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The People v. Kevin Lloyd Hubert

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)


April 4, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN LLOYD HUBERT, DEFENDANT AND APPELLANT.

Super. Ct. No. CRF100297

The opinion of the court was delivered by: Robie, Acting P. J.

P. v. Hubert

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After the trial court denied his motion to suppress, defendant Kevin Lloyd Hubert pled no contest to transporting methamphetamine and admitted a prior drug conviction. The trial court placed him on Proposition 36 probation for three years. On appeal, defendant contends the trial court erred in denying his suppression motion because: (1) the patdown search was unjustified because the officer did not have reasonable suspicion defendant was armed and dangerous; and (2) the search exceeded the scope of determining if defendant had weapons.

We agree with defendant that the patdown search for weapons in this case was unlawful. Accordingly, we will reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 16, 2010, at around 10:45 p.m., Yolo County Sheriff's Deputy Gary Richter stopped his police car behind a Camaro parked in the back of the Wayside Market in Knights Landing. Defendant and passenger Bonnie Wyniarczuk stepped out of the Camaro. Deputy Richter recognized Wyniarczuk from a previous drug arrest. He called out to defendant and Wyniarczuk and asked to search them both. Wyniarczuk walked back toward his police car and allowed Deputy Richter to search her because she "was on searchable OR from the court." Defendant, however, did not consent to the search and stayed next to the car.

When Wyniarczuk approached Deputy Richter, he noticed she had red, bloodshot eyes and was fidgeting and moving around, leading him to believe she was under the influence of a "central nervous system stimulant." Deputy Richter then informed defendant that due to the time of night and Wyniarczuk's behavior he was going to pat defendant for weapons. During the patdown, Deputy Richter felt something "hard and cylindrical" in defendant's left pocket. Deputy Richter "manipulated the object [and] noticed it was approximately four inches long with a large bulbed end." He reached into the pocket and found a glass pipe. Deputy Richter then further searched defendant's pocket and found a cigarette package, opened it, and found methamphetamine.

Defendant moved to suppress the evidence. At the suppression hearing, Deputy Richter testified that he patted down defendant because he thought defendant might have weapons because of the time of night and the fact that Wyniarczuk might have been under the influence. Deputy Richter further testified that in the past Wyniarczuk had a pocket knife on her, but had never been aggressive or given him reason to fear his safety. However, Deputy Richter also testified that he did not recognize defendant.

The trial court denied defendant's motion to suppress, stating, "one of the appellate cases said that -- how do they say it-- weapons and drugs are like sharks and remoras. I[f] you find the remora, you better start looking for the shark. That's what Deputy Richter did. [¶] Suppression motion denied."

After the trial court denied his suppression motion, defendant pled no contest to one count of transportation of methamphetamine and admitted a prior drug conviction. The court granted defendant three years of Proposition 36 probation.

DISCUSSION

I

Standard Of Review

In reviewing a ruling on a motion to suppress (Pen. Code, § 1538.5) we defer to the trial court's findings of fact that are supported by substantial evidence. We select the applicable law and apply constitutional principles to those facts de novo. (Ornelas v. United States (1996) 517 U.S. 690, 696-698 [134 L.Ed.2d 911, 918-920]; People v. Alvarez (1996) 14 Cal.4th 155, 182.)

II

Reasonableness Of The Search

Defendant contends Deputy Richter conducted a patdown search without reasonable suspicion that he was armed and dangerous.*fn1 The People argue that defendant's "'close physical and functional association'" with a suspected user of methamphetamine supported Deputy Richter's reasonable suspicion that defendant "may have been involved in possessing or transporting methamphetamine," which then supported the reasonable suspicion defendant had "arm[ed] himself with a weapon."

The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905].) After a stop, police officers may conduct a limited search of a suspect if they have reason to believe the suspect is armed and dangerous. (Terry, at p. 27 [20 L.Ed.2d at p. 909].) This exception to the warrant requirement is limited, confined in scope to intrusions reasonably designed to discover weapons. (Id. at p. 29 [20 L.Ed.2d at p. 911].) "[T]he 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." (Id. at p. 27 [20 L.Ed.2d at p. 909].)

Although a Terry frisk does not require probable cause, it is justified only when "specific and articulable facts . . . taken together with rational inferences from those facts," warrant a suspicion that a suspect is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 21 [20 L.Ed.2d at p. 906].) "[T]he facts available to the officer at the moment of the seizure or the search [must] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." (Id. at p. 22 [20 L.Ed.2d at p. 906].) In determining the reasonableness of a challenged search, the court looks to the totality of the circumstances. (People v. Miles (1987) 196 Cal.App.3d 612, 617-618; U.S. v. Salas (9th Cir. 1989) 879 F.2d 530, 535.)

Deputy Richter testified that his reasonable suspicion to search defendant was based on his belief that "Ms. Wyniarczuk was high on methamphetamine at the time" and "they [defendant and Wyniarczuk] both came out of the same vehicle together." The trial court relied on People v. Simpson (1998) 65 Cal.App.4th 854 for the proposition that "weapons and drugs are like sharks and remoras," suggesting that the presence of drugs always indicates the presence of weapons. This suggestion is without merit. In Simpson, the court was faced with police officers questioning suspects "about the presence of weapons" when "police officers . . . execute a search warrant upon premises occupied by a known drug trafficker, having probable cause to believe substantial quantities of illegal drugs will be found" without first giving Miranda*fn2 warnings. (Simpson, at p. 857.) The court used the analogy of sharks and remoras in the context of "investigating cocaine and marijuana sales" and "large quantities of illegal drugs." (Id. at p. 862.)

The present case is distinguishable. Here, the officer used the fact that Wyniarczuk might have been under the influence of a "central nervous system stimulant" as a basis for searching defendant for weapons. Here, we are faced with a weapons frisk and not questioning a "known drug trafficker" without Miranda warnings. (People v. Simpson, supra, 65 Cal.App.4th at p. 857.) When Deputy Richter searched Wyniarczuk, he did not locate any drugs and was left with just a suspicion she was under the influence of methamphetamine based on her "red, bloodshot eyes [and] [continuous] fidgeting around, moving around . . . ." In addition, Deputy Richter's previous contact with Wyniarczuk was an arrest for drug possession, not as a drug trafficker. Therefore, he did not have "probable cause to believe substantial quantities of illegal drugs w[ould] be found." (Simpson, at p. 857.) Finally, following the sharks and remoras analogy to its ultimate conclusion in the context of weapons patdowns would lead to this absurd result: Like a remora feeds off of a shark, a person who is in close proximity to a suspected drug user would be unable to survive without a weapon.

The People argue, essentially, that because defendant was in "'close physical and functional association'" with a suspected drug user, Deputy Richter had reasonable suspicion that defendant was a drug dealer and in turn carried a weapon. We recognize that in some circumstances, the belief that some drug dealers carry weapons can form the basis of a reasonable suspicion that a narcotics dealer is armed. (United States v. Post (9th Cir. 1979) 607 F.2d 847, 851.) However, to believe that a suspect carries a weapon because he is a drug dealer, an officer must first have reason to believe that the suspect does in fact deal drugs. (See, e.g., U.S. v. Salas, supra, 879 F.2d at p. 535 ["It was reasonable to infer from the information received . . . that [the defendant] was a narcotics dealer"]; People v. Limon (1993) 17 Cal.App.4th 524, 535 ["[the officer] had some basis . . . for believing defendant was selling drugs"].)

The People's argument is without merit. The People provide a post hoc rationalization for Deputy Richter's patdown that is based on no more than mere assumption. Deputy Richter testified that he patted down defendant based on "the time of night" and because he thought "Wyniaczuk was high on methamphetamine at the time," not because he thought defendant was transporting drugs. Although Deputy Richter may have suspected defendant was a drug dealer, the record of the suppression hearing did not give Deputy Richter a reasonable basis for that suspicion. The fact that defendant was in a car with a person who may have been high on methamphetamine did not support a reasonable suspicion that defendant was a drug dealer. Deputy Richter provided no evidence to support a belief that defendant sold drugs. Therefore, his testimony about the "time of night" and his belief that Wyniarczuk was under the influence of a "central nervous system stimulant" could not form the basis of any reasonable suspicion that defendant was armed in this case.

A court looks to the totality of the circumstances in determining the reasonableness of a challenged search. (People v. Miles, supra, 196 Cal.App.3d at pp. 617-618; U.S. v. Salas, supra, 879 F.2d at p. 535.) Here, looking at the totality of the circumstances, the specific and articulable facts known to Deputy Richter did not warrant a reasonable suspicion that defendant was armed and dangerous.

The Terry frisk is a narrow exception to long-guarded constitutional protections. (Terry v. Ohio, supra, 392 U.S. at pp. 27-29 [20 L.Ed.2d at pp. 909-911].) It is limited to specific circumstances in which an officer has reason to believe that he is dealing with an armed and dangerous person. (Id. at p. 27 [20 L.Ed.2d at p. 909].) If reasonable suspicion could be premised on the mere belief the defendant was a drug dealer without any facts reasonably supporting that belief, then a Terry frisk could be justified for virtually any suspect at any time.

Because the patdown search of defendant was unlawful, the trial court erred in denying his motion to suppress.

DISPOSITION

The judgment (order of probation) is reversed, and the matter is remanded with directions to the trial court to vacate its denial of the motion to suppress and to enter a new order granting that motion.

We concur: BUTZ , J. MURRAY , J.


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