Filed 3/8/22 P. v. Houser CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C093735
Plaintiff and Respondent, (Super. Ct. No. STK-CR-FER-
2020-0000857)
v.
JASON PATRICK HOUSER,
Defendant and Appellant.
After the trial court denied his motion to suppress evidence seized as a result of a
patdown search, defendant Jason Patrick Houser pled no contest to possession for sale of
a controlled substance. Defendant contends the trial court erred in denying the motion
because the search was neither supported by reasonable suspicion nor lawful in its scope.
Although we acknowledge that under a slightly different factual scenario our
decision could well be different, on these specific facts we uphold the search and affirm
the judgment.
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BACKGROUND
Early one afternoon in January 2020, San Joaquin Sheriff’s Deputies Kannalikham
and McElwain searched defendant and found a baggy containing 17 grams of
methamphetamine, $46, two empty plastic bags, and an unused syringe. A search of
defendant’s vehicle yielded a functioning digital scale, 36 resealable plastic bags, and two
plastic bags with methamphetamine residue. Based on this evidence, defendant was
charged with possession for sale of methamphetamine (Health & Saf. Code, § 11378).
The information also alleged that defendant had suffered a prior serious felony conviction
for robbery in 1997. (Pen. Code, §§ 667, subd. (d), 1170.12, subd. (b).)
Defendant filed a motion to suppress under Penal Code section 1538.5.
Hearing on the Motion to Suppress
At the hearing, Deputy Kannalikham testified he and Deputy McElwain were on
duty in an unmarked vehicle when they saw defendant get out of a parked car. The
deputies pulled up behind the car and saw it had no registration tags. Kannalikham
checked DMV records and found the registration had been suspended since 2014. The
deputies were still in their car as defendant walked toward them.
From inside the car, Kannalikham told defendant about the registration problems;
defendant walked toward the passenger side of the deputies’ car and responded he had
just bought the car. Kannalikham asked defendant whether he was on parole or
probation, and he responded he was on probation for a firearm. “Due to that . . ., for the
safety of the deputies,” Kannalikham immediately got out of the deputies’ car and
detained defendant, handcuffing him and patting him down. Kannalikham testified that
defendant’s disclosure regarding the firearm “alert[ed] me for officer safety.” He noted
defendant was wearing a hoody sweatshirt that extended past his beltline, where a firearm
might be hidden. Based on 12 years of patrolling the area, Kannalikham knew there was
a nearby diverting canal with “a lot of homeless encampment[s] where there’s a lot of
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individuals there that use[] illicit drugs” and “a lot of violent crimes that go through
there.”
Although defendant’s probation included a search condition, Kannalikham did not
know this at the time he searched defendant. Kannalikham testified regarding the
patdown search that: “I started on the left side of [defendant’s] lower half . . . where I felt
a bulge in his left front pants pocket,” and “when I pushed on it, it was crunchy like a it
was a bag of ice.” On cross-examination, defense counsel asked: “So you grabbed [the
bulge], squeezed it, it felt crunchy?” Kannalikham responded: “I just pressed on it, you
could feel it was crunchy.” On redirect, Kannalikham stated he patted defendant’s pocket
area three times, palm facing down with fingers extended. Based on his training and
experience, Kannalikham believed the bag contained methamphetamine. Defendant told
him the bulge was money; Kannalikham responded that it was not money, reached into
defendant’s pocket, and retrieved the baggy. He found the syringe in defendant’s left
pocket as well. He then searched defendant’s other pockets and his car.
After hearing argument, the trial court denied the motion without explanation.
Defendant subsequently pleaded no contest to possession of methamphetamine for sale
and was sentenced to the upper term of three years in custody; his strike was dismissed.
He timely appealed; after delay for augmentation of the record and multiple granted
requests to continue the briefing schedule, the case was fully briefed on November 12,
2021, and assigned to this panel shortly thereafter.
DISCUSSION
Defendant contends the trial court erred in denying his motion to suppress because
the search was neither justified nor lawfully executed. As we next explain, we disagree.
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I
Legality of the Search
“In reviewing a suppression ruling, ‘we defer to the superior court’s express and
implied factual findings if they are supported by substantial evidence, [but] we exercise
our independent judgment in determining the legality of a search on the facts so found.’ ”
(People v. Lomax (2010) 49 Cal.4th 530, 563.) “[W]e examine ‘the record in the light
most favorable to the trial court’s ruling.’ ” (People v. Turner (2013) 219 Cal.App.4th
151, 159.)
The prosecution bears the burden of proving a warrantless search or seizure falls
into a recognized exception to the Fourth Amendment’s warrant requirement. (People v.
Macabeo (2016) 1 Cal.5th 1206, 1213.) One such exception is a “carefully limited
search of the outer clothing” of a person suspected of criminal activity who “may be
armed and presently dangerous.” (Terry v. Ohio (1968) 392 U.S. 1, 30.)1 A Terry search
is justified if, under the totality of the circumstances, “a reasonably prudent [person] . . .
would be warranted in the belief that his [or her] safety or that of others was in danger.”
(Id. at p. 27.) “[T]he police officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant that
intrusion.” (Id. at p. 21.) An “inchoate and unparticularized suspicion or ‘hunch,’ ” is
insufficient, regardless of the officer’s good faith. (Id. at p. 27; People v. Roth (1990)
219 Cal.App.3d 211, 214.)
Considerations relevant to this inquiry include general factors such as the crime at
issue, the officer’s knowledge and experience, the characteristics of the area, and the time
of day. (See United States v. Mendenhall (1980) 446 U.S. 544, 563-564 [Powell, J.,
1 Another exception, a probation search, is inapplicable here “[b]ecause the officers were
unaware of the probation search condition at the time they detained and searched
defendant . . . .” (People v. Thomas (2018) 29 Cal.App.5th 1107, 1115.)
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concurring]; People v. Medina (2003) 110 Cal.App.4th 171, 177; In re Jeremiah S.
(2019) 41 Cal.App.5th 299, 305.) Other relevant factors specific to a suspect are “visible
bulges or baggy clothing that suggest a hidden weapon” and “evasive and deceptive
responses to an officer’s questions about what the individual was doing.” (In re
Jeremiah S., at p. 305.)
Here, as we have described, the uncontradicted evidence presented at the hearing
on the motion described an encounter in a high crime area with a probationer who
approached the deputies while they were seated within an unmarked car, and volunteered
that he had a criminal history related to firearms while wearing clothing that concealed
his waistband. The testimony established that it was the combination of these
circumstances, culminating in defendant’s unsolicited approach and volunteering of gun-
related information, that caused the searching deputy concern for both deputies’ safety.
We do not dispute that each of these factors taken on their own or even in certain more
limited combinations could be deemed inadequate to justify a limited detention and
patdown search; however, considered in their totality they were sufficient here.
Defendant urges the search occurred in broad daylight, he was not suspected of a
particular crime, and he did not behave threateningly, evasively, or deceptively. And he
argues, correctly, the factors we have discussed offer limited predictive insight into
whether he was, at the time of the search, armed and dangerous. (See People v. Thomas,
supra, 29 Cal.App.5th at p. 1116 [“Mere presence in a high-crime area cannot supply the
necessary reasonable suspicion”]; People v. Medina, supra, 110 Cal.App.4th at p. 177
[“ ‘minor traffic offenses do not reasonably suggest the presence of weapons’ ”]; Thomas
v. Dillard (9th Cir. 2016) 818 F.3d 864, 884 [“That a person is normally dressed does not
give rise to reasonable suspicion . . . . Otherwise, innumerable college students
everywhere could be frisked for weapons on appearance alone”]; Burrell v. McIlroy
(9th Cir. 2006) 464 F.3d 853, 858, fn. 3 [“prior criminal history cannot alone establish
reasonable suspicion”].)
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However, where, as here, a probationer who could (per their clothing style) be
concealing a gun, while in a crime-ridden area, having just emerged from a vehicle that
has not been registered for more than half a decade, walks up to an unmarked police car
and broaches a history of illegal firearms activity to police while they are still seated in
their car--even if in the spirit of forthright compliance--we cannot say a reasonably
prudent officer would remain unconcerned about officer safety. “The judiciary should
not lightly second-guess a police officer’s decision to perform a patdown search for
officer safety. The lives and safety of police officers weigh heavily in the balance of
competing Fourth Amendment considerations.” (People v. Dickey (1994)
21 Cal.App.4th 952, 957.) Under the totality of the circumstances, a limited patdown
search was justified under Terry.
II
The Scope of the Search
“If the protective search goes beyond what is necessary to determine if the suspect
is armed, it is no longer valid under Terry and its fruits will be suppressed.” (Minnesota
v. Dickerson (1993) 508 U.S. 366, 373.) However, “[i]f a police officer lawfully pats
down a suspect’s outer clothing and feels an object whose contour or mass makes its
identity immediately apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons; if the object is
contraband, its warrantless seizure would be justified by the same practical considerations
that inhere in the plain-view context.” (Id. at pp. 375-376.) Under this “plain feel”
doctrine, “the dispositive question . . . is whether the officer who conducted the search
was acting within the lawful bounds marked by Terry at the time he gained probable
cause to believe that the lump in respondent’s jacket was contraband.” (Id. at p. 377.)
Dickerson held this doctrine inapplicable where the officer determined a small,
hard lump “was contraband only after ‘squeezing, sliding and otherwise manipulating the
contents of the defendant’s pocket’ -- a pocket which the officer already knew contained
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no weapon.” (Minnesota v. Dickerson, supra, 508 U.S. at p. 378, italics added; see
People v. Dickey, supra, 21 Cal.App.4th at pp. 955, 957 [officer, having found no
weapons, impermissibly squeezed lump suspected to be contraband].) “[T]he officer’s
continued exploration of respondent’s pocket after having concluded that it contained no
weapon was unrelated to ‘the sole justification of the search [under Terry:] . . . the
protection of the officer and others nearby.’ ” (Dickerson, at p. 378, italics added.) Thus,
once the officer determines a suspect’s pocket does not contain a weapon, the patdown is
no longer justified under Terry and the officer cannot continue to squeeze, manipulate, or
palpate an object in the pocket without probable cause for a further search. (See People
v. Limon (1993) 17 Cal.App.4th 524, 536 [once officer believes a concealed object is not
a weapon, “the officer cannot continue to palpate the object without probable cause to
search the suspect”].)
Importantly, this does not preclude probing an object to dispel the suspicion it is a
weapon. In United States v. Mattarolo (9th Cir.2000) 209 F.3d 1153, for example, the
officer “felt, with the flat of his hand” an object that “could have been a pocket knife”
and then “pressed it between his thumb and forefinger in order to make sure this was not
the case,” at which point he was “alerted immediately to the presence of drugs by the
familiar sensation of . . . a granular substance.” (Id. at p. 1158.) The Ninth Circuit held
“such a precautionary squeeze is well within the scope of Terry.” (Ibid.; see United
States v. Yamba (3d Cir.2007) 506 F.3d 251, 259 [the proper question “is not the
immediacy and certainty with which an officer knows an object to be contraband or the
amount of manipulation required to acquire that knowledge but rather what the officer
believes the object is by the time he concludes that it is not a weapon”]; see also
People v. Lee (1987) 194 Cal.App.3d 975, 985 [upholding officer’s patdown using a
“gripping motion”; stating “something more is contemplated than a gingerly patting of
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the clothing” and that “in order to rule out the presence of a weapon, the officer may have
to determine an object’s ‘weight and consistency’ ”] (Lee).)2
Applying these holdings to the facts before us, the fact that Kannalikham pressed
down on the bulge in defendant’s pocket after initially feeling it is therefore significant
only if he had already determined defendant’s pocket contained no weapon. Although
defendant argues that this must have been the case, the record does not so demonstrate.
Defendant asserts: “Deputy Kannalikham never claimed that the lump felt like a weapon
or that he could not tell if it was a weapon when he pat-down [sic] [defendant]. It follows
that Deputy Kannalikham did not believe the lump was a weapon.” (Footnote omitted.)
But the trial court’s denial of the motion evinced its acceptance of the evidence
presented; this evidence is more than sufficient to support a constitutionally benign
interpretation of the events. Kannalikham testified that, having been alerted to the
possibility defendant was armed, he commenced the search by patting defendant’s front
left pocket area three times, pressing down upon sensing the bulge and concluding, based
on his training and experience, it was methamphetamine. The trial court could have
reasonably concluded from this testimony “the entire search . . . was necessary to rule out
the presence of a weapon, and that there was no appreciable lapse of time between
[Kannalikham’s] realization that the object was not a weapon, and his realization it was
[methamphetamine].” (Lee, supra, 194 Cal.App.3d at p. 985.) Indeed, there was no
testimony suggesting a contrary conclusion. Kannalikham’s suspicion was supported not
only by the telltale crunchiness of the bulge but also by his expertise, defendant’s clearly
false assertion that the bulge was money, and the location where the encounter took
2 Although it preceded Dickerson, Lee similarly held “[t]he present situation presents the
tactile equivalent of cases where an officer permissibly and reliably detects contraband
through sight or smell and thereupon arrests the defendant.” (Lee, supra, 194 Cal.App.3d
at p. 984; People v. Dibb (1995) 37 Cal.App.4th 832, 836 [harmonizing Lee and
Dickerson].)
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place, which was known for frequent drug transactions. Therefore, examining the record
in the light most favorable to the trial court’s ruling, as we must, we conclude
Kannalikham was acting within the lawful bounds of Terry when he gained probable
cause to believe the bulge was methamphetamine.
Accordingly, because the search and seizure did not exceed constitutional bounds,
the trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P. J.
/s/
Renner, J.
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