Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CR-F-08-0009153
Pollak, Acting P. J.
Anthony Joseph Morin timely appeals his conviction following a guilty plea to charges of possession for sale of a controlled substance. He contends the trial court erred in denying his motion to suppress evidence obtained as a result of a search of his jacket pocket after being pulled over for a traffic infraction. We disagree and shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence of the following facts was presented at the hearing on defendant’s motion to suppress under Penal Code section 1538.5. On December 18, 2007, at approximately 11:30 p.m., defendant was riding an adult-sized tricycle through an intersection in Crescent City. His tricycle did not have lighting as required by Vehicle Code section 21201, subdivision (d)(1). Defendant had several items strapped to his tricycle and was carrying another bicycle over his shoulder. Del Norte County Deputy Sherriff Richard Griffin stopped defendant to issue a citation for riding a bicycle at night without lighting. While the officer was issuing the traffic citation, defendant appeared “very nervous, kind of twitching almost.” Within a minute or two of approaching defendant, Griffin noticed a rifle scabbard strapped to the tricycle. The deputy asked if there was a rifle inside the scabbard, and defendant replied that it contained a.308 rifle.
Griffin took the rifle out of the scabbard and went back to his vehicle to perform a records check. At the same time, Griffin called for backup and told defendant he was not free to leave. After ascertaining that the rifle was not stolen, Griffin asked if the weapon was loaded, and defendant replied that it was not. Griffin asked defendant if he had any live cartridges and defendant replied that he had some in his jacket that was sitting on the tricycle. Standing three to four feet from the tricycle and the jacket, defendant offered to retrieve them from his pocket for the deputy. Griffin stated that for “officer safety reasons” he would secure the ammunition himself and reached into the jacket pocket. He found three or four live cartridges for a.308 rifle and a makeshift marijuana pipe with a green leafy substance which appeared to be a “usable amount” of marijuana inside the pipe.
The officer asked if defendant had a medical marijuana card, and defendant replied that he did not. Griffin then asked if he had any additional marijuana and defendant admitted he had 10 additional grams in his backpack, which he again offered to get for the officer. Defendant began taking the backpack off his shoulders and reaching to remove the marijuana when Griffin grabbed the backpack. The officer testified that in past interactions he had had with defendant, the defendant had possessed a knife or other “instruments like that,” which caused him to believe that he needed to secure the marijuana himself. Two additional officers who arrived at the scene after Griffin removed the cartridges and marijuana pipe from defendant’s jacket watched defendant while Griffin took the backpack to his patrol car. Defendant became agitated towards the two officers and said, “Officer Griffin’s going to bust me.” The two officers then handcuffed defendant. Inside the backpack, Griffin found a flip top container, which appeared to be a cigarette holder containing a marijuana cigarette, two hypodermic needles, and large numbers of Ziploc baggies. As he continued to search, Griffin found a container with a large amount of a white crystalline substance he believed to be methamphetamine, a digital scale, a glass bottle that appeared to contain crystal methamphetamine remnants, additional glass marijuana pipes, a flare gun, and measuring spoons. In one of the measuring spoons there was a “usable amount” of methamphetamine. Halfway down the bag, in a red container, Griffin found the 10 grams of marijuana.
Defendant was charged with the sale and transportation of a controlled substance (Health & Saf. Code, § 11379), possession for sale of a controlled substance (Health & Saf. Code, § 11378), personal possession of a firearm and a controlled substance (Health & Saf. Code, § 11370.1), furnishing of marijuana (Health & Saf. Code, § 11360, subd. (b)), unauthorized possession of a hypodermic needle (Bus. & Prof. Code, § 4140), unlawful possession of paraphernalia for injecting a controlled substance (Health & Saf. Code, § 11364), and being armed with a firearm during the commission of counts 1 and 2 (Pen. Code, § 12022, subd. (a)(1)). Later that same day, the district attorney filed a new complaint, based on other circumstances occurring on April 6, 2008, charging possession for sale of a controlled substance (Health & Saf. Code, § 11378) and resisting, obstructing, or delaying a peace officer (Pen. Code, § 148).
The trial court consolidated the two cases, and defendant filed a motion under Penal Code section 1538.5 to suppress the evidence seized on December 18. After the court denied the motion, defendant pled guilty to two counts of possession for sale of a controlled substance (one count in each case) in exchange for dismissal of all remaining charges. Defendant was sentenced to two years and eight months in prison and filed a timely notice of appeal.
DISCUSSION
In reviewing the denial of a motion to suppress, we grant deference to the trial court’s factual findings, express or implied, if the findings are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We apply independent judgment in determining whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591.)
The Fourth Amendment and its counterpart in the California Constitution protect citizens from unreasonable government intrusion. (People v. Hawkings (1969) 273 Cal.App.2d 529, 532.) Courts determine the reasonableness of a search by viewing it in light of the “totality of circumstances,” including an officer’s training and experience. (United States v. Cortez (1981) 449 U.S. 411, 417.) This does not give license for general and exploratory searches. When an individual is temporarily detained, or “seized,” by a law enforcement officer without a warrant or probable cause to believe the person has committed a crime, any search of his person must be based on “specific and articulable facts” rendering the search reasonable, balancing the competing need for the search against the extent of the personal invasion that the search entails. (Terry v. Ohio (1968) 392 U.S. 1, 16, 20-21 (Terry).) Further, the scope and intensity of the search must be “ ‘strictly tied to and justified by’ the circumstances which render its initiation permissible.” (Id. at p. 19.)
Here, defendant acknowledges that Griffin was justified in stopping him while he was riding his tricycle at night without the required lighting. Defendant also concedes that the officer was justified in further detaining him when he noticed a rifle scabbard attached to the tricycle. He contends, however, that Griffin exceeded constitutional limits when, after ascertaining that defendant was entitled to possess the rifle which remained in the police car, and without defendant’s consent, he reached into the pocket of defendant’s jacket, where he found a marijuana pipe and a small quantity of marijuana. Defendant implicitly acknowledges that that discovery, followed by defendant’s admission that there were 10 grams of marijuana in his backpack, provided justification for extending the search, leading to the discovery of the additional and more significant evidence in the backpack. As the trial court reasoned and defendant does not dispute, the sole issue is whether the search of the jacket pocket was reasonable. We assume, as defendant contends, that if the initial search of the jacket pocket exceeded Fourth Amendment limits, all of the evidence obtained from defendant’s backpack as well as from his pocket would be subject to exclusion as “fruit of the poisonous tree.” (Wong Sun v. United States (1963) 371 U.S. 471, 488.)
In Terry, the Supreme Court recognized the reasonableness of minimally intrusive invasions of a person’s privacy interest when justified by a reasonable concern for officer protection. The court upheld the constitutionality of a pat down search of a detained individual’s outer clothing where there is an articulable basis for concern that the individual may be carrying a concealed weapon that could pose a threat to the officer’s safety. (Terry, supra, 392 U.S. at p. 27-30.) The court acknowledged that a pat down search may result in an annoying, frightening, or perhaps humiliating experience for many individuals, but upheld such a brief invasion as a necessary practice reasonably limited to discover instruments of assault. (Id. at pp. 25-26).
Defendant contends that since the rifle had been removed from defendant’s reach when Griffin placed his hand inside defendant’s jacket pocket to secure the ammunition, the officer’s intrusion cannot be justified as necessary for his protection since the bullets alone posed no threat to his safety. However, as the trial judge reasoned, “if the defendant is armed and which the officer knew at that point or had been armed, it was reasonable to question whether there might be more weapons and so... it was a rational and reasonable thing to do for the officer to... look into the jacket pocket.” Moreover, Griffin knew from past contact with defendant that defendant sometimes carried a knife or similar weapon. The officer did not conduct a random search through all of defendant’s pockets, but simply reached within the single jacket pocket in which defendant indicated the bullets were located, rather than permit defendant to place his hand where the officer could not see what might be there.
Although Griffin did not conduct a “pat-down” such as occurred in Terry, the officer’s conduct was nonetheless minimally intrusive and reasonable under the circumstances. Terry does not require that a weapons search be limited to a pat down search if the situation requires a different but nonetheless minimally intrusive method designed to discover instruments of assault. (U.S. v. Hill (1976) 545 F.2d 1191, 1193 [raising a baggy shirt is within the boundaries established by Terry]; see also People v. Woods (1970) 6 Cal.App.3d 832 [using a flashlight on the interior of defendant’s pocket to improve the officer’s view]; State v. Escobales (1988) Conn.App. 272, 276 [547 A.2d 553, 555] [“A pat down was not necessary because Lula knew from her observation precisely where the defendant had concealed the bulky object”].) As the court in Terry understood, “[s]treet encounters between citizens and police officers are incredibly rich in diversity.” (Terry, supra, 392 U.S. at p. 13.) Some interactions require different procedures to protect an officer during routine investigations. The pat-search is not the only tool an officer has to protect his safety in all situations. A search is justified so long as the officer confines himself strictly to what is minimally necessary to learn whether an individual is armed. (Id. at p. 30.)
In People v. Barnes (1983) 141 Cal.App.3d 854, a police officer asked a motorist stopped for a traffic violation for identification and the motorist replied it was in his sock. The officer did not permit the motorist to retrieve the identification from inside his sock, where the officer could not see, but himself placed his hand on the sock and discovered a large kitchen knife and a bottle that contained PCP. The court held there was a sufficient basis for a reasonable suspicion necessary to justify the search. While the officer’s actions were described as a “pat-down search,” that would seem to be virtually the only means to determine whether an object is secreted in a sock that a person is wearing. The same is not true of the pocket of a jacket that is not being worn. As the court in Barnes recognized, “ ‘[t]he critical question remains, is this the kind of confrontation in which the officer can reasonably believe in the possibility that a weapon may be used against him?’ ” (Id. at p. 856.)
Here, upon defendant’s stated intention to reach into his jacket pocket, where Griffin could not see, the deputy was justified in intervening and obtaining the cartridges himself. Griffin was not required to choose between his own safety and ignoring his duty to investigate. (People v. Coston (1990) 221 Cal.App.3d 898, 903.) As Justice Harlan noted in Terry, there is no reason an officer “should have to ask one question and take the risk that the answer might be a bullet.” (Terry, supra, 391 U.S. at p. 33 (conc. opn. of Harlan, J.).) Griffin was alone on the scene late at night. His search was narrowly tailored to the one pocket into which defendant intended to place his hand. The search was the type of “legitimate and restrained investigative conduct undertaken on the basis of ample factual justification” contemplated by Terry. (Id. at p. 15.) The search complied with the requirements of the Fourth Amendment and the motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: Siggins, J. Jenkins, J.