Filed 1/13/16 P. v. Bogan CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144415
v.
LOGAN PATRICK BOGAN,                                                 (Contra Costa County
                                                                      Super. Ct. No. 1411420)
         Defendant and Appellant.


         Defendant Logan Patrick Bogan appeals from a judgment entered upon his plea of
no contest to misdemeanor possession of methamphetamine (Health & Saf. Code
§ 11377, subd. (a)) and misdemeanor possession of more than 28.5 grams of marijuana
(Health & Saf. Code § 11357, subd. (c)). He contends the trial court erred in denying his
pretrial motion to suppress methamphetamine seized following a patdown search and his
subsequent arrest. We affirm.
                                      I. FACTUAL BACKGROUND
         On the morning of October 31, 2013, Officer Justin Luo was on motorcycle traffic
patrol in Brentwood. As he sat near the intersection of Walnut Boulevard and Carnegie,
he saw a car, driven by defendant, traveling southbound at a high rate of speed. Luo used
handheld radar and determined the car was traveling approximately 57 miles per hour.
The posted speed limit was 40 miles per hour.
         Luo initiated a traffic stop. Defendant told Luo he was on his way to work and
that his license was suspended. After confirming the license suspension over radio, Luo

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issued defendant a citation and called for a tow truck. Luo also requested a cover officer
who was not on motorcycle.
       As Luo and defendant waited for the tow truck and the cover officer, Luo asked
defendant whether he “had any kind of weapons” or “anything on [his person] that may
be harmful, dangerous, [or] stick me, poke me, harm me.” Defendant told Luo he might
have a “small work knife.” Luo conducted a patdown search.
       As Luo conducted the search, he felt a triangular object in defendant’s left pocket.
Luo removed items from the pocket as he tried to reach the triangular object and
discovered a small bag of methamphetamine. Luo placed defendant under arrest.
Defendant then told Luo he also had a jar of marijuana in his car. As defendant was
being processed into the jail, Luo also found a second bag of methamphetamine on
defendant.
       At the hearing on defendant’s motion to suppress evidence, Luo testified that he
asked defendant whether he had any weapons on his person “as a matter of officer safety”
because he was planning on leaving defendant alone with the cover officer, whom he
believed would offer defendant a ride. He conducted the patdown search after defendant
told him he might have a work knife. Luo testified he became “concerned” that the
triangular object he felt in defendant’s left pocket might be defendant’s knife because in
his experience, “a person can consider a knife to be anything sharp.” For example, Luo
had “seen throwing stars that are in the shapes of diamonds [and] triangles . . . .” On
cross-examination, Luo testified that he removed the triangular object and the bag of
methamphetamine, but did not recall what the triangular object had been. He also
testified that defendant was cooperative and had not made furtive gestures, and that prior
to finding the first bag of methamphetamine, Luo was not planning to arrest defendant.
                                    II. DISCUSSION
       Defendant argues the trial court erred in denying his motion to suppress because
(1) Luo had no justification to submit defendant to a patdown search, (2) Luo exceeded
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the permissible scope of the patdown search when he removed the bag of
methamphetamine from defendant’s pocket, and (3) the People failed to meet their
burden to show that the discovery of the methamphetamine would have been inevitable.
Defendant does not challenge his initial stop, his conversation with Luo, or the seizure of
the jar of marijuana from his car.
       In reviewing a ruling on a motion to suppress, we defer to the trial court’s factual
findings, express or implied, when they are supported by substantial evidence. (People v.
Hoyos (2007) 41 Cal.4th 872, 891 (Hoyos), overruled in part on another ground in People
v. Black (2014) 58 Cal.4th 912, 919–920; People v. Glaser (1995) 11 Cal.4th 354, 362.)
However, in determining whether a search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment. (Hoyos, at p. 891; Glaser, at
p. 362.)
       A. Patdown Search
       A police officer may initiate a warrantless patdown search when the officer has
reason to believe that a suspect may be armed and dangerous. (Terry v. Ohio (1968)
392 U.S. 1, 27 (Terry).) In deciding whether an officer was justified in conducting a
patdown search, a court must consider “whether ‘the facts available to the officer at the
moment of the seizure or the search “warrant a man of reasonable caution in the belief”
that the action taken was appropriate.’ ” (Pennsylvania v. Mimms (1977) 434 U.S. 106,
112 (Mimms).) The fact that a suspect is armed—and thus presently dangerous—is
enough to justify a patdown search. (Id. at p. 112.) In the context of traffic stops, it is
well established that officers may conduct “investigative activities beyond the original
purpose of a traffic stop . . . as long as they do not prolong the stop beyond the time it
would otherwise take.” (People v. Brown (1998) 62 Cal.App.4th 493, 498.)
       Here, it is undisputed that defendant told Luo he might have a weapon—a “small
work knife”—on his person as they waited for the tow truck and the cover officer, whom
Luo believed might offer defendant a ride. Given defendant’s admission and the fact that
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Luo was alone, he was justified in conducting a patdown search of defendant for officer
safety. As the trial court noted: “[Luo] was clearly in a different position than what we
normally hear because he’s a motor officer doing traffic enforcement. And the reason
that’s significant is because he’s on a motorcycle. He’s not in a marked police car and he
is not working with another officer, so he’s alone and he’s conducting his work. [¶] . . .
[B]efore backup gets there [is] when [Luo] asks is there anything on [defendant’s] person
that could be dangerous to him, that could stick him or poke him . . . [a]nd at that point he
has the right to ask him that question and the defendant has given him an answer, which
is in fact I might have a small knife on me.” (See People v. Avila (1997) 58 Cal.App.4th
1069, 1075 [“The Fourth Amendment was not designed to protect a defendant from his
own candor”]; Arizona v. Johnson (2009) 555 U.S. 323, 330 [traffic stops are
“ ‘especially fraught with danger to police officers’ ”].) Under these circumstances,
“there is little question the officer was justified [in his actions]. . . . [Defendant’s
admission] permitted the officer to conclude that [defendant] was armed and thus posed a
serious and present danger to the safety of the officer. . . . [A]ny man of ‘reasonable
caution’ would have likely conducted the [patdown search].” (Mimms, supra, 434 U.S.
106 at p. 112.)
       Defendant, citing People v. Bain (1971) 5 Cal.3d 839 and In re George W. (1998)
68 Cal.App.4th 1208, nevertheless argues that Luo had “no reasonable articulable
suspicion [defendant] was armed and dangerous” because it is “not unlawful” to possess
a pocketknife1 or other small knife. His reliance on those cases is misplaced, as neither
involved a patdown search. Rather, Bain and In re George W. examined whether the
defendants in those cases, who had small pocketknives on their person, could be
convicted of possessing a dirk or dagger under former Penal Code sections 635k and
12020, subd. (a), respectively. They are thus inapplicable.
       1
        There is no evidence in the record that the “small work knife” defendant
possessed was a pocketknife.
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       Defendant also argues Luo was not justified in conducting a patdown search
because the prosecution did not show Luo had a duty to transport him from the area
where defendant’s car was towed and defendant did not otherwise consent to a search.
When an officer has a duty to ensure that an individual is transported after his car is
towed, the officer may conduct a patdown search for weapons to ensure his own safety or
the safety of the tow truck driver transporting the individual. (People v. Tobin (1990)
219 Cal.App.3d 634, 641.)
       Relying on People v. Scott (1976) 16 Cal.3d 242, 244–245 (Scott), defendant
contends that police had no duty to transport him and, as a result, the patdown search
based on officer safety was not justified. In Scott, two officers were driving when they
saw an intoxicated man and his son urinating on the island formed by an off-ramp on
Highway 101. (Scott, supra, 16 Cal.3d at p. 245.) The officers did not arrest the man but
instead volunteered to give him and his son a ride to San Francisco. (Id. at p. 246.) The
officers placed the son in their patrol car and then conducted a patdown search of the
man, who neither objected nor consented to the search. (Id. at pp. 245–246.) The
officers recovered drugs, and the man subsequently pled guilty to two drug charges after
his motion to suppress was denied. (Id. at p. 246.) Our Supreme Court reversed, holding
that in order to justify a patdown search where no duty to transport exists, an officer must
inform the individual that he has a right to refuse a ride, but if he accepts one, he will be
subjected to a patdown search for weapons. Because the defendant in Scott had not given
his consent to the patdown search and the officers had no duty to transport or any reason
to believe he was armed and dangerous, the search was not justified. (Scott, supra, 16
Cal.3d at pp. 250–251.)
       Scott is inapplicable here. Even assuming arguendo that Luo had no duty to
transport defendant after having his car towed, Luo—through defendant’s own
admission—had reason to believe defendant was armed and thus dangerous. (See


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Mimms, supra, 434 U.S. at p. 112.) Accordingly, the trial court did not err in finding that
Luo was justified in conducting a patdown search of defendant.
       B. Scope of Search
       Defendant also argues that even if Luo was justified in conducting the patdown
search, he exceeded its permissible scope by seizing the bag of methamphetamine despite
knowing it was not a weapon.
       When a warrantless patdown search is justified, its scope is generally limited to
the discovery of a hidden weapon. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375–
379.) Hence, an officer may not search beyond a suspect’s outer clothing unless he or
she feels an object that could reasonably be thought a weapon or if the object’s
incriminating character is “immediately apparent.” (Id. at p. 379.) However, when a
patdown search reveals a hard object that might be a weapon, an officer need not be
absolutely certain before removing and inspecting it. (People v. Limon (1993)
17 Cal.App.4th 524, 535.)
       In re Donald L. (1978) 81 Cal.App.3d 770 (Donald L.) is instructive. In
Donald L., the officer conducted a patdown search of the defendant and felt a hard object
resembling a knife. The officer reached into the defendant’s pocket to remove the object
and, in the process, felt several hard items he believed to be jewelry; the officer
subsequently removed a razor blade and several pieces of stolen jewelry from the
defendant’s pocket. (Id. at pp. 773–774.) The appellate court rejected the defendant’s
challenge to the patdown search and seizure of the jewelry, holding: “Once the officer
felt a hard object which he thought was a knife, he was justified in removing the object
from appellant’s pocket. [Citations.] If, in the course of removing a suspected weapon
from the detainee’s pocket, the officer removes additional objects which turn out to be
contraband . . . , the removal of the additional objects does not constitute an unlawful
search and seizure.” (Id. at p. 775.)


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       Here, Luo testified he was concerned the triangular object he felt in defendant’s
pocket was a knife. As such, his limited intrusion into defendant’s pocket was justified to
determine whether the object was a weapon. Luo did not need absolute certainty that the
object was a knife to retrieve it from defendant’s pocket for inspection. (Limon, supra,
17 Cal.App.4th at p. 535.) Moreover, Luo’s removal of the bag of methamphetamine “in
the course of removing a suspected weapon” was reasonably necessary to disarm
defendant, and was thus justified. (Donald L., supra, 81 Cal.App.3d at p. 775.)
       People v. Collins (1970) 1 Cal.3d 658 (Collins), cited by defendant, is inapposite.
In Collins, the officer conducted a patdown search of the defendant and felt a soft lump in
his pocket. The officer reached into the pocket and pulled out a “lid” of loosely-packed
marijuana. (Id. at pp. 664–665.) At a hearing to suppress the marijuana, the officer
testified he “ ‘[thought] it was a weapon,’ ” but offered no other details; the trial court
granted the defendant’s motion to suppress the marijuana and dismissed the case. (Id. at
p. 665.) On appeal, our high court rejected the officer’s conclusory statement that he
believed the defendant had a weapon and held that the officer exceeded the permissible
scope of the patdown search because “prior to the intrusion into defendant’s pocket, [the
officer’s] search had not disclosed evidence which would reasonably support a belief that
he had located a weapon.” (Id. at pp. 663–664.)
       This is not the case here. Luo had good reason to believe, based on defendant’s
own admission, that defendant was armed. Moreover, unlike the officer in Collins, Luo
reached into defendant’s pocket only after he felt a hard object that could have been a
knife, and removed the methamphetamine in the course of retrieving the suspected
weapon. The trial court did not err in finding that Luo was justified in removing the bag
of methamphetamine.2

       2
         Defendant also cites People v. Hana (1970) 7 Cal.App.3d 664, 667 and People v.
Britton (1968) 264 Cal.App.2d 711. Both cases are distinguishable. (Hana, at pp. 667,
670 [officer not justified in conducting patdown search because there was no reason to
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      C. Second Bag of Methamphetamine
      Luo testified that he found the second bag of methamphetamine while conducting
a routine booking search after arresting defendant. Defendant does not challenge the
booking search procedure, but rather argues that the second bag of methamphetamine
should be suppressed as “fruit of the poisonous tree.” (Wong Sun v. United States (1963)
371 U.S. 471, 487–488.) Inasmuch as we have determined that Lou’s patdown search of
defendant and subsequent seizure of the first bag of methamphetamine were reasonable
under the Fourth Amendment, defendant’s challenge to the seizure of the second bag of
methamphetamine is meritless. We therefore need not reach defendant’s inevitable
discovery argument.
                                  III. DISPOSITION
      The judgment is affirmed.




suspect defendant was armed or dangerous]; Britton, at pp. 715–717 [officer not justified
in reaching into suspect’s pocket after patdown search revealed no items that could
reasonably be interpreted to be weapons].)
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                                _________________________
                                Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Reardon, J.




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