PEOPLE v. CAMPOS

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Joe CAMPOS, Jr., Defendant and Appellant.

No. G014809.

Decided: March 31, 1995

Ivy K. Kessel, Encino, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Esteban Hernandez, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION

Joe Campos, Jr. pleaded guilty to possession of cocaine for sale.   He appeals the trial court's denial of his motion to suppress evidence, contending he was unlawfully detained and was subjected to an unlawful patdown search which exceeded the scope of a permissible frisk.   We affirm.

On April 11, 1993, at approximately 1:45 a.m., Santa Ana Police Officer John Douphat was working on a gang suppression unit.   He was approached by a woman who said there were “four or five cholo gang members” armed with handguns, running in and out of traffic at a nearby street corner.   Douphat and his partner drove to the intersection, but no one was there.   Approximately 150 yards away, however, were eight to ten males, including Campos, standing in the driveway of a known gang hangout.   When the group saw the marked patrol car, they ran behind some parked cars.   Douphat jumped out and yelled, “Get back out to the street.”   One of the gang members, Johnny Ontiveros, ran between two duplexes.   Douphat followed and Ontiveros returned.   By then, backup units had arrived, so Douphat returned to the area between the duplexes and checked the sidewalk, where he discovered a loaded Browning .38 caliber automatic pistol.   Douphat arrested Ontiveros for possession of a loaded weapon.   The remaining suspects who initially fled were corralled and directed to kneel on the curb and submit to a patdown search.

Officer Randy Saunders responded to back Douphat up and arrived at the scene approximately five minutes after him.   He had prior experience with gangs and, based on that experience and the loaded gun found by Douphat, Saunders frisked Campos.   Before the patdown, he asked Campos if he had “any guns or anything he shouldn't have,” and Campos said he did not.   But Saunders felt “a large bundle” in Campos' left front pants pocket.   He could not determine what the bundle was, but he “believed it possibly may have been a weapon wrapped in a rag or a bag or something.”   He pulled out the bundle which turned out to be a bag of sunflower seeds, about six inches by two to three inches, and one to one and one-quarter inches thick.   At the same time he pulled the bag out of Campos' pocket, a small plastic box, approximately one inch square, also came out with the bundle.1  The small box contained 11 bindles of cocaine, and Campos was arrested for possession of cocaine for sale.

The Fourth Amendment to the Constitution reads:  “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated․”  With this in mind, we review the circumstances surrounding this search.

 The officers responded to a report of gang members armed with handguns, running into and out of traffic lanes.   One hundred and fifty yards from where the suspects were reportedly seen, they saw eight to ten males “dressed as cholos,” in an area known to be a hangout for the Santa Anita Gang.   Douphat recovered the loaded handgun before Saunders arrived.   Based on these specific articulable facts, the officers had a reasonable belief that Campos was engaged in criminal behavior and might well be armed.  (See Terry v. Ohio (1968) 392 U.S. 1, 30, 88 S.Ct. 1868, 1884–85, 20 L.Ed.2d 889;  In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   Under these facts, it was not unreasonable for Saunders to frisk Campos to make sure he was not carrying a weapon.

 Saunders felt a large object in Campos' pants pocket which yielded slightly to the touch.   Generally, an officer may not explore the contents of a person's pockets without first feeling an object during the patdown which reasonably leads him to conclude it is a weapon.   As noted by our Supreme Court in People v. Collins (1970) 1 Cal.3d 658, 83 Cal.Rptr. 179, 463 P.2d 403, “[f]eeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object.”  (Id., at p. 662, 83 Cal.Rptr. 179, 463 P.2d 403, emphasis added;  see also Minnesota v. Dickerson (1993) 508 U.S. 366, ––––, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334;  People v. Dickey (1994) 21 Cal.App.4th 952, 957, 27 Cal.Rptr.2d 44.)   However, the circumstances here are exactly the “unusual” ones which warrant such an “intrusion.”

 Saunders knew a firearm had been discarded by Campos' companion who fled from the other gang members.   But Campos had not managed to get away, and did not have an opportunity to discard a weapon.   Saunders also knew that the citizen who reported the gang activity referred to “handguns”—not just one.   Fearing that Campos might also be armed, Saunders patted him down and felt a large object, which could have been a pistol or some other weapon wrapped in a rag or bag.   Under these circumstances, and in a day when lethal pistols which can be concealed in the palm of the hand are readily available on the open market, it would be a perversion of the Fourth Amendment to say the officers acted unreasonably when they seized the bag.

 The reasonableness of any search must be analyzed in the context of modern weaponry and the surrounding circumstances of the initial stop.   The fact that the bulky package contained only sunflower seeds instead of a knife or small caliber pistol is irrelevant.   The package could have contained a dagger or derringer or some other unconventional weapon such as a butterfly knife.   Prudence, let alone sanity, dictated that Officer Saunders search further.   Requiring a police officer to discontinue a search because he or she failed to feel a nine millimeter sidearm is absurd.   In a dangerous street encounter, and in the climate of our times, we must defer to the judgment and discretion of the trial court.   And, more importantly, we should not, under these facts, second-guess the officer in the field.   To do so would be “ivory tower,” Monday morning quarterbacking at its worst.   Here, the information given to the officers by the neighbors, and the discovery of a loaded revolver discarded by Campos' fleeing companion, constituted “unusual circumstances” and the officer's fear should not be lightly dismissed.

As stated in People v. Dickey, “The judiciary should not lightly second-guess a police officer's decision to perform a patdown [sic ] search for officer safety.   The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.”  (People v. Dickey, supra, 21 Cal.App.4th at p. 957, 27 Cal.Rptr.2d 44.)   So, in T.P. v. State (Fla.Dist.Ct.App.1991) 585 So.2d 1020, the court found a seizure of cocaine permissible where an officer saw a bulge in the defendant's pocket, conducted a patdown search and felt a hard object, because there were reasonable grounds to suspect the object was an unconventional weapon.  (Id. at p. 1021.)   The court observed that, “although the object was a bit small to be a conventional weapon, [the officer] feared it might be one of the new, unconventional weapons he had been apprised of through police bulletins.   These new unconventional weapons include firing mechanisms as small as a fountain pen, and a pager that is convertible into a .22 caliber pistol.”  (Ibid.)

As our Supreme Court stated in People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1,2 we should not “overlook the fact that ‘American criminals have a long tradition of armed violence’ [citation], and that a significant number of assassinations of officers occur when they are engaged in making routine traffic stops and investigations.”  (Id. at p. 745, 117 Cal.Rptr. 393, 528 P.2d 1, quoting Terry v. Ohio, supra, 392 U.S. at p. 23, 88 S.Ct. at p. 1881.)   In Hill, the defendant attempted to flee, but the officers stopped and frisked him, discovering a large roll of money visible inside his open jacket.   The court held the officers were permitted to continue a limited search, during which one of the officers felt a matchbox and removed it from the pocket.   It contained contraband.   The Supreme Court stated, “We are not prepared to hold that under all the circumstances, which by then included the unexplained presence of a large roll of currency together with [defendant's] evasive answer as to the source of the money, a prudent man could not have reasonably believed that a three-inch long, hard object might be an instrument of assault.  [The officer], therefore, was justified in reaching inside [defendant's] pocket and removing the matchbox.”  (Id at pp. 746–747, 117 Cal.Rptr. 393, 528 P.2d 1.)   Likewise here, even though Officer Saunders could not immediately determine the nature of the bundle, he feared it was a weapon wrapped in a bag or rag and, having felt the object, was unable to conclude it was not a weapon.   It is important to keep in mind that the contraband popped out of Campos' pocket as the officer removed the bag.   This is not a case where the officer found a bag of sunflower seeds and emptied it out only to find cocaine.   The officer felt a large object capable of concealing a weapon.   He pulled it out of Campos' pocket and the contraband came out with it.   Under these facts, we cannot say the officer acted unreasonably, and case law from other jurisdictions supports our holding.

In State v. Evans (1993) 67 Ohio St.3d 405, 618 N.E.2d 162, the Ohio Supreme Court affirmed a patdown where the officer discovered a “large bulk” in the suspect's left front pocket.   Although the officer knew the bulk was not a gun, he testified he could not say it was not a knife because, “I've seen knives come in all shapes and sizes.”  (Id. 618 N.E.2d at p. 171.)   The Evans court concluded it was reasonable for the officer to fear the object could be a weapon, because, “through his sense of touch as well as his experience on the police force, [the officer] was unable to conclude that the object was not a knife or other weapon.”  (Ibid.;  see also Thomas v. State (1988) 185 Ga.App. 832, 366 S.E.2d 177, 178 [motion to suppress denied where officers, conducting patdown search for weapons, forcibly removed suspect's hand from his pocket, and a soft drink can fell out;  it was punctured in a way employed by drug users for “crack” cocaine, and warranted further search uncovering cocaine.].)

In United States v. Maldonado (5th Cir.1995) 42 F.3d 906, the court affirmed the denial of a suppression motion where the officer saw a bulge in the right front pants pocket of the defendant and, suspecting a weapon, asked for permission to pat him down even though the defendant said it was just money.   In fact, the bulge was money, but, based on the defendant's nervous behavior and the officer's fear for his safety, he conducted a full patdown and discovered another bulge in one of defendant's boots.   Again suspecting a weapon, the officer reached into the boot and removed a rounded duct-taped package which proved to contain heroin.   The court noted that, as in the instant case, the officer reached in and removed the package in one continuous motion (id., at p. 910), and added, “Needless to say, it is quite arguable that this was the safest procedure to follow.   For example, by delaying with his hand in the boot in order to try to determine the nature of the item, [the officer] could have arguably placed himself in a vulnerable position to attack by [defendant]․”  (Id. at p. 910, fn. 8.)3

In United States v. El–Gabrowny (S.D.N.Y.1993) 825 F.Supp. 38, the court denied a motion to suppress evidence obtained by officers in a patdown search of one of the defendants involved in the bombing of the World Trade Center.   Officers were executing a search warrant of defendant's apartment when he approached them with his hands in his pockets.   One officer removed defendant's hands from the pockets and proceeded with a patdown search;  he found a yellow envelope which was folded and fastened with rubber bands.   It proved to contain forged and altered passports and birth certificates.   Nevertheless, the search was reasonable to ensure the officers' safety.   As the court stated, “Nor was it unreasonable in these circumstances to treat the rectangular object the officer felt in [defendant's] pocket as a potential source of danger, despite the fact that the World Trade Center bomb itself apparently was not composed of plastic explosives.”  (Id. at p. 42.)

 As these cases make clear, our review of a ruling on a motion to suppress must be made in deference to the trial court's factual findings, with a recognition of modern technology and weaponry and an understanding of the climate of the times.

In State v. Butler (1994) 278 N.J.Super. 93, 650 A.2d 397, the court upheld a patdown search of a defendant seated alone in his car with the rear vent window broken, the engine running, in a motel parking lot far from the registration office and in a high crime neighborhood.   The officers asked for identification, registration, and proof of insurance, and defendant asked to get out of the car to remove his license from his jacket.   Before he could do so, the officer patted him down and felt what appeared to be a bulletproof vest.   Fearing for his safety, the officer conducted a further search and felt a hard object which he believed to be a “firearm speed loader.”   The object turned out to be a plastic bag filled with marijuana and a silver foil packet containing hashish.   However, a further search of the vehicle uncovered a loaded .357 magnum revolver.   The court affirmed the denial of the motion to suppress, stating, “While this court has not been reticent in going beyond naked constitutional right as defined by the United States Supreme Court, we think we should not so act in the circumstances here.   To do so in the face of the violent climate of the times and the universal threat of handguns, particularly to the policeman as he carries out official duties, would seem foolhardy and wrong, and needlessly expose society and the police community to serious risk of death or injury.”  (Id. 650 A.2d at p. 404.)

In United States v. Michelletti (5th Cir.1994) 13 F.3d 838, the court affirmed a patdown of defendant, who was holding a beer in his left hand, with his right hand in his pocket, as he was leaving a bar in the early morning hours.   The officer conducted a quick frisk of the right pocket and immediately recognized and uncovered a .22 caliber pistol.  (Id. at p. 840.)   The dissent contended the officer had no reasonable grounds to believe the defendant had a gun in his pocket so the motion to suppress should have been granted.   However, as one of the concurring justices stated, “[W]hen [defendant] unexpectedly appeared on the scene, [the officer] had only a matter of seconds to assess the significance of that turn of events, and I believe what struck [the officer] as most significant was the fact that [the defendant] had his right hand in his pocket.   I doubt seriously that [the officer] gave any consideration during those few seconds of time to the intricacies of the Texas Alcoholic Beverage Code, nor did he remember the death of a fellow officer in the line of duty․  But with the intuition born of experience, [the officer] sensed danger, and the actions which [the officer] took then were those most reasonable and appropriate to ‘neutralize the threat of physical harm’ to himself, his fellow officer and the other individuals who were the subjects of their original investigation.   Just as in baseball, we give a tie to the runner, and in football, we give a simultaneous catch to the receiver, I think in this case the close call goes in favor of the reasonableness of [the officer's] actions.”  (Id. at p. 845 [conc. opn. of DeMoss, J.].)

In State v. Pavelek (1993) 122 Or.App. 181, 857 P.2d 863, the court affirmed a search where the officers removed what turned out to be a hash pipe from defendant's pocket.   The court felt the officers—who had observed the defendant and his wife crouch down in their car and then discovered two loaded firearms in the vehicle—“reasonably assumed [defendant] might have additional firearms concealed in the car or on his person.”  (Id. 857 P.2d at p. 866.)   The court's holding is equally applicable here:  “Under these circumstances, the officers were not required to turn away and stroll off into the night as potential targets.”  (Ibid.)

We emphasize this is not the situation where an officer knows what he touches is harmless 4 (cf. People v. Leib (1976) 16 Cal.3d 869, 876, 129 Cal.Rptr. 433, 548 P.2d 1105);  this officer subjectively feared a possible weapon, albeit an unusual one.   Given the climate of the times, the proliferation of new, unusual, unconventional weapons, and the constant threat of attack on officers even when they are engaged in routine traffic stops or investigations, we are not prepared, in the safety of our quiet chambers, to second-guess the actions of the officers or the findings of the trial court.   Officer Saunders was presented with circumstances which warranted his “intrusion into [defendant's] pocket to retrieve the object” (People v. Collins, supra, 1 Cal.3d at p. 662, 83 Cal.Rptr. 179, 463 P.2d 403), and the motion to suppress was properly denied.

The judgment is affirmed.

The officers had a reasonable belief based on specific and articulable facts that Campos was engaged in criminal behavior and might be armed.  (See Terry v. Ohio (1968) 392 U.S. 1, 30, 88 S.Ct. 1868, 1884–85, 20 L.Ed.2d 889 and In re Tony C. (1978) 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   That merely justified the patdown, however;  it is not the end of the analysis.

Officer Saunders stated he felt a large, pliant object in Campos' pants pocket.   But “[a]n officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.”  (People v. Collins (1970) 1 Cal.3d 658, 663, 83 Cal.Rptr. 179, 463 P.2d 403.)

Saunders testified he did not feel the hard, plastic container before he reached into Campos' pocket.   It is inconceivable that Saunders, or any reasonable officer, could have believed the bag of sunflower seeds was some sort of atypical weapon, let alone a gun or knife, whether it was wrapped or unwrapped.   And “[f]eeling a soft object in a suspect's pocket during a pat-down, absent unusual circumstances, does not warrant an officer's intrusion into a suspect's pocket to retrieve the object.”  (Id. at p. 662, 83 Cal.Rptr. 179, 463 P.2d 403;  see also People v. Dickey (1994) 21 Cal.App.4th 952, 957, 27 Cal.Rptr.2d 44.)   The circumstances of this case were not sufficiently unusual to warrant Saunders' intrusion into Campos' pocket.

Saunders articulated no other facts that might support exceeding the limits of Terry.  (See Minnesota v. Dickerson (1993) 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 [dictum suggesting seizure of contraband during a Terry search would be approved where the item's incriminating character is immediately apparent].)   The officer simply did not know what the object was until it was out of Campos' pocket.   Consequently, its removal was unjustified and Campos' motion to suppress should have been granted.

The court's fanciful speculations are not sufficient to sustain this search.   I do not demand the certainty claimed by the majority in its footnote 4, but an officer must have some basis for believing an object is a weapon before he fishes it out of a person's pocket.   A bald, baseless assertion of officer safety—which is all that this record discloses—is simply not enough to justify such a personal intrusion.   I would reverse.

FOOTNOTES

1.   The testimony went like this:  “Q:  When you retrieved the sunflower seeds, was the one-by-one container inside the bag of sunflower seeds?  [¶] A:  No, Sir. [¶] Q:  Was the sunflower seed bag wrapped around the plastic container?  [¶] A:  It was underneath the bundle that I felt.   [¶] Q:  What I'm asking, were these two objects wrapped together somehow so when you reached in the pocket and pulled one out, the other one inevitably came out with it?  [¶] A:  When I reached in and grabbed the large bundle, the small box came with it.”

2.   Overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 135 Cal.Rptr. 786, 558 P.2d 872.

3.   Similarly, the court here stated, “[The officer] didn't feel [the box].   He didn't try to retrieve it.   That wasn't the object of his Terry search.   It was inadvertently discovered and came into plain sight.   That is clear, and I think once it was inadvertently discovered, apart of ․ a pat-down for weapons and the examination of items, that is splitting it too fine to say that he had to stick it back in the gentleman's pocket and forget that he saw it.  [¶] I don't think the law demands that, and I am not prepared to hold that the law demands that.”   We agree.

4.   The dissent paraphrases the rule as saying an officer cannot intrude into a pocket until he knows for certain that its contents include a weapon.   But that is not the rule;  otherwise, the searches in Hill, supra, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, T.P. v. State, supra, 585 So.2d 1020, State v. Evans, supra, 618 N.E.2d 162, United States v. Maldonado, supra, 42 F.3d 906, and United States v. El–Gabrowny, supra, 825 F.Supp. 38 would all have been found unreasonable.

SILLS, Presiding Justice.

WALLIN, J., concurs.