P. v. Dorn
Filed
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
THE PEOPLE, Plaintiff and Respondent, v. ADAM G. DORN, Defendant and Appellant. | D048153 (Super. |
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta and Raymond Edwards, Jr., Judges. Affirmed.
Adam G. Dorn pleaded guilty to the charge of possession for sale of a controlled substance (Health & Saf. Code, § 11351) after the denial of his motion to suppress evidence (Pen. Code, § 1538.5). Dorn appeals the judgment, contending the motion to suppress was incorrectly denied because the evidence was illegally obtained in a warrantless search. (Pen. Code, § 1538.5, subd. (m).) He argues the (1) detention, (2) patdown search, and (3) arrest and subsequent search were unreasonable under the Fourth Amendment to the United States Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On
The officers stopped a car leaving the residence because the driver matched McCoy's description. The driver was not McCoy, but the officers recovered a substance from the car that tested positive as a controlled substance. About 30 minutes later, the officers returned to McCoy's residence. They knocked and announced themselves as police. The officers heard voices inside the house while waiting at the door. McCoy opened the door after about five minutes, and the officers arrested him after identifying him by his driver's license.
Dorn and two other people were inside the residence when Sergeant Brown entered. Sergeant Brown testified that he observed Dorn had his hand in his pocket and saw something bulging in Dorn's pocket. Dorn ignored Sergeant Brown's repeated requests to take his hand out of his pocket. Sergeant Brown took the three individuals inside the house to the outside porch and told OfficerGregory to watch Dorn because he kept trying to put his hand in his right pocket. Once the three individuals were on the porch, Officer Gregory observed Dorn continue to try to put his hand in his right pocket.
Sergeant Brown said he was particularly concerned because this was a " known house for narcotics," near which someone had just been arrested after leaving the house with narcotics, and people tend to carry concealed weapons in and around " drug house[s]."
Officer Gregory detained Dorn, placed handcuffs on him, and conducted a patdown search because he believed, based on Dorn's behavior, that he might have a weapon. As he patted the outside of Dorn's pocket, he felt what he " thought [was] a baggie of marijuana." Officer Gregory had eight hours of formal training in narcotics investigations and had arrested seven or eight persons in the past for marijuana possession. He believed that the baggie contained marijuana because (1) the owners or renters of the house were known to be selling marijuana, and (2) the way it was rolled up. As he felt the baggie, he was not sure what type of substance it was, but " thought it to be marijuana."
Officer Gregory asked Dorn what he had in his pockets, and Dorn did not respond. Officer Gregory had Dorn sit on the porch and again asked him what he had in his pocket. Officer Gregory told Dorn he knew he had marijuana and told him he was under arrest. Dorn stood up and told Officer Gregory that he had cocaine, not marijuana, in his pocket. Officer Gregory then removed the contents of Dorn's right front pants pocket, which consisted of a medium sized baggie of " a white, powdery substance, a hundred baggies used to package the substance, a green scale, and $199."
The officers searched the residence and found five bricks of marijuana and a loaded shotgun.
Dorn was taken to the police station. He waived his rights and made statements about his involvement in possessing and selling cocaine. He also told the officers he had more cocaine at his apartment. The police obtained a written consent to search his apartment. Dorn went to his apartment with the police, where they seized more cocaine and a scale box.
Dorn filed a motion to suppress the evidence of drug possession, which was denied. In denying the motion, the court found that Officer Gregory believed the rolled-up baggie he felt in Dorn's pocket was a controlled substance when he conducted the patdown, based upon his training and experience, as well as the fact they were at a drug house, and he had just arrested someone coming out of the house for drug possession.
Dorn then pleaded guilty to possession for sale of a controlled substance (cocaine). (Health & Saf. Code, § 11351.) He was sentenced to three years' formal probation, subject to terms and conditions, including 40 days of public work service, and ordered to pay $500 restitution.
DISCUSSION
A. Standard of Review
In reviewing the denial of a motion to suppress evidence, we defer to the trial court's factual findings, express or implied, that are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We independently determine whether the facts support the court's legal conclusions that the search conformed to the constitutional standard of reasonableness under the Fourth Amendment to the United States Constitution. (Ibid.)
B. The Initial Detention
Dorn contends his initial detention in the McCoy residence was unreasonable under the Fourth Amendment. This contention is unavailing.
A " protective sweep" of a residence when police officers execute a search or arrest warrant is lawful if the officers have reasonable suspicion to believe that other individuals, who may present a danger, may be present. (Maryland v. Buie (1990) 494 U.S. 325, 334.) A warrant to search for contraband founded on probable cause " carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." (Michigan v. Summers (1981) 452 U.S. 692, 705, fn. omitted.) The Summers doctrine may also apply to nonresidents in certain situations. When police officers are searching a residence under a search warrant for illegal drugs or related items, the officers may constitutionally detain a person on the premises if the person's identity and connection to the premises are unknown and cannot immediately be determined without detaining the person. (People v. Glaser, supra, 11 Cal.4th at p. 374.) The purpose of the detention is to determine the person's identity and protect the safety of all present. (Ibid.) The protective sweep doctrine applies in the context of execution of arrest warrants. (People v. Hannah (1996)51 Cal.App.4th 1335, 1347 [officers may reasonably detain visitor present on premises while conducting their search]; see also People v. Matelski (2000) 82 Cal.App.4th 837, 850, 853 [officers conducting a probation search of a house reasonably detained visitors for 15 minutes to determine their identities and discovered the visitors had outstanding warrants].)
Here, the officers had a bench warrant for the arrest of McCoy, who lived in the residence where they knew narcotics activity occurred. They had just arrested someone driving away from the residence with drugs in his car. They knew more than one person was inside the house because they heard voices before entering, and McCoy did not open the door for five minutes. The officers had a reasonable concern for their safety based on their knowledge about the residence and the safety risk associated with locations known for narcotics traffic. The officers had a particular concern for their safety with respect to Dorn because he repeatedly put his hand in his pocket when asked to stop, and Brown saw a bulge in Dorn's pocket. Under these circumstances, it was reasonable for the officers to conduct a protective sweep to clear the residence of all individuals and to initially detain Dorn.
C. The Terry Patdown Search
Dorn contends the patdown search was unreasonable under the Fourth Amendment. We reject this contention.
In Terry v. Ohio (1968) 392 U.S. 1, the United States Supreme Court set forth the conditions under which police officers can conduct a search for weapons when they have no probable cause for an arrest. When an officer has a reasonable belief that the individual whose suspicious behavior he or she is investigating is armed and presently dangerous to the officer or to others, the officer may take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. (Id. at p. 24.) " The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." (Id. at p. 29.) The officer must be able to point to specific and articulable facts which, together with rational inferences, reasonably support a suspicion the suspect is armed and dangerous. (Id. at pp. 20-21.)
The patdown search here was lawful because the officers reasonably believed Dorn was armed and dangerous. Brown saw a bulge in Dorn's pocket and Dorn repeatedly put his hand in his pocket despite orders from police to stop. Dorn did not respond to questions about what was in his pocket. The officers were at a residence known for narcotics activity and, from experience, knew locations with drugs often have occupants and visitors with concealed weapons. Under these circumstances, the officers had specific, articulable facts, combined with rational inferences, to reasonably support a suspicion Dorn was armed and dangerous and therefore were justified in conducting a patdown search of Dorn to determine if he was armed with a dangerous weapon.
D. The Arrest and Subsequent Search
Dorn contends his arrest was without probable cause and the search incident to the arrest was therefore illegal. This contention is unavailing.
The Fourth Amendment requires an officer to " have probable cause to believe that the item is contraband before seizing it [to ensure] against excessively speculative seizures." (Minnesota v. Dickerson (1963)508 U.S. 366, 376.) If an officer suspects an object inside a person's clothing consists of narcotics, and the suspicion is derived at least in part from a legal patdown search of the person's outer clothing, the officer may only conduct a full search of the individual or seize the object if the nature of the object is " immediately apparent" or if the officer has probable cause to arrest the person for narcotics possession. If the officer has probable cause to arrest, the warrantless search then becomes justified as a search incident to arrest. (People v. Dibb (1995) 37 Cal.App.4th 832, 837 (Dibb).)
Probable cause to arrest requires a reasonable ground for belief of guilt; it does not require evidence sufficient to justify conviction, but it requires more than a bare suspicion. (People v. Fay (1986) 184 Cal.App.3d 882, 892 (Fay); People v. Valdez (1987) 196 Cal.App.3d 799, 807 (Valdez).) Probable cause to search a suspect's pocket can be established by either tactile perception where the incriminating character of the object is " immediately apparent" or if the " officer's sensorial perception, coupled with other circumstances, was sufficient to establish probable cause to arrest the defendant for possession of narcotics before entry into the pocket." (Valdez, supra, 196 Cal.App.3d at p. 806; Minnesota v. Dickerson, supra, 580 U.S. at p. 375.) The critical question is not whether the officer could identify the object as contraband based on only the " plain feel" of the object, but whether the " totality of the circumstances made it immediately apparent to [the officer] when he first felt the lump that the object was contraband." (Dibb, supra, 37 Cal. App.4th at pp. 836-837; see also People v. Lee (1987) 194 Cal.App.3d 975, 984 (Lee) [there was probable cause to arrest where the officer's " tactile perceptions, coupled with other facts known to him, furnished probable cause" to believe the defendant possessed narcotics].) Moreover, the officer need not be absolutely certain of the evidentiary value of the items to justify their seizure. (Texas v. Brown (1983) 460 U.S. 730, 739, fn. 4, 741-742.) He need only have probable cause to associate the items with criminal activity. (Ibid.)
In Fay, supra, 184 Cal.App.3d 882, an officer failed to pat the defendant before withdrawing a cellophane " lump" from Fay's pants pocket. Had the officer patted him, the officer would have known the item could not have been a weapon. (Id. at p. 891.) However, the seizure was upheld as reasonable because the information the officer had at the moment he seized the baggie of heroin would have supported an arrest, based as it was on the reasonable inference that Fay was the second man involved in a narcotics sale as seen by an informant. This inference was substantiated by Fay's act of reaching into his pocket after the officers approached, mimicking his codefendant who discarded heroin from his pants pocket upon eye contact with the officers. (Id. at p. 893.)
In Dibb, supra, 37 Cal.App.4th 832, the defendant was a passenger in a car stopped for expired registration and seatbelt violations. He consented to a search of his fanny pack, which contained a pistol magazine, a gram scale that smelled of methamphetamine, a small plastic bag, and a beeper. When the officer patted him down for weapons, the officer felt something lumpy with volume and mass beneath defendant's pants in the area between his knee and calf. Defendant denied having anything inside his pants. At that point, the officer " ruled out a gun" but suspected a controlled substance based on the items in the fanny pack. The officer seized the package, which contained methamphetamine. (Id. at pp. 834-835.) The Court of Appeal upheld the seizure finding that under the circumstances, the officer had a reasonable belief that what he touched during the patdown was contraband. The odor of methamphetamine on the scales, the beepers, which the officer associated with narcotic sales, and the small plastic bag all supported the officer's reasonable belief that the package secreted in defendant's pants leg contained drugs. The issue was not whether the officer could identify the object as contraband based on " plain feel," but whether the totality of the circumstances made it immediately apparent to him when he first felt the lump that the object was contraband. Because the officer had probable cause to arrest defendant for possession of narcotics upon his first touching the object, the further intrusion of seizing the bag was justified as a search incident to arrest. (Id. at pp. 836-837.)
Similarly, in Lee, supra, 194 Cal.App.3d 975, officers were justified in detaining the defendant after an informant had related that one of two or three men had offered to sell heroin. As the officers approached three men at an intersection, one of the men yelled, " rollers!" This warning was known to the officers as a way of alerting others in the narcotics trade that police were in the area. At this shout, Lee turned and began to walk away. When the officers approached him, Lee reached inside his jacket, just as the officers had seen other narcotics traffickers do when withdrawing a gun. Telling him to freeze, the officers approached, patted him and immediately recognized that a clump of soft lumps was a stash of heroin-filled balloons. The seizure of the heroin was upheld because the officers' experiences supported their sincere belief that what they felt was contraband. (Id. at pp. 983-984.) As stated in Lee, if the officer forms " a definite belief based on articulable facts and on considerable training and experience in the tactile characteristics of narcotics-filled balloons[,]" then the seizure of the contraband following a pat down for weapons is justified, even though the pat down eliminated any fear that a weapon was concealed. (Id. at p. 984.)
Here, when Officer Gregory retrieved the baggie from appellant's pocket, the surrounding circumstances showed: (1) they were at a house suspected to be a location where drugs were sold; (2) officers had just arrested an individual for drug possession as he left the residence; (3) when contacted, Dorn was nervous about something he had in his pockets--he put his hands in his right pocket despite several directives not to; (4) the plain feel of the object indicated it was a baggie containing a substance wrapped in plastic, which Officer Gregory believed to contain illegal drugs, and (5) when Dorn was asked what was in his pocket, he did not respond. These circumstances, together with his experience in narcotics arrests and investigations, supported Officer Gregory's conclusion that the packaged material he felt in appellant's pocket was probably a controlled substance. Because Officer Gregory had probable cause to arrest appellant for possession of narcotics when he seized the baggie, the seizure was justified as a search incident to arrest. (Dibb, supra, 37 Cal.App.4th at pp. 836-837.)
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
I CONCUR:
_________________________
HALLER, J.
McDonald, J., dissenting.
The majority opinion almost got it right. I agree for the reasons set forth in the well-written majority opinion that the original detention and pat-down search of Dorn were legal as part of a protective sweep and as a permissible Terry[1] pat-down search for weapons, respectively. However, Dorn's subsequent arrest and search incident to that arrest were illegal and the items obtained in that search (bag of cocaine, empty plastic bags, a green scale and $199 in cash) and his statements following his arrest should have been suppressed in response to Dorn's Penal Code section 1538.5 motion.
In People v. Lee (1987) 194 Cal.App.3d 975, 984, the court found probable cause to arrest where the officer felt heroin-filled balloons in the defendant's pocket while conducting a pat-down search for weapons. The officer recognized the feel of heroin-filled balloons from at least 100 other occasions when he had searched people and felt what were later determined to be heroin-filled balloons. As the officer described it, the feel is " unmistakable: each balloon has about the size and shape of a pea, with a 'texturized rubber feeling' and a 'bounce or bend that bounces back to its original shape.' While individual balloons feel soft, they are harder and less resilient when put together in a package." The court held the officer's tactile perceptions, coupled with other facts known to him, established probable cause to arrest.
In contrast, the court in People v. Valdez (1987) 196 Cal.App.3d 799, 807 found the police officer did not have probable cause to arrest when he felt a plastic canister during a pat-down search. In Valdez, the police were executing a search warrant at an automobile yard, with a particular suspect named, because an informant said he had purchased heroin on the premises from the suspect. When the officers arrived at the automobile yard and announced themselves as police, the defendant, who was not the suspect named in the warrant, turned away from the officers but did not run. One officer conducted a pat-down search for weapons on the defendant and felt a plastic canister. (Id. at pp. 802-803.) Because the officer did not see any photography equipment in the area and based on his 13 years of police experience with five years in narcotics, he believed there were drugs in the canister. (Id. at p. 803.) The court held a film canister is not a distinctive drug carrying item that may be seized upon observation because " [u]nlike such items as heroin balloons, which an officer can identify as contraband merely by feeling them, a film canister cannot be identified as containing drugs merely by feeling it. . . . [A] film canister is not a distinctive drug-carrying item equivalent to a heroin balloon, a paper bindle, or a marijuana-smelling brick-shaped package, which may be seized upon observation." (Id. at pp. 806-807.) The court also held the officer did not have probable cause to arrest the defendant when he felt the film canister during the pat-down search, because the only other relevant circumstance was the defendant turning from the police. (Ibid.) The court presumably did not consider the reports of drugs on the premises sold by a different suspect as a relevant circumstance in determining probable cause to arrest with respect to the defendant. (Id. at p. 807.)
In People v. Limon (1993) 17 Cal.App.4th 524, the officer had probable cause to arrest the defendant where the officer felt a hide-a-key box in the defendant's pocket. Although the officer had only seen narcotics in a key case once before, the court found that the discovery of the key box and the surrounding circumstances were sufficient for probable cause to arrest. (Id. at p. 538.) Because the presence of a single, legitimate container was not inherently suspicious, the court required factually detailed testimony to establish the officer's reasonable basis for connecting the container to criminal activity. (Id. at pp. 538-539.) Before conducting the pat-down search and feeling the box, the officer saw the defendant standing near another man at the rear of a carport of an apartment complex. The defendant walked about 10 feet to a truck, bent down near the right front wheel well, removed something, and walked back to the other man. The officer saw the men touch hands and exchange something. The defendant then walked back to the truck and placed something where he had previously removed the object. (Id. at pp. 529, 535.) Under these circumstances, probable cause to arrest was established because the combination of the key box and the other circumstances " indicat[ed] that what defendant was exchanging and concealing was drugs." (Id. at p. 538.)
These three cases show that sensorial perception and surrounding circumstances together combine to establish probable cause, without a rule as to which factor carries more weight. In Lee, the sensorial perception was extremely strong and appears to be the primary basis for probable cause. (People v. Lee, supra, 194 Cal.App.3d at p. 984.) In Limon, the sensorial perception was weak, because a key box in itself does not independently signify narcotics, but the surrounding circumstances were sufficiently strong to establish probable cause to arrest. (People v. Limon, supra, 17 Cal.App.4th at p. 538.) In Valdez, the court found weak sensorial perception, because the officer merely felt a container that could have legal uses, coupled with surrounding circumstances that did not give rise to probable cause. The court did not consider the fact that the officers were executing a search warrant for a different person suspected of selling drugs on the same premises a relevant circumstance for establishing probable cause with respect to the defendant. (People v. Valdez, supra, 196 Cal.App.3d at pp. 802, 806-807.)
Here, it was not " immediately apparent" to Gregory that the object he felt in Dorn's pocket was narcotics. Although Gregory stated he felt a medium-size, rolled up plastic bag, it was not " immediately apparent" to Gregory what the contents of the bag were. Gregory's testimony explicitly says, " I didn't know what kind of substance it was, but I thought it to be marijuana."
This case is most similar to Valdez. Like the plastic canister in Valdez, a plastic bag is a commonly used container that has many legal purposes. The fact that plastic bags are frequently used for narcotics is not sufficient in itself to establish probable cause. Therefore, to have probable cause to arrest, the officer needed other circumstances to reasonably believe in Dorn's guilt. The circumstances on which Gregory relied were not sufficient for probable cause to arrest. Gregory relied heavily on the fact that the residence was occupied by McCoy, who was known to be selling marijuana. Following this court's analysis in Valdez, however, a warrant for the arrest of a different person on the same premises is not a controlling circumstance to establish probable cause to arrest Dorn. (People v. Valdez, supra, 196 Cal.App.3d at pp. 806-807.) Similarly, the fact that another person driving away from the same residence possessed cocaine is not a controlling circumstance to establish reasonable grounds for belief in Dorn's guilt. The only relevant circumstances here are that Dorn kept putting his hands in his pockets after he was told to remove them, and he did not respond when Gregory asked what was in his pocket. Although these two facts might have provided Gregory, like the officer in Valdez, with a " good hunch," they are insufficient to establish probable cause to arrest.
A rolled up, medium-size bag is distinguishable from the heroin filled balloons in Lee. The officer in Lee had conducted more than 100 searches involving heroin filled balloons. (People v. Lee, supra, 194 Cal.App.3d at p. 984.) Gregory had made only seven or eight arrests for possession of marijuana and had attended eight hours of narcotics training. This level of experience could not establish probable cause based on sensorial perception similar to Lee, where the officer knew the " unmistakable" feel of the balloons from his experience.
Gregory did not explain in detailed testimony, like the officer in Limon, the circumstances linking the legitimate container to criminal activity. In Limon, the officer saw a hand-to-hand transaction and observed the defendant hiding something, a transaction he had observed many times in his law enforcement career. (People v. Limon, supra, 17 Cal.App.4th at p. 530.) Gregory's testimony that he saw Dorn putting his hand in his pocket was insufficient to establish probable cause.
Because the object's identity in Dorn's pocket was not immediately apparent from the pat-down search and the officers did not have probable cause to arrest Dorn, the search was unlawful, and the items seized in the search of Dorn and the voluntary statements made by Dorn while under arrest were the products of an illegal search. The court erred by denying Dorn's motion to suppress.
I would reverse the judgment and remand the matter with directions to the trial court to grant Dorn's motion to suppress and permit him to withdraw his guilty plea.
McDONALD, J.
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[1] Terry v.
