THE PEOPLE v. ISRAEL MALDONADO (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS

After denial of his motion to suppress evidence, defendant Israel Maldonado pled no contest to carrying a concealed knife on his person, a misdemeanor, and was sentenced to three years' probation.   Defendant now appeals the denial of the suppression motion, contending the officers did not have grounds to search him.   We affirm.

PROCEDURAL SUMMARY

On September 9, 2009, the Madera County District Attorney charged defendant with carrying a concealed knife (Pen.Code, § 12020, subd. (a)(4)).   Defendant pled not guilty to the felony charge.   On October 29, 2009, he filed a motion to suppress, which the court heard on December 18, 2009, and denied on January 22, 2010.

After the information was filed, defendant renewed his motion to suppress.   Following the denial of the motion, and pursuant to a negotiated plea bargain, defendant pled no contest in exchange for reducing the charge from a felony to a misdemeanor.   The trial court imposed three years' probation and a restitution fine of $100.

On February 10, 2010, defendant filed a notice of appeal.

At approximately 2:00 a.m. on September 8, 2009, Officer Jerry Smith and his partner were dispatched to a commercial parking lot in Madera.   An employee, working on accounting records inside a tire store located on that parking lot, reported hearing noises coming from the roof of the building.   The employee then looked outside and observed a white van parked in the parking lot, which was otherwise deserted except for the employee's car.

When Officer Smith arrived at the scene, he observed the white van and the employee's car in the parking lot.   Officer Smith also observed that no businesses in the commercial parking lot were open.   In addition, while the parking lot did have some lighting stands, the area was poorly lit.   As Officer Smith and his partner approached the van, they observed three occupants located inside-two females and defendant.   The two females sat in the front and defendant sat in the back passenger seat.

As Officer Smith's partner approached the vehicle from the passenger's side, Officer Smith approached from the driver's side and stopped at the door located behind the driver's seat.   When Officer Smith tapped on the window, defendant opened the door slightly.   Officer Smith was suspicious of a possible burglary in progress so he asked defendant to step out of the van to talk.   Defendant complied.   Officer Smith asked defendant if the officer could pat search him, but defendant said nothing.   Officer Smith proceeded to conduct a pat down search of defendant.

At the time of the search, defendant was wearing a sweater and flannel pants.   Officer Smith felt a large object in the right front pocket of defendant's pants.   Believing the object to be some kind of bladed knife, the officer removed the object, which appeared to be a steak knife.   Officer Smith secured the weapon and took defendant into custody.

DISCUSSION

Defendant contends Officer Smith violated his Fourth Amendment rights when he unreasonably performed a pat-down search for weapons of defendant's person.   He argues that there was no reason for the officers to believe a burglary was in progress and therefore no reason for them to conduct more than a temporary detention of the van occupants in order to ask what the occupants were doing in the parking lot.   Defendant asserts that there was no basis for the pat-down search of him, particularly because Officer Smith did not testify that he was afraid of defendant or believed he was armed.   Therefore, defendant argues, the officer had no reasonable, articulable suspicion that defendant was armed and dangerous.   We disagree and affirm the trial court's denial of defendant's motion to suppress.

When reviewing the denial of a motion to suppress, “we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence.   We then decide for ourselves what legal principles are relevant, independently apply them to the historical facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure.”   (People v. Miranda (1993) 17 Cal.App.4th 917, 922.)

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement.  (Katz v. United States (1967) 389 U.S. 347, 353;  People v. Maury (2003) 30 Cal.4th 342, 384.)   An officer's temporary detention of a person is a reasonable seizure if the officer possesses a reasonable, articulable suspicion that the person has committed a crime or is about to commit a crime.  (Terry v. Ohio (1968) 392 U.S. 1, 30-31 (Terry ).)   The officer must be able to point to specific articulable facts that, together with rational inferences, warrant the intrusion.  (Id. at p. 21.)   Neither a hunch nor subjective good faith is sufficient.  (Id. at pp. 21-22;  People v. Castaneda (1995) 35 Cal.App.4th 1222, 1229.)   Furthermore, the officer may conduct a pat-down search for weapons if the officer has reasonable, articulable suspicion that the person is armed and dangerous.  (Terry, supra, at p. 30.)   Again, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.”  (Sibron v. New York (1968) 392 U.S. 40, 64.)

In the case before us, the officers possessed knowledge of facts that supported a reasonable inference that defendant was involved in an ongoing burglary.   The officers arrived at the scene of a commercial parking lot at 2:00 a.m. They responded to a call from an employee working in the tire store who reported hearing noises coming from the roof.   All businesses at this location were closed.   The officers observed a lone van with three occupants sitting in an otherwise deserted, poorly lit parking lot.   These highly suspicious circumstances supported a reasonable inference that the occupants of the van were connected to a burglary of the tire store.

Defendant concedes the reasonableness of an investigatory detention, but claims the officers lacked articulable facts to warrant a pat-down search.   This argument is without merit.   As we have noted, in the interest of officer safety, an officer may conduct a reasonable search for weapons “where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”  (Terry, supra, 392 U.S. at p. 27.)   Previous cases have held it is reasonable for officers to infer that potential burglars are armed with weapons or tools, such as screwdrivers or knives.  (See People v. Myles (1975) 50 Cal.App.3d 423, 430;  People v. Smith (1973) 30 Cal.App.3d 277, 279-280.)   “[A] reasonably prudent person would fear a possible burglar and burglary suspects frequently carry weapons.  [Citations.]”  (People v. Castaneda, supra, 35 Cal.App.4th at p.1230.) Because the officers had reason to believe defendant was involved in a burglary that was occurring or had just occurred, they had reason to believe he was armed and dangerous.   Accordingly, the pat-down search was justified.

Defendant is mistaken that Officer Smith was required to testify that he believed defendant was armed and dangerous.  Terry does not require that the officer articulate certain language.   Instead, Terry requires us to ask whether, under the circumstances, a prudent person “would be warranted in the belief that his safety or that of others was in danger.”  (Terry, supra, 392 U.S. at p. 27.)   This determination is based on “the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.  [Citation.]”  (Ibid.) Here, as required, Officer Smith testified to facts establishing that “a reasonably prudent man would have been warranted in believing [defendant] was armed and thus presented a threat to the officer's safety while he was investigating [defendant's] suspicious behavior.”  (Id. at p. 28.)

In summary, we conclude there were specific articulable facts in this case giving rise to an inference of a potential burglary and that the minimal intrusion of the pat-down search was reasonable to neutralize the threat of potential harm to the officers.  (Terry, supra, 392 U.S. at p. 24.)

DISPOSITION

The judgment is affirmed.

THE COURT