v. Ohio (1968) 392 U.S. 1, 8-9 (Terry), italics added.) If an officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is afoot, the officer may conduct a brief, investigative stop. (Id. at pp. 21-22.) Additionally, if the officer conducting such a so-called Terry stop reasonably believes the suspect is armed and dangerous, the officer may perform a limited search of a person's outer clothing for weapons, whether or not the officer has probable cause to arrest. (Id. at pp. 27, 30; accord, Arizona v. Johnson (2009) 555 U.S. 323, 332 (Arizona) ["officers who conduct 'routine traffic stop[s]' may 'perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.' "].)
The principles governing patdowns in this context are well settled. (In re Jeremiah S. (2019) 41 Cal.App.5th 299, 304 (Jeremiah S.), citing Minnesota v. Dickerson (1993) 508 U.S. 366, 373 (Dickerson).) Since a patdown" 'is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,' it is subject to Fourth Amendment restrictions and 'not to be undertaken lightly.'" (Jeremiah S., at p. 304, citing Terry, supra, 392 U.S. at p. 17.) Moreover, since" '[t]he purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence' . . . a protective search . . . must be strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.'" (Dickerson, at p. 373, citations omitted.)
On the other hand, a reviewing court "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." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)" 'Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.'" (Mimms, supra, 434 U.S. at p. 110, quoting Terry, supra, 392 U.S. at p. 23.) Indeed, the United States Supreme Court has "specifically recognized the inordinate risk confronting an officer as [the officer] approaches a person seated in an automobile." (Mimms, at p. 110.)
The reasonable suspicion necessary to justify a patdown "is 'considerably less than proof of wrongdoing by a preponderance of the evidence.'" (People v. Souza (1994) 9 Cal.4th 224, 231.) It is also "a less demanding standard" than probable cause, which requires" 'a fair probability'" that the evidence sought will be found. (Alabama v. White (1990) 496 U.S. 325, 330.) Moreover, "reasonable suspicion can arise from information that is less reliable than that required to show probable cause." (Ibid.) Finally, "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." (Illinois v. Wardlow (2000) 528 U.S. 119, 125.)
A determination of reasonableness in this context is "inherently case-specific." (People v. Durazo (2004) 124 Cal.App.4th 728, 735.) As a result, the validity of a patdown depends on the totality of the circumstances. (Jeremiah S., supra, 41 Cal.App.5th at p. 305.) We consider 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; accord, People v. Avila (1997) 58 Cal.App.4th 1069, 1074.) This requires that the officer provide "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." (Terry, at p. 21.) In this regard, "due weight" is given to the specific reasonable inferences that the officer "is entitled to draw from the facts in light of [his or her] experience." (Id. at p. 27.) Although the officer need not be "absolutely certain" the individual is armed, an "inchoate and unparticularized suspicion or 'hunch'" is insufficient. (Ibid.)
A minor may move to suppress evidence obtained as a result of an unlawful patdown. (§ 700.1.) "In reviewing a ruling on a motion to suppress, we defer to the lower court's express and implied findings of fact if they are supported by substantial evidence. [Citations.]" (Jeremiah S., supra, 41 Cal.App.5th at pp. 305-306.) However, "[i]n determining whether, on the facts so found, the seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (Id. at p. 306; accord, In re Antonio B. (2008) 166 Cal.App.4th 435, 441.)
Here, both parties agree that the patdown could not be justified solely on the basis that the vehicle was located in a high-crime neighborhood, a situation insufficient by itself "to cast reasonable suspicion on an individual." (See People v. Medina (2003) 110 Cal.App.4th 171, 177.) In addition, we agree with Damian that one passenger's potential gang involvement cannot, on its own, establish reasonable suspicion that another passenger may be armed and dangerous. (See People v. Hester (2004) 119 Cal.App.4th 376, 388-389.) And we acknowledge that relying solely on a passenger making or avoiding eye contact to justify a search is problematic as either can be deemed suspicious to fit the circumstances. (Cf. United States v. Moreno-Chaparro (5th Cir. 1998) 180 F.3d 629, 632 ["We cannot help but note that the government has variously relied on both sides of the factor, on some occasions contending that it is suspicious for a person to look and on other occasions insisting that it is suspicious not to look."].) According to Damian, this leaves the fact that he was "fidgeting with his elbow," which he asserts is not enough to establish reasonable suspicion for the search. This argument is both analytically unsound and misapprehends the significance of Damian's movements in the context of this case.
As discussed above, we must look to the totality of the circumstances to judge the validity of a patdown rather than consider each factor in isolation, as Damian suggests. (See Jeremiah S., supra, 41 Cal.App.5th at p. 305.) As the trial court recognized, the facts that the car was in a high crime area and that the driver had previously been arrested in connection with a potentially gang-related homicide, while not dispositive, were certainly relevant to the reasonable-suspicion calculus. The trial court also acknowledged that either the presence or absence of movement could be deemed suspicious in a particular case and consequently were not sufficient, in and of themselves, to justify a reasonable suspicion that an individual was armed. Instead, the trial court concluded it was the precise types of looking and touching that were dispositive in this case and which-in conjunction with the other relevant circumstances-provided the "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed] [the] intrusion." (Terry, supra, 392 U.S. at p. 21.)
We approve the trial court's determination. Damian was not simply making or failing to make eye contact; nor was he fidgeting in a way indicative of general nervousness. Rather, he was making a distinct, repetitive movement with his elbow which Officer Wilhite recognized-based on his considerable experience-as security touching for a weapon. (See United States v. Foster (4th Cir. 2016) 824 F.3d 84, 94 ["A security check by a suspect can contribute to a finding of reasonable suspicion that the suspect was engaged in criminal activity."]; In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [motorcycle pulling away from the curb in front of a known gang house in a gang neighborhood; passenger "starting for his pockets again, after being told to take his hands out, provided an 'additional factor' justifying a patdown search for weapons"]; compare United States v. Steel (N.D.Cal., Sept. 6, 2011, No. CR 11-0149 PJH) 2011 U.S. Dist. Lexis 99934, aff'd. (9th Cir. 2012) 486 Fed.Appx. 690 ["the critical factor giving rise to reasonable suspicion was the fact that Officer Sanchez feared for his own safety at the time of the stop after observing Steel make a furtive movement to secure with his arm or elbow what appeared to be a heavy concealed object on his right side, which Officer Sanchez testified he believed might have been a weapon"].) At the same time, Damian was observed by Officer Wilhite to be surreptitiously looking to see if the officer was watching him while he was making this particular movement. These "specific and articulable facts," in conjunction with the other relevant circumstances identified by the trial court were sufficient to justify the patdown for a weapon.
We may cite unpublished federal cases as persuasive authority without violating the California Rules of Court, rule 8.1115. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18.)
Since we conclude that Damian's security patdown was justified by the officer's reasonable suspicion that the minor was armed and dangerous, we do not reach the Attorney General's alternate claim that all of the vehicle's underaged passengers could have been patted down based on the presence of marijuana.
III. DISPOSITION
The juvenile court's January 12, 2022 dispositional order is affirmed.
WE CONCUR: Humes, P. J. Banke, J.
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.