Police cannot automatically conduct a pat down search of a robbery suspect for weapons

In re Jeremiah S. (Cal. Ct. App., Oct. 18, 2019, No. A155856) 2019 WL 5302782, at *1–7

 The robbery, detention, pat search and arrest arrest of Jeremiah S.

On July 2, 2018, Ornin Gosuwin was carrying a shoulder bag and holding an iPhone as she walked on Spear Street toward Market Street in San Francisco. Two young men, both wearing hoodies, came from around the corner. Gosuwin stopped to let the young men pass. One of them pushed her left shoulder and caused her to fall to the ground and both stood over her and pulled her bag and phone away. The assailants continued on Market Street in the direction of the Embarcadero.

San Francisco Police obtained Gosuwin’s description of the two individuals and the stolen items. Gosuwin did not see any weapons on her assailants, and she did not report that any weapons were used.

Using the “Find My iPhone app” officers later found Gosuwin’s purse on the ground on the Embarcadero near the Ferry Building.

Later, four San Francisco Police Officers received a dispatch call for service for a robbery in the area of 51 Market Street.” They had been told that a purse and phone had been stolen and that the phone had been tracked to the area near Pier 19. There was no radio broadcast that a weapon had been used in the incident. The suspects were described as two “young black males approximately in their 20s,” with one suspect wearing a light blue or gray hoodie. As the officers drove along the Embarcadero, they noticed Jeremiah and J.A., both juveniles, and one was wearing a light gray hoodie. The officers followed them for several blocks and confirmed the description of the suspects.

Four SF Police Officers stopped Jeremiah and J.A. and instructed them to get close to the buildings on the sidewalk. A police officer instructed Jeremiah to face a wall with his legs spread and his arms above his head. He did as instructed and made no sudden movements or attempts to run away. The officer who conducted the pat-search did not notice any weapon-like bulges in Jeremiah’s clothing, but believed Jeremiah was armed and dangerous because “a robbery occurred” and he knew that “most robberies involve a weapon or most robbers tend to have weapons on their persons.”

Officer Neuerburg began his pat search, and felt two phones in Jeremiah’s pocket. Believing the phones were evidence of the reported robbery, Neuerburg asked if he could take them out of the pocket, and Jeremiah consented. One phone matched those of the victim’s phone.

The San Francisco District Attorney’s Office filed a wardship petition, alleging that Jeremiah, 14 years of age, committed felony violations of second-degree robbery (Pen. Code, § 211; count 1) and receiving stolen property (Pen. Code, § 496, subd. (a); count 2).

Motion to suppress evidence from pat search

Jeremiah moved to suppress the evidence obtained from the pat search. The juvenile court denied the motion to suppress. At the close of the jurisdiction hearing, the court ordered Jeremiah transferred to Alameda County where a previous wardship petition alleging that Jeremiah committed second degree robbery in Alameda County on June 13, 2018, was pending. Jeremiah admitted to a lesser offense of felony accessory (Pen. Code, § 32) for the June 13, 2018 offense. The juvenile court held a disposition hearing and declared wardship, deemed the San Francisco offense to be a felony, and placed Jeremiah on probation in his stepmother’s home on various terms.

Jeremiah appealed from the disposition and jurisdiction orders.

Claim that pat search was illegal because officer had no reasonable suspicion Jeremiah was armed

Jeremiah appealed claiming that the juvenile court erred in denying his suppression motion because the officer who pat searched him had no specific and articulable facts to support a reasonable suspicion that he was armed and dangerous. The People argued that the pat search was valid because Jeremiah was a suspect in a robbery, and all forms of robbery are likely to involve a weapon.

Principles governing pat searches

The Fourth Amendment of the United States Constitution guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (Terry v. Ohio (1968) 392 U.S. 1, 8–9 (Terry).) If an officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is happening, the officer may conduct a brief, investigative stop. If the officer conducting the Terry stop believes the suspect is armed and dangerous, the officer may perform a limited pat search of a person’s outer clothing for weapons.

Because a pat search “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” it is subject to Fourth Amendment restrictions and “not to be undertaken lightly.” (Terry, supra, 392 U.S. at p. 17.) The “sole justification” of the pat search “is the protection of the police officer and others nearby.” (Id. at p. 29.)

The validity of a pat search depends on the totality of the circumstances and turns on whether “a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger.” (Terry, supra, 392 U.S. at p. 27.) The officer must provide “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” (Terry, at p. 21.) A protective search that exceeds what is necessary to determine if the suspect is armed is not valid

A minor may move to suppress evidence obtained as a result of an unlawful pat search. (CA Welf & Inst Code § 700.1) In reviewing a ruling on a motion to suppress, the appellate court defers to the lower court’s express and implied findings of fact if they are supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362(Glaser); In determining whether, the seizure was reasonable under the Fourth Amendment, the Court exercises its independent judgment. (Glaser, at p. 363, 45 Cal.Rptr.2d.)

No evidence that Jeremiah represented a safety threat

Here, four police officers converged and detained Jeremiah and his companion just before midnight, in a lighted area with no foot traffic. None of the officers, however, testified that the late hour, location, or lack of foot traffic was grounds for officer safety concerns. The two suspects were young and were smaller than the four officers, and there was no testimony that Jeremiah’s physical size (5 feet, 5 inches tall, 130 pounds) presented a safety threat. Jeremiah and his companion cooperated with the officers and admitted that the dispatch call made no mention of weapons. The juvenile court citing People v. Osborne (2009) 175 Cal.App.4th 1052(Osborne), held that when a robbery suspect is reasonably and lawfully detained, “the right to frisk or to do the pat search must be immediate and automatic, and the reason for the stop is an articulable suspicion of a crime of violence, which is also true in this case.”

The People argued that an immediate pat search of a lawfully detained robbery suspect should always be permissible because robbery is a violent crime that is likely to involve a weapon.

No rule allowing automatic pat searched in detentions

The Court declined to adopt a rule that would validate pats searches in all lawful detentions related to a fresh robbery report, regardless of the particular circumstances. Where an officer has neither the time nor the means to obtain additional information about a reported robbery before encountering a suspect, that circumstance can and should be taken into account, along with all other relevant circumstances, in deciding whether a pat search was justified.

Fact driven and individualized test for pat searches

The Court noted that “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.) However, the test for pat searches is fact-driven and individualized nature of the test for pat searches under Terry and its progeny.

Disposition

There were no specific and articulable facts supporting a reasonable suspicion that Jeremiah was armed and dangerous, the pat search did not comport with the Fourth Amendment, Jeremiah’s motion to suppress was erroneously denied, and the jurisdiction and disposition orders based on the erroneous denial of suppression, were flawed. Accordingly, the jurisdiction and disposition orders are reversed, and the matter is remanded to the Alameda County juvenile court for further proceedings consistent with this opinio