IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
December 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
AARON RANDOLPH WHITE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F03533)
The opinion of the court was delivered by: Raye , P. J.
P. v. White
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following denial of his motions to suppress evidence under Penal Code section 1538.5, subdivision (i), made initially at the preliminary hearing and renewed in the trial court, defendant Aaron Randolph White entered a felony plea of no contest to unlawfully carrying a concealed weapon (Pen. Code, § 12025, subd. (b)(6)) in exchange for a stipulated disposition of five years' probation and 180 days in county jail. Defendant appeals the denial of the renewed motion to suppress evidence of a loaded handgun the police found after completing a warrantless patsearch of his outer clothing during their investigation of a domestic violence call. He maintains that the police did not point to specific, articulable facts that would have led a reasonable officer to conclude that he was armed and dangerous. We affirm.
In reviewing the denial of a motion to suppress evidence, we derive the relevant facts from evidence adduced at the suppression hearings. (Pen. Code, § 1538.5, subd. (i).)*fn1 Here, the record establishes that in May 2010 Officers Leonard and Stanionis were summoned to an apartment complex in response to a domestic violence call placed by Tyra Cole. Cole informed the dispatcher that she was outside her house following a physical altercation with her boyfriend and needed help in getting the boyfriend to leave the house. Cole told the dispatcher defendant's name was Aaron White and described him as a skinny, five-foot-nine-inch tall, black male, aged 23. Cole made no mention of weapons and stated she did not need medical aid.
We separately summarize the testimony of the two officers.
Upon arriving, the officers encountered Cole and defendant on the sidewalk just outside of their apartment. When Officer Leonard asked Cole if she was the female caller, Cole quietly said yes but appeared to Leonard to be scared of defendant. "She had turned away from him" as she answered the officer's question. Officer Leonard then approached defendant while Officer Stanionis interviewed Cole. He asked defendant whether he was "White," to which defendant said yes. Officer Leonard testified that initially, defendant's demeanor was "[c]asual. He was just standing there."
Officer Leonard asked defendant to consent to a pat-down for weapons. Defendant loudly protested the patsearch. Ultimately, Officer Leonard conducted a patsearch of defendant, and after feeling the butt of a handgun in defendant's front waistband, Leonard seized a loaded .32-caliber semiautomatic pistol from defendant's person.
When asked why he made the decision to pat defendant down for weapons, Officer Leonard testified "because I had seen the injury on Cole and at that point I knew it was most likely the same Aaron White that she had called about." Officer Leonard described the injury as "scrapes" on Cole's neck. He testified that the nature of Cole's call concerned him despite the fact that there was no report of a weapon being used.
Regarding defendant's clothes, Officer Leonard testified that the bulky clothing raised his suspicions because "[i]t's not readily easy to see if somebody's got weapons. [¶] Also, it was, I felt, in general it was too hot for a jacket. It's unusual to be wearing a jacket for that temperature." Officer Leonard also testified that the color of appellant's clothing -- a black jacket and a black T-shirt with red on the front -- also raised his suspicions.*fn2 In rebuttal, defense counsel offered into evidence a printout from the Web site of the National Weather Service. The printout indicated that the average temperature on May 28, 2010, the date of the incident, was 57 degrees; the high temperature for the day was 70 degrees.
Officer Stanionis testified that on the date of the hearing, she had been a sworn police officer for 12 weeks. The afternoon of the incident she was dispatched to defendant's location after a female caller stated that her boyfriend had hit her. There was no allegation that a weapon was used. It was still daylight when the officers arrived.
Officer Stanionis interviewed Cole. "I was interrupted while I was interviewing her. I started to -- just barely start [sic] to interview her when [defendant] began to act loudly against Officer Leonard conducting a pat-down, to which I stopped the interview with victim Cole." To assist Officer Leonard, Officer Stanionis stood directly in front of defendant, and that was keeping him calm. After the patsearch was completed, she resumed her interview of Cole. Cole stated that the couple had gotten into an argument "over [Cole's] drinking." Cole ultimately informed the officer that she had made a false report.
Officer Stanionis did not see defendant commit a crime. Nor did she see a weapon on his person prior to the patsearch. Defendant did not have his hands in his waistband or in his pockets. When asked by defense counsel to recount the specific facts that led Stanionis to believe, prior to the patsearch, that defendant might be armed and dangerous, Stanionis testified that (1) domestic violence calls are "inherently violent"; (2) she noticed the scratches on Cole's neck before taking her statement; and (3) White's baggy clothes and "thicker coat that seemed out of place for the 28th of May, a warm day for him to be wearing a coat."
The Magistrate's Ruling
The trial court, sitting as magistrate, denied the suppression motion. "There is no question that there is probable cause to detain, and there is no question in my mind that there was probable cause to pat him down for officer safety purposes." The court explained: "And any time you're called to the scene of a domestic violence, there's going to be a pat-down. And why? Because of officer safety because they're volatile situations. Any day or night of the week. That's just the way it is. [¶] . . . [¶] It has got nothing to do with the color of clothing, how the temperature is, the length of the jacket. I mean, all that goes to probably more concern on the part of the officer. [¶] Now, if he's standing there in a pair of Skivvies chances are he's not going to be patted down because it's obvious he can't be carrying a gun. [¶] . . . [¶] It has nothing to do with probable cause to believe that he is armed and/or dangerous. [¶] . . . [¶] What it has to do with is officer safety at the scene of a call of a domestic violence when your client has been identified as the perpetrator of what appears to the first officer to have been some domestic violence."
Defendant also made a motion pursuant to section 17, subdivision (b). This motion was also denied.
The Trial Court's Ruling
Defendant sought review of the magistrate's ruling and filed a renewed motion to suppress pursuant to section 1538.5, subdivision (i). After reviewing the parties' briefing and preliminary hearing transcript, considering newly introduced defense evidence, and hearing the parties' arguments, the trial court affirmed the ruling.
The trial court noted the officers' stated concerns, including the nature of the call, the scratches on Cole's neck, and defendant's baggy clothes on a warm, late-spring day. In its ruling, the trial court stated: "But I think that the officer-safety law, that part of the Fourth Amendment, and all the cases that [the prosecutor] has cited -- a number of them in her pleadings that have refined and elaborated and expanded a bit on what is permissible for officers -- they actually don't have to suspect a particular kind of weapon. [¶] . . . [¶] I think that when I boil it all down, looking at it from a reasonable officer's point of view in the same circumstances as known to them at the time before they undertake a conversation with someone who is alleged to be a perpetrator of domestic violence out in the street, I think that is not unwarranted to conduct a simple pat-down." Defendant filed a timely notice of appeal.
Defendant presents only one objection to the warrantless patsearch and resulting seizure of the .32-caliber semiautomatic pistol. He argues that the controlling law is contrary to the interpretation applied by the magistrate below -- that the nature of the call, standing alone, is insufficient to justify a patsearch. Rather, defendant argues, the law requires a more objective standard -- articulable facts specific to the defendant and the circumstances of the encounter that would lead a reasonable officer to believe the defendant was armed.
Standard of Review
A criminal defendant may move under section 1538.5 to suppress evidence obtained as a result of an unreasonable search or seizure. (§ 1538.5, subd. (a).) On appeal from a renewed motion to suppress brought under section 1538.5, subdivision (i), we review the determination of the magistrate at the preliminary hearing. (People v. Nonnette (1990) 221 Cal.App.3d 659, 664; People v. Lee (1987) 194 Cal.App.3d 975, 980-981.) We view the facts most favorably to the respondent and defer to the magistrate's factual findings, whether express or implied, when supported by substantial evidence, and we independently determine whether the facts of the challenged search and/or seizure violated defendant's Fourth Amendment rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Hua (2008) 158 Cal.App.4th 1027, 1033; People v. Woods (1999) 21 Cal.4th 668, 673-674.) Because we decide this issue independently, we may affirm the magistrate's ruling without regard to whether the magistrate's reasoning was correct in all particulars. (See Cal. Aviation v. Leeds (1991) 233 Cal.App.3d 724, 731.)
We affirm the trial court's ruling if correct under any legal theory. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) We do not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts; these are functions reserved to the trier of fact. (People v. Bowers (2004) 117 Cal.App.4th 1261, 1271.) "'We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. [Citation.]'" (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)
A warrantless search is "'per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.' [Citation.]" (Arizona v. Gant (2009) ___ U.S. ___ [173 L.Ed.2d 485, 493]; see also People v. Redd (2010) 48 Cal.4th 691, 719.) A properly supported patsearch of a person's outer clothing is one such exception. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry).)
An officer may conduct a patsearch for weapons if the officer has reason to believe a suspect is armed and dangerous, regardless of whether the officer has probable cause to arrest the person for a crime. (Terry, supra, 392 U.S. at p. 27.) "'The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .' [Citation.]" (Minn. v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 344] (Dickerson).) This exception to the warrant requirement is limited, confined in scope to intrusions reasonably designed to discover weapons. (Terry, supra, 392 U.S. at p. 29.) "[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.)
"'In evaluating the validity of an officer's investigative or protective conduct under Terry, the "touchstone of our analysis . . . is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'"' [Citation.]" (People v. Thurman (1989) 209 Cal.App.3d 817, 824 (Thurman); see also People v. Rivera (1992) 8 Cal.App.4th 1000, 1006.) "Central to the Terry court's understanding of reasonableness is the requirement of 'specificity in the information upon which police action is predicated . . . .' [Citation.] Thus, 'in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' [Citation.]" (People v. Glaser (1995) 11 Cal.4th 354, 363; People v. Dickey (1994) 21 Cal.App.4th 952, 956 (Dickey).)
However, "'[t]he officer need not be absolutely certain that the individual is armed'"; the fundamental test 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.'" (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230, quoting Terry, supra, 392 U.S. at p. 27.)
Justification for the Patsearch
Defendant's contention that the nature of the call alone cannot be sufficient to support Officer Leonard's patsearch of his person is supported by the cases applying Terry. "'A frisk following a detention for investigation "is an additional intrusion, and can be justified only by specification and articulation of facts supporting a reasonable suspicion that the individual is armed."' [Citation.]" (People v. Suennen (1980) 114 Cal.App.3d 192, 199.)
Nevertheless, after reviewing the record in this case, we cannot say that the magistrate erred in finding the patsearch of defendant was justified by Officer Leonard's reasonable belief that he might be armed and dangerous.
Defendant contends the patsearch that uncovered the semiautomatic pistol was an unreasonable search because the officers cannot point to credible, specific facts that would lead a reasonable officer to believe defendant was armed and dangerous. However, the testimony of the officers has not been "thoroughly impeached" as defendant claims. To the contrary, the court implicitly found the testimony of the officers to be credible. The magistrate recognized "the color of clothing, how the temperature is, the length of the jacket. I mean, all that goes to probably more concern on the part of the officer." We will not reappraise the credibility of the witnesses. (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.)
Defendant further argues that the concerns stated by the officers were "not sufficient to support a reasonable officer in believing that [defendant] was armed and dangerous at the time of the pat search." However, the officers testified that the nature of the call and the visible injury to Cole led them to believe that defendant could be armed and presently dangerous. These specific and individualized facts, taken together with the rational inferences that the officers are permitted to draw therefrom, led each of them to believe that defendant was recently involved in domestic violence and could be concealing a dangerous weapon.
Defendant argues that the officers failed to offer any testimony of particular experiences supporting their belief that potential domestic violence suspects may be armed. While the magistrate could not give weight to any "'inchoate and unparticularized suspicion or "hunch"'" offered by Leonard, "'due weight must be given . . . to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' [Citation.]" (People v. Rios (2011) 193 Cal.App.4th 584, 599, quoting Terry, supra, 392 U.S. at p. 27.) We give due weight to inferences drawn by an officer through the lens of his experience. (Ornelas v. United States (1996) 517 U.S. 690, 699 [134 L.Ed.2d 911, 920-921]; People v. Butler (2003) 111 Cal.App.4th 150, 159-160.)
At the combined hearing, Officer Leonard testified that he had been in his current department for seven years. Based on his experience, Leonard suspected that defendant, an alleged batterer, might be carrying a weapon that could be easily concealed in his baggy clothing. Defendant cites no support for his contention that the officer must testify to "particular experience" before the officer can reasonably rely on knowledge gained from his or her years of experience in law enforcement. Terry does not require that an officer articulate certain language. There is no legal support for defendant's contention and we reject it on that ground. (See Terry, supra, 392 U.S. at p. 30 [patdown search authorized where officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that persons with whom he is dealing may be armed and presently dangerous, and where nothing in the initial stages of encounter serves to dispel his reasonable fear for his own or others safety]; see also Dickerson, supra, 508 U.S. at pp. 370-371 [experienced officer may rely upon his sensory perceptions to conclude material is contraband].)
Defendant also relies on the absence of certain actions to establish that the officers could not reasonably believe that he posed a threat to those present. Specifically, he argues that no weapon had been reported and he was not reaching for his pockets or waistband. Defendant asserts that the only fact tending to support a suspicion that he was armed and dangerous is the nature of the call to dispatch. We do not agree.
In the first instance, the People do not argue that the domestic violence dispatch call, in and of itself, supported the patsearch of defendant. Rather, the People cite the testimony of the responding officers regarding their observations of the attendant circumstances surrounding the patsearch.
The fact that "[defendant] was not reaching for his pockets or waist band" does not mean that the officers were required to ignore the potential for sudden violence. The officers were informed that Cole reported having been hit by her boyfriend. Upon arrival, the officers observed evidence of a physical injury to Cole. "To require an officer to await an overt act of hostility, as appellant suggests, before attempting to neutralize the threat of physical harm which accompanies" the volatile environment of domestic violence calls "would be utter folly." (Thurman, supra, 209 Cal.App.3d at p. 823.)
Defendant also argues that "[a]lthough the officers reported that [defendant] was wearing baggy pants and a long t-shirt, they did not report anything specific about his clothing that made them suspect that [defendant] was armed, only that the clothing made it difficult to tell whether he had a weapon." This contention is simply not true.
Officer Stanionis testified that the baggy clothes and jacket seemed "out of place" on a warm day. In response, defendant contends that Officer Stanionis's testimony was "thoroughly impeached by the report from the National Weather Service." Defendant makes far too much of the weather report. Whether the testimony was impeached is a determination to be made by the trier of fact. In this case, as stated above, no such factual finding was made below.
Moreover, when determining whether reasonable suspicion has been established, we do not apply a "'divide-and-conquer'" analysis whereby individual facts are considered in isolation. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.) "When an officer has a reasonable belief '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.' [Citation.]" (People v. Ritter (1997) 54 Cal.App.4th 274, 279; see also People v. Souza (1994) 9 Cal.4th 224, 229.)
The touchstone for justifying a patsearch under Terry is that the officer must have a reasonable belief or suspicion that the suspect is armed. Under the totality of the specific and articulable facts in the record -- the baggy clothes that could have been used to conceal a weapon, the visible injury to the female caller, the fact that the female caller appeared scared, and the volatile nature of a domestic violence call -- we conclude that Officer Leonard had an objectively reasonable suspicion that defendant was armed. He therefore was justified in executing a patsearch of defendant to ensure his safety and that of the other officer at the scene. (People v. Collier (2008) 166 Cal.App.4th 1374, 1378; Dickey, supra, 21 Cal.App.4th at p. 957.)
The judgment is affirmed.
We concur: NICHOLSON , J. MAURO , J.