Opinion
B199803
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. PAUL WILLIAM FERMANN, Defendant and Appellant.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
After denial of his motions to suppress and to set aside the information (Pen. Code, §§ 995, 1538.5), Paul William Fermann (appellant) pleaded "no contest" to a violation of section 496, subdivision (a) (receiving stolen property) as a felony. The trial court granted appellant three years formal probation on the condition that he serve the first 90 days in county jail.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the ground that the trial court erred in denying appellants motion to suppress evidence.
FACTS
We recite the facts from the hearing on the motion to suppress evidence, which was heard contemporaneously with the preliminary hearing. Between February 16 and 17, 2007, Shaunte Hutchins (Hutchins) parked her car overnight on the street and found the car window smashed the next morning. Her purse and other items were missing from the car. Her drivers license and credit cards were inside her wallet, which was inside the purse. No one had permission to take any of her belongings.
On February 20, 2007, Officer Joe Anaya of the Los Angeles Police Department was conducting an investigation and was attempting to locate a warrant suspect named Javier DeLoera (DeLoera). As Officer Anaya stood outside his vehicle at an intersection, a blue Mitsubishi Montero pulled up next to him. Officer Anaya saw DeLoera sitting in the front passenger seat. Officer Anaya told his partner, Officer Santiago Casillas, what he had seen, and the two officers entered their "plain" vehicle and followed the Montero.
The Montero eventually pulled into a gas station, and the officers saw the front and rear passenger doors open. Two men got out and ran towards the mini mart at the station. The Montero then pulled up to a gas pump, and Officer Casillas contacted the driver, who was later identified as appellant. A citizen informed Officer Anaya that one of the suspects jumped a wall and ran into the alley, and the other ran towards the mini mart. Officer Anaya arrested DeLoera inside the mini mart.
When Officer Casillas approached appellant, appellant was outside the Montero, but he was not pumping gas. Officer Casillas identified himself, showed his badge, and asked appellant what was going on. Appellant "said nothing." Officer Casillas then detained appellant because it was "not common" that people jump out of someones car while it was still moving and take off running. His knowledge that the front passenger had a warrant added to the circumstances justifying a detention. Officer Casillas testified that he "had reasonable suspicion believing that [appellant] was tied to some criminal activity" that had either just occurred or was about to occur. Because at least one of the persons who had run away was wanted, Officer Casillas felt that they were "up to committing a crime," and he believed that in these situations "one of them tends to be armed usually." He patted appellant down for the purpose of officer safety. Before doing so, Officer Casillas asked appellant if he could pat him down and appellant said, "Go right ahead."
It is not clear from the transcript whether appellant remained silent or replied, "Nothing."
During the patdown, Officer Casillas recovered a folding knife from appellants front right pocket. In appellants coin pocket, the officer felt "what was like a little bindle which is usually where they hide narcotics. So I recovered it and ended up being marijuana." Upon cross-examination Officer Casillas said that he knew the bindle was narcotics because the bindle was not hard and the coin pocket was a common place for hiding narcotics. It was a combination of where it was and how it felt that led him to believe it was narcotics. Appellant was then arrested.
After appellants arrest, the Montero was impounded and searched by Officer Anaya. Officer Anaya saw a pink wallet in plain sight in the rear drivers side seat of the Montero. The identification cards and other cards in the wallet bore Hutchinss name. In the center console between the driver and passenger seats there was a Blockbuster Video card in the name of Hutchins. Later, a credit card bearing the name of Hutchins was found in a wallet taken from appellant.
Appellant told the officers that he had given a ride to a female called Sweets, who had a handbag with her. She asked appellant to stop at a dumpster, where she threw away the bag. Appellant assumed the bag was stolen. They went to buy gas with the victims credit card. Before Sweets left appellants car, she gave appellant the credit card, which he placed in his wallet.
After hearing argument on the motion, the trial court stated, "We have a passenger in the car with a felony warrant. The vehicle stops on its own and two passengers run from the vehicle, one including a person with a felony warrant, one person remains behind. I think those circumstances warrant a brief detention of the remaining persons to see whats going on here. There is that association with someone with a felony. . . . I think that alone would justify a brief detention and a brief pat-down for officers safety. And then the rest is he feels; there is something. Turns out to be a knife. He feels something; feels like a bindle. Now, yes, he said under cross-examination it could have been something else, but I think that it feels like it could be a narcotics is enough to retrieve it. So that would therefore, justify the arrest which follows and the rest is history." The trial court denied the motion to suppress.
During a subsequent motion hearing pursuant to section 995, defense counsel once again argued facts surrounding the search, and the trial court responded, "As I say, based upon the transcript, it appears to me that the officers conduct was reasonable under the circumstances, and basically pat down defendant to deal with him. Just under the circumstances whether the people — two other people running from the car and defendant there, I think they have a right to pat him down and to do what — engage in whatever contact that they had with him. Then, of course, one thing leads to the next. And I think under the circumstances the officers conduct was reasonable, and so Im going to deny both, once again, the 1538.5 motion to suppress and Im going to deny your 995 motion."
DISCUSSION
I. Appellants Argument
Appellant contends the police acted unreasonably and the detention was unlawful, since there was no indication appellant was attempting to evade the police. The officer then unlawfully pat-searched appellant even though he had no specific and articulable facts to reasonably support a suspicion that appellant was armed and dangerous. Finally, appellant claims it was not proper for the police officer to reach into appellants pocket and remove the bindle, since the police must have probable cause that an object is either contraband or evidence of a crime in order to seize it.
II. Relevant Authority
On appellate review of a trial courts ruling on a motion to suppress evidence, the appellate body must accept the trial courts resolution of disputed facts and its assessment of the credibility of witnesses if supported by substantial evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.) The trial court has the power to decide "what the officer actually perceived, or knew, or believed, and what action he took in response." (People v. Leyba (1981) 29 Cal.3d 591, 596.) The appellate court independently measures the facts found by the trier against the constitutional standard of reasonableness. (Id. at p. 597; People v. Lawler, supra, at p. 160.)
"[A] reviewing court should endeavor to balance the governmental interest which is sought to be protected against the degree of intrusion involved in the detention. This balancing must demonstrate that, to be sustainable, the detention meets `the ultimate standard of reasonableness embodied in the Fourth Amendment." (People v. Samples (1996) 48 Cal.App.4th 1197, 1206 (Samples).) "`Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause . . . . [Citation.]" (People v. Dolly (2007) 40 Cal.4th 458, 463.) "[T]he temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on `some objective manifestation that criminal activity is afoot and that the person to be stopped is engaged in that activity. [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 230.)
III. Motion Properly Denied
We conclude that Officer Casillass detention of appellant was lawful, as was the patdown search for the purpose of officer safety, which occurred after appellant had given his consent. Appellant gives short shrift to the fact that he consented to the patdown of his person. He does not dispute this factual finding by the trial court, but states, "respondent mistakenly assumes that the officers detention of appellant in the first place was proper. In this case the police acted unreasonably and the detention was unlawful. There was simply no indication that appellant was attempting to evade the police or conceal his identity. Instead, unlike his passengers who fled, appellant simply exited the vehicle and stood next to it."
As stated in United States v. Arvizu (2002) 534 U.S. 266, 277, "A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct." Here, appellant was driving a car with a wanted person in his front passenger seat. As in Samples, supra, 48 Cal.App.4th 1197, where Sampless passenger was wanted on a warrant and where the court found that reasonable suspicion for a detention existed, appellant "was clearly in close association" with the subject of a warrant, and he was not just a passenger but rather was the driver of the car. (Id. at p. 1206.) Moreover, appellants act of pulling into the gas station leads to an inference that he did so in order to facilitate his passengers escape. When the car entered the gas station, both the front and rear passengers jumped out of the car and took off running while the car was still in motion. Appellant, as the driver, was not free to run at that time.
The fact that appellant got out of his car and stood beside it would not justify a failure by the officers to conduct a brief investigatory detention to determine what was "going on" and if appellant was involved in criminal activity. "[W]here a reasonable suspicion of criminal activity exists, `the public rightfully expects a police officer to inquire into such circumstances "in the proper exercise of the officers duties." [Citation.]" (People v. Wells (2006) 38 Cal.4th 1078, 1083.) The detention was clearly not prolonged, since Officer Casillas immediately walked up to appellant, identified himself as a police officer, and asked him what was going on. As occurred in United States v. Vaughan (9th Cir. 1983) 718 F.2d 332, cited in Samples, "[t]his was not a routine traffic arrest of a driver of a vehicle." (United States v. Vaughan, supra, at p. 335.) Vaughan was a passenger in a car driven by a man who had a warrant out for his arrest. (Id. at p. 333.) When police approached the stopped car, Vaughan tried to walk away, but he was brought back to the car and handcuffed. (Ibid.) The court determined that the officer had a right to briefly detain Vaughan, and it was reasonable for the officer to engage in a limited Terry frisk to determine if Vaughan had any weapons. (United States v. Vaughan, supra, at pp. 334-335.)
Terry v. Ohio (1968) 392 U.S. 1, 30-31 (Terry).
In this case, although appellant did not attempt to walk away, his role as the driver of the car carrying a wanted felon warranted a detention for the purpose of Officer Casillas conducting a brief investigation, such as asking appellant to explain what had occurred. When appellant either did not reply to Officer Casillas, or answered "Nothing," Officer Casillas asked for permission to patdown appellant, and appellant consented. The totality of the circumstances in this case justified the brief detention that preceded the patdown search. Even without consent, a patdown search was warranted for officer safety concerns. (Terry, supra, 392 U.S. at pp. 30-31.)
With respect to the patdown, we disagree with appellants assertion that "it was not proper for the police officer to reach into appellants pocket and remove the bindle in which the marijuana was found." The testimony showed that it was more than "pure speculation" on the part of Officer Casillas that the bindle constituted contraband. In this case, the application of the "`plain-feel" or "sense of touch" doctrine exception to the requirement for a search warrant set out in Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson) is clearly justified.
In Dickerson, an officer conducted a patdown of a suspect and felt a small lump in the suspects jacket. (Dickerson, supra, 508 U.S. at p. 369.) The officer examined the lump with his fingers, and concluded that it felt like rock cocaine in cellophane. (Ibid.) He then reached into the jacket pocket and retrieved the item, which was a small plastic bag containing cocaine. (Ibid.) Referring to the well-established `"plain-view" exception to the requirement for a warrant (id. at pp. 374-375), the court in Dickerson held that when a police officer lawfully pats down a suspects outer clothing and feels an object whose identity as contraband is "immediately apparent," the officer may properly seize the object. (Id. at pp. 375-377.) In Dickerson, however, the court concluded that the officer exceeded the scope of the patdown search by "`squeezing, sliding and otherwise manipulating the contents of the defendants pocket—a pocket which the officer already knew contained no weapon." (Id. at p. 378.)
Other courts have applied the plain feel exception in ruling that officers have properly removed items from suspects during patdowns. In U.S. v. Mattarolo (9th Cir. 2000) 209 F.3d 1153 (Mattarolo), for example, an officer saw a pickup truck leaving a closed construction storage area at night with a rather large crate in the truck bed. (Id. at p. 1156.) The officer stopped the truck and received the drivers consent to pat him down. (Ibid.) The officer felt what he suspected was a knife in a pocket. (Ibid.) The officer closed his thumb and forefinger around the object to see if it was hard, and he felt little chunks in plastic bags that he immediately recognized as drugs. (Ibid.) Mattarolo held that the officer properly removed the contraband from the pocket, since he discovered its identity while trying to determine whether the suspect had a weapon. The officer had not excessively manipulated the object and had therefore not exceeded the scope of a proper patdown search. (Id. at p. 1158.)
Likewise, in People v. Dibb (1995) 37 Cal.App.4th 832 (Dibb), an officer stopped a car in which the defendant was a passenger because the cars registration had expired and the occupants were not wearing seat belts. (Id. at p. 834.) The defendant consented to a search of his fanny pack, which contained a gram scale with an odor of methamphetamine, a small plastic bag, a beeper, and a magazine for a pistol. (Id. at pp. 834-835.) Concerned that the defendant might be armed, the officer patted down the defendant for weapons. He felt something "`lumpy" that had "`volume and mass." (Id. at p. 835.) The officer did not think it was a weapon, but he believed it might be a controlled substance because of the items found in the fanny pack. (Ibid.) After a second officer patted down the defendant and confirmed the presence of "`something," the officer reached beneath defendants pant leg and seized a package containing methamphetamine. (Ibid.) Dibb held that under the totality of the circumstances, the officer had probable cause to arrest the defendant when he first touched the object, and the search was justified as a search incident to arrest. (Id. at pp. 836-837.)
In the instant case, Officer Casillas testified that he knew upon feeling the object in appellants coin pocket that it was a bindle containing narcotics. Added to this was the circumstance that Officer Casillas knew from experience that people often put narcotics in their coin pockets. Although defense counsel attempted to elicit responses that would characterize the officers knowledge as a hunch, Officer Casillas repeatedly emphasized his certainty, saying for example, "And when you say I wasnt sure, it could — I was sure it was — I felt it was narcotics. Whether it was marijuana, meth or cocaine, that, I didnt know." Although defense counsel elicited that, yes, the bindle "could have been anything," Officer Casillas clarified that "[a]t that point I thought it was narcotics."
We conclude that the detention of appellant was justified, he consented to the patdown search, and, under the plain feel doctrine of Dickerson, the officer lawfully removed the bindle from appellants pocket. The trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur:
DOI TODD, Acting P. J.
ASHMANN-GERST, J.