PEOPLE v. LOPEZ (1988)

Following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5, Ramon Lopez entered a negotiated plea to the charge of possession of cocaine in violation of Health and Safety Code section 11350.   On appeal, he challenges the trial court's adverse ruling on the ground that evidence of his guilt was obtained as a result of an unlawful protective search for weapons.   We find his contention to be meritorious and accordingly reverse the judgment.

BACKGROUND 1

On May 14, 1987, at approximately 4 a.m., uniformed Salinas Police Officer Terri Gonzalez was on routine patrol in a marked police car when she saw two men riding a bicycle in an area with a high incidence of nighttime burglaries, robberies, thefts and assaults.   Defendant was the driver of the bicycle.   The passenger was riding on the handlebars of the bike, which did not appear to have a headlight.   The officer knew that the Salinas City Code prohibited any one from riding on the handlebars.   Officer Gonzalez waved to the men to pull over.   Although defendant saw her wave, he continued travelling until the officer turned the patrol car around and pulled the bicycle over.

When Officer Gonzalez made contact with the individuals, the person riding on the handlebars dismounted.   Defendant, who was cooperative during the incident, was wearing a “big” long shirt which came down to his thighs.   Due to the fact that she was alone and feared for her safety, the officer conducted a pat search of both men in order to determine whether they were carrying any weapons.   When she frisked defendant, she felt a hard, long object on the left side of his waist band which she suspected to be a knife or metal object.   She ordered defendant to keep his hands up, and pulled out a twelve-inch bayonet from underneath defendant's shirt.   She then arrested defendant for violating Penal Code section 12020, subdivision (a).

After defendant was placed in the rear of the patrol car, the passenger, who had been released, returned and asked if he could retrieve some money belonging to him from defendant's wallet.   Defendant authorized Officer Gonzalez to give the passenger the money in his wallet.   As the officer did so, she noticed a crumpled bill in the wallet.   Based on her experience and training, she suspected there might be cocaine or heroin wrapped inside the bill.   After she gave the passenger the money, defendant asked her to “[j]ust give him the whole wallet.”   Officer Gonzalez refused and returned the wallet to defendant.   A booking search at the police station resulted in the seizure of a bindle of cocaine which was concealed inside the crumpled bill.

Officer Gonzalez testified she conducted a pat search of the passenger “[f]or my own safety,” in search of “[a]ny hard object;  knives, guns.”   Asked why she searched defendant, she responded “[for] [w]eapons also.”   When asked on cross-examination whether she had any reason to believe the men were armed, the following testimony was adduced:

“[Officer Gonzalez]:  I had felt that my safety would—having two people on a bike or having two people that I'm contacting, I felt for my own safety I should pat search them for weapons.

“[Defense Counsel]:  ․ Did you have any reason to believe they were armed;  these two gentlemen—or actually Mr. Lopez in particular?

“[Officer Gonzalez]:  I didn't see.

“ ․

“The Court:  No, the question was whether or not she thought they were armed.   Had you any reason to believe that they were armed?

“[Officer Gonzalez]:  I thought that they might be.

“[Defense Counsel]:  Did you have any particular facts, any knowledge before you that Mr. Lopez might have a weapon on him?

“[Officer Gonzalez]:  No.   As I said, I didn't recall him.   I don't know whether or not he carries weapons.   And I felt my safety was—

“ ․

“[Defense Counsel]:  ․ [W]hen you stopped Mr. Lopez on the bicycle, did you see any weapons?

“[Officer Gonzalez]:  No.

“[Defense Counsel]:  Did you see any bulges?

“[Officer Gonzalez]:  No, I did not.

“[Defense Counsel]:  Had you received any reports of burglary?

“[Officer Gonzalez]:  No, I had not.

“[Defense Counsel]:  Had you received any reports of a theft?

“[Officer Gonzalez]:  No, not at the time.

“[Defense Counsel]:  Had you received any reports of a robbery?

“[Officer Gonzalez]:  No.

“[Defense Counsel]:  Had you received any reports of any crimes having been committed that you tied Mr. Lopez in with?

“[Officer Gonzalez]:  No.

“[Defense Counsel]:  Were there any burglar alarms going off when you stopped him?

“[Officer Gonzalez]:  No, sir.

“[Defense Counsel]:  Did they make any furtive gestures while you had them stopped?

“[Officer Gonzalez]:  No.”

The main thrust of the People's argument below was that the search was proper due to the fact that it was incident to an arrest and no additional justification was required.   Accordingly, the People argued that Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 was not applicable.

The court disagreed with the prosecutor's contention that a citation may be the sole justification for a pat search, but denied the motion on the ground that there was reasonable cause for the officer to fear for her safety:  “I just flat out disagree that an officer has a right to pat search a person subject to a citation detention.   But here it's more than somebody on a bicycle, it's two men, substantial—the gentleman in front of me is a young man, obviously physically endowed.   4:00 a.m. in the morning, both on a bicycle in a very high crime area.   None of these things by [themselves] can justify it but together they may have some meaning.   When the officer signals them over they keep going.   The only thing that can reasonably be deduced from that is there's some motive in the mind ․ single officer, 4:00 a.m. with these two gentlemen out on [a] bicycle with no lights on in some high crime area and then they ignore the request to pull over.   I think there was some reason to be a little concerned about safety in that situation, enough to justify a pat search.”

DISCUSSION

Defendant renews his contention that the pat search which occurred here was unlawful.   Specifically, he contends that the vehicle code infractions which gave rise to his seizure (Veh. Code, §§ 21201, subd. (d), 21204, subd. (b), 40000.5–40000.21) subject the violator to arrest only in a technical sense since the arresting officer is not authorized to take the violator into custody absent certain exceptions which do not apply here.   Instead, the officer must permit the arrestee to execute either a promise to appear or, in the case of equipment violations, a notice containing a promise to correct the violation.   Defendant therefore argues that the instant case is not governed by authorities pertaining to searches incident to a full custodial arrest, but rather by the principles of Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, which permit a pat-down search only where the officer “has reason to believe that he is dealing with an armed and dangerous individual.”  (Id. at p. 27, 88 S.Ct. at p. 1883.)   Defendant asserts the record establishes that there were no such facts here.

Citing Gustafson v. Florida (1973) 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, the Attorney General contends that the law pertaining to full custodial arrests, which allows a search incident to arrest with no additional justification, is apposite.   Alternatively, it is argued that even under the Terry standard, the facts here justified the search.

We begin our analysis with the companion case to Gustafson, United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.   In that case, a veteran police officer suspected defendant was driving on a revoked license based on an investigation he had conducted some four days earlier.   At the time, this offense carried “a mandatory minimum jail term, a mandatory minimum fine, or both.”  (Id. at p. 220, 94 S.Ct. at p. 469.)   After stopping defendant's car, Officer Jenkins placed defendant under arrest.   Defendant conceded that the police officer had probable cause to make the arrest and that a full-custody arrest was effected.   In accordance with police department regulations, which directed officers to make a summary arrest for this particular offense and to take the violator, in custody, to the station house for booking, Officer Jenkins frisked defendant.   During the pat-down, he felt an object in defendant's pocket.   He retrieved the object, which turned out to be a crumpled cigarette package.   The officer could feel objects inside the package which were not cigarettes.   He therefore opened the package and found capsules containing heroin.   Thereafter, defendant was convicted of possession and facilitation of concealment of heroin.

The high court upheld the search on the ground that a search incident to a custodial arrest “requires no additional justification.   It is the fact of the lawful arrest which establishes the authority to search․”  (United States v. Robinson, supra, 414 U.S. at p. 235, 94 S.Ct. at p. 477.)   Because of the fact that the officer made a full-custody arrest, the court declined to reach the question of the officer's authority to search incident to a “ ‘routine traffic stop,’ i.e., where the officer would simply issue a notice of violation and allow the offender to proceed.”  (Id. at p. 236, fn. 6, 94 S.Ct. at p. 477, fn. 6.)

In Gustafson v. Florida, supra, the defendant was arrested in the State of Florida for driving without a license.   The defendant conceded that the officer had probable cause to arrest him and transport him to the station house upon learning that he did not have a license in his possession.   After completing a pat-down search, the officer reached into defendant's left front coat pocket and retrieved a cigarette box.   The officer opened the box and found marijuana cigarettes inside.

On appeal, the defendant argued that the search conducted by the officer was controlled by the standards set down in Terry.   He attempted to distinguish his case from Robinson by citing the “benign [and] trivial ․ nature” of the underlying offense, the fact that the charge carried no mandatory minimum sentence, and the absence of any police regulations requiring the officer to take the violator into custody.   Here, as in Robinson, the officer did not contend that the search was conducted due to officer safety.  (Gustafson v. Florida, supra, 414 U.S. at pp. 263–266, 94 S.Ct. at pp. 491–492.)

Once again, the Supreme Court upheld the search as incident to a lawful custodial arrest.  (Gustafson v. Florida, supra, 414 U.S. at pp. 263–266, 94 S.Ct. at pp. 491–492.)   Despite the fact that the officer was not required to take the defendant into custody, as was the case in Robinson, the court found that upon arresting the defendant and taking him into custody, the officer was entitled to make a full search of his person incident to that lawful arrest.  (Id. at pp. 265–266, 94 S.Ct. at pp. 491–492.)

Robinson and Gustafson are inapplicable to the case at bench.   Both cases involved a custodial arrest followed by a lawful search incident to that arrest.  Robinson itself recognized that its holding was not applicable to a “ ‘routine traffic stop,’ i.e., where the officer would simply issue a notice of violation and allow the offender to proceed.”  (United States v. Robinson, supra, 414 U.S. at p. 236, fn. 6, 94 S.Ct. at p. 477, fn. 6.)   And in Gustafson, the officer, while not required to make a custodial arrest, had the authority to and did take the defendant into custody.   Here, as defendant correctly points out, the officer was not permitted to make a custodial arrest for the Vehicle Code infractions involved absent specific exceptions enumerated by the Vehicle and Penal Codes which are not here applicable.  (Veh.Code, §§ 40300, et seq., 40500, 40504, 40610;  Pen. Code, § 853.5.)

 Our Supreme Court has addressed the scope of an officer's authority to search in the context of Vehicle Code infractions and has applied the standard set forth by the United States Supreme Court in Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868.   Absent specific facts or circumstances giving the officer reasonable cause to believe the violator is armed or dangerous, a pat-down or limited search for weapons is not permissible where the offender is to be cited and immediately released.  (People v. Lawler (1973) 9 Cal.3d 156, 160–162, 107 Cal.Rptr. 13, 507 P.2d 621;  People v. Superior Court (1972) 7 Cal.3d 186, 206, 101 Cal.Rptr. 837, 496 P.2d 1205.)   Accordingly, the determinative question here is whether the present circumstances gave rise to such a belief.   We hold that they did not.

In Terry, the Supreme Court formulated the following standard for a protective search for weapons:  “․ [T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, 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.   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.  [Citations.]  And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.  [Citation.]”  (Terry v. Ohio, supra, 392 U.S. at p. 27, 88 S.Ct. at p. 1883, fn. omitted.)

The People claim a protective search for weapons was justified here in view of the fact that the officer was alone on patrol in a high crime area at 4 a.m., that she was initially ignored when she signalled the driver to pull over, and the fact that she was confronting two men, all of which gave rise to a legitimate concern for officer safety.   We disagree.

We find the facts in Santos v. Superior Court (1984) 154 Cal.App.3d 1178, 202 Cal.Rptr. 6 instructive.   In that case, Officers Di Corti and Maier approached and detained two individuals in a parking area closed to the public after observing the men exchange an unidentified object at about 10 p.m. on a Friday night.   Officer Di Corti spoke with one of the men while Officer Maier took Santos aside (about ten feet away from the other officer) and asked him to explain his presence in the parking lot and to tender some identification.   The officer also pat searched Santos and discovered a sheathed knife in his belt.

Officer Maier testified he conducted the search based on standard procedure and training.   He also explained that on Friday and Saturday evenings there were problems in that area with cruisers, drug or alcohol-related violations, vandalism and thefts.   He also cited the hour of the stop, and Santos's suspicious activity as further justification for the search.

On appeal, the People argued the search was justified because the officer was alone with Santos, Santos had no identification, might well have been involved in a drug transaction, and had apparently violated a municipal ordinance prohibiting loitering around closed businesses.   The court of appeal found the detention proper, but held that the pat search did not pass constitutional muster:  “Curiously missing is any mention of the possibility petitioner might possess a weapon.   Neither being alone with a police officer nor failing to possess identification signals that a person is armed and dangerous.   Nor may a police officer assume that any person possibly engaged in a narcotics transaction or a municipal code violation is armed and dangerous.”  (Santos v. Superior Court, supra, 154 Cal.App.3d at p. 1185, 202 Cal.Rptr. 6.)

 In the instant case, Officer Gonzalez could articulate only an unparticularized suspicion or hunch that the defendant was armed or dangerous.   As the Santos court noted, being alone with a police officer does not signal that a person is armed and dangerous.   Nor does the relative size of a suspect, in and of itself, justify a protective search for weapons.   The same may be said of a situation where a single officer confronts two individuals.   None of these factors is based on the requisite standard which contemplates a reasoned approach to a protective search for weapons, based on an articulable fear for one's safety.  (U.S. v. Thomas (9th Cir.1988) 844 F.2d 678, 684–685.)

Furthermore, the “ ‘nighttime’ ” and “ ‘high crime’ area” factors do not constitute “ ‘activity’ ” by a citizen and must be appraised with caution in evaluating the propriety of an intrusion.  (People v. Bower (1979) 24 Cal.3d 638, 645, 156 Cal.Rptr. 856, 597 P.2d 115.)

We do not believe that the fact that the defendant ignored the officer's signal to pull over, when considered with the other points stressed by the People, gave rise to a warranted suspicion that the defendant was armed and dangerous.   There is no indication that defendant sped up at the officer's signal or took any other evasive or furtive action.   When the officer pulled in behind the bicycle, the defendant stopped and exhibited a cooperative demeanor.   Defendant made no abrupt, suspicious or furtive movements during the encounter.   And clearly, the Vehicle Code infractions did not constitute criminal activity inherently dangerous or violent.   The officer here did not see any weapons or bulges in defendant's clothing, had no indication of any crime having been committed in the area, and could not articulate any specific facts warranting a belief that the defendant was armed or dangerous.

For the foregoing reasons, we hold that the trial court erroneously denied the motion to suppress evidence.

The judgment is reversed.

If I had been in the shoes of the solitary Officer Gonzalez, I would have foregone stopping these two fellows at 4 a.m. unless I could have pat-searched them for weapons before rendering myself totally vulnerable with both of my hands occupied while issuing the citation.   The only other alternative was to radio for a backup unit before writing this two-bit ticket and thereby diverting the already thinly spread police force from more important tasks.

Every civilized society must strike a balance between the right of the individual to be free of oppression and the right of the community to protect itself against predators.   This case illustrates how far the law of our land is skewed away from protection of society in general and of the policeman in particular.   High court judges on their Olympian perch are ill-equipped to weigh the officer's “reason to believe that he is dealing with an armed and dangerous individual.”   The informed judgment of a street-wise cop may strike us sheltered types as a mere hunch.   Here it is clear that Officer Terri Gonzalez's concern for her safety was genuine and well-founded even though she could not point to an objective basis for belief that the defendant and his companion were armed.   As frisking a person entails a relatively minor intrusion on privacy, People v. Scott (1976) 16 Cal.3d 242, 248, 128 Cal.Rptr. 39, 546 P.2d 327;  People v. Longwill (1975) 14 Cal.3d 943, 950, 123 Cal.Rptr. 297, 538 P.2d 753, the law ought to permit an officer in the field to utilize this protective measure unless the circumstances determine it to be pretextual.

FOOTNOTES

1.   The motion was submitted on the basis of the preliminary hearing transcript, from which our factual summary is derived.

CAPACCIOLI, Associate Justice.

AGLIANO, P.J., and BRAUER, J., concur.