Opinion
A155677
12-09-2019
In re N.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV-028449-01)
Following the denial of his motion to suppress, N.P. pleaded no contest to a single misdemeanor charge of carrying a concealed firearm. He raises several issues on appeal, including that the police officer who detained him did not have sufficient cause to conduct the pat search that led to the discovery of the loaded weapon. We agree the circumstances did not give rise to a reasonable suspicion defendant was armed and dangerous and therefore reverse the juvenile court's disposition order.
Given our conclusion the pat search was unlawful, we need not and do not reach the other issues raised by defendant.
BACKGROUND
In September 2018, Officer Darell Bussey of the BART Police Department was on duty at the Hayward station. He received a dispatch call of a cell phone theft, with information "the suspect fled towards a pedestrian tunnel and was described as a black male between 17 and 20 years old wearing a black shirt and with a red backpack." When he received the dispatch call, he "advised them that I saw a subject that similarly matched that description at my location."
Officer Bussey "circled the lot to try to locate the suspect that [he] saw," but could not find him. He continued his search on foot, and then in his vehicle, until an individual flagged him down at the corner of B and Grand streets and told him "the suspect fled westbound on B Street." Officer Bussey searched the area on B Street, but did not locate the suspect. When he returned to the area of B and Grand streets, he "saw a subject that similarly matched the description that was given." He was a "black male, dressed in a black hoody with a red backpack, slim build." Officer Bussey drove toward the subject's location, at a railroad track between Grand and Montgomery streets, which is "right next to" the BART station.
Officer Bussey called out to the individual, later identified as defendant, and asked him to "come over to my location." Defendant was 30-40 feet away, and walked over to the officer. Officer Bussey said he was investigating a crime and looking for a subject that matched defendant's description. He asked defendant about "his proximity to the station and how he got there." Defendant responded "he was driven from the South Hayward station to our location by his aunt." Officer Bussey said that he would need to verify that information.
As he was talking to defendant, Officer Bussey noticed "his clothing was baggy and that he had a red backpack." He also noticed defendant "was a bit hesitant and he actually looked around." This caused the officer to be concerned "he could become a flight risk." He therefore "asked [defendant] to sit down [¶] . . . [¶] [t]o prevent him from immediately fleeing from the area."
After directing defendant to sit down, Officer Bussey continued talking with him. Defendant's "story varied and he stated . . . he was covering for his friend that had driven him . . . to South Hayward or to his location." At that point, Officer Bussey believed defendant was "being untruthful," and he "asked him to stand up and . . . placed him in handcuffs." Officer Bussey testified he handcuffed defendant "[b]ased on [his] observations of the suspect that [he] saw and the information that [he] had that the suspect fled out of the area," and based on defendant's clothing, which the officer described as "baggy which covered his waistband. It was concealed from plain sight along with the backpack that he had."
Officer Bussey testified that "[i]n handcuffing [defendant], his hands were very near the backpack and I actually had to move the backpack away from [defendants] back area to secure the handcuffs in a properly-locked position." At the time he moved the backpack, Officer Bussey noticed it was "relatively heavy." He then conducted a "systematic search" of the outside of defendant's clothing and backpack. As he was patting down defendant's backpack, he felt "the heavy weight" and "the outline of what [he] believed to be a firearm." Officer Bussey then opened the backpack and retrieved a gun later determined to be loaded.
At some point before Officer Bussey handcuffed defendant, his sergeant arrived to provide back-up. When Officer Bussey felt the object in defendant's backpack that he believed to be a gun, he informed his sergeant.
The prosecution played three minutes and 24 seconds of video from Officer Bussey's body camera, which was not reported. The court admitted in evidence a portion of the video taken from Officer Bussey's body camera offered by defendant.
The parties have filed a joint request that the video clip played on the record by the prosecutor be deemed part of the record on appeal. Although the clip was not formally admitted, that was apparently an oversight, as there was no objection to the clip and there is no indication the court disregarded it. We therefore grant the request. (See Cal. Rules of Court, rule 8.320(e).)
The District Attorney filed a juvenile wardship petition alleging defendant committed two felonies: carrying a concealed weapon and carrying a loaded firearm on his person in a city. (Pen. Code, §§ 25400, subd. (a)(2), 25850, subd. (a).) The petition further alleged the firearm was loaded (as to the first count) and the loaded firearm was not registered to defendant (as to the second count.)
After the court denied his motion to suppress, and pursuant to a negotiated disposition, defendant admitted a misdemeanor violation of carrying a concealed firearm (Pen. Code, § 25400, subd. (a)(2)), and the prosecution dismissed the remaining allegations. The court declared defendant a ward of the court, and placed him on probation with certain conditions.
DISCUSSION
On review of a juvenile court's ruling on a motion to suppress, "we defer to the trial court's factual findings if they are supported by substantial evidence, but we exercise our independent judgment to determine whether, on those facts, the seizure met the constitutional standard of reasonableness." (In re Antonio B. (2008) 166 Cal.App.4th 435, 441.) Where the facts are essentially undisputed, we independently determine the constitutionality of the challenged search or seizure. (People v. Balint (2006) 138 Cal.App.4th 200, 205.)
"When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." (Terry v. Ohio (1968) 392 U.S. 1, 24.) "To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." (Arizona v. Johnson (2009) 555 U.S. 323, 327.)
" 'A lawful frisk does not always flow from a justified stop.' [Citation.] Rather, '[e]ach element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.' " (Thomas v. Dillard (9th Cir. 2016) 818 F.3d 864, 876 (Thomas).) "Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect 'is armed and presently dangerous to the officer or to others.' " (Ibid.)
"Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity." (Thomas, supra, 818 F.3d at pp. 875-876.) "[C]ircumstances suggesting only that a suspect would be dangerous if armed are insufficient, [citation]. There must be adequate reason to believe the suspect is armed." (Id. at p. 876, italics omitted.)
"[A] limited frisk for weapons is justified where the officer 'can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.' [¶] . . . '[T]he officer need not be absolutely certain that the individual is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger.' [Citations.] Reasonable suspicion must be based on 'commonsense judgments and inferences about human behavior.' [Citation.] The determination of reasonableness is 'inherently case-specific.' [Citation.] An inchoate and unparticularized suspicion or hunch is not sufficient, nor is the fact the officer acted in good faith. [Citation.] Where specific and articulable facts are absent, the patsearch cannot be upheld. [Citation.] Whether a search is reasonable must be determined based upon the circumstances known to the officer when the search was conducted." (In re H.M. (2008) 167 Cal.App.4th 136, 143-144.)
In the instant case, the Attorney General maintains the "specific and articulable facts that supported the detention helped give Officer Bussey reasonable suspicion to conduct a Terry frisk." These facts, according to the Attorney General, are that defendant matched the description provided by dispatch of a cell phone theft suspect, "appeared nervous," "deceptively answered" the officer's question about who drove him to the location where the officer found him, was wearing baggy clothing, and had a " 'relatively heavy' " backpack.
The fact that defendant matched the description given in the dispatch, without more, does not provide reasonable suspicion he was armed and dangerous. Florida v. J.L. (2000) 529 U.S. 266 is instructive. In that case, officers received an anonymous tip that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." (Id. at p. 268.) The court explained "[a]n accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Id. at p. 272.) Thus, "an anonymous tip that a person is carrying a gun is, without more, [not] sufficient to justify a police officer's stop and frisk of that person." (Id. at p. 268.)
Similarly, a report of " 'harassing' customers of a business, with no reports of violence, battery, assault, threats or weapons does not reasonably suggest the presence of weapons." (People v. Thomas (2018) 29 Cal.App.5th 1107, 1117.) Likewise, "minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon." (People v. Miranda (1993) 17 Cal.App.4th 917, 927.)
Even when an officer "was responding to a perceived domestic violence call" and a male suspect appeared " 'startled and fidgety,' " the circumstances did not "even minimally support the inference that [he] was armed." (Thomas, supra, 818 F.3d at pp. 879, 884.) In Thomas, police received a dispatch call of "domestic violence call involving a black male" at a college campus. (Id. at p. 872.) When the officer arrived on campus, he received another call to "investigate a male wearing a purple shirt pushing a female near some storage containers on . . . campus." (Ibid.) As the officer approached the scene, he saw an African-American male wearing a purple shirt and a woman come out from behind the storage containers. The officer asked the man if he had any weapons on him, which he denied. The officer then asked if he would mind being searched for weapons. (Ibid.) The man refused to consent to a search. The officer then said he had received a call " 'about a guy in a purple shirt pushing around a girl.' " (Ibid.) Both the man and woman denied they had been involved in any pushing or fighting. The woman "exhibited no signs of domestic violence," and showed no signs of injury or of being distraught. (Ibid.) The officer "moved toward [the man], attempting to grab him and place him [in] a controlled hold for the purposes of conducting a frisk." (Id. at p. 873.) When the man stepped away to avoid being grabbed, the officer pulled out his Taser and stated he was going to search him. He ordered the man to get down on his knees by the count of three or he would "tase him." (Ibid.) The man had his hands in the air, but did not get down on his knees. The officer Tased and searched him, but found no weapons. (Ibid.) The court concluded that, although there was reasonable suspicion to detain him because he matched the description of the suspect and was in the location of the storage containers, there was no reasonable suspicion to conduct a pat search for weapons. (Id. at p. 885.)
Likewise, in the recent case In re Jeremiah S. (2019) 41 Cal.App.5th 299, the court concluded there was no reasonable suspicion a juvenile, who had been detained because he matched the description of a robbery suspect, was armed and dangerous. (Id. at pp. 303, 307.) The officer there testified he conducted the pat search because "it was his experience that robbers tend to have weapons." (Id. at p. 307.) The officer "admitted he had no information indicating the reported robbery involved a weapon, and he acknowledged that [defendant] was cooperative during the stop and that nothing about [his] appearance, behavior, or actions caused him to think [defendant] had a weapon." (Ibid.)
The circumstances here are not materially different from those in the above recited cases. In fact, here, unlike in Florida v. J.L., there was not even a report of someone carrying a gun. Indeed, there was no report of any kind of weapon being used. Rather, the dispatch call was regarding a reported cell phone theft.
The Attorney General also points to the officer's testimony that defendant "appeared nervous."
"Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (In re H.M. (2008) 167 Cal.App.4th 136, 144.) However, as our high court has explained, nervousness, alone, does not provide a sufficient basis for a frisk. A defendant's nervousness "could understandably result from extended police questioning because of a 'traffic violation.' [¶] We do not find defendant's actions sufficiently unusual or suspicious to warrant a pat-down search for weapons. Many individuals who are accosted and queried by a police officer become both upset and desirous of the earliest possible termination of an uncomfortable situation." (People v. Lawler (1973) 9 Cal.3d 156, 162, partially superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) Thus, in Lawler, the court concluded the fact the defendant " 'seemed apprehensive' [and] 'kept grabbing' at his sleeping bag" did not justify a reasonable suspicion he was armed and dangerous. (Ibid.)
Likewise in People v. Dickey (1994) 21 Cal.App.4th 952, the court concluded the fact the defendant was "nervous and sweating" did not give rise to reasonable suspicion he was armed and dangerous. Indeed, "[n]one of [the following] considerations, considered singly or in combination, would lead an officer to ' ". . . reasonably believe in the possibility that a weapon may be used against him" ' "—defendant "(1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, (4) or because baking powder was found in a film canister." (Id. at p. 956; see Thomas, supra, 818 F.3d at p. 884 [suspect's appearance as " 'startled and fidgety' " did not "even minimally [support] the inference that [he] was armed"].)
As Officer Bussey described it, defendant's behavior was no different than that of the defendants in these cases. In fact, Officer Bussey did not testify defendant appeared nervous, only that he "was a bit hesitant and he actually looked around." Nor did Officer Bussey testify defendant was sweaty or out of breath, or made any unusual movements before Bussey handcuffed him. Rather, the video footage shows defendant was polite and cooperative. In short, that a teenager is "a bit hesitant" and looking around during an encounter with police does not support a reasonable suspicion he is armed and dangerous.
The Attorney General also points out defendant was "wearing baggy clothing, which could conceal a weapon." But wearing baggy clothing, alone, is not sufficient to give rise to a reasonable suspicion a detainee is armed and dangerous. In People v. Thomas, for example, the court held "wearing a jacket and sweatshirt on a 'pretty warm' day [did not] provide reasonable grounds to believe [defendant] was armed and/or dangerous and might gain immediate control of a weapon." (People v. Thomas, supra, 29 Cal.App.5th at p. 1117.) Likewise, in Thomas the court concluded the fact that the suspect was " 'wearing an untucked T-shirt and jeans . . . capable of hiding a weapon' " did not give rise to reasonable suspicion he was armed and dangerous. (Thomas, supra, 818 F.3d at p. 884.) "That a person is normally dressed does not give rise to a reasonable suspicion the person is armed and dangerous. Otherwise, innumerable college students everywhere could be frisked for weapons on appearance alone." (Ibid.)
The Attorney General additionally relies on the fact defendant's backpack was " 'relatively heavy.' "
As defendant notes, the video recording from Officer Bussey's body camera differs from his testimony about the backpack. Officer Bussey testified: "In handcuffing [defendant], his hands were very near the backpack and I actually had to move the backpack away from his back area to secure the handcuffs in a properly-locked position." The video recording shows Officer Bussey placing handcuffs on defendant, then grabbing and feeling the backpack, and then checking the locks on the handcuffs. It thus appears Officer Bussey's perception of the backpack as "relatively heavy" was made during the pat search itself. To the extent the video recording differs from his testimony, however, it is immaterial.
At oral argument, the Attorney General agreed that Officer Bussey's testimony in this regard was "inconsistent with the body worn camera." He maintained, however, that "case law still gives the officer the ability to . . . pat search the backpack even after he's handcuffed," but indicated he had cited no such case law because it was "not an issue here." To the extent the Attorney General was asserting the search of the backpack was lawful as a search incident to arrest, we note that "a search incident to arrest may only include 'the arrestee's person and the area "within his immediate control"—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.' . . . If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." (Arizona v. Gant (2009) 556 U.S. 332, 339.) --------
Implicitly acknowledging the "relative" heaviness of the pack, alone, was not sufficient to give rise to a reasonable suspicion defendant was armed and dangerous, the Attorney General maintains "the possibility of an innocent explanation does not deprive the officer of the capacity to investigate the possibility of a non-innocent explanation," citing In re Tony C. (1978) 21 Cal.3d. 888, 894, partially superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733. That, however, is the standard for a detention, not the standard applicable to a pat search. As to the latter, the officer must " 'point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.' " (In re H.M., supra, 167 Cal.App.4th at p. 143.)
Here, unlike in Tony C., the issue is not whether Officer Bussey had adequate reason to detain defendant—he did. Rather, the issue is whether Officer Bussey had additional reason to conduct a pat search. He did not. Even if Officer Bussey perceived the backpack was heavy before the pat search, the "relatively" heavy backpack, like wearing clothing "capable of hiding a weapon," did not, alone, give rise to reasonable suspicion defendant was armed and dangerous. (See Thomas, supra, 818 F.3d at p. 884.)
Finally, the Attorney General points to defendant's deceptive answer to Officer Bussey's question about how he arrived at the locale as providing reasonable suspicion he was armed and dangerous. Defendant initially responded his aunt had driven him to the location, but he later volunteered that, in fact, a friend had driven him. Defendant can be heard on the body cam video explaining his friend did not have a driver's license and he did not want to get him involved. Defendant's differing statements as to who drove him to the locale in question may have provided reasonable suspicion to detain him, but they did provide reasonable suspicion he was armed and dangerous.
In sum, while the circumstances may have supported a detention, they did not, either singularly or collectively, give rise to a reasonable suspicion defendant was violent, armed, or dangerous, necessary to support a pat search. As in In re H.H., "[w]e recognize that '[t]he judiciary 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.' [Citation.] Here, however, there simply were no specific and articulable facts at the suppression hearing that the minor was armed and dangerous." (In re H.H. (2009) 174 Cal.App.4th 653, 660.)
DISPOSITION
The dispositional order is reversed. On remand, the juvenile court shall vacate its order denying the suppression motion, enter a new order granting the motion, and allow the minor to withdraw his plea.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.