Filed 7/21/17 P. v. Dananberg 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



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




THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN DAVID DANANBERG,

Defendant and Appellant.
C083770

(Super. Ct. No. 16FE003489)




After the trial court denied his motion to suppress evidence pursuant to Penal Code section 1538.5, defendant John David Dananberg pled no contest to possession of methamphetamine while armed with a loaded, operable firearm. The trial court suspended imposition of sentence and placed him on formal probation for five years.
On appeal, defendant contends the trial court erred in denying his motion to suppress evidence. He argues the evidence seized from him as a result of a warrantless search should have been suppressed because the search exceeded the scope of a permissible patsearch under Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889], and was not justified by probable cause or exigent circumstances. We conclude the motion to suppress should have been granted. Consequently, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise specified, the following facts are taken from the suppression hearing. Around 12:30 p.m. on February 17, 2016, Detective Lizardo Guzman of the Sacramento County Sheriff’s Department was in the area near 2228 Edison Avenue to execute a search warrant. The subject of the search was Fred Brown and the purpose of the search was to locate, among other things, firearms, firearm magazines, ammunition, holsters, and receipts and/or other documentation related to the purchase, sale, operation, or maintenance of firearms. The search warrant was obtained after Detective Guzman learned Brown was unlawfully selling ammunition.
Detective Guzman, along with a team of six other detectives, were involved in the execution of the search warrant, which began with surveillance of Brown’s apartment. When Brown left the apartment, he was followed and detained less than a quarter of a mile away. While detained, Brown informed Detective Guzman that his wife, roommate (defendant), and a couple of dogs were inside the apartment. He also said defendant had a loaded handgun in his bedroom. Detective Guzman used his portable radio to relay this information to the other detectives. He then made the decision to execute the search warrant.
As detectives were approaching the apartment to execute the warrant, defendant came out the front door. To ensure he was not removing items from the apartment within the scope of the warrant, defendant was detained about 15 to 20 feet from the front door. Detective Guzman explained he was concerned that someone in the neighborhood might have seen Brown being detained and alerted defendant that the police were about to respond to the apartment.
After defendant was detained, Detective David Treat of the Sacramento County Sheriff’s Department and another detective searched him. Detective Treat testified that the purpose of the search was to ensure defendant was not in possession of any weapons or other evidence within the scope of the search warrant. During the search, Detective Treat found methamphetamine. No testimony was elicited from Detective Treat or any other detective as to the details of the search, including where the methamphetamine was located on defendant’s person. On cross-examination, Detective Treat conceded that he did not have any information at the time of the search to indicate defendant was “taking items of evidence out of the apartment.”
Shortly after defendant was detained, the search warrant was executed. At the preliminary examination, Detective Kane Kissam of the Citrus Heights Police Department testified that a loaded nine-millimeter Beretta handgun was found inside defendant’s bedroom. Detective Kissam further testified that a “function check” on the firearm revealed it was operable.
On June 29, 2016, defendant was charged with possession of methamphetamine while armed with a loaded, operable firearm. On September 9, 2016, defendant filed a motion to suppress evidence, arguing the warrantless search of him while outside the apartment was unlawful. The prosecutor did not file a written response.
At the suppression hearing, the prosecutor argued the search was lawful for two reasons: (1) the detectives were concerned defendant might be removing items from the apartment within the scope of the warrant; and (2) the detectives had knowledge defendant might be armed. Defense counsel conceded a patsearch for weapons was lawful under the circumstances but argued that probable cause was required for a search of defendant’s pockets. Defense counsel asserted that the detectives did not have the authority to go through defendant’s pockets simply because they thought he might be removing evidence from the apartment. The trial court denied defendant’s motion to suppress evidence, reasoning that the detectives were entitled to search defendant to ensure he did not possess a weapon or any items within the scope of the warrant.
Immediately following the trial court’s ruling, defense counsel requested the court reconsider its ruling and reserve ruling pending the submission of further briefing by the parties. The trial court granted defendant’s request, set a briefing schedule, and scheduled a hearing.
In his supplemental brief, defendant argued that the search of his pocket was unlawful because it was not supported by probable cause. The People disagreed, arguing that probable cause existed to search defendant because he had just left the apartment and the detectives were justified in believing he could be in possession of his own firearm or items within the scope of the warrant. The trial court denied defendant’s motion, reasoning that the warrantless search of defendant was lawful because the detectives had specific articulable facts that defendant resided in the apartment, had a firearm in his bedroom, and could have been armed. Thereafter, defendant pled no contest to the charged offense. The trial court suspended imposition of sentence and placed him on formal probation for five years.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress. According to defendant, the warrantless search of his person exceeded the scope of a permissible Terry patsearch and was not justified by probable cause or exigent circumstances. We agree with defendant.
A
Standard Of Review
“Federal constitutional standards generally govern our review of claims that evidence is inadmissible because it was obtained during an unlawful search.” (People v. Willis (2002) 28 Cal.4th 22, 29.) “In reviewing a suppression ruling, ‘we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, [but] we exercise our independent judgment in determining the legality of a search on the facts so found.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 563.) We will affirm the trial court’s ruling if correct on any theory of applicable law. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
B
Lawfulness Of The Search
The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. (People v. Celis (2004) 33 Cal.4th 667, 673.) The Fourth Amendment of the federal Constitution requires we exclude evidence obtained from an unreasonable government search and seizure. (People v. Williams (1999) 20 Cal.4th 119, 125.)
A warrantless search or seizure is presumed to be unlawful. (Mincey v. Arizona (1978) 437 U.S. 385, 390 [57 L.Ed.2d 290, 298].) The prosecution has the burden of justifying such a search or seizure by proving it fell within a recognized exception to the warrant requirement. (People v. Macabeo (2016) 1 Cal.5th 1206, 1213.)
An investigative detention is one of the exceptions to the warrant requirement. A brief stop and patdown of someone suspected of criminal activity constitutes an investigative detention requiring no more than reasonable suspicion. (People v. Celis, supra, 33 Cal.4th at p. 674.) Under Terry, a police officer may conduct a patdown search of a person for weapons if the officer reasonably believes the person is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 27 [20 L.Ed.2d at p. 909].) This is so regardless of whether the officer has probable cause to arrest the individual for a crime. (Ibid.) “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.” (Ibid.) To justify the patsearch, “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.” (Id. at p. 21 [20 L.Ed.2d at p. 906].) In determining the reasonableness of a detention and patsearch, the court looks to the totality of the circumstances. (People v. Mendoza (2011) 52 Cal.4th 1056, 1082; People v. Osborne (2009) 175 Cal.App.4th 1052, 1058-1059.)
A Terry search is limited to “an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Terry v. Ohio, supra, 392 U.S. at p. 29 [20 L.Ed.2d at p. 911].) “ ‘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.]” (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 344].) “If the [limited] search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” (Ibid.)
As a general rule, an officer may not search a suspect’s pockets during a Terry search unless he or she encounters an object there that feels like a weapon. (People v. Dickey (1994) 21 Cal.App.4th 952, 957.) However, under what has been termed the “plain feel” or “plain-touch” exception to the warrant requirement (People v. Dibb (1995) 37 Cal.App.4th 832, 836), the officer may seize an object that is not a weapon if “[i]ts incriminating character is ‘immediately apparent’ ” (Dickey, at p. 957).
As the court held in Dickerson, “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.” (Minnesota v. Dickerson, supra, 508 U.S. at pp. 375-376 [124 L.Ed.2d at p. 346].) The rationale for the rule is that when an officer conducting a proper Terry search feels an object whose incriminating character is “immediately apparent,” the officer has probable cause to arrest the suspect for possession of the contraband and may seize the item pursuant to a search incident to arrest. (Dickerson, at p. 375 [124 L.Ed.2d at p. 345]; People v. Lee (1987) 194 Cal.App.3d 975, 984.)
Here, as defendant concedes, the patsearch was reasonable under the totality of the circumstances. The detectives executing the search warrant had reason to believe defendant was armed and dangerous. However, substantial evidence does not support the trial court’s implied finding that the scope of a permissible Terry search was not exceeded. The evidence in the record does not disclose it was immediately apparent to Detective Treat that defendant was in possession of narcotics. At the suppression hearing, there was no evidence adduced regarding the specifics of the patsearch. The record on this issue is undeveloped. The record simply reflects that Detective Treat discovered methamphetamine during the search of defendant’s person. Even viewing the evidence in the light most favorable to the trial court’s ruling, Detective Treat’s search exceeded the scope of Terry since it continued beyond what was necessary to determine whether defendant was armed, and there was no evidence to bring his case within the plain touch exception to the warrant requirement, i.e., evidence the patsearch yielded probable cause to believe defendant was carrying narcotics. In view of the evidence presented at the suppression hearing, the prosecution failed to carry its burden to show the warrantless search leading to the discovery of the methamphetamine was authorized. Accordingly, the seizure of the methamphetamine was unconstitutional and the evidence must be suppressed.
We reject the People’s contention that exigent circumstances justified the warrantless interior search of defendant’s clothing. The People rely on the exception to the warrant requirement for the imminent destruction of evidence (People v. Thompson (2006) 38 Cal.4th 811, 818) but make no showing that this exception applies under the circumstances of this case. The record does not show the existence of an actual “emergency situation requiring swift action to prevent imminent . . . destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) There is no evidence suggesting the detectives had probable cause to believe defendant was removing items from the apartment within the scope of the warrant. The People have not cited, and we are not aware of, any authority holding that the mere suspicion a person might be removing items from a residence subject to a search warrant is sufficient to justify a warrantless interior search of that person’s clothing under the exigent circumstances exception to the warrant requirement.
A search warrant only authorizing a search of the premises will not justify searching a person at the premises unless there is probable cause to believe he or she is engaged in criminal activity. (People v. Temple (1995) 36 Cal.App.4th 1219, 1225.) Probable cause exists when the facts known to the officer amount to a reasonable ground for belief of guilt (People v. Thompson, supra, 38 Cal.4th at p. 818), or when there is a “ ‘fair probability’ ” that contraband will be found in a particular place (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504). Here, there is no evidence establishing that Detective Treat had knowledge of facts that would lead a reasonable person to believe defendant was engaged in criminal activity. The patsearch revealed defendant was not carrying a firearm, and the officers did not have information providing a reasonable basis to believe defendant was carrying narcotics or removing items from the apartment within the scope of the warrant. Indeed, Detective Treat conceded at the suppression hearing that he did not have any information at the time of the search to indicate defendant was “taking items of evidence out of the apartment.” Absent probable cause, the warrantless seizure of methamphetamine was unlawful.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to grant defendant’s motion to suppress the evidence discovered by the officers.



/s/
Robie, Acting P. J.



We concur:



/s/
Butz, J.



/s/
Duarte, J.