P. v. Swearingen

Filed 9/25/07 P. v. Swearingen CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Garret L. Swearingen appeals from a judgment placing him on felony probation after he pled guilty to possession of methamphetamine (Health & Saf. Code,  11377). He contends the trial court erred in denying his motion to suppress evidence (Pen. Code,  1538.5) because it was the fruit of an unlawful patdown search for weapons, as contemplated by Terry v. Ohio (1968) 392 U.S. 1. We agree and, accordingly, reverse.

FACTS AND PROCEDURAL HISTORY

At approximately 11:30 a.m. on September 1, 2006, Ventura City Police Officer Kenny Welch was driving a marked patrol car northbound on Seaward Avenue when he saw appellant, dressed in a baggy sweatshirt and cargo shorts, walking in the opposite direction. At the time, Officer Welch was looking for appellant's identical twin brother Matthew. According to the officer, he and his partner had been "actively chasing" Roy Miller, who had a felony warrant and was considered armed and dangerous. Officer Welch had "heard" that Matthew "had been hanging around with" Roy Miller, so he wanted to question him regarding Miller's whereabouts.

Officer Welch knew appellant and Matthew from prior contacts, but he "can't tell them apart unless I see them together." The officer made a u-turn and parked his car near appellant. As he did so, appellant switched the direction in which he was walking and approached the patrol car. Officer Welch got out of the car and asked appellant if he could talk to him. Before appellant answered, the officer asked him if he was Matthew. Appellant responded that he was Garret. Officer Welch said he wanted to pat him down for weapons. When appellant asked him what "probable cause" he had for doing so, Officer Welch replied by repeating that he was going to perform a patdown search. Appellant placed his hands on his head.

As Officer Welch began to conduct the search, he asked appellant "if he had any guns, knives or narcotic items on his person." Appellant responded that he had a pipe in his lower right cargo pocket. Officer Welch then placed appellant in handcuffs, removed the pipe from his pocket, and placed him in the back seat of the patrol car.

As appellant was being transported to the police station, he "began to become very fidgety." Officer Welch asked appellant if he was okay, and he responded that he had found a baggie of "meth" in the sleeve of his sweatshirt. The baggie was confiscated. It was determined to be 1.2 grams of methamphetamine.

Appellant was charged with possession of methamphetamine, as well as possession of a smoking device (Health & Saf. Code, 11364). He moved to suppress the pipe and methamphetamine on the ground that they were the product of an unlawful frisk for weapons. At the suppression hearing, Officer Welch testified that he had decided to frisk appellant because he was wearing baggy clothing and "[b]ased upon me still not knowing if in fact he was Matthew or Garret, also knowing that both subjects are involved with using drugs from prior experiences with them . . . ." While the officer was unable to recall whether he ever asked appellant to produce his identification, or whether he looked at his identification after the arrest, he testified that he "figured [appellant] was Garret" when appellant told him that Matthew was in custody.

In opposing the suppression motion, the prosecutor argued: "The officer was faced with an interesting situation as both Swearingen brothers look alike, and unless they're standing side by side, it's very difficult to determine which is which, and they're both narcotic users. Because the officer anticipated a longer contact than just a 'Hey, how are you doing, may I see your I.D.?', he was planning to conduct an investigation into the location of someone who was armed and dangerous who was hanging out with one of the Swearingen twins who may have been the Swearingen twin who was in front of him since there was only one twin in front of him. [] He conducted a pat-down based on the fact that he didn't know the identification or which Swearingen he was faced with. He knew they were both involved with narcotics. The Swearingen in his company was wearing baggy clothing which could easily conceal drug pipes, weapons and in fact did conceal drugs and a pipe."

The trial court denied the motion. The court reasoned: "[H]ad this officer known that this was not Matthew but Garret, there probably would not have been a justifiable basis for a Terry frisk, but according to the testimony, the officer wanted to talk to Matthew who's the twin because he was hanging around Roy Miller who was known to be armed and dangerous, and the reason that he wanted to talk to Matthew, according to the testimony, was because he wanted to figure out where the armed felon was, either for purposes of investigation or arrest or what have you, and so at the time he encounters this Defendant, he's not certain which of the brothers it is. He doesn't know if this is the brother who's hanging around the armed and dangerous felon. [] This Defendant comes up to him wearing clothing which included a large and baggy sweatshirt covering the waistband area, long sleeves, long baggy shorts with cargo pockets, and I would certainly say absent this Roy Miller connection, there wouldn't have been reasonable cause to prove that this Defendant was armed and dangerous . . . . []

. . . I think it's a close case, but I think there are certain articulable facts that an officer needs to justify the Terry pat-down. So the motion is denied."

DISCUSSION

Swearingen contends the trial court erred in denying his motion to suppress the methamphetamine and smoking device found in his possession because they were the fruit of a search and seizure that violated the Fourth Amendment. While he does not dispute that his initial encounter with Officer Welch was consensual, he asserts that the officer failed to articulate specific facts supporting his decision to frisk appellant for weapons. We agree.

In reviewing the denial of a motion to suppress evidence pursuant to Penal Code section 1538.5, we view the record in the light most favorable to the ruling and defer to factual findings that are supported by substantial evidence. We exercise our independent judgment, however, in deciding whether the facts support the court's finding that the challenged search or seizure complied with the Fourth Amendment. (People v. Maury (2003) 30 Cal.4th 342, 384; People v. Medina (2003) 110 Cal.App.4th 171, 175.)

"When an officer detains a suspect, the officer may pat down the suspect's outer clothing if he or she has reason to believe the suspect may be armed. [Citations.] The test for a pat-down search 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.' [Citation.] 'The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.' [Citation.]" (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320, italics added.)

A so-called "Terry frisk" for weapons is considered "'. . . a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.' [Citation.]" (People v. Medina, supra, 110 Cal.App.4th at p. 176.) "Because the 'intrusion upon the sanctity of the person' consists not only of the patdown itself but also of the temporary detention during which the patdown occurs, to justify frisking or patting down a person during an on-the-street stop, 'the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop.' [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 229.)

It is undisputed that appellant's initial encounter with Officer Welch was consensual. The People have never alleged, much less demonstrated, that the officer entertained a reasonable suspicion that appellant was engaging or about to engage in criminal activity when he undertook to search him for weapons. Because the officer had no grounds to detain appellant, he necessarily lacked the authority to frisk him. "Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence." (Terry v. Ohio, supra, 392 U.S. at p. 32 (conc. opn. of Harlan, J.).)

In any event, the record fails to disclose specific, articulable facts giving rise to an objectively reasonable suspicion that appellant was armed and dangerous. "[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Terry v. Ohio, supra, 392 U.S. at p. 30, italics added.) It is undisputed that Officer Welch did not observe any suspicious conduct or behavior on appellant's part. Appellant gave no indication that he was in possession of a weapon, nor did he make any gesture that could have been construed as threatening the officer's safety. Moreover, the encounter took place on a heavily traveled street in broad daylight. While appellant was wearing a baggy sweatshirt that covered his waistband, there is nothing inherently suspicious about baggy clothing. Indeed, nothing in the record indicates that this is not the prevailing style of dress for young men of appellant's age. (See Ybarra v. Illinois (1979) 444 U.S. 85, 93.) Besides, appellant's mode of dress would plainly be insufficient by itself to support a reasonable suspicion that he was armed and dangerous.

Even if Officer Welch could be said to have entertained an objectively reasonable suspicion that appellant was actually his identical twin brother Matthew, the patdown search would still be unlawful. The officer merely testified he had "heard" that Matthew had been "hanging around" at some unspecified point with an individual with a felony warrant who was believed to be armed and dangerous. He also testified that he knew Matthew from prior contacts as a drug user, not as a violent felon who he would have any reason to believe might be armed and dangerous. According to Officer Welch, he merely wanted to ask Matthew whether he had any information regarding Miller's whereabouts. Any convoluted chain of inferences to be drawn from these facts is insufficient to give rise to an objectively reasonable suspicion that Matthew would have been armed and dangerous, much less that appellant was. Simply put: Officer Welch had no cause to search Matthew, so he lacked cause to search appellant.

Having determined that the patdown search of appellant was unlawful, it necessarily follows that the pipe and methamphetamine obtained as a result of that action should have been suppressed. (See Wong Sun v. United States (1963) 371 U.S. 471, 484-488; People v. Medina, supra, 110 Cal.App.4th at p. 178.)

DISPOSITION

The judgment is reversed. On remand, the trial court shall enter an order granting appellant's motion to suppress.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Glen M. Reiser, Judge

Superior Court County of Ventura

______________________________

Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.

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