P. v. Damaso

Filed 4/25/07 P. v. Damaso CA2/26

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Wesley Shawn Damaso appeals a judgment after he pled no contest to possession of a firearm by a felon (Pen. Code,  12021, subd. (a)(1))[1]following the denial of his motions to suppress evidence. We conclude that the trial court properly denied Damaso's suppression motions because the police had reasonable grounds to conduct a patdown search. We affirm.

FACTS

Police Officer Rafael Torres drove his marked patrol car towards an intersection. He saw Damaso drive his car through the intersection without stopping at a stop sign. Damaso saw Torres, stopped in the middle of the intersection and then proceeded ahead.

Torres turned on his lights to make a traffic stop. Damaso continued to drive for almost a quarter of a mile and then pulled into the driveway of his home. Damaso got out of his vehicle at the same time as Torres was getting out of the patrol car.

Damaso told Torres that he "was in a hurry" and he "needed to go into the house to make a phone call." Damaso repeated "several times" that he needed to go into the house. Torres told him "that as soon as [he] was done with the traffic stop [Damaso] was free to go in and make his phone call."

Damaso moved around the door of his vehicle and then went to the front of the car. Torres "thought he was going to run for the door of the residence." He ordered Damaso "not to walk away." Damaso "kept insisting that he needed to go inside and make his phone call."

Torres made a radio dispatch call to headquarters and was informed that Damaso was a felon who had previously been on parole. A police detective called Torres and told him that he had had "numerous prior [drug-related] contacts" involving Damaso. Damaso had an "Evans Park" tattoo on his head. Torres knew that Evans Park was a "well known gang in the Santa Maria area. Torres was by himself and was concerned for his safety. He believed that Damaso's actions and demeanor were "suspicious."

Torres told Damaso that he wanted to conduct a patdown search. Damaso said he "was tired of being harassed" and "didn't want any male rubbing on him." Damaso was "jittery" and "nervous." Torres called for additional officers to come to the scene. After they arrived Torrres conducted a patdown search and found a .25-caliber handgun in Damaso's pocket.

Damaso filed a motion to suppress the evidence obtained from the patdown search. The court denied the motion. He thereafter filed a motion to set aside the information ( 995) with a renewed motion to suppress the evidence obtained from the patdown search. The court denied both of these motions.

DISCUSSION

I. Denying the Suppression Motions

Damaso contends the court erred by denying his suppression motions because Officer Torres did not have a "reasonable . . . suspicion" to conduct a patdown search for weapons. We disagree.

In reviewing a ruling on a motion to suppress we "defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v.Glaser (1995) 11 Cal.4th 354, 362.) "In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (Ibid.) "[O]fficers may undertake a properly limited search for weapons if 'a reasonably prudent man . . . would be warranted in the belief that his safety or that of others was in danger.'" (Id., at p. 364.) In deciding to conduct a patdown search for weapons "[t]he officer need not be absolutely certain that the individual is armed . . . ." (Terry v. Ohio (1968) 392 U.S. 1, 27.) "[W]e must consider the totality of the circumstances" to decide whether the search was justified. (Glaser, supra, at p. 366.)

Damaso argues he was stopped because of a traffic infraction "which was not a violation frequently associated with weapons." But "' . . . a significant percentage of murders of police officers occurs when the officers are making traffic stops.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.)

Here Torres testified that he conducted a patdown search of Damaso because he was concerned for his safety. From the totality of the evidence his concerns were reasonable. In deciding to conduct a search officers may properly consider a defendant's strange or nervous behavior. (Illinois v. Wardlow (2000) 528 U.S. 119, 124; Florida v. Rodriguez (1984) 469 U.S. 1, 6.)

Here Damaso's conduct was strange and highly suspicious. After committing the traffic infraction Damaso saw Torres's patrol car and then stopped in the middle of the intersection. Torres flashed his lights but Damaso did not stop. He continued to drive for almost a quarter of a mile until he reached his home. Instead of waiting for Torres to approach the vehicle Damaso immediately got out of his car. Torres testified that this was unusual behavior for a driver during a traffic stop. Torres said Damaso's demeanor was "suspicious." He was agitated, he said he was in a hurry and repeatedly said he had to go into the house.

His conduct was also evasive. After Torres approached him Damaso moved around the driver's side of the car and went near the hood. He looked at the house, turned back and looked at Torres. He then looked back at the residence. Damaso repeated this activity several times. Torres testified that Damaso appeared ready "to run for the door of the residence." (People v. Souza (1994) 9 Cal.4th 224, 241 [defendant's "evasive actions added support to the officer's suspicion that criminal activity was afoot"]; see also Illinois v. Wardlow, supra, 528 U.S. at p. 124.)

Moreover, before the search Torres had obtained information from the police department that Damaso had "a history" of being on parole. A detective called Torres to advise him that he had numerous "drug-related contacts" involving Damaso. A police officer may reasonably believe that a defendant is armed based on the officer's knowledge about the type of criminal activity that he or she has been involved in. (United States v. Oates (2d Cir. 1977) 560 F.2d 45, 62.) The connection between firearms and the drug trade is well established. "'In the narcotics business, "firearms are as much tools of the trade as are most commonly recognized articles of narcotics paraphernalia. (People v. Glaser, supra, 11 Cal.4th at p. 367.)

In addition, Damaso had a tattoo, the same one worn by members of a known criminal gang. Gang affiliation was a factor Torres properly considered in deciding whether to conduct the patdown search. (In re Stephen L. (1984) 162 Cal.App.3d 257, 260-261; see also United States v. Garcia (10th Cir. 2006) 459 F.3d 1059, 1066 [patdown search was proper as defendant's gang affiliation gave police reasonable suspicion to believe he was armed and dangerous].) Given all the above factors Torres's concern for his safety was reasonable. Damaso has not shown that the patdown search was unlawful.

We have reviewed Damaso's remaining contentions and conclude that he has not shown reversible error.

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

James Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Lyn A. Woodward, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Roberta L. Davis, Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1]All statutory references are to the Penal Code unless otherwise stated.