People v. Thomas

29 Cal.App.5th 1107

241 Cal.Rptr.3d 87

The PEOPLE, Plaintiff and Respondent,

v.Daniel Jason THOMAS, Defendant and Appellant.

C083845

Court of Appeal, Third District, California.

Filed December 3, 2018

As Modified on Denial of Rehearing December 27, 2018

Richard M. Oberto, Fresno, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, J.Defendant Daniel Jason Thomas appeals his convictions for possession of a dirk or dagger, possession of methamphetamine with prior convictions, and possession of drug paraphernalia. On appeal, he contends it was error to deny his motion to suppress under Penal Code¹ section 1538.5 as the detention and patsearch were not justified by reasonable suspicion. We agree and reverse the judgment.²

FACTUAL AND PROCEDURAL BACKGROUND

Based on the evidence discovered during the search of defendant, he was charged with carrying a concealed dirk or dagger, felony possession of methamphetamine based on a prior strike conviction, and misdemeanor possession of a smoking device.³ The information also alleged a prior strike conviction.

After the preliminary examination, defendant filed a motion to suppress under section 1538.5. Following an evidentiary hearing, the magistrate denied the motion.

Suppression Hearing

In April 2016 at 12:23 p.m., the Sacramento Police Department received a call that a "male black adult subject wearing a dark hoody, ... and black pants" was harassing customers in front of a business in the Del Paso Heights area. The description of the subject was clarified as a gray hooded sweatshirt and black pants. Additional information included that the subject had "set up camp," "there was some kind of homeless camp set up nearby," and defendant "appeared to have something mental going on," in that he did not seem to understand when people were speaking to him. There was no information in the call regarding threats, trespassing, battery, physical assault, or weapons being involved.

The Del Paso Heights area has a high crime rate. There are a high number of transients and homeless people in the area. There is also a "fair amount" of foot traffic in the area due to the retail shops and restaurants.

Officer Mark Kimble and his beat partner responded to the area at 2:54 p.m., approximately two hours and 20 minutes after the initial call. Defendant was wearing "bulky clothing, bulky hooded sweatshirt and bulky pants, as well as a windbreaker jacket on top of that." Kimble indicated it was a "pretty warm ... afternoon." He was seated on the sidewalk approximately 70 to 80 yards away from the complaining business. There was no one else in the immediate vicinity.

The officers contacted defendant "and he repeatedly would not give his name on multiple different requests." The officers explained why they were in the area and speaking to defendant, but he "repeatedly would not give his name." Based on "what he was wearing, the totality of the circumstances," Kimble asked defendant if he had any weapons on him. Defendant said he was not on probation, did not have to speak to the officers, and began walking away. Burnett put defendant in a control hold, Kimble handcuffed him and performed a patsearch for weapons. In the course of that search, Kimble felt an item that felt like a fixed blade knife and what felt like a narcotics pipe. After removing the knife from the lining of defendant’s jacket, Burnett "observed" a BET card at the bottom of defendant’s pant leg, near his left boot, with defendant’s name on it. Kimble performed a records check and it showed defendant was on informal searchable probation. The officers continued to search defendant and found methamphetamine in the same pocket the pipe had been in.

The parties stipulated the scope of the suppression hearing was limited, as defendant was only contesting the initial detention and Terry⁴ patsearch.

Defendant argued that generalized harassment is not a crime; thus, officers responding to a general call of harassment, are not responding to a report of a crime. In addition, there was more than a two-hour time lapse between the call and the officer’s contact with defendant, the description given was vague and general, the area was heavily trafficked, and there were a great number of transients in the area. Thus, the officers did not have a reasonable suspicion that a crime had been committed. Moreover, counsel argued, defendant was not aggressive or threatening and did not appear under the influence of a controlled substance. He noted California does not have an identification law requiring compliance with a law enforcement officer’s request to identify oneself. Defense counsel argued, therefore, there was no basis to justify a Terry search. Defense counsel acknowledged it was reasonable for the officers to make a consensual contact with defendant, but when they restrained and detained him, "they went a step too far."

The People argued that the 911 call, coupled with defendant’s attire, behavior, lying, refusing to identify himself, and starting to walk away gave the officers reasonable suspicion. The People also argued discovery of the knife and drug paraphernalia was inevitable, because if defendant had "been forthcoming with his identity from the beginning, the officers would have learned of [his] probation condition sooner and would have inevitably searched [him] and discovered the evidence."

The magistrate, Alan G. Perkins, found there was sufficient suspicion to contact defendant, as he was in physical proximity to the location two and one-half hours after the call, in daylight. Given the minor "nature of the crime," the magistrate reasoned defendant would not have felt compelled to get away from the scene quickly. The magistrate also found there was sufficient basis to presume the conduct complained of was sufficient to be "some kind of criminal offense or some kind of conduct that might lead to danger to others or perhaps even to the person doing the harassing." The magistrate then found "the combination of the crime being harassing conduct, the person being in the area, the homeless camp nearby, the lack of cooperation which by itself is not a crime but combined with other factors and the factor that the defendant was dressed in at least what might seemingly be overdressed for the occasion in the sense it was a very hot day with bulky sweatpants and a wind breaker, I think would barely but sufficiently give the officer suspicion that there might well be something concealed under there that could be a danger." Accordingly, the magistrate denied the motion to suppress.

Trial

After the denial of the motion to suppress, the matter proceeded to jury trial. A jury found defendant guilty of all three charges. In bifurcated proceedings, the trial court found the prior conviction allegation true. The trial court sentenced defendant to a term of two years on possessing a dirk or dagger, doubled pursuant to the strike, a concurrent two-year term on felony possession of methamphetamine, doubled pursuant to the strike, and time served on the misdemeanor possession of drug paraphernalia, for an aggregate term of four years in prison.

DISCUSSION

Defendant contends it was error to deny his motion to suppress. He contends the investigative detention and patsearch were not justified by reasonable suspicion, as the report was stale, overly general in its physical description of him, and vague in its assertion of any criminal activity. The People argue defendant is estopped from arguing the search was unlawful because he lied to the officers when he told them he was not on probation when he was, and in any event, there was reasonable suspicion to support the stop and patsearch search.

The Fourth Amendment protects against unreasonable searches and seizures. ( U.S. Const., 4th Amend.; Terry v. Ohio , supra , 392 U.S. at p. 20, 88 S.Ct. at p. 1879, 20 L.Ed.2d at p. 905.) "A seizure of the person occurs ‘ "whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away." ’ " ( People v. Douglas (2015) 240 Cal.App.4th 855, 860, 193 Cal.Rptr.3d 79, quoting People v. Celis (2004) 33 Cal.4th 667, 673, 16 Cal.Rptr.3d 85, 93 P.3d 1027 ; see People v. Brown (2015) 61 Cal.4th 968, 976-977, 190 Cal.Rptr.3d 583, 353 P.3d 305.) Warrantless searches and seizures are presumed to be unreasonable, " ‘subject only to a few specifically established and well-delineated exceptions.’ " ( People v. Diaz (2011) 51 Cal.4th 84, 90, 119 Cal.Rptr.3d 105, 244 P.3d 501.) "There are two different bases for detaining an individual short of having probable cause to arrest: (1) reasonable suspicion to believe the individual is involved in criminal activity [citation]; and (2) advance knowledge that the individual is on searchable probation or parole." ( Douglas , at p. 860, 193 Cal.Rptr.3d 79 ; see People v. Schmitz (2012) 55 Cal.4th 909, 916, 149 Cal.Rptr.3d 640, 288 P.3d 1259.) "[A] search founded on neither reasonable suspicion of criminal activity nor advance knowledge of a probation search condition can aptly be characterized as arbitrary." ( In re Jaime P. (2006) 40 Cal.4th 128, 138, 51 Cal.Rptr.3d 430, 146 P.3d 965 ; see People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1188, 16 Cal.Rptr.3d 258.) In reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s express or implied factual findings if supported by substantial evidence. ( People v. Redd (2010) 48 Cal.4th 691, 719, 108 Cal.Rptr.3d 192, 229 P.3d 101 ; People v. Woods (1999) 21 Cal.4th 668, 673-674, 88 Cal.Rptr.2d 88, 981 P.2d 1019.) "However, if the undisputed facts establish that the search or seizure was constitutionally unreasonable as a matter of law," we are not bound by the trial court’s...