Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Cruz County Super.Ct.No. F16047
Duffy, J.
Following the trial court’s denial of his motion to suppress evidence, defendant Raymond Sebastian Gil pleaded guilty to possessing methamphetamine and driving with a suspended license. He was sent to jail for a short term and put on probation. He contends on appeal that the court should have suppressed the methamphetamine evidence. He argues that because the investigating police officer had no reason to believe he might be armed and dangerous, the patdown search by which the officer discovered that evidence was unconstitutional under the Fourth Amendment to the United States Constitution.
We will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), defendant pleaded guilty to possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a)), specifically methamphetamine, and driving with his privileges suspended because of a prior conviction for driving under the influence of intoxicants (Veh. Code, § 14601.2, subd. (a)). The court suspended imposition of sentence and placed defendant on three years’ formal probation subject to terms that included serving 120 days in jail.
Defendant does not deny that he committed the crimes to which he pleaded guilty, but he contends that because the court erred in denying his suppression motion the judgment must be reversed and the case remanded with directions to the court to grant his suppression motion. At that juncture, of course, the prosecution could reassess the strength of its case.
Officer Jared Pisturino found methamphetamine on defendant during a patdown search. Defendant sought to suppress, inter alia, the methamphetamine evidence.
The hearing on defendant’s motion to suppress evidence adduced the following evidence and trial court decision:
Officer Pisturino testified as follows: he was a nine-year police department veteran and was employed by the Watsonville Police Department. He was patrolling in a marked squad car when he heard “extremely loud music, specifically the [bass],” emanating from a Chevrolet Suburban sport-utility vehicle that was in front of him, separated by a single vehicle. Officer Pisturino could hear the music from “well over 50 feet away,” and the “municipal code states that it can’t be audible over ten feet away.” Officer Pisturino followed the Suburban for a short distance as the music continued, and he decided to “make an enforcement stop.”
Officer Pisturino used his emergency lights to stop the Suburban. The driver pulled into a parking lot, stopped, and turned off the ignition. Officer Pisturino then approached the driver’s door on foot. Defendant began to emerge from the vehicle. “[A]s he was getting out of the car, I said, ‘Stay in the car.’ I told him once more before he shut the door to ‘get back in your car.’ ” Defendant disregarded both orders.
Officer Pisturino prefers for vehicular detainees to stay inside their vehicles in part for “officer safety reasons. That way they’re confined in their vehicle and it’s less likelihood of a fight.”
Officer Pisturino explained to defendant that he had stopped him because of the loud music emanating from his vehicle.
The direct examination of Officer Pisturino continued as follows:
“Q. After you informed him, did you continue to ask him to get back in the car?
“A. No. Usually in my experience when people are getting out of their vehicle, they’re trying to get away from something in the vehicle, whether it be weapons, contraband, drugs. So I don’t usually—once they’re out of the vehicle and the door’s been closed, I don’t like to let them get back into the vehicle for fear they may have a weapon or something like that that can be used against me.
“Q. Okay. So after you—what happened after you informed him [of] the reason for the stop?
“A. I asked him if he had any weapons or anything like that. Another concern of my [sic], when people get out of a vehicle they could have weapons on their person they can use against me. So I did decide to conduct a pat search of his exterior clothing just to see if he had any weapons.
“Q. Okay. And is that what you did at that point?
“A. Yes, I did.”
There followed examination by the trial court, during which Officer Pisturino again explained his reasons for conducting the search of defendant’s person. “It’s been my past experience that when people, if you tell them to stay in their vehicle and they get out anyway and you ask them to get back in, it’s been my experience I’ve had numerous occasions where after people refuse to get back in their vehicle, later subsequent search revealed contraband and/or weapons in the car.
“So my concern was that he may have weapons in the car; that’s why he didn’t want to get back in the car.
“And, like I said, at the same token, if they have weapons in their car, I was just concerned, just a quick pat search for weapons on his person.”
On further examination by the trial court, Officer Pisturino adhered to his account: defendant failed to comply with instructions. In his experience, it was unsafe to demand that an individual reenter a vehicle once he or she had noncompliantly exited it and then shut the door. “I don’t want to let them back in their car for fear, like I said, they may have a weapon in the car.”
On cross-examination, Officer Pisturino adhered to his prior testimony.
The trial court denied defendant’s motion to suppress evidence. The court stated: “The detention was justified based on the violation of the Watsonville Municipal Code. And it’s true [that case law] states that not every . . . routine traffic stop [justifies] a weapons frisk. [¶] [A] routine daytime traffic stop does not, without more, warrant a pat down even if the driver or passenger makes a furtive gesture such as reaching under the seat.
“The difference in this case . . . is that the officer noted that twice he told the defendant to get back in the car; twice the defendant refused to do so. And this officer . . . now . . . had basically a noncompliant . . . suspect, who was not following his orders. And this is something where the Court can look at the officer’s training and experience and . . . this officer noted that . . . the responses to the officer’s questions are certainly vague and unusual because this defendant is not complying.
“And then the court, as I said, looks at the officer’s training and experience. [And] he states that in his past, over his career, which is not a year, not two years that weapons are in the vehicle and that’s why he conducted a pat search.
“It’s close but the Court is persuaded . . . . [to] deny the motion.”
DISCUSSION
Defendant claims that because there was insufficient reason for the officer to consider him possibly armed and dangerous, the protective patdown search that resulted in the officer’s discovery of methamphetamine violated the Fourth Amendment to the United States Constitution, under the constitutional guaranty’s own terms and as given effect in California by Penal Code section 1538.5.
“In ruling on a motion to suppress [Penal Code section 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 891.)
On independent review of the ultimate question—the validity of the state’s action under the Fourth Amendment to the United States Constitution—we conclude that the trial court did not err in denying defendant’s motion to suppress.
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.] While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. [Citation.] The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124.) We bear in mind that “ ‘standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application’; ‘[e]ach case is to be decided on its own facts and circumstances.’ ” (Ornelas v. United States (1996) 517 U.S. 690, 696.)
Of course, in making an investigatory stop, police may conduct a protective patdown search for weapons. (See Illinois v. Wardlow, supra, 528 U.S. at p. 121.) But they may do so only if the officer “has reason to believe that he is” (Terry v. Ohio (1968) 392 U.S. 1, 27—or at least “may be” (id. at p. 30)—“dealing with an armed and dangerous individual” (id. at p. 27).
“As with all warrantless intrusions, the burden lies with the state to justify a detention.” (People v. Bower (1979) 24 Cal.3d 638, 644.)
When discussing how reviewing courts should evaluate lower courts’ reasonable-suspicion determinations, the United States Supreme Court has stated that we “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ . . .” (United States v. Arvizu (2002) 534 U.S. 266, 273.)
An individual’s “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” (Florida v. Bostick (1991) 501 U.S. 429, 437.) The same may therefore also be said of the justification for a suspicion that an individual may be armed or otherwise dangerous. On the other hand, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Illinois v. Wardlow, supra, 528 U.S. at p. 124.) Refusing to comply with an officer’s instructions accompanied by “ ‘peculiar . . . behavior’ ” (State v. Faulks (S.D. 2001) 633 N.W.2d 613, 619) can, depending on the circumstances, justify a patdown search to ensure that an individual is not carrying a weapon that could endanger the officer.
Bearing in mind that this case “ ‘is to be decided on its own facts and circumstances’ ” (Ornelas v. United States, supra, 517 U.S. at p. 696), we agree with the trial court that although the case is close, there was no Fourth Amendment violation.
Defendant was breaking the law by playing his car stereo exceedingly loudly, to the point that the officer could detect the bass from a considerable distance. When the officer commanded defendant to pull over, he complied. But that was the end of his compliance, as he then proceeded to disobey two commands by the officer: that he stay in his vehicle, and that he return to the vehicle’s compartment. By itself, each circumstance might not give rise to a reasonable suspicion that defendant might be armed and dangerous, the only basis for the patdown search the officer conducted. Together, however, and particularly in light of the nine-year-veteran officer’s experience that behavior of the kind he was witnessing had at times been accompanied by later discoveries of weapons in vehicles, the officer was entitled to do a patdown search for his safety. Defendant notes that the officer’s experience related only to later discoveries of weapons in vehicles and not on suspects’ persons, but that draws too fine a distinction. The officer had a reasonable suspicion that defendant might be hiding a weapon and was entitled to briefly check defendant’s person to protect himself.
Some of the officer’s testimony described that defendant disobeyed a first order that he stay in his vehicle and a second order that he get back in the vehicle before he had shut the door. But other testimony was inconsistent: at one point, the officer testified that defendant began to emerge from the vehicle and the officer “told him to stay in his vehicle.” Defendant did not comply, instead completing his exit from the Suburban and closing the door behind him. Then the officer “asked him to get back into his vehicle.”
In State v. Young (2006) 294 Wis.2d 1 [717 N.W.2d 729], the Wisconsin Supreme Court upheld the validity of a detention under similar circumstances. In that case a police officer had observed suspicious behavior and the suspect had twice failed to comply with an order to get back in his vehicle. “I ordered him back into the vehicle. He turned and started walking away from the vehicle. I then yelled louder. I said, ‘Get back in that car right now.’ And I started heading toward him around my squad [car]. He turned and looked at me and started running . . . .” (Id. at p. 13.) The Wisconsin Supreme Court observed: “One might argue that at the moment [the suspect] exited the car, a reasonable officer in [the officer’s] position would have had no way of knowing what the person intended. [The officer’s] first order for [the suspect] to return to the car may be viewed as a reasonable attempt to clarify the ambiguity in [his] conduct. It is also a standard tactic for police officer safety. Once [the suspect] disregarded the command and began to flee, [the officer] had reasonable suspicion to stop [him].” (Id. at p. 39.) Here, to be sure, defendant did not begin to flee, but Officer Pisturino reasonably perceived his conduct as “unusual” (Terry v. Ohio, supra, 392 U.S. at p. 30), “peculiar” (State v. Faulks, supra, 633 N.W.2d at p. 619), “nervous,” and “evasive,” (Illinois v. Wardlow, supra, 528 U.S. at p. 124), and the officer had seen such behavior associated with the presence of weapons during his nine years of policing. The protective patdown search did not violate the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P. J. Premo, J.
The version of Officer Pisturino’s testimony in which defendant did not shut the vehicle door before the second order came in response to the trial court’s questions, and the other version was in response to the prosecutor’s questions. It appears to us that the court’s ruling either implicitly found the inconsistency to be unimportant or that the ruling implicitly resolved the conflict in the evidence by crediting the officer’s testimony that defendant disregarded two orders before defendant shut the vehicle’s door rather than disregarding one order before he shut the door and a second order afterward. The important point here is that under either account defendant disobeyed two orders by Officer Pisturino.