People v. Nelson CA2/7 ( 2015 )

Filed 1/21/15 P. v. Nelson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B254197
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA411757)
v.
KATRELL NELSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
William N. Sterling, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Jonathan J. Kline and Jonathan M. Krauss, Deputy Attorneys General for
Plaintiff and Respondent.
_______________________
A woman waved down police officers, who followed her to a parked car in which
Katrell Nelson was sitting. After Nelson was ordered out of the car, an officer conducted
a pat search, discovered cocaine in Nelson’s pocket and arrested him. Following the
denial of his motion to suppress evidence, on February 5, 2014 Nelson pleaded no contest
to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), a felony,1 and admitted
he had served three separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)).2
On appeal Nelson concedes he was lawfully detained and subjected to a protective pat
search under Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (Terry).
However, he contends the scope of the search was unlawful and the cocaine found in his
pocket should have been suppressed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While driving with his partner on patrol, Los Angeles Police Officer Onam Urena
saw a woman crying and running toward his car, signaling him for assistance. After
alerting Urena and his partner, the woman walked back toward her parked car and opened
the rear passenger door. Urena, who had stopped the patrol car and approached the
woman’s vehicle, saw Nelson sitting in the back seat. An infant was next to him.
Believing he had encountered a scene of domestic violence, Officer Urena ordered
Nelson out of the car. As Nelson came out of the car, he was holding the infant with his
1
Proposition 47, approved by the voters on November 4, 2014, amended Health and
Safety Code section 11350, subdivision (a), as of November 5, 2014, to provide in most
instances that possession of a controlled substance is a misdemeanor, not a felony.
Proposition 47 also contains a resentencing provision, new Penal Code section 1170.18,
which permits a person currently serving a sentence for a felony that is now a
misdemeanor under the provisions of Proposition 47 to petition for a recall of sentence
and resentencing. We do not consider what effect Proposition 47 may have on Nelson’s
conviction and sentence.
2
The trial court suspended imposition of sentence and placed Nelson on one year of
formal probation on condition he complete a drug treatment program pursuant to Penal
Code section 1210.1 (Proposition 36).
2
left hand and had his right hand in his right front pants pocket. Urena was concerned
there was a weapon in Nelson’s pocket. Urena ordered Nelson to give the baby back to
the woman and to put his hands behind his back. Urena handcuffed Nelson and then
conducted a pat search for weapons.
Officer Urena testified in performing the pat search he used what he called the
“spider crawl” method he had learned at the police academy, which consists of a
systematic neck to shoes search of the suspect during which the officer “grabs and
manipulates” the suspect’s clothing to locate any hidden weapons. Urena explained
officers are also trained to be alert to the presence of nonthreatening items of contraband
they may feel during the pat search. When Urena reached Nelson’s right front pocket, he
“felt a squishy item, probably the size of a golf ball,” that the officer immediately
recognized as narcotics based on his training and experience.
At this point in Officer Urena’s suppression hearing testimony, the trial court
asked, “That is when you were just patting the outside?” The office replied, “Yes, Sir.”
The court next asked, “[W]hat you felt when you were just patting it down before you
manipulated it, was it consistent with what you have experienced in the past to be
narcotics?” Again the officer responded, “Yes, Sir.” The following exchange then took
place:
“[The Court]: Can you describe how and why it was consistent with
narcotics?
“[The Witness]: Usually when people hide or conceal items, narcotics, they
keep it in their pockets and usually, they will put keys, cell phone—it’s more
of a hard object. Something squishy like that and small—people usually
hide and conceal it in their pockets.
“[The Court]: When you say squishy and small, when you patted it, did it
seem to change shape?
“[The Witness]: Once I did a spider crawl, it is more of groping the area and
making sure there were no guns, and yes, it felt like it was changing shape.
“[The Court]: Were you doing that in order to see if there was a weapon?
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“[The Witness]: Yes, Sir.
“[The Court]: When it changed shape, was that consistent with what you
have experienced in the past to be narcotics?
“[The Witness]: Yes, Sir.”
On cross-examination Officer Urena testified the spider crawl entails “squeezing
the outer clothing from the neck to the shoes.” Nelson’s counsel asked, “When you were
in the course of this spider crawl, when you were squeezing Mr. Nelson’s pockets, you
felt that squishy substance that you described to us earlier?” Urena answered, “Yes, Sir,”
and confirmed the substance he then retrieved from Nelson’s right front pocket was
powder cocaine.
Nelson did not testify at the suppression hearing. Following the presentation of
evidence, Nelson’s counsel argued the cocaine should be suppressed because, among
other reasons, the manner in which Officer Urena conducted the pat search exceeded the
permissible scope of a Terry search.
The trial court denied the suppression motion, concluding, (a) Officer Urena
reasonably detained Nelson to conduct an investigation of potential criminal activity;
(b) Urena reasonably believed that Nelson might have a weapon and, therefore, was
justified in conducting a Terry pat search to ensure his safety; and (c) Urena’s method of
systematically squeezing or grasping a suspect’s clothing to detect small, easy-to-conceal
weapons was not constitutionally unreasonable. Because Urena immediately recognized
the object in Nelson’s pocket as a controlled substance, the officer had probable cause to
retrieve it and to arrest Nelson for possession of cocaine. The court explained Urena
would have exceeded the permissible scope of a Terry search had he grasped the object,
not immediately recognized it and continued to manipulate the object to determine what
it might be. However, based on Urena’s testimony the court concluded that had not
happened.
DISCUSSION
1. Standard of Review
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In reviewing the ruling on a motion to suppress, the appellate court defers to the
trial court’s factual findings, express or implied, when supported by substantial evidence.
(People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.)
The power to judge credibility, weigh evidence and draw factual inferences is vested in
the trial court. (James, at p. 107.) However, in determining whether, on the facts found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
2. Governing Legal Principles3
When a police officer reasonably suspects a crime has been committed and the
individual he or she has detained may be armed and dangerous, the officer may “conduct
a carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him.” (Terry, supra, 392 U.S. at p. 31.) “The
purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence . . . .” (Adams v. Williams
(1972) 407 U.S. 143, 146 [92 S.Ct. 1921, 32 L.Ed.2d 612].) The officer’s search “must
be limited to that which is necessary for the discovery of weapons which might be used to
harm the officer or others nearby.” (Terry, at p. 26.) If the protective search goes beyond
what is needed to determine whether the suspect is armed, it is no longer lawful; and the
fruits of such a search must be suppressed. (Minnesota v. Dickerson (1993) 508 U.S.
366, 373 [113 S.Ct. 2130, 124 L.Ed.2d 334] (Dickerson); Sibron v. New York (1968) 392
U.S. 40, 65-66 [88 S.Ct. 1889, 20 L.Ed.2d 917].)
Officers conducting a proper protective search, however, are not limited to seizing
only weapons they discover. So long as the officers’ search stays within the bounds
marked by Terry, police officers may seize nonthreatening contraband they have
3
Whether relevant evidence obtained by assertedly unlawful means must be
excluded is determined exclusively by deciding whether its suppression is mandated by
the federal Constitution. (Cal. Const., art. I, § 28, subd. (f)(2); People v. Lenart (2004)
32 Cal.4th 1107, 1118.)
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detected. (Dickerson, supra, 508 U.S. at p. 373.) “If 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; accord, In re Lennies H. (2005)
126 Cal.App.4th 1232, 1237; 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”].)
In Dickerson, supra, 508 U.S. 366, the police stopped the defendant as he was
leaving a building known for cocaine traffic because he had acted in an evasive manner
when he saw them. (Id. at pp. 368-369.) A pat search revealed no weapons, but the
investigating officer felt a “small lump” in defendant’s pocket. (Id. at p. 369.) The
officer did not immediately suspect the lump was contraband but examined it further and,
according to the state courts’ findings, “determined that the 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 no weapon.” (Id. at p. 378.)
The Supreme Court held the crack cocaine seized from defendant’s pocket was the
product of an unlawful search, concluding, under those circumstances, “the police officer
in this case overstepped the bounds of the ‘strictly circumscribed’ search for weapons
allowed under Terry.” (Ibid.) The Court emphasized that, “[a]lthough the officer was
lawfully in a position to feel the lump in [defendant’s] pocket,” the further search was
constitutionally invalid because “the incriminating character of the object was not
immediately apparent . . . .” (Id. at p. 379; see, e.g., United States v. Miles (9th Cir.
2001) 247 F.3d 1009, 1014-1015 [officer conducting protective pat search “reached the
outer limits of his patdown authority” when, after feeling a small box in the suspect’s
pocket, “it was clear that the object . . . could not possibly be a weapon”; because the
officer did not immediately recognize the box as contraband, “the officer’s further
manipulation of the box was impermissible”].)
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3. The Motion To Suppress Was Properly Denied
Based on Officer Urena’s testimony, the trial court found that, upon feeling the
small, squishy object in Nelson’s pocket, it was immediately apparent to Urena—based
not only on the feel of the item but also on his training and the location where the
encounter took place, which was known as an area with frequent drug transactions—the
item was contraband (“narcotics”). Under the deferential substantial evidence standard
that governs our review, we accept the court’s factual finding. The question remains,
however, whether Urena’s use of the spider crawl search method—and specifically the
fact Urena gripped, rather than simply patted, the outside of Nelson’s pocket area—
stayed within the bounds of a lawful Terry search.
Contrary to Nelson’s contention, the validity of a protective search for weapons to
ensure officer safety does not turn on the subtle distinction between a “pat” and a
“squeeze.” (See, e.g., United States v. Mattarolo (9th Cir. 2000) 209 F.3d 1153, 1156,
1158 [to determine if the small object in a suspect’s pocket might be a pocket knife, the
officer closed his thumb and forefinger around it to see whether it was hard; instead the
officer felt chunks in plastic bags that he immediately recognized as drugs; held: “such a
precautionary squeeze is well within the scope of Terry”]; United States v. Rogers
(2d Cir. 1997) 129 F.3d 76, 79 [although officer manipulated object in suspect’s coat
pocket for “a few seconds” to determine what it was, “the search was still within the
bounds of Terry”].) The constitutional infirmity identified in Dickerson was not the type
of touch employed but “the officer’s continued exploration of [the suspect’s] pocket after
having concluded that it contained no weapon.” (Dickerson, supra, 508 U.S. at p. 378.)
The Supreme Court explained the continued manipulation of the small object discovered
by the officer “was unrelated to ‘the sole justification of the search [under Terry:] . . . the
protection of the police officer and others nearby.’” (Ibid.) It was the duration of the
external search that prompted the Court’s concern, not simply the manipulation of the
suspicious object. (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
7
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 [“in order to rule out
the presence of a weapon, the officer may have to determine an object’s ‘weight and
consistency’”].)
The facts as found by the trial court here are distinguishable from the situation in
Dickerson because Officer Urena had to squeeze the object in Nelson’s pocket to dispel
his suspicion it was a weapon and, simultaneously with that act, the officer developed
probable cause to arrest Nelson for possession of a controlled substance. As explained by
Urena at the suppression hearing, the spider crawl method of pat search was limited to the
outside of Nelson’s clothing and was employed solely to determine if Nelson had a
weapon in his pocket:
“[The Court]: . . . Officer, when you patted his pocket that had the substance
you recovered, were you able to feel that squishy feeling the first time you
patted the object?
“[The Witness]: Yes, Sir.
“[The Court]: And was it by grasping it or just patting?
“[The Witness]: It was more of a grasp. The spider crawl is considered a
grasp, you could say.
“[The Court]: Is that because there might be weapons other than firearms
that you would need to grasp in order to recognize?
“[The Witness]: Yes, like knives.”
The record supports the trial court’s findings as to the nature of Officer Urena’s
protective search and his identification of the substance as contraband while still trying to
determine whether it was a weapon. The motion to suppress was properly denied.
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DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
WOODS, J.
FEUER, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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