PEOPLE v. NAVARRO (1982)

The People appeal from an order of dismissal entered after the trial court granted defendant's motion to suppress evidence.   We affirm.

FACTS

The facts are not disputed.

Deputy Sheriff O'Brien, working with a partner, was patrolling the Pacific Coast Highway in July at about 6:30 p.m.   He observed a vehicle make several unsafe lane changes.   The deputy signaled the vehicle to stop, to issue the driver a citation for illegal lane changes.   The vehicle stopped immediately.   When the deputy approached the vehicle, he saw defendant, a passenger, who was “dressed in obvious military garb, ․ a green fatigue jacket with various military insignia, ․ a green military type beret with military insignia on it, ․ military boots and ․ a lanyard, ․ attached to the right epaulet on the jacket,” which held “a large eight inch blade survival knife.”   The knife about, 12 or 14 inches in overall length, was in a sheath.   Possession of the knife was lawful.   Both the driver and defendant were cooperative.

The deputy was “very concerned because of those two observations, the knife and the military garb and the insignia, and the like, there was a good possibility that there were additional weapons in the car, possibly in the car and on the two individuals.”   Also, over the “last two summers,” there had been “numerous arrests made of Weapons Law violations” on the Pacific Coast Highway in Malibu.   The deputy ordered the driver and defendant to exit the vehicle to conduct a patdown search.   Defendant was wearing a “very large, very bulky” typical field jacket, with large breast pockets as well as large lower pockets.   The deputy removed the knife from defendant's jacket and then conducted a patdown search.   The search revealed the outline of a small handgun;  the deputy removed the weapon.   Defendant was charged with possession of a concealable firearm by an ex-convict.

DISCUSSION

The People contend that the trial court erred in ruling that the patdown search of defendant was unlawful.   We disagree.

We assume that the deputy was honestly concerned for his safety.   Still, we are aware of no case and no rule that permits an officer to patdown search an individual, unless the officer has a right either to detain or to arrest that individual.  (See, e.g., Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.)   In this case, the fact that the driver committed the infraction of illegally changing lanes provided no basis to detain or arrest defendant, the passenger, and nothing occurred after the stop to provide grounds to detain or arrest him.   Defendant's offensive garb and his carrying a sheathed knife provided no grounds for detention;  the deputy's vague reference to “numerous arrests” for weapons violations was unconnected to that aspect of defendant that frightened the deputy.

The cases relied on by the People do not apply.   Each involves a situation in which the officer had grounds either to detain or arrest the suspect, in addition to grounds to believe his safety was jeopardized.

In People v. Suennen (1980) 114 Cal.App.3d 192, 170 Cal.Rptr. 677, the officer who had stopped a vehicle for a traffic infraction, saw inside the vehicle in plain view a large knife, a pair of leather gloves, two cans of beer and a large partially filled pillowcase.   The officer had recently received information concerning a series of “pillowcase burglaries” in the area.   (114 Cal.App.3d at p. 197, 170 Cal.Rptr. 677.)   A patdown of the passenger was held lawful.   But in Suennen, the officer had reasonable grounds to suspect that both the driver and the passenger were burglars.  (Id., at p. 199, 170 Cal.Rptr. 677.)   The initial traffic stop was irrelevant.

Similarly, in People v. Todd (1969) 2 Cal.App.3d 389, 82 Cal.Rptr. 574, the officer, who stopped a vehicle for an equipment violation, had ample grounds to suspect both the driver and the passenger of having committed at least one serious offense:  he observed a makeshift ignition, a broken wing window, a torn-out rear seat, and a disposable type of needle on the car floor;  the driver could produce no registration and produced only an out-of-state license.  (2 Cal.App.3d at p. 391, 82 Cal.Rptr. 574.)

In People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 168 Cal.Rptr. 915, the defendant was observed jaywalking, twice ignored orders to stop, and held his hands in front of his waist, where there appeared to be a bulge.  (111 Cal.App.3d, at pp. 954–955, 168 Cal.Rptr. 915.)   A patdown search was held lawful;  again, the officer had the right to detain the suspect.

Finally, United States v. Wiga (9th Cir.1981), 662 F.2d 1325, quoted for language that occupants of a lawfully detained motor vehicle may be ordered out of a vehicle and “with reasonable suspicion that the occupants are carrying weapons, arresting officers may lawfully subject such occupants to patdown search” (662 F.2d at pp. 1332–1333) involved no such facts.   In Wiga, the officers searched the suspect and the interior of a motor home;  no mere occupant was searched.  (Id., at p. 1328.)   Moreover, the cases cited to support such a rule do not.  (United States v. Berryhill (9th Cir.1971), 445 F.2d 1189;  Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.)

We can fully appreciate the officer's concern for his own safety.   However, where as here two deputies confronted two suspects, the officer's safety could have been protected by the less intrusive precautionary measure of ordering defendant to exit the car and to keep his hands in sight.  (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 206, fn. 13, 101 Cal.Rptr. 837, 496 P.2d 1205;  People v. Beal (1974) 44 Cal.App.3d 216, 220–221, 118 Cal.Rptr. 272;  People v. Figueroa (1969) 268 Cal.App.2d 721, 726–727, 74 Cal.Rptr. 74.)   In this case, the officer had a good hunch that defendant was likely to possess more weapons than the highly visible 14-inch knife.   A hunch, however, is not sufficient to justify a patdown search of the occupants of a vehicle in connection with a routine traffic stop.  (People v. Cassel (1972) 23 Cal.App.3d 715, 718–719, 100 Cal.Rptr. 520.)   The trial court properly granted defendant's motion to suppress.

Affirmed.

I respectfully dissent.   I would reverse the judgment (order) granting defendant Richard Lejose Navarro's (hereinafter defendant and/or Navarro) motion to suppress the evidence made pursuant to Penal Code section 1538.5. (hereinafter section 1538.5) and dismissing the case.

Defendant Navarro was charged by way of an information of being in possession of a concealed firearm on July 31, 1980, after previously having been convicted of a felony (robbery) in violation of the dangerous weapons control law (Pen.Code, § 12021).

It is first noted that had the evidence presented at defendant Navarro's motion to suppress been in controversy, I would be bound by that ruling if it was supported by substantial evidence.   However, where the relevant evidence is uncontroverted, as in the instant case, I am not so bound and must “measure the facts ․ against the constitutional standard of reasonableness.”   (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Following is a summary of the uncontroverted evidence presented by Deputy Sheriff John O'Brien, the sole witness, at the hearing on the defendant's motion to suppress as evidence the concealed firearm.

On July 31, 1980, about 6:30 p.m. o'clock, uniformed Deputy Sheriff John O'Brien while on duty in a marked sheriff's vehicle with his partner, Deputy Cheryl Edler, on the Pacific Coast Highway in Malibu observed a vehicle about 25 yards ahead of him make several lane changes in moderate to heavy traffic without any indication of signaling and creating a hazard in violation of Vehicle Code section 21658.   Deputy O'Brien stopped the vehicle, a 1971 pick-up with a camper shell.   As Deputy O'Brien approached the vehicle for the purpose of issuing the driver a citation, he observed that the defendant, who was in the passenger seat, was dressed in military garb, a green fatigue jacket with various military insignia, green military beret with insignia, military boots and a leather sheath containing a 14-inch survival knife, with a 8-inch blade, which was attached to an epaulet on the jacket by means of a lanyard.   The jacket was a typical bulky field jacket with large breast pockets and large lower pockets.

Because of these observations Deputy O'Brien asked the driver, a male, and defendant Navarro to get out of the vehicle for a pat-down search because he believed that it was likely there were additional weapons on the individuals and he (Deputy O'Brien) was concerned for his own safety.

In patting down the defendant the deputy felt the outline of a small handgun in the left lower pocket of the defendant's jacket.   He removed a single shot Derringer pistol, which was loaded, from that pocket.   The Derringer also had an extra round of live ammunition taped to the gun butt.

The following colloquy took place on direct examination:

“Q [By Deputy District Attorney Miller.]  Why did you ask these individuals to get out of the pick-up?

“A [By Deputy John O'Brien.]  Specifically for my own safety.   Over the last two summers, there have been numerous arrests made of Weapons Law violations ranging anywhere from carrying concealed weapons to sawed-off shotguns, to automatic weapons.   They are becoming more and more common.

“Q Where is that, what area?

“A On Pacific Coast Highway in Malibu.”

After defendant Navarro was placed under arrest for carrying a loaded and concealed firearm, the interior of the vehicle was searched and a loaded .38 caliber revolver and ten steel SHORIEKENS ¹ were recovered from under the passenger seat of the vehicle.

I secondly note that while this matter was pending decision the Proposition 8 initiative was passed on June 8, 1982 (effective June 9, 1982), and that the Supreme Court held the initiative facially constitutional in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.   In Wilson v. Superior Court (1982) 134 Cal.App.3d 1062, 185 Cal.Rptr. 678, this court, in addition to also concluding that Proposition 8 was facially constitutional, held that the “Truth-in-Evidence” provision of the initiative abrogates section 1538.5 and California decisional law imposing higher standards for searches and seizures than under federal law and that the provision has retroactive effect.

Accordingly, I conclude by analogy that the rationale of the United States Supreme Court case of Pennsylvania v. Mimms (1977) 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 is persuasive and controls.

In Mimms, after police officers had stopped the defendant's automobile for being operated with an expired license plate, one of the officers asked the defendant to step out of the car and produce his license and registration.   As defendant Mimms alighted, a large bulge under his jacket was noticed by the officer, who thereupon frisked him and found a loaded revolver.   Mimms was then arrested and subsequently indicted for carrying a concealed weapon and unlicensed firearm.   His motion to suppress the revolver was denied and after a trial, at which the revolver was introduced in evidence, he was convicted.   The Pennsylvania Supreme Court reversed on the ground that the revolver was seized in violation of the Fourth Amendment.   The United States Supreme Court granted certiorari, reversed and remanded.

The Mimms case is instructive in that while the United States Supreme Court focused on the intrusion resulting from the officer's request that the defendant get out of the car once the vehicle was lawfully stopped, it also addressed the propriety of the search of defendant's jacket once he had gotten out of the car.   I quote at length from Mimms:

“The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.’  Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968).   Reasonableness, of course, depends ‘on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.’  United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

“In this case, unlike Terry v. Ohio, there is no question about the propriety of the initial restrictions on respondent's freedom of movement.   Respondent was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code.  [Fn. omitted.]  Deferring for a moment the legality of the ‘frisk’ once the bulge had been observed, we need presently deal only with the narrow question of whether the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.   This inquiry must therefore focus not on the intrusion resulting from the request to stop the vehicle or from the later ‘pat down,’ but on the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped.

“Placing the question in this narrowed frame, we look first to that side of the balance which bears the officer's interest in taking the action that he did.   The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior.   It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation.   The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground.   Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements;  this, in turn, reduces the likelihood that the officer will be the victim of an assault.  [Fn. omitted.]

“We think it too plain for argument that the State's proffered justification—the safety of the officer—is both legitimate and weighty.  ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.’  Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881.   And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.   ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.   Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).’   Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972).   We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations.  United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973).   Indeed, it appears ‘that significant percentage of murders of police officers occur when the officers are making traffic stops.’  Id., at 234 n. 5, 94 S.Ct. at 476 n. 5.  [Fn. omitted.]

“The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations.   Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.

“Against this important interest we are asked to weigh the intrusion into the driver's personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car.   We think this additional intrusion can only be described as de minimis.   The driver is being asked to expose to view very little more of his person than is already exposed.   The police have already lawfully decided that the driver shall be briefly detained;  the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it.   Not only is the insistence of the police on the latter choice not a ‘serious intrusion upon the sanctity of the person,’ but it hardly rises to the level of a ‘ “petty indignity.” ’  Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877.   What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.  [Fn. omitted.]

“There remains the second question of the propriety of the search once the bulge in the jacket was observed.   We have as little doubt on this point as on the first;  the answer is controlled by Terry v. Ohio, supra.   In that case we thought the officer justified in conducting a limited search for weapons once he had reasonably concluded that the person whom he had legitimately stopped might be armed and presently dangerous.   Under the standard enunciated in that case—whether ‘the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate’ [fn. omitted]—there is little question the officer was justified.   The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer.   In these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat down.’ ”  (434 U.S. at pp. 108–112, 98 S.Ct. at pp. 332–334.)

Returning to the case at bench and applying the rationale of Mimms in respect to the pat-down of defendant Navarro, I cannot say that Deputy O'Brien acted unreasonably.   Here defendant Navarro was dressed in military field garb with a 14-inch survival knife attached by a lanyard to his epaulet, and wearing a field jacket with bulging pockets.   Deputy O'Brien testified that there had been numerous arrests made for Weapons Law violations on Pacific Coast Highway in the Malibu area.   In my opinion under the totality-of-the-circumstances once Navarro had alighted from the vehicle Deputy O'Brien had independent reason to suspect present danger and it was upon this basis, and not the mere fact of the traffic stop that he conducted the search.   Deputy O'Brien's mere feeling of the defendant's bulky pocket was a minimal intrusion when weighed against the deputy's safety and would “warrant a man of reasonable caution in the belief” that the action was appropriate and was justified in the taking of such action.

In addition, even under California pre Proposition 8 decisional law the pat-down of defendant Navarro was proper in that the “․ factors [described above] creat[ed] a potential danger to the officers.”  (People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 956, 168 Cal.Rptr. 915;  see also, by way of analogy People v. Suennen (1980) 114 Cal.App.3d 192, 170 Cal.Rptr. 677;  People v. Todd (1969) 2 Cal.App.3d 389, 82 Cal.Rptr. 574.)

FOOTNOTES

FOOTNOTE.  

1.   Deputy O'Brien defined a SHORIEKEN as a 10 pointed throwing star used in martial arts demonstrations.

SOVEN, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

DALSIMER, J., concurs.