Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF227652 Patrick A. O’Hara and Joseph A. Kalashian, Judges.
Phillip J. Cline, District Attorney, Don H. Gallian and Shani D. Jenkins, Assistant District Attorneys, Barbara J. Greaver and John F. Sliney, Deputy District Attorneys for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
The People appeal the trial court’s denial of their Penal Code section 871.5 motion to compel the superior court to reinstate the complaint against defendant Craig Alan McPhetridge which was dismissed pursuant to section 1538.5. The People maintain that the trial court erred in suppressing the evidence seized from defendant’s person. As we shall explain below, we agree with the People and reverse.
All further statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
On May 28, 2009, Detective Dale Rush, who was assigned to a multiagency task force dealing with auto theft, received information that a stolen vehicle was parked behind the local high school. Rush went to the location where he confirmed that the parked vehicle was stolen.
Rush contacted other task force members and together they set up surveillance on the vehicle. After about 30 minutes, defendant and two passengers drove up in defendant’s pickup and parked next to the stolen vehicle. One of the passengers exited defendant’s truck and entered the stolen vehicle. The officers “had guns pointed at several individuals” and detained them.
Rush conducted a cursory patdown search on defendant for weapons. In the process he felt an object in defendant’s right front pants pocket that he could not identify. Rush asked defendant what the object was, but defendant said he did not know. Rush then asked defendant “if it could possibly be methamphetamine.” Defendant said it was. With defendant’s permission, Rush then placed his hand inside defendant’s pocket and found a glass pipe and a plastic baggy of methamphetamine.
Rush took defendant into custody, placed him in handcuffs, advised him that he was being arrested for possession of methamphetamine and possession of drug paraphernalia on school grounds, and “gave him his rights.”
On September 29, 2009, the People filed a complaint charging defendant with felony possession of methamphetamine (Health and Saf. Code, § 11377, subd. (a)) and misdemeanor possession of a device for smoking illegal narcotics (Health & Saf. Code, § 11364, subd. (a)). Defendant entered a plea of not guilty on both counts.
In December 2009, defendant filed a motion to suppress evidence pursuant to section 1538.5. During the preliminary hearing on January 8, 2010, the trial court granted defendant’s motion and, as a result, discharged defendant.
On January 22, 2010, the People filed a motion pursuant to section 871.5 to reinstate the complaint. After a hearing, the trial court denied the People’s motion.
Motion to Reinstate the Complaint
On appeal, the People contend that the trial court erred in denying its motion to reinstate the complaint. The standard of review on appeal from an order denying a motion to reinstate a criminal complaint pursuant to section 871.5 is to disregard the ruling and to directly examine the 1538.5 ruling to determine if the dismissal of the complaint was erroneous as a matter of law. (People v. Massey (2000) 79 Cal.App.4th 204, 210.) We therefore examine the decision to grant defendant’s motion to suppress evidence.
Motion to Suppress
A. Standard of Review
The principles governing our review of the trial court’s ruling on a motion to suppress evidence in a criminal proceeding are well settled:
“In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominately one of law, viz., the reasonableness of the challenged police conduct, is also subject to independent review. [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1301, abrogated on other grounds as stated in People v. Guiuan (1998) 18 Cal.4th 558, 569.)
B. Evidence and Ruling
Defendant brought his motion under section 1538.5, seeking suppression of the baggie containing methamphetamine, the glass pipe and “[a]ny statements or admissions made by [defendant]” on grounds that the evidence “was obtained as a result of an unreasonable and illegal unwarranted search which stemmed from an unlawful detention in violation of [defendant’s] rights under the Fourth Amendment.…”
At the suppression hearing, Detective Rush was the sole witness. He testified that he did a cursory patdown search of defendant, “for my safety and the safety of others, ” as school was letting out and there were “kids walking past at the time.” Rush wanted to make sure “there [were] no dangerous objects, guns, bombs, hand grenades, anything of that nature.” Rush asked defendant if he had any weapons on his person. He said he did not. Rush did a patdown search on defendant anyway because “[p]eople lie to the police, ” and, in the process, he felt an object in defendant’s right front pants pocket that he could not identify “by touch.” Rush asked defendant what the object was, but defendant “couldn’t identify it.” Rush then “chose to identify that item to see whether it was a dangerous weapon, ” and he asked defendant “if it could possibly be methamphetamine.” Defendant said it was. Rush asked if he could place his hand inside defendant’s pocket and remove the contents, and defendant gave him permission to do so.
The item, a glass pipe, was wrapped in toilet tissue. Detective Rush knew, based on his law enforcement training and experience, that the pipe was the type commonly used to smoke illegal narcotics. Rush also removed a clear plastic baggy containing what was later confirmed to be methamphetamine.
Detective Rush took defendant into custody, placed him in handcuffs, advised him that he was being arrested for possession of methamphetamine and possession of drug paraphernalia on school grounds, and “gave him his rights.”
The trial court granted defendant’s motion, stating:
“What we have here is we have a felony 10851. The felony there, certainly the officer would have every legal right to detain whoever came to that car, because he’s in the midst of a felony here. He has a right for a terrorist stop and pat to see who he is dealing with and whether they’re armed. He would be derelict in his duties and not in the right mind not to pat these people down and find that out. [¶] The question becomes, once he’s found there’s no identifiable weapon and doesn’t have this man under arrest and simply has them under detention, he finds no weapons, the next question is, ‘I feel something.’ The officer didn’t indicate in any way he thought it might have been a weapon. He says, ‘What is this?’ The defendant says, ‘I don’t know.’ He says, ‘Is it methamphetamine?’ That, under Cressy, is an improper question, because it’s not for officer safety. [¶] It’s further investigation without a Miranda right. Cressy is on point. There are a number of cases on point. If he’s going to be arrested, that might be one thing. He’s being detained and doesn’t have a weapon. At that point, there’s no legal right to ask him if he had drugs on him.”
Referring to Vehicle Code section 10851, theft or taking of a vehicle.
Referring to People v. Cressy (1996) 47 Cal.App.4th 981 (Cressy).
Miranda v. Arizona (1966) 384 U.S. 436.
C. Applicable Law and Analysis
The propriety of a patdown search is assessed under Terry v. Ohio (1968) 392 U.S. 1 (Terry), which held a police officer who lacks probable cause to arrest can perform a patdown search for officer safety. (Id. at p. 27.)
“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch, ’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Ibid., fn. omitted; see also People v. Glaser (1995) 11 Cal.4th 354, 363-364.)
In short, the officer must be able to “point to specific and articulable facts which taken together with rational inferences from those facts, ” reasonably support a suspicion that the suspect is armed and dangerous. (Terry, supra, at p. 21; People v. Souza (1994) 9 Cal.4th 224, 229; People v. Dickey (1994) 21 Cal.App.4th 952, 956.)
Detective Rush testified he performed a patdown search of defendant for his own safety and the “safety of others.” As stated by the trial court, because Rush suspected defendant of participation in the theft of a vehicle, and because the encounter between Rush and defendant occurred while school children were present, there was a sufficient basis under Terry for Rush’s decision to search defendant for weapons. The issue is whether Rush exceeded the scope of a permissible Terry search by asking defendant to identify what he had in his pocket and whether it was methamphetamine. The trial court determined that the question was not permissible. We disagree.
In Minnesota v. Dickerson (1993) 508 U.S. 366 (Dickerson), the defendant, after making evasive actions, was involuntarily subjected to a Terry weapons patdown. No weapons were found. However, the officer testified, “‘As I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.’” (Dickerson, supra, at p. 369.) The officer then reached into the defendant’s pocket and retrieved a plastic bag containing crack cocaine. (Ibid.)
The United States Supreme Court held that a police officer may seize nonthreatening contraband detected during a protective patdown search “so long as the officers’ search stays within the bounds marked by Terry.” (Dickerson, supra, 508 U.S. at p. 373.) After analogizing to the plain view doctrine, the court concluded:
“If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” (Id. at pp. 375-376.)
Relying on the state Supreme Court’s conclusion that the officer determined the lump was contraband only after manipulating the contents of the defendant’s pocket, however, the United States Supreme Court determined:
“[T]he police officer in this case overstepped the bounds of the ‘strictly circumscribed’ search for weapons allowed under Terry. [Citation.] Where, as here, ‘an officer who is executing a valid search for one item seizes a different item, ’ this Court rightly ‘has been sensitive to the danger … that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.’ [Citation.] Here, the officer’s continued exploration of [the defendant’s] pocket after having concluded that it contained no weapon was unrelated to ‘the sole justification of the search [under Terry:] … the protection of the police officer and others nearby.’ [Citation.] It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, [citation], and that we have condemned in subsequent cases. [Citations.]” (Dickerson, supra, 508 U.S. at p. 378.)
Here, even assuming it was not “immediately apparent” that the object was contraband when Detective Rush first felt it, the patdown search did not exceed the permissible scope of a Terry protective search. (Dickerson, supra, 508 U.S. at p. 375.) There was no evidence at the suppression hearing that Rush manipulated defendant’s pocket or continued a physical invasion of defendant’s privacy, actions that would have overstepped the bounds of a permissible search according to Dickerson. To the contrary, Rush’s patdown search revealed an object he could not, and defendant would not, identify. Rush “chose to identify that item to see whether it was a dangerous weapon.” Defendant’s subsequent admission in response to Rush’s query as to whether the object in his pocket was methamphetamine was not fruit of an unlawful search.
People v. Avila (1997) 58 Cal.App.4th 1069 (Avila) is on point. In Avila, the Court of Appeal explained that if a police officer finds contraband while performing a permissible Terry patdown search, “the officer cannot be expected to ignore that contraband.” (Id. at p. 1075.) There, while performing a justified Terry search, the officer felt a hard object while patting down one of the defendant’s pant legs. He asked the defendant what the object was, without removing it. The defendant’s reply was unclear. He asked him again. This time the defendant said it was “meth, ” an illegal narcotic. (Id. at pp. 1073, 1075)
Stating that the “Fourth Amendment was not designed to protect a defendant from his own candor” (Avila, supra, 58 Cal.App.4th at p. 1075), the Court of Appeal concluded that the defendant had confessed to a crime and held that the officer’s retrieval of the methamphetamine was lawful as a search incident to a lawful arrest. (Ibid.) Here, defendant, like the defendant in Avila, essentially confessed during the patdown search to the crime of possessing a controlled substance. At this point, Detective Rush clearly had probable cause to arrest defendant, and the subsequent seizure of the methamphetamine was justified as incident to defendant’s arrest. (People v. Dibb (1995) 37 Cal.App.4th 832, 835-836.) Moreover, when the formal arrest follows quickly on the heels of the challenged search, as it does here, it is not important that the search preceded the arrest rather than vice versa. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111.)
D. Miranda Protection
The trial court found defendant’s statement to Detective Rush during the patdown search should have been excluded because, at the time, defendant was in custody for purposes of the Miranda rule and his admission was obtained in violation of defendant’s rights under Miranda, supra, 384 U.S. 436. The trial court found the situation “on point” with Cressy, supra, 47 Cal.App.4th 981. We disagree.
First of all, defendant filed a motion to suppress under section 1538.5. “[S]ection 1538.5 may not be used to suppress admissions and confessions on grounds that they are the product of Fifth Amendment and/or Sixth Amendment violations.” (People v. Mattson (1990) 50 Cal.3d 826, 851.) The procedures established by Miranda have their genesis in the Fifth Amendment. (People v. Avila (1999) 75 Cal.App.4th 416, 420-421.) As such, section 1538.5 does not provide a basis for the suppression of a statement on the grounds that police did not follow the procedures required by Miranda. (People v. Mattson, supra, at p. 851.) In any event, we find the Miranda rule inapplicable here.
In Miranda, the Supreme Court addressed the question of how the Fifth Amendment guarantee against self-incrimination could provide protection from coercive pressures that may be imposed on a suspect during custodial interrogations. (Miranda, supra, 384 U.S. 436.) The central principle established in Miranda is: “if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt.” (Berkemer v. McCarty (1984) 468 U.S. 420, 429.) “In determining whether an individual [is] in custody, a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citation.]” (Stansbury v. California (1994) 511 U.S. 318, 322.)
For instance, the temporary detention of a motorist during a routine Terry stop is not considered “in custody” for purposes of Miranda. (Berkemer v. McCarty, supra, 468 U.S. at pp. 437-439.) But, if a motorist who has been detained pursuant to a traffic stop is subjected to treatment that renders him or her “in custody” for practical purposes, the motorist “will be entitled to the full panoply of protections prescribed by Miranda.” (Id. at p. 440.)
In People v. Morris (1991) 53 Cal.3d 152, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, footnote 1, the California Supreme Court held that whether custody has occurred short of a formal arrest for purposes of the Miranda rule depends on the totality of the circumstances, including such factors as: “(1) the site of the interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) the length and form of the questioning.” (Morris, supra, at p. 197.) No one factor is dispositive, and the mere fact a person is a suspect does not establish custodial interrogation. (Ibid.)
Here, substantial evidence presented at the hearing on defendant’s motion to suppress shows that Detective Rush’s initial patdown search of defendant was lawful, and his questioning of defendant about the object in his pocket did not constitute “custodial interrogation” for purposes of the Miranda rule. The patdown search of defendant’s clothing was lawfully performed in public. There is no evidence the search was unduly protracted. While completing the patdown search, Rush asked defendant what was in his pocket. As part of his lawful search for weapons he was justified in questioning defendant further in an effort to dispel any doubt about the nature of the object. When defendant said he did not know, Rush asked him if it was methamphetamine. The glass pipe and methamphetamine was seized only after defendant candidly and promptly admitted to the officer not only that he had methamphetamine in his pocket, but also that Rush had permission to retrieve the items. At this time Rush had probable cause to seize the glass pipe and methamphetamine and to arrest defendant for possession of a controlled substance and possession of a device for smoking illegal narcotics. (Avila, supra, 58 Cal.App.4th at p. 1075.) Moreover, Rush testified that defendant was not in custody at the time, and there was no evidence that defendant was subject to any type of physical restraint when he was being questioned.
Under the foregoing circumstances, we find Detective Rush was not required to give Miranda warnings to defendant before asking him whether he had methamphetamine in his pocket, and defendant’s response to the question that he did was not obtained in violation of the Miranda rule. Because we reach this conclusion, we need not address the issue of defendant’s permission to search.
Cressy, on which the trial court relied, does not require a different finding. In Cressy, the officer approached the defendant’s car during a traffic stop. As he did, he observed the defendant’s hands extended out of the driver’s window, going through a wallet. A syringe fell either from the wallet or the defendant’s hands. The officer arrested the defendant for possession of the syringe and, before searching him, asked if he had any other needles or paraphernalia on his person. The defendant responded negatively, but when the officer patted the defendant’s pants pocket, the defendant said, “‘“I got a quarter in my right front pocket.”’” (Cressy, supra, 47 Cal.App.4th at p. 985.) The officer understood the defendant to mean a quarter gram of a controlled substance such as methamphetamine. The officer explained that he had asked the defendant about needles for his own safety because he had just arrested the defendant for a syringe and he did not want to get stuck with another one that might be on his person. (Ibid.)
The Cressy court found the question by the officer proper under the public safety exception to the Miranda rule, stating, “[a]llowing a simple and narrow inquiry merely ensures that an officer need not put his safety at risk while engaging in otherwise lawful conduct.” (Cressy, 47 Cal.App.4th at pp. 988-989.) But, the court opined, questioning about drugs or other items not immediately dangerous was “overly broad” and would fall outside this narrow exception. (Id. at p. 989.)
There is no reason to apply the reasoning of Cressy unless Miranda requirements are triggered. Here there was no arrest, as acknowledged by the trial court. Therefore, Miranda and subsequently Cressy have no bearing on the case.
Disposition
The trial court’s orders suppressing the evidence and denying the People’s motion under section 871.5 are reversed. The court is directed to reinstate the felony complaint against defendant. The court is further directed to resume the preliminary hearing at the point it was previously terminated by the dismissal of the charges. (§ 871.5, subd. (e); People v. Channing (2000) 81 Cal.App.4th 985, 994; People v. Childs (1991) 226 Cal.App.3d 1397, 1408.)