Filed 1/23/14 P. v. Carter CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A137085
v.
GREGORY CARTER, (San Mateo County
Super. Ct. No. SC075506A)
Defendant and Appellant.
Defendant Gregory Carter challenges the denial of his motion to suppress
evidence. He contends he was detained and frisked without cause, that a pat search
exceeded the bounds of a legitimate Terry1 stop, and that the detention was unlawfully
prolonged. We conclude the evidence defendant sought to suppress was the product of a
legitimate Terry search, so we affirm.
BACKGROUND
The evidence is from the preliminary hearing, where defendant first brought his
suppression motion. Daly City Police Officer Korey Sprader was patrolling John Daly
Boulevard near Mission Street around 1:12 a.m. on January 2, 2012. It was a chilly
night. As Officer Sprader turned left onto Mission on a green light, he saw defendant
walking across the intersection in “a dangerous fashion.” There was no crosswalk, and
the officer explained that “the way he was crossing, if I hadn’t been paying attention, I
could have hit him.”
1
Terry v. Ohio (1968) 392 U.S. 1, 21 (Terry).
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Officer Sprader pulled up next to defendant, got out of his patrol car and asked
defendant for his name and identification. Defendant said his name was Gregory Carter
and that he did not have identification with him. He was wearing a sweatshirt with a
leather jacket over it and two pairs of pants. After some further conversation, Sprader
asked defendant for permission to search him. Defendant refused.
When his backup officer arrived about five minutes later, Officer Sprader
proceeded to simultaneously search defendant for weapons and identification. He
testified: “I was kind of doing a two-for-one just for safety reasons. For safety reasons
and to do things systematically, I was kind of doing the pat search and that search [for
identification] at the same time.” The location was a high-crime area with heavy
pedestrian traffic, “which means while you’re standing outside your car with somebody
it’s more dangerous for you if other people are around.” There had been several violent
crimes in the area, including a homicide the previous year, and Sprader had conducted
numerous investigations involving the intersection.
Officer Sprader positioned himself behind defendant and had defendant place his
hands behind his back. Beginning with defendant’s shoulders and working down, he
frisked defendant for weapons while he also searched defendant’s pockets for
identification. Within “minutes” of starting his search, Sprader reached into defendant’s
jacket pocket and retrieved a San Francisco Police Department booking sheet bearing
defendant’s picture, name, birth date and contact information. He then stopped looking
for identification, but continued to frisk defendant for weapons and found a loaded
revolver tucked into defendant’s waistband.
Defendant was arrested and charged with possession of a firearm by a felon,
carrying a concealed firearm, and carrying a loaded firearm in public. It is undisputed
that defendant was arrested because of the gun and not for jaywalking.
Defendant moved to suppress all evidence obtained from the search at the
preliminary hearing. The magistrate determined that Officer Sprader found the gun while
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conducting a lawful pat search for officer safety purposes, and denied the motion. After
unsuccessfully renewing his suppression motion before the trial court, defendant entered
a no contest plea to possession of a firearm by a felon and admitted various priors. The
court dismissed the remaining counts and granted defendant’s motion to dismiss a prior
“strike” allegation under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The
court suspended imposition of sentence and placed defendant on three years’ probation
subject to conditions including nine months in a residential drug treatment program. This
appeal timely followed.
DISCUSSION
I. Standard of Review
Where, as here, a motion to suppress is submitted to the superior court on the
preliminary hearing transcript, “the appellate court disregards the findings of the superior
court and reviews the determination of the magistrate who ruled on the motion to
suppress, drawing all presumptions in favor of the factual determinations of the
magistrate, upholding the magistrate’s express or implied findings if they are supported
by substantial evidence, and measuring the facts as found by the trier against the
constitutional standard of reasonableness.” (People v. Thompson (1990) 221 Cal.App.3d
923, 940.) We independently review the applicable law and its application to the facts
(People v. Carter (2005) 36 Cal.4th 1114, 1140) and affirm the trial court’s ruling if
correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
II. Officer Sprader Conducted A Valid Protective Pat Search
Defendant contends Officer Sprader lacked sufficient cause to detain him for
jaywalking or frisk him for weapons during the detention. He further contends the
officer’s search of his pockets exceeded the bounds of a valid Terry search. Although the
officer lacked probable cause to search defendant’s pocket for identification (People v.
Garcia (2006) 145 Cal.App.4th 782, 788), the evidence supports the magistrate’s finding
that that the gun was discovered during the course of a lawful protective search.
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“ ‘[A]n officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.’ [Citation.] ‘ “Although police officers may not arrest or search a
suspect without probable cause and an exception to the warrant requirement, they may
temporarily detain a suspect based only on a ‘reasonable suspicion’ that the suspect has
committed or is about to commit a crime. [Citations.] Such detentions are permitted,
notwithstanding the Fourth Amendment's requirements of probable cause and a search
warrant, because they are ‘limited intrusions’ that are ‘justified by special law
enforcement interests.’ ” ’ ” (In re H.M. (2008) 167 Cal.App.4th 136, 142.) “An
ordinary traffic stop is treated as an investigatory detention, i.e., a ‘Terry stop.’
[Citation.] A Terry stop is justified if it is based on at least reasonable suspicion that the
individual has violated the Vehicle Code or some other law.” (Ibid.)
Defendant asserts Officer Sprader lacked an adequate basis for the detention
because the evidence was insufficient to establish that he crossed between adjacent
intersections in violation of Vehicle Code section 21955 or failed to yield the right of
way to nearby vehicles in violation of Vehicle Code section 21954, subdivision (a).2 But
at the preliminary hearing defendant conceded both the jaywalking violation and the
validity of his initial detention. So, he forfeited his challenge to the detention and cannot
raise it in this appeal. (People v. Williams (1999) 20 Cal.4th 119, 136.)
This is a close case, but we conclude that Officer Sprader had sufficient cause to
frisk defendant for weapons. “[A]n officer has the authority to conduct a reasonable
search for weapons where that officer has reason to believe a suspect is armed and
2
Vehicle Code section 21955 provides that “Between adjacent intersections controlled by
traffic control signal devices or by police officers, pedestrians shall not cross the roadway
at any place except in a crosswalk. Under section 21954, subdivision (a), “Every
pedestrian upon a roadway at any point other than within a marked crosswalk or within
an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon
the roadway so near as to constitute an immediate hazard.”
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dangerous, regardless of whether he has probable cause to arrest the individual for a
crime. [Citation.] Further, the officer need not be absolutely certain that the individual is
armed; the crux of the issue is whether a reasonably prudent person in the totality of the
circumstances would be warranted in the belief that his or her safety was in danger.”
(People v. Avila (1997) 58 Cal.App.4th 1069, 1074, citing Terry, supra, 392 U.S. at p.
27.) Here, Officer Sprader testified that he frisked defendant in part out of concern for
his safety. He explained he believed a safety search was warranted because the detention
occurred in an area known for violent crime, including a fairly recent murder. The area
was heavily trafficked by pedestrians, which heightened the danger to the officer from
others who might be in the area. Defendant was wearing bulky clothing and he was
unable to produce identification. While none of these factors alone would lead us to
conclude Officer Sprader reasonably believed he was in danger, the totality of the
circumstances support his concern. Sprader was consequently justified in conducting a
patdown search for weapons.
On the other hand, defendant is correct that the search of his pocket for
identification could not be justified by concerns for officer safety. “A fair reading of
Terry v. Ohio, and its reference to the lower court opinion . . . show that the ‘frisk’
allowable upon a proper showing was ‘ “only a ‘frisk’ for a dangerous weapon. It by no
means authorizes a search for contraband, evidentiary material, or anything else in the
absence of reasonable grounds to arrest. Such a search is controlled by requirements of
the Fourth Amendment, and probable cause is essential.” ’ [Citation.] Our own Supreme
Court has unanimously so held. [Citation.]” (People v. Garcia, supra, 145 Cal.App.4th at
p. 788; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.)
But Officer Sprader’s improper search for identification does not invalidate the
evidence revealed by his simultaneous frisk for weapons. Officer Sprader began frisking
defendant for weapons before he located the booking slip, and, as defendant
acknowledges, there is no evidence that finding the booking slip influenced his
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continuation of the weapons search. Nor does the record indicate that defendant’s
detention was unduly prolonged by the improper search for identification.
We conclude Officer Sprader discovered the firearm during a valid officer safety
search. We therefore do not reach the Attorney General’s contention that Sprader
conducted a constitutional search incident to defendant’s arrest on gun charges because
the officer had probable cause to arrest him for jaywalking when he initiated the search.
(See Rawlings v. Kentucky (1980) 448 U.S. 98; but see Knowles v. Iowa (1998) 525 U.S.
113; Sibron v. New York (1968) 392 U.S. 40, 63 [“It is axiomatic that an incident search
may not precede an arrest and serve as part of its justification”].)
DISPOSITION
The judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
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