Lee v. Superior Court CA4/2 ( 2024 )

Filed 10/7/24 Lee v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEVEN LEE,
Petitioner, E083577
v. (Super.Ct.No. FSB23002519)
THE SUPERIOR COURT OF SAN OPINION
BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Cheryl Kersey, Judge
and Ronald M. Christianson, Judge. (Retired Judge of the San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Thomas W. Sone, Public Defender and Justin M. Ewaniszyk, Deputy Public
Defender for Petitioner.
No appearance for Respondent.
1
Jason Anderson, District Attorney and John A. Slezak, Deputy District Attorney,
for Real Party in Interest.
A patdown during a traffic stop requires the officer to have a reasonable belief that
the subject was armed and dangerous. An officer who patted down petitioner Steven Lee
during a traffic stop testified that he did so without reason to believe Lee was armed and
dangerous. Because the officer admittedly had no such belief, we reverse the trial court’s
order denying Lee’s motion to suppress the fruits of the search of his person.
BACKGROUND
A. The Traffic Stop
At 10:18 p.m. on July 26, 2023, two San Bernardino police department officers
observed traffic violations that prompted them to activate emergency lights to stop Lee
and his two passengers. Lee had failed to yield to an oncoming fire truck and his vehicle
lacked a front license plate. Lee pulled his car over and parked at a curb.
Our record contains a video of the stop from Officer Diego Diaz’s body camera.
The video shows the two minutes and eight seconds from when the officers approached
Lee’s car through the beginning of the patdown search of Lee’s person, and it shows
about another 50 seconds after the search began. Our summary of the facts is taken from
the video, the transcript of its audio in our record, and the suppression hearing testimony.
Officer Diaz approached the car on foot on the driver’s side and dealt with Lee.
Officer Sean Breceda approached from the passenger side and dealt with the passengers.
2
In response to Diaz’s requests, Lee opened the car windows and handed his license
to Diaz. Diaz asked if the back seat passenger was an adult, and Lee said he was.
Fifty-three seconds into the stop, Lee asked Diaz the purpose of the stop. He then
asked Diaz whether he would have complied with traffic laws had he pulled his car over
at a certain corner. He suggested that Diaz did not need to order Lee out of the car
because no one violated any laws other than the minor traffic infractions. He volunteered
that he was not on probation or parole, and that he was insured. Through these
interactions, the video shows Lee as calm and non-aggressive; the People do not claim
otherwise.
Eighty-eight seconds into the stop, Diaz asked Lee to exit the vehicle. Lee did so
while placing his keys in his pocket, and Diaz asked him to take them out. Lee did not
immediately do so, and instead calmly (arguably anxiously) said it was his car, and he
was driving to his grandmother’s house. He suggested to Diaz, “you can write me a
ticket.”
At the two-minute-eight-second point, Diaz touched Lee on the arm, asked him to
turn around, and said, “I’m going to pat you down for any weapons.” Seconds later, Diaz
removed a cigarette lighter from Lee’s pocket, placed it on the car, and repeated that he
was “just making sure that [Lee did not] have any weapons.” Diaz removed Lee’s keys
from his pocket and placed them on the car. Lee remained calm and non-aggressive even
through these portions of the patdown search.
3
Diaz then found a gun magazine on Lee’s person, later found to contain bullets.
The video ends with Lee repeating a sentence: “You had no reason to search me. You
had no reason to search me.”
Later, not on the video in our record, Diaz searched Lee’s car and found a gun
under the driver seat. The seizures of the gun and magazine led to the charges in this
case.
B. The Suppression Hearing
The People filed a felony information alleging three charges against Lee:
possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), unlawful
possession of ammunition (Pen. Code, § 30305, subd. (a)(1)), and obstruction of police
officers (Pen. Code, § 148, subd. (a)(1)).
Lee filed an opposed motion to suppress the firearm and ammunition recovered
during the search and to dismiss the charges. The trial court heard that motion along with
the preliminary hearing.
At the hearing, Officer Diaz testified. On direct examination, he explained that he
patted down Lee because “we were going to detain him on the curb line . . . and I didn’t
want any type of weapon or sharp object to possibly harm myself or Officer
Breceda . . . .” He also testified another factor raising safety concerns was that the stop
was in a high-crime area with observers around. He testified that defendant’s
“stuttering,” “shaking,” being “very sweaty,” and “stalling,” also contributed to his
concerns.
4
During Diaz’s cross-examination, Lee’s counsel played the video from Diaz’s
body camera. Thereafter, Diaz agreed that Lee was “cooperative,” “polite,” and
answered questions “Yes, sir” and “No, sir.” He admitted that he saw no bulges on Lee’s
person, nor did he see weapons or ammunition.
Diaz admitted that he had no reason to believe Lee was armed:
“Q. At the time you’re patting down Mr. Lee, you have no reason to believe he’s
armed at that time, right?
“A. At the time, no.”
On redirect, the prosecution asked Diaz if he had wanted to do the patdown search
for his safety, and he confirmed as much. The prosecution then elicited from Diaz factors
that had caused him concern about his safety. These included his inability to see the
floorboard of the car where Lee’s legs had been, Lee seeming to try to block Diaz from
accessing the car, the backseat passenger’s refusal to identify himself, and the general
fear a police officer “always” has when making traffic stops, “especially in high crime
areas.” Diaz did not, however, articulate that he believed he had any reason to suspect
Lee had a weapon on his person.
In arguing to the court presiding at the preliminary hearing, Lee’s counsel stated
that the “sole issue” was the patdown, which requires a “reasonable belief that Mr. Lee is
armed and dangerous.” Because Diaz “said specifically he had no reason to believe that
my client was armed. . . . a pat-down is illegal.” The People argued that under all the
circumstances, “there was a potential that the defendant was armed and dangerous.”
5
The trial court denied the motion to suppress. Based on its viewing of the body
camera video of the stop, the court found Lee appeared “angry” and “offended by being
stopped for the vehicle license violation.” The court characterized Lee’s behavior as
“argumentative and confrontational,” despite Diaz’s testimony that Lee had been
cooperative and polite. The court also emphasized Diaz’s safety concerns, raised by the
neighborhood and the place where Lee pulled over, Diaz’s inability to see into the vehicle
because of window tint, and the backseat passenger’s behavior.
Later, with the suppression motion renewed, the trial court judge denied the
motion, finding “substantial evidence in the record” to support the judge’s conclusion at
the preliminary hearing and stating that “a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others was in danger.”
DISCUSSION
Lee seeks a writ of mandate to order the trial court to enter a new order granting
his motion to suppress. He argues that a police officer cannot pat him down for weapons
during a traffic stop where the officer does not believe Lee is armed and dangerous. We
agree.
Under the Fourth Amendment to the United States Constitution, the traffic stop
itself in this case was proper. Officers need not have probable cause for an investigatory
stop of a citizen but only reasonable suspicion “that criminal activity [is] afoot.” (Terry
v. Ohio (1968) 392 U.S. 1, 30 (Terry).) In this case, Lee was properly stopped because
6
the officers observed him failing to stop for an emergency vehicle and observed his car
lacked a front license plate.
Officers also properly ordered Lee out of his car. Once there is a proper Terry
stop, “police officers may order the driver to get out of the vehicle without violating the
Fourth Amendment’s proscription of unreasonable searches and seizures.” (Pennsylvania
v. Mimms (1977) 434 U.S. 106, 111, fn. 6.)
To then conduct a patdown for weapons, though, “the police officer must
reasonably suspect that the person stopped is armed and dangerous.” (Arizona v. Johnson
(2009) 555 U.S. 323, 326-327; People v. McDaniel (2021) 12 Cal.5th 97, 130; Terry,
supra, 392 U.S. at p. 30 [“reasonable grounds to believe that petitioner was armed and
dangerous”]; Ybarra v. Illinois (1979) 444 U.S. 85, 92-93 [Supreme Court has
“invariably held” that “a reasonable belief that [a suspect] was armed and presently
dangerous . . . must form the predicate to a patdown of a person for weapons”].)
A reasonable belief that a suspect was armed and dangerous requires objective
facts rather than a hunch. The Constitution allows “a limited patdown for weapons where
a reasonably prudent officer would be warranted in the belief, based on specific and
articulable facts, and not on a mere inchoate and unparticularized suspicion or hunch, that
he is dealing with an armed and dangerous individual.” (Maryland v. Buie (1990) 494
U.S. 325, 332 [cleaned up]; see In re Jeremiah S. (2019) 41 Cal.App.5th 299, 311
[reversing order denying motion to suppress where there were no specific and articulable
7
facts supporting a reasonable suspicion that the defendant was armed and dangerous];
People v. Dickey (1994) 21 Cal.App.4th 952, 956-957.)
The reason the law permits a patdown is to protect the officers by allowing them
to “neutralize the threat of harm” from an armed and dangerous suspect. (Terry, supra,392 U.S. at p. 30; see, e.g., Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [search of
person who may be armed and presently dangerous is to determine whether the person is
in fact carrying a weapon].) The law requires articulable facts showing the suspect to be
armed and dangerous because a patdown search is an additional, though “relatively
minor,” intrusion on privacy. (People v. Scott (1976) 16 Cal.3d 242, 249.)
Consequently, where there is no probable cause for an arrest, absent an “articulable
belief” that the suspect is armed and dangerous, a patdown for weapons is “an
impermissible intrusion.” (Ibid.)
In this case, Officer Diaz testified at the suppression hearing that when he
performed the patdown search, he had no reason to believe Lee was armed. This
establishes that the search was illegal. Because the touchstone for a patdown search is
whether an officer had a “reasonable belief or suspicion that the suspect is armed,” such a
search is unlawful if the officer “had no such belief or suspicion.” (People v. Sandoval
(2008) 163 Cal.App.4th 205, 213; see Ramirez v. City of Buena Park (9th Cir. 2009) 560
F.3d 1012, 1022, second italics added [“facts merely establishing that if an individual
were armed he would be dangerous are insufficient if there was no reason to believe that
the individual actually was armed”].)
8
In granting Lee’s petition, then, we are applying well-established law. As one
panel put it: “The basic rule is agreed upon by all: in order to patsearch a suspect, an
officer must have a reasonable suspicion that he is presently armed and dangerous.”
(People v. Osborne (2009) 175 Cal.App.4th 1052, 1059.) Here, the question is not
whether the officer’s suspicion was reasonable, which can present a difficult question.
Rather, the officer here testified that he did not even have a suspicion that Lee was
armed, whether reasonable or not. This made the patdown improper.
Had Officer Diaz articulated that specific conduct shown on the video provided
him with suspicion, we might be required to defer to his judgment on the scene. In
testifying, though, Officer Diaz did not identify any footage that showed a basis for him
to have reasonable suspicion that Lee was armed at the time the patdown began. Without
connecting Lee’s conduct to the video, Diaz referred in his direct testimony to some
general behavior by Lee (“stuttering,” “shaking,” being “very sweaty,” and “stalling”)
that contributed to his safety concerns. Diaz did not claim that those behaviors prompted
him to believe that Lee was armed. And after being shown the video, Diaz agreed that
Lee was “cooperative,” and “polite,” and provided him with no reason to believe Lee was
armed.
In their return, the People argue that the legal test for a patdown is “not limited to
a belief that the subject is armed,” citing Michigan v. Long (1983) 463 U.S. 1032, 1049
(Long).)
9
Long, like all the other authority cited above, requires a reasonable belief that the
defendant is “armed and dangerous” for a patdown. The first sentence of Long
characterized Terry v. Ohio’s search test as requiring “an articulable suspicion that an
individual is armed and dangerous.” (Long, supra, 463 U.S. at p. 1034.) Long held
officers with such a belief could search compartments of a vehicle, not merely the person
of a suspect. (Id. at p. 1035.) But the case did not change the Terry “armed and
dangerous” standard for a patdown search. It simply extended that standard to passenger
compartments where there was reasonable suspicion that a person was dangerous and a
weapon might be found there. (See, e.g., Knowles v. Iowa (1998) 525 U.S. 113, 118
[Terry authorized patdowns upon a suspicion the suspect was “armed and dangerous” and
Long allowed a “‘Terry patdown’” of a passenger compartment].)
In Long, after a stop where the officers observed a hunting knife on the suspect’s
car floorboard and performed a Terry patdown outside a vehicle, the officers shined a
flashlight into the vehicle to search for weapons. (Long, supra, 463 U.S. at p. 1036.) The
Supreme Court held that the officers acted constitutionally in using the flashlight because
they had a “reasonable belief that Long posed a danger if he were permitted to reenter his
vehicle.” (Id. at p. 1050.) In that circumstance—after a patdown governed by Terry—
the suspect would not be “armed” on his person, because what was at issue was the
flashlight search of a car compartment. The People are thus mistaken to claim that Long
eliminated the requirement of a reasonable belief that the suspect is “armed” for a
patdown to occur.
10
The Court of Appeal cases the People rely on cannot alter the United States
Supreme Court’s constitutional minimum, and they do not. They refer to the officers’
belief that they may face danger but do not depart from the Terry standard. (See People
v. Avila (1997) 58 Cal.App.4th 1069, 1074 [articulating the “armed and dangerous” test
for a patdown, and finding that the officer reasonably believed his safety was in danger
where, among other things, he saw a metal object near the defendant’s hand]; People v.
Superior Court (Brown) (1980) 111 Cal.App.3d 948, 955-956 [applying the requirement
of specific facts or circumstances giving reasonable grounds to believe “that defendant is
armed” where officer testified that “he thought defendant might be armed” due to a bulge
and the way he was holding his hands].)
We do not disagree with the People’s assertions that the officers had safety
reasons to perform a patdown of Lee. In a traffic stop, officers have a weighty interest in
their safety, and may reasonably exercise command over the situation to ensure it. (See
People v. McDaniel, supra, 12 Cal.5th at pp. 129-130.) Yet, taken alone, an officer
safety justification would allow a patdown in virtually any stop, or in any stop in certain
common circumstances, such as a nighttime stop in a high-crime area. As the trial court
did in denying the suppression motion, the People emphasize those circumstances,
including that other persons were nearby. The time and location of a stop are relevant to
the danger that an officer might face, yet they cannot alone establish reasonable suspicion
for a patdown. (In re H.H. (2009) 174 Cal.App.4th 653, 660; see also People v. Flores
(2024) 15 Cal.5th 1032, 1045-1046 [being in a known narcotics area does not alone
11
suffice to warrant Terry stop].) The constitutional test focuses on whether the officer has
articulable facts supporting reasonable suspicion that the suspect is armed and dangerous.
If the officers lack reasonable suspicion for a patdown, they must handle the stop in a
different reasonable manner that protects their safety, such as (for instance) asking the
suspects to sit with their hands visible under the watch of one of the officers. (See, e.g.,
People v. McDaniel, supra, 12 Cal.5th at pp. 130-131 [actions to protect officer safety
during records check, before officers viewed a pocket bulge that warranted patdown
search]; Rodriguez v. United States (2015) 575 U.S. 348, 356 [officers may take
“negligibly burdensome precautions” during traffic stop to complete the mission safely].)
For the reasons provided above, the ammunition and firearm seized as a result of
the patdown search must be suppressed. We will leave it to the trial court to determine if
some or all of the charges are to be dismissed.
12
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate
issue directing the respondent superior court to (1) vacate its order denying Lee’s motion
to suppress evidence and (2) enter a new order granting the motion. This order alone
does not require dismissing the case.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
FIELDS
Acting P. J.
MENETREZ
J.
13