Opinion
H030531
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. MOSES TROY PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED
This appeal arises from a felony conviction following entry of a guilty plea by defendant Moses Troy Phillips to possession of a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)), failure by a transient to reregister as a sex offender (§ 290, subd. (a)(1)(C)(i)), and falsely identifying himself to a peace officer (§ 148.9). He also admitted a prior strike (§§ 667, subd. (b), 1170.12) and a prior prison term (§ 667.5, subd. (b)). Defendant challenges the conviction, contending that the evidence used to secure the conviction (i.e., the concealed knife) was the product of an unlawful search of his person.
All further statutory references are to the Penal Code unless otherwise stated.
For the reasons below, we conclude that the search of defendants person was conducted by the police with his consent and that the search did not exceed the scope of that consent. Accordingly, we affirm the judgment of the trial court.
FACTS
The facts are taken from the testimony given at the hearing on defendants motion to suppress.
On May 12, 2005, at approximately 6:00 p.m., three San Jose police officers, who were assigned to the violent crime enforcement team—Officer Fabrice Bellini, Officer Chris Heinrich, and Officer Keith Cottrell—were patrolling in an unmarked vehicle in the area of Waring Avenue in San Jose. Officer Bellini had made some previous narcotics arrests in the same area—it was "a known area for narcotic sales, drug dealing, drug smoking, [and] gangsters hanging out." They observed a group of four or five individuals, including defendant, in a courtyard; the officers parked the car, and proceeded on foot to speak with the individuals.
The officers "engage[ed] them in casual conversation." Officer Heinrich testified that "[i]t was very low key." He spoke with defendant for 15 to 20 minutes. Defendant said that he did not live there but had friends who did and "that they were just basically hanging out." Defendant talked for some time about being a rapper. He was wearing an oversized shirt. Officer Heinrich asked defendant if he could pat search him. Defendant responded, " `Yeah, go ahead. " Officer Heinrich then performed the pat search. (Officer Bellini stood by while Officer Heinrich conducted the search.) Defendant was not handcuffed during the search. Defendants arms were over his head and Officer Heinrich was holding onto them while he performed the search. Officer Heinrich testified that his method of conducting a pat search was: "Basically, Ill hold the hands up and Ill come around this side, hit the middle chest, come down the belt, come across the belt this way. Try and go down to the leg to see if theres anything in the boot or the sock. And Ill come behind him, pat search the back, hit the back of the belt, and then Ill switch hands and do the same thing. [¶] So Im right back down to the middle, come over to the beltline, and go down to the ankle, check the ankles out, come back up and hit the lower back, and then hit the back of the belt." Defendant did not resist or object at any time during the pat search.
Officer Bellini knew one of the people in the group, Kelly Collet. Shortly after arriving, he and Officer Cottrell left the group to conduct a probation search of Collets apartment. After returning to the group, it was Officer Bellinis testimony that he asked defendant if he could pat search him for weapons for safety reasons, and that defendant responded, "`Yeah, go ahead. " Because defendant does not disagree that he consented to the search, this discrepancy in the officers testimony is immaterial.
Midway through the pat search, Officer Heinrich noticed that defendant (under his shirt) was wearing a metal chain around his neck and that there was a sheathed knife hanging upside-down on the chain at about mid-chest level. Officer Bellini observed that defendant was wearing it in such a manner that "[a]ll you have to do is grab onto the handle of the knife and just yank on the handle . . . and it separates the knife from the sheath and its ready to use."
After Officer Heinrich discovered the knife and defendant realized that he was going to be taken into custody, defendants demeanor changed and he became very upset. He told the officers that he had obtained the knife legally and that the police were harassing him because he was African-American.
PROCEDURAL BACKGROUND
Defendant was charged in a three-count amended information with carrying a concealed dirk or dagger, a felony (§ 12020, subd. (a)(4); count 1); failure by a transient to reregister as a sex offender, a misdemeanor (§ 290, subd. (a)(1)(C)(i); count 2); and falsely identifying himself to a peace officer, a misdemeanor (§ 148.9; count 3). The amended information also alleged one prior strike conviction (§§ 667, subd. (b), 1170.12), and a prior prison term (§ 667.5, subd. (b)). Defendant filed a motion to suppress evidence pursuant to section 1538.5. He argued that the pat search preceding his arrest was unlawful because it was the product of an unlawful detention. After an evidentiary hearing, the court denied the motion to suppress.
On January 3, 2006, defendant pleaded no contest to the three counts charged and admitted the enhancement allegations. Thereafter, he was sentenced on count 1 for the lower term of 16 months, doubled by the strike prior, for a total prison term of 32 months. Defendant also received separate, concurrent 90-day sentences for the two misdemeanor convictions. The court struck the prior prison term enhancement pursuant to section 1385. Defendant filed a timely notice of appeal of the denial of the motion to suppress. The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendants guilty or no contest plea. (§ 1538.5, subd. (m); People v. Lilienthal (1978) 22 Cal.3d 891, 896.)
DISCUSSION
I. Standard of Review
"An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] `The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [¶] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review." (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.) All presumptions favor the trial courts exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, " `and the trial courts findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. " (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal. 3d 156, p. 160.)
Based upon its factual findings, the trial court has the duty to determine whether "the search was unreasonable within the meaning of the Constitution." (People v. Lawler, supra, 9 Cal.3d at p. 160.) This issue is a question of law. Therefore, we must measure the facts, as found by the trial court, against the constitutional standard of reasonableness for the search and/or seizure. (Ibid.; People v. Leyba, supra, 29 Cal.3d at p. 597.)
Under California Constitution, article I, section 28, subdivision (d), the reasonableness of the search or seizure is measured against federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.) Only evidence that is the product of an unreasonable search and seizure in violation of federal standards shall be suppressed. (In re Lance W. (1985) 37 Cal.3d 873, 890.)
II. Whether Search Exceeded Scope Of Defendants Consent
Defendant argues on appeal that the pat search performed on him by the police exceeded the scope of the weapons search to which he consented. He contends that the search exceeded that which defendant would have reasonably anticipated when he gave his consent, because it was more that a "brief and cursory touching of clothing, in particular pockets in ones pants, shirt or jacket"; instead, the search involved the officers taking "physical control of the defendant, holding the hands, thumbs and fingers of the defendant for control."
In making this argument, defendant noted that he was expressly abandoning the argument made before the court below at the motion to suppress "that the `pat search transformed a consensual encounter into a detention, pursuant to People v. Miles (1987) 196 Cal.App.3d 612. That contention ignored the fact that the `pat search in this case was pursuant to defendants consent."
Searches and seizures conducted without a warrant "are per se unreasonable under the Fourth Amendment [of the United States Constitution]—subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.) One of those well-recognized exceptions that a search requires a warrant and probable cause is one where the search is conducted pursuant to voluntary consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) "Consent searches are part of the standard investigatory techniques of law enforcement agencies." (Id. at pp. 231-232.)
Of course, the fact that the police have received consent to search does not automatically validate the subsequent warrantless search. A search based upon consent cannot exceed the scope of the consent given. (People v. Cruz (1964) 61 Cal.2d 861, 866; People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 127.) "The standard for measuring the scope of a suspects consent under the Fourth Amendment is that of `objective reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]" (Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno); see also People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) And "[t]he scope of a search is generally defined by its expressed object. [Citation.]" (Jimeno, supra, at p. 251.)
Thus, in Jimeno, the defendant—who was suspected of illegal drug trafficking and was stopped by a police officer after committing a traffic violation—consented to a search of his vehicle for narcotics. (Jimeno, supra, 500 U.S. at pp. 250-251.) The Supreme Court held that the officers search of the interior of a folded brown paper bag located on the cars floorboard did not exceed the scope of the defendants consent and was therefore lawful. (Id. at p. 251.) In so holding, the court noted that the defendant had not placed any express limitations on the officers search. (Ibid.) It further found that it was objectively reasonable that a search for contraband would include accessible containers located in a vehicle, since narcotics are typically transported in containers. (Ibid.)
We find that it was objectively reasonable for the police officers here to have concluded that defendants consent to a weapons search would have encompassed the type of search actually performed by Officer Heinrich. Defendant was not handcuffed during the search. There is no evidence that the search was prolonged. To the contrary, Officer Heinrich testified that a typical pat search is completed in less than a minute. In this instance, the concealed knife was discovered midway through the search. Because defendant was wearing a loose-fitting shirt, it was certainly reasonable that a pat search for concealed weapons would include defendants torso area. Nor was he subjected to a search that was unnecessarily invasive. In this regard, we specifically reject defendants claim that the minimal physical contact of Officer Heinrich holding onto defendants raised hands (for the officers protection) while conducting the search constituted an excessive level of intrusion that was beyond the reasonable expectations of a person consenting to a pat search.
Defendant argues that the alleged "physical control" during the search included "holding the hands, thumbs and fingers of the defendant for control." While there is evidence that Officer Heinrich held onto defendants raised hands, there was no evidence that he held onto defendants thumbs and fingers. This technique was described by Officer Bellini as a general method of conducting a pat search. But Officer Bellini testified that he did not recall the particular pat search technique that Officer Heinrich used on this occasion.
Defendant cites no authority that supports a contrary conclusion. In U.S. v. Blake (11th Cir. 1989) 888 F.2d 795—a case relied upon by defendant which was decided two years before Jimeno, supra, 500 U.S. 248—the two defendants were subjected to a random stop by two plain-clothes officers at an airport terminal, and were asked for permission to search their bags and their persons for drugs. (Blake, supra, at pp. 796-797.) Immediately after the defendants consented, they were each subjected to a search of their crotch area, resulting in the discovery of concealed crack cocaine. (Id. at p. 797.) The district court held that the warrantless searches in a public place were unlawful because they constituted "such a serious intrusion into the defendants privacy" and thus the searches exceeded the scope of defendants consent. (Id. at p. 800.) The federal circuit court affirmed, holding that from "all the evidence and surrounding circumstances, [it could not] say that this conclusion [was] clearly erroneous. [Citation.]" (Ibid.)
Contrary to defendants assertion, the circumstances in Blake are in no way "analogous" to those present here. Defendant was not subjected to an immediate and public search of his intimate body parts; indeed, there is no evidence that Officer Heinrichs search included a frisking of defendants groin area. Rather, defendants person was searched for concealed weapons—precisely the type of search he had agreed to.
Other cases cited by defendant are likewise inapposite. In People v. Superior Court (Arketa), supra, 10 Cal.App.3d at page 127, the court held that a consent given to search for a man seen running towards a house immediately after a late-night burglary did not extend to a thorough search of the dwelling that caused the police to find a crowbar in a closet. And in People v. Timms (1986) 179 Cal.App.3d 86, 88, the police responded to a report of an early morning shooting and the defendant invited the officers into his home and pointed to the victim of a shooting. Hours later—and hours after the defendant was taken to the police station—the police, after further searches, located a handgun in a closet. (Id. at p. 89.) The court held that this warrantless search was unlawful, and that the defendants original permission to enter to search for suspects or additional victims did not extend to the later search. (Id. at p. 93.) It is readily apparent from these brief descriptions that neither case supports the claim that Officer Heinrichs search exceeded the scope of defendants consent here.
The pat search by Officer Heinrich of defendant for weapons did not exceed the scope of defendants consent for that search. Therefore, the trial court properly denied defendants motion to suppress.
DISPOSITION
The judgment of conviction is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
McAdams, J.