We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Patdown Search of Detained Suspect For Weapons Requires Specific Facts

THE PEOPLE, Plaintiff and Appellant, v. JUAN PANTOJA, Defendant and Respondent. (Cal. Ct. App., Mar. 24, 2022, No. A162591) 2022 WL 1102119

Summary: Pantoja filed a motion to suppress evidence of a firearm found on his person when he was patted down during a traffic stop. The trial court granted defendant’s motion and then dismissed the case. The District Attorney appealed and the Court of Appeal affirmed

Factual And Procedural Background
Pantoja was charged with possession of a firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)). He filed a motion to suppress the evidence (§ 1538.5), arguing the evidence was obtained as the result of an unreasonably prolonged detention and illegal search.
Pantoja was stopped while driving for a lighting infraction and declined to consent to a search. He was asked defendant to get out of his car while the officer, who knew Pantioja had a history of weapons, issued a citation.
Pantoja did not make any furtive gestures and did not make any sudden movements during the traffic stop. When the officer patted Pantija’s front waistband area, he felt what he recognized as a handle to a handgun. He lifted the front of Pantoja’s hoodie and saw a revolver. Pantija was arrested. The traffic stop occurred in a high-crime area.
In support of the motion to suppress, Pantoja’s counsel argued the prosecution failed to establish “reasonable articulable facts that Mr. Pantoja was armed and presently dangerous at the time,” noting there was no evidence of contraband, no furtive or evasive movements, and defendant complied with the traffic stop. The prosecutor argued the totality of the circumstances supported Hill’s reasonable belief that defendant was armed or dangerous, citing defendant’s baggy clothing, that it was dark outside and in the car, that the stop was in a high-crime area, and that Hill knew of “defendant’s history of violence and weapons possession.”
Trial Court Rulings
The trial court granted defendant’s motion to suppress, explaining: “[T]he officer is well within his rights to remove a detainee from a vehicle while the investigation is proceeding, and that includes traffic stops and minor citations; however, in order … to conduct a pat search, there must be specific and articulable facts known to that officer that would lead that officer to believe that he was presently armed and dangerous.”
Constitutional Principles
“In Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States Supreme Court held that there exists ‘a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” (King v. State of California (2015) 242 Cal.App.4th 265, 283.)
“ ‘The sole justification of the search … is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ ([Terry, supra, 392 U.S.] at p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.” (People v. Dickey (1994) 21 Cal.App.4th 952, 955–956 (Dickey).) “[A]n ‘inchoate and unparticularized suspicion or “hunch” ’ is insufficient.” (In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305 (Jeremiah S.).)
Standard of Review
“In reviewing a trial court’s decision to grant a motion to suppress evidence, we rely on the trial court’s express and implied factual findings, provided they are supported by substantial evidence, to independently determine whether the search was constitutional.” Review is under the deferential substantial evidence standard, considering the evidence in the light most favorable to the trial court’s order.(People v. Lee (2019) 40 Cal.App.5th 853, 860–861, 870 [affirming the grant of a motion to suppress evidence obtained from an unconstitutional car search].)
Analysis
Considering the evidence in the light most favorable to the trial court’s ruling and deferring to the court’s implied factual and credibility findings, we conclude the court properly granted defendant’s motion to suppress.
Pantoja was dressed appropriately for the weather and cooperated during the traffic stop. He made no furtive or sudden movements, and there was no testimony that any of conduct suggested he was trying to hide a weapon.
Pantoja”s “history of weapons” was insufficient to support reasonable suspicion. It had been years since he was arrested for possession of weapons. A person’s criminal record is not sufficient to create reasonable suspicion to support a detention or search. (See United States v. Foster (4th Cir. 2011) 634 F.3d 243, 246–247 (Foster) [“ ‘A prior criminal record “is not, standing alone, sufficient to create reasonable suspicion” ’ ”]; United States v. Mathurin (3d Cir. 2009) 561 F.3d 170, 177 [“a past criminal conviction, never mind an arrest record, is not sufficient alone for reasonable suspicion; law enforcement agents must support this fact with sufficient corroborating evidence”].) For example, in United States v. Davis (10th Cir. 1996) 94 F.3d 1465, 1469, the court observed, “Knowledge of a person’s prior criminal involvement is not, standing alone, sufficient to create reasonable suspicion.”
Mere presence in a high crime area, by itself, does not justify a pat down search. (Medina, supra, 110 Cal.App.4th at p. 177 [weapon search not justified merely because the suspect was in a high gang area late at night].)
The pat search of defendant was not supported by reasonable suspicion.The orders granting defendant’s motion to suppress and dismissing the complaint were affirmed.

 

Contact Information