Opinion
B227926
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBIN LEON JACKSON, Defendant and Appellant.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA374664)
APPEAL from a judgment of the Superior Court of Los Angeles County, Darrell S. Mavis, Judge. Affirmed.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Robin Leon Jackson appeals from a judgment of conviction following a no contest plea. After the trial court denied his motion to suppress evidence under Penal Code section 1538.5 on the ground that the seizure of a knife was a permissible Terry search for weapons on defendant's person, defendant pled no contest to the single count of carrying a concealed dirk or dagger (§ 12020, subd. (a)(4)). The trial court sentenced defendant to three years formal probation conditioned on service of 226 days in Los Angeles County Jail.
All further statutory references are to the Penal Code.
Section 1538.5, subdivision (m), in pertinent part provides that "[a] defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that the judgment of conviction is predicated upon a plea of guilty. Review on appeal may be obtained by the defendant provided that at some stage of the proceedings prior to conviction he or she has moved for . . . the suppression of the evidence."
Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].
On appeal, defendant challenges the trial court's ruling on his suppression motion. We affirm.
FACTS
The facts are taken from the preliminary hearing transcript.
On February 25, 2010, Los Angeles Police Department Officer Juan Cruz responded to a radio call in the area of Hoover and 74th Streets concerning a car burglary. Officer Cruz was informed that the suspect had just left the scene of the crime heading north on a bicycle. The suspect was described as 22 years old, wearing a checkered shirt and black pants, riding a bicycle.
Officer Cruz testified that the radio call indicated the suspect's checkered shirt was colored black and white, but after hearing the radio call played in court said he did not recall whether the dispatcher indicated the color of the checkered shirt.
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Officer Cruz proceeded to drive a few blocks toward the location of the burglary. As he was driving, he saw defendant talking to a woman approximately one block west and two blocks north of the burglarized car. Defendant was wearing clothes like those described in the radio call, including a checkered shirt and black pants. He was also standing near a bicycle. It had only been a couple of minutes since Officer Cruz had received the radio call.
Officer Cruz approached defendant and detained him. Defendant was handcuffed, was very cooperative and did not try to avoid the detention. There was nothing in defendant's behavior that indicated he had a weapon.
Officer Cruz had arrested approximately 50 car burglary suspects during his career. In his experience, burglary suspects sometimes carry items that can be used as weapons, such as screwdrivers, wrenches, knives, or other tools that help break into locked vehicles. The location where defendant was found was a high-crime area.
During the search of defendant for weapons and burglary tools, Officer Cruz found a number of tools, including a screwdriver, a wrench, and pliers in one pocket. In another pocket, defendant had an 8- to 10-inch-long "Rambo-type" knife.
While the radio call indicated that the suspect was 22 years old, defendant was born on March 14, 1961, and at the time of the pat-down search was almost 49 years old. After the search, Officer Cruz asked defendant for identification, but he could not recall if defendant actually produced it. Officer Cruz indicated that he was holding defendant for a field show-up so a witness could either identify or eliminate defendant as a suspect in the burglary.
Defendant told Officer Cruz that he had been using the tools to do construction work across the street from his church. Defendant pointed to a fenced area between a store and a house. Officer Cruz noted that there might have been some construction or yard work and he opined that the knife he recovered had a hook and could have possibly been used during construction.
DISCUSSION
The motion to suppress was held in conjunction with the preliminary hearing. After hearing argument, the trial court denied the motion, explaining that "based on the totality of the circumstances, there is certainly grounds to detain. [¶] The second condition that needs to be met is that the officer must have a reason to believe that he's dealing with an armed and dangerous individual. The officer in this particular case articulated two reasons to pat the defendant down. [¶] The first was the — the danger in the sense that it's a burglary and burglaries — burglars of motor vehicles often carry weapons. [¶] The second justification was to discover evidence of the crime. In other words, burglary tools and the like.
"The second justification cannot be the purpose of the pat-down search. . . . [¶] . . . So the officer was not justified in patting down the defendant just to discover evidence of the crime. It solely boils down to whether or not there — the officer is justified in patting down because of the nature of the crime and the fact that auto burglars usually have weapons, and I think that's sufficient.
"I was trying to find a case specifically on point to this. Neither side has cited me a specific case on this. So I am going to have to just use the general case law that an officer must have reason to believe that he's dealing with an armed and dangerous individual. The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others is in danger. [¶] That's Terry v. Ohio, [supra,]392 U.S. at [p.] 27. [¶] And I think that's reasonable given the nature of the crime."
In reviewing a trial court's ruling on a suppression motion, we must uphold any express or implied factual findings made by the trial court if they are supported by substantial evidence. (People v. Hughes (2002) 27 Cal.4th 287, 327; People v. Williams (1988) 45 Cal.3d 1268, 1301.) We determine independently, as a matter of law, the applicable rule of law for assessing whether the challenged police action violated the Fourth Amendment protection against unreasonable searches and seizures. (Hughes, supra, at p. 327; Williams, supra, at p. 1301.) Finally, we independently determine whether, applying the rule of law to the facts in the instant case, the challenged police conduct, as a matter of law, constituted an unreasonable search or seizure in violation of the Fourth Amendment. (Williams, supra, at p. 1301.)
Defendant does not challenge the initial stop or detention. He challenges the "pat-down" search. Terry requires (1) a valid basis for detention and (2) a valid basis for a search. For the second prong, the officer conducting the search must have a reasonable suspicion, based on objective facts, that the person is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at pp. 19, 22, 27.) Defendant does not believe that the search was reasonable under the second prong of the Terry test. We disagree.
The officer was able to articulate a reasonable suspicion for believing the defendant might be armed and dangerous. This authorized the pat-down search of his outer clothing for weapons. (Terry v. Ohio, supra, 392 U.S. at p. 28.) As the trial court indicated, a Terry search may be based on a reasonable suspicion that a suspect has been involved in a type of criminal activity that involves the use of weapons, such as a robbery or burglary. (People v. Coulombe (2000) 86 Cal.App.4th 52, 56; People v. Franklin (1985) 171 Cal.App.3d 627, 635-636.)
In People v. Franklin, supra, witnesses reported that two men had robbed a store and a shotgun had been used. The report indicated that one of the suspects was carrying a white tennis bag. An officer observed two men in a car with expired registration. During a traffic stop of the vehicle, the officer observed a white tennis bag lying on the floor of the car. The court held that a Terry search was appropriate under the circumstances. (People v. Franklin, supra, 171 Cal.App.3d at pp. 631, 635-636.) In People v. Coulombe, supra, two anonymous citizens had informed police officers that a person in a white cap had a gun at a public New Year's Eve gathering. The defendant was the only person in the area matching the citizens' description. The officers approached the defendant and found a gun after a pat-down search of the defendant. (People v. Coulombe, supra, 86 Cal.App.4th at pp. 54-55.) The court held that the person matching the description of an armed suspect is subject to search: "Any reasonable person would conclude, given two independent reports by citizens that an individual matching [the] defendant's description, in [the] defendant's location, at that particular point in time, was carrying a firearm in a crowd of New Year's Eve revelers, that these constituted 'specific and articulable facts' giving rise to a reasonable suspicion that [the] defendant was engaged in criminal activity and was armed." (Id. at p. 57.)
While defendant is correct that both Franklin and Coulombe involved robberies and the officers were dealing with individuals suspected of having a gun, and the instant case involved an individual suspected of a car burglary, that distinction is not dispositive. Officer Cruz testified that burglary tools can be used as weapons. Office Cruz did not have to be absolutely sure that defendant was armed in order to justify the search. (Terry v. Ohio, supra, 392 U.S. at p. 27.)
The case of People v. Osborne (2009) 175 Cal.App.4th 1052 supports the pat-down search in the instant case. In Osborne, the court held that a police officer was justified in conducting a pat-down search of the defendant during an investigative detention. (Id. at p. 1057.) The officer reasonably suspected the defendant was involved in burglarizing or stripping a vehicle, had seen tools, including screwdrivers, in close proximity to the defendant; the defendant appeared to be really nervous; the defendant was approximately six feet tall and 240 pounds; the officer was alone in dealing with the defendant, and the officer's partner had informed the officer that the defendant might have been on parole. The officer had been a police officer for four years and had participated in thousands of auto burglary investigations and believed that the defendant was either burglarizing or stripping the vehicle. (Id. at p. 1056.)
The officer indicated that he conducted the pat-down search because "'individuals involved in the stripping and/or burglary of cars or [who are] involved in auto thefts are often armed with objects or dangerous instruments, which could be a hazard to me. [¶] Also there was [sic]pliers or screwdrivers adjacent to his arm wingspan, which could be potentially dangerous and threatening toward me.'" (People v. Osborne, supra, 175 Cal.App.4th at p. 1059.) The Osborne court, while noting that automobile burglary is not recognized as a classic violent felony, indicated that since the decision in Terry v. Ohio, supra, 392 U.S. 1, the cases have expanded the authority of an officer to conduct a pat-down search when investigating nonviolent crimes. (Id. at pp. 1059-1060.) "[C]ases have recognized that drug trafficking so often involves weapons and violence that an officer may reasonably suspect that an individual involved in such activity is presently armed and dangerous, and thus may be subjected to a patsearch. [Citations.] Similarly, cases have upheld so-called 'automatic' patsearches where an individual is suspected of burglary. [Citation.]" (Id. at p. 1060, fn. omitted.) The Osborne court concluded that "'[i]t is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and . . . a pat-down search is necessary for the officer's [protection].'" (Id. at pp. 1060-1061.)
As noted in Ramirez v. City of Buena Park (9th Cir. 2009) 560 F.3d 1012, 1022, the court stated, "the nature of the suspected crime itself does at times provide the requisite amount of reasonable suspicion to conduct a pat-down search of a detained individual . . . ." The nature of the crime in the instant case, a vehicle burglary, warranted the pat-down search.
It is true that defendant was substantially older than the age given for the suspect, he was apparently cooperative and, in fact, was handcuffed. Nonetheless, numerous other factors supported the officer's decision to conduct a pat-down search of defendant. Defendant's clothing matched that of the suspect; he was in possession of a bicycle, and the suspect was seen leaving on a bicycle. He was only three blocks from the scene of the crime a few minutes after Officer Cruz received the radio call.
In addition, defendant's pants were baggy, so Officer Cruz could not tell without a pat-down search if defendant was armed. In People v. Allen (1975) 50 Cal.App.3d 896, at page 902, the court justified a Terry search when the style of pants made visual identification of weapons in suspect's pockets difficult.
Officer Cruz also indicated that the area where the encounter took place was a high crime area. While "[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime" (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [120 S.Ct. 673, 145 L.Ed.2d 570]), the location of an encounter is relevant in determining whether reasonable suspicion exists under Terry (In re H.H. (2009) 174 Cal.App.4th 653, 660).
We conclude that the challenged pat-down search of defendant was reasonable, considering the totality of the circumstances, for the safety of the officer. The trial court therefore properly denied defendant's suppression motion.
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
PERLUSS, P. J.
ZELON, J.