People v. Long CA4/1 ( 2020 )

Filed 11/6/20 P. v. Long CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075427
Plaintiff and Respondent,
v. (Super. Ct. No. SCD277018)
LAMAR LEE LONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed.
Cherise Bacalski, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland, Scott C. Taylor, and Marvin E. Mizell, Deputy Attorneys General,
for Plaintiff and Respondent.
Lamar Lee Long was a passenger in a vehicle that the police pulled
over for failing to stop at a stop sign. An officer asked Long to exit the
vehicle, performed a weapons patdown search, and located a baggie
containing approximately seven grams of cocaine base in Long’s waistband.
Long filed a motion to suppress the cocaine evidence pursuant to Penal Code
section 1538.5 and argued the patdown was unreasonable and in violation of
his rights under the Fourth and Fourteenth Amendments of the United
States Constitution.
The trial court denied the motion and Long entered a negotiated guilty
plea to one count of transportation of a controlled substance (Health & Saf.
Code, § 11352, subd. (a)) and one count of possession of cocaine base for sale
(id., § 11351.5). Long appeals from the final judgment and asserts the trial
court erred by denying his motion to suppress. We find no error in the trial
court’s ruling and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2018, two gang members were shot to death in broad
daylight at a park in San Diego. Over the next two weeks, there were several
retaliatory shootings involving known gang members, and at least one
related homicide. During the same two-week period, the San Diego Police
arrested six known gang members in the area surrounding the park, each of
whom was carrying a firearm at the time of arrest.
On May 21, 2018, gang members held a vigil and celebration of life at
the park where the original double homicide occurred. Because such events
often attracted a large number of gang members, and created a target for
rival gangs, a gang suppression team of the San Diego Police monitored the
event.
Long was a known gang member and was seen entering and leaving
the park that day. At approximately 2:15 p.m., Long was riding as a
passenger in a vehicle driven by Arthur F., approximately two blocks from
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the park. The vehicle ran through a stop sign without stopping and San
Diego Police Officers Cameron and Brou initiated a traffic stop.
A records check revealed Arthur was subject to a Fourth Amendment
waiver search condition that included his person and vehicle and Long was a
narcotics registrant. The officers decided to do a Fourth Amendment waiver
compliance check on Arthur and the vehicle. Officer Brou asked Arthur to
step out of the vehicle and conducted a patdown search for weapons. Officer
Cameron then asked Long to exit the vehicle and patted him down for
weapons as well. Officer Cameron felt a large golf-ball-size, crunchy object
protruding in the front waistband of Long’s underwear, just above his belt.
The substance was later identified as cocaine base.
Long was charged with one count of transportation of a controlled
substance (Health & Saf. Code, § 11352, subd. (a)) and one count of
possession of cocaine base for sale (id., § 11351.5). Long filed a motion to
suppress the evidence seized by the San Diego police, including the cocaine
base, on the ground the search was unreasonable and in violation of his
rights under the Fourth and Fourteenth Amendments.
Officer Cameron testified at the trial court hearing on the suppression
motion. He stated that he had contacted Long in the past and knew that
Long was a gang member. Officer Cameron believed Long had a history of
assault and violence, and Officer Cameron explained that he was “part of
multiple search warrants, where SWAT has been used to execute the search
warrants on [Long’s] residence.” Officer Cameron further testified Long was
wearing skinny jeans and a jacket that was baggy enough to conceal his
waistband at the time of the stop. Counsel indicated Long was wearing the
same clothing in court and Officer Cameron agreed the jacket was the same
or similar to the one Long wore at the time of the stop.
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Officer Cameron stated he conducted the patdown based on a concern
Long was armed and dangerous. When asked his reasoning, he explained:
“For, one, just knowing Mr. Long is a known gang member
with Lincoln Park Piru. I know of his assaultive history.
And then furthermore, the recent gang activity in and
around that park and the members leaving that park, in
the vicinity of that park, there have been several traffic
stops our unit has made where people have been armed and
several firearms have been recovered. So, yes, I was
concerned for my safety, that Mr. [Long] would be armed.”
Considering the totality of circumstances, the trial court concluded it
was reasonable for Officer Cameron to conduct the patdown search of Long
for weapons and denied the motion to suppress. Thereafter, Long entered a
guilty plea and was sentenced to six years in prison. Long now appeals.
DISCUSSION
Long’s sole contention on appeal is that the trial court erred by denying
his motion to suppress based on an unlawful patdown search.
The Fourth Amendment to the United States Constitution protects
individuals against unreasonable searches and seizures and is applicable to
states by virtue of the due process clause of the Fourteenth Amendment.
(U.S. Const., 4th & 14th Amends.; People v. Camacho (2000) 23 Cal. 4th 824,
829.)
When a police officer conducts a lawful investigatory stop of a vehicle
and has a reasonable suspicion the driver or any passenger is armed and
dangerous, the officer may conduct a patdown search for weapons without
violating the Fourth or Fourteenth Amendments. (Arizona v. Johnson (2009)
555 U.S. 323, 326-327; Terry v. Ohio (1968) 392 U.S. 1, 24 (Terry); People v.
Medina (2003) 110 Cal. App. 4th 171, 176 (Medina).) This is often referred to
as a “Terry frisk” or patdown. (Medina, at p. 176.) Although lawful under
certain circumstances, a Terry frisk “is a serious intrusion upon the sanctity
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of a person.” (Terry, at p. 17.) Accordingly, it “is not justified unless the
officer can point to specific and articulable facts which, considered in
conjunction with rational inferences to be drawn therefrom, give rise to a
reasonable suspicion that the suspect is armed and dangerous.” (Medina, at
p. 176; see also Terry, at p. 21.) “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.) “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.” (Terry, at p. 27.)
A defendant may move to suppress evidence obtained as a result of an
unlawful or unjustified Terry frisk. (Pen. Code, § 1538.5.) When presented
with a motion to suppress on these grounds, the trial court makes findings of
fact regarding the circumstances surrounding the search and applies those
findings to the law to determine whether the search was reasonable. (People
v. Parson (2008) 44 Cal. 4th 332, 345 (Parson).) On appeal, we review the
factual findings underlying the trial court’s ruling on the motion to suppress
for substantial evidence and consider de novo whether the search was
reasonable based on those facts. (Parson, at p. 345; People v. Oldham (2000)
81 Cal. App. 4th 1, 9.) “[W]e view the record in the light most favorable to the
challenged ruling.” (People v. Smith (2010) 190 Cal. App. 4th 572, 576.)
Here, Long concedes the traffic stop itself was proper but contends
Officer Cameron did not articulate a sufficiently particularized and
reasonable suspicion Long was armed and dangerous to justify the patdown
search. We disagree and conclude Officer Cameron provided specific and
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articulable facts, supported by sufficient evidence, giving rise to a reasonable
suspicion that Long was armed, thus justifying the search for weapons. (See
Medina, supra, 110 Cal.App.4th at p. 176.)
The evidence indicates Long was seen at a nearby park where a
celebration of life and vigil were being held for a gang member prior to the
traffic stop. The event was under surveillance specifically because the police
had reason to believe it would draw a large number of gang members and
could be a target of violent crimes involving rival gangs. Officer Cameron
was aware of these facts, had knowledge Long was a gang member, and had
at least some basis to believe Long had a violent past. Thus, Officer Cameron
had reason to believe Long might be armed and dangerous at the time of the
stop. (See In re H.M. (2008) 167 Cal. App. 4th 136, 146-147 (H.M.) [officers
may consider fact that area involves increased, recent, violent gang activity,
along with other factors, when establishing reasonable suspicion an
individual contacted in that area is armed and dangerous]; People v. King
(1989) 216 Cal. App. 3d 1237, 1241 [“[T]he fact that an area involves increased
gang activity may be considered if it is relevant to an officer’s belief the
detainee is armed and dangerous. While this factor alone may not justify a
weapon search, combined with additional factors it may.”].)
Further, the officers had a valid reason to search the vehicle—the
driver’s Fourth Amendment waiver—and it was reasonable for them to ask
Long to exit the vehicle to conduct that search. (Maryland v. Wilson (1997)
519 U.S. 408, 414-415.) Thereafter, Officer Cameron noted Long was wearing
a jacket that was baggy enough to conceal a weapon underneath it. Based on
the totality of circumstances, we agree with the trial court that it was
reasonable for Officer Cameron to perform a patdown search to ensure Long
did not have any weapons before searching the car. (See People v. Collier
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(2008) 166 Cal. App. 4th 1374, 1376, 1378 (Collier) [reasonable for deputy to
conduct patdown of passenger before searching car interior where car smelled
of marijuana and passenger was wearing baggy clothing capable of concealing
a weapon].)
Long argues his jacket was only “somewhat baggy” and not sufficiently
baggy to justify the search, noting the officer never testified that he saw a
“bulge” under Long’s clothing. However, Long wore the jacket to the
suppression hearing and the trial court concluded it was baggy enough that
an officer would not be able to tell if it was concealing a weapon. We defer to
the trial court’s express and implied factual findings where, as here, they are
supported by substantial evidence. (Robey v. Superior Court (2013)
56 Cal. 4th 1218, 1223.) Combined with the totality of circumstances, the fact
that Long’s clothing was baggy enough to conceal a weapon was enough to
justify a patdown search for officer safety. (See Collier, supra,
166 Cal.App.4th at pp. 1376, 1378 & fn. 1.) Although Officer Cameron did
not see a bulge under the clothing, the officer does not need to be absolutely
certain the defendant is armed. (Terry, supra, 392 U.S. at p. 27.) Under the
circumstances, and based on Officer Cameron’s knowledge and experience, it
was prudent to first determine if Long was carrying a concealed weapon
before the officers completed the vehicle search. (See ibid. [“in determining
whether the officer acted reasonably in such circumstances, due weight must
be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to
the specific reasonable inferences which he is entitled to draw from the facts
in light of his experience”].)
Long relies on Medina, supra, 110 Cal. App. 4th 171, and People v.
Hester (2004) 119 Cal. App. 4th 376, 386 (Hester), but these cases do not
support his assertion that the search was invalid.
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In Medina, the officers stopped the defendant for a broken taillight.
(Medina, supra, 110 Cal.App.4th at p. 174.) There was no evidence to suggest
the defendant did anything to indicate he was involved in criminal activity or
that he was subject to a Fourth Amendment search waiver. (Ibid.) An officer
asked the defendant to exit the vehicle, “grabbed” his hands, and asked him if
he had “any weapons, sharp objects, ‘or anything he should know of prior to
the search.’ ” (Id. at p. 175.) The defendant admitted to having a “rock” and
the officer found rock cocaine in the defendant’s pocket. (Ibid.) At the motion
to suppress hearing, the arresting officer admitted there was nothing specific
about the defendant that suggested he may be armed and explained it was
“standard procedure” to conduct a weapons search in a “high gang area late
at night.” (Id. at p. 177.) On appeal, the court concluded that mere presence
in a high crime area alone was not sufficient reason to justify a detention and
weapons search, and therefore concluded both the detention and search were
unlawful. (Id. at pp. 177-178.)
By contrast here, Officer Cameron did not rely solely on the general
area in which Long was stopped to justify the search. Instead, he relied on
specific recent events, including the celebration of life occurring on the day of
the stop, and the fact that Long himself was seen leaving that event shortly
before the stop. In addition, Long was a known gang member and Officer
Cameron had reason to believe he had a violent past. These facts—prior
contacts with law enforcement, status as a known gang member, a history
involving violence or assaultive behavior, observation of the defendant
departing from a suspicious location, and the fact that the defendant’s jacket
concealed his waistline—were all specific to Long rather than mere
generalizations about the area where the search occurred. (See H.M., supra,
167 Cal.App.4th at pp. 147-148 [concluding trial court did not err in denying
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suppression motion where the suspicions of the officer “were aroused based
on factors directly related to H.M., i.e., his suspicious behavior and his prior
contacts with police.”].) Moreover, while the court in Medina questioned the
officer’s reasons for having the defendant exit the vehicle in the first instance,
here the vehicle at issue was subject to a valid Fourth Amendment waiver.
(See Medina, supra, 110 Cal.App.4th at p. 176.)
The search at issue in Hester also occurred after a traffic stop. (Hester,
supra, 119 Cal.App.4th at p. 384.) However, unlike the present case, there
was no traffic violation that precipitated the stop. (Ibid.) Instead, the
officers in Hester observed three vehicles which they assumed were traveling
together, and they pulled over the vehicle containing the defendant based on
the fact that there had been a gang-related shooting in the area earlier that
evening and one of the individuals in the car was a known gang member.
(Ibid.) The officer impermissibly inferred all four occupants of the vehicle
were gang members because one individual in the car “was known to him to
be an East Side Crip, the cars were driving in East Side Crips territory, and
the [car] contained Black males between 15 and 25 years of age.” (Id. at
p. 388.) The Court of Appeal determined this assumption was unreasonable
because “[t]here [were] far too many other possible explanations that fit these
facts to conclude that everyone in the cars was a gang member.” (Ibid.)
“Mere membership in a criminal street gang, without additional facts
supporting an inference of criminal activity, does not permit a detention. (Id.
at p. 392.) The Hester court concluded the stop violated the Fourth
Amendment rights of the occupants of the vehicle because the facts
articulated by the officer were not sufficient to support a particularized and
objective basis for suspecting anyone in the vehicle of criminal activity.
(Ibid.)
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Here, by contrast, there was an objective reason for the stop (a traffic
violation), and the officer conducting the search had specific, particularized
knowledge indicating Long was in fact a gang member with multiple police
contacts (including SWAT team searches of his residence) and a violent
history. As discussed, when considered along with the fact that Long was
seen leaving the celebration of life not long before the stop, and the fact that
Long’s jacket concealed his waistline, Officer Cameron articulated a
particularized reason to believe Long might be armed and dangerous. “An
individual’s presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion that the
person is committing a crime.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
Nonetheless, “officers are not required to ignore the relevant characteristics
of a location in determining whether the circumstances are sufficiently
suspicious to warrant further investigation.” (Ibid.; King, supra,
216 Cal.App.3d at p. 1241 [“the fact that an area involves increased gang
activity may be considered if it is relevant to an officer’s belief the detainee is
armed and dangerous”].)
In sum, there were specific and articulable facts indicating that Long
may be armed and dangerous. The officer did not rely solely on the fact that
the detention and search occurred in a high crime area, but instead had
individualized suspicion directed at the defendant himself. Because the
patdown search was justified based on the totality of the circumstances, the
trial court properly denied the suppression motion.
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DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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