Filed 5/31/18
                             CERTIFIED FOR PUBLICATION


                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT


 THE PEOPLE,                                         H044419
                                                    (Santa Clara County
            Plaintiff and Respondent,                Super. Ct. No. C1484687)

            v.

 IRVIN SACRITE,

            Defendant and Appellant.




                                   I.   INTRODUCTION
        After the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5),
defendant Irvin Sacrite pleaded no contest to possession of methamphetamine (Health &
Saf. Code, § 11377, subd. (a); count 1) and using or being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), both
misdemeanors.1 The trial court placed defendant on probation for two years.
        On appeal, defendant contends the trial court erred by denying his motion to
suppress evidence, claiming the officer was not justified in conducting a pat search.
Defendant further contends the officer had no grounds for removing anything from
defendant’s pocket after the pat search and prior to his arrest.




        Count 1 was originally charged as a felony, making this “a felony case for the
        1

purpose of appellate jurisdiction.” (People v. Lynall (2015) 233 Cal.App.4th 1102,
1111.)
       Our careful review of the record shows that prior to conducting the pat search, the
officer observed “bulges” in defendant’s pocket that included “something solid,”
suggesting that defendant was armed. The officer conducted a pat search because he
suspected that the bulge might be a weapon and he would not be able to see defendant’s
hands while investigating whether defendant was under the influence of a controlled
substance. (See Pennsylvania v. Mimms (1977) 434 U.S. 106, 107 (Mimms) [pat search
justified where officer “[f]ear[ed] that the bulge might be a weapon”].) On this record,
we conclude that there were “specific and articulable facts” that would have led a
reasonable officer “reasonably to conclude in light of his [or her] experience” that
defendant “may be armed and presently dangerous.” (Terry v. Ohio (1968) 392 U.S. 1,
21, 30 (Terry).) We also find that the record does not support defendant’s claim that the
officer removed items from defendant’s pocket prior to his arrest. Therefore, we will
affirm the order of probation.

                                 II.    BACKGROUND
       A.     Evidence at the Motion to Suppress
       At about 4:00 p.m. on April 16, 2014, San Jose Police Officer John Prim was on
duty, in an unmarked police car, with his partner. They were working in an area in
which they had conducted prior “clandestine operations” and had made prior arrests.
       Officer Prim noticed defendant riding a bike “the wrong way into traffic,” in
violation of Vehicle Code section 21650.1. Defendant was also carrying and drinking
from an open red Budweiser beer can, in violation of San Jose Municipal Code
section 10.12.010.
       Officer Prim followed defendant and detained him on North Second Street. He
began talking to defendant “regarding the aluminum can,” and he took the can from
defendant, smelled it, and looked inside. He determined that the can contained beer.




                                             2
       During the detention, Officer Prim noticed signs suggesting that defendant was
under the influence of a controlled substance: he was sweating heavily; he had dried,
chapped lips; and he had “fluttering eyelids.” Officer Prim intended to cite defendant for
the Vehicle Code violation as well as the Municipal Code violation, and he wanted to
stand closer to defendant to continue investigating whether defendant was under the
influence of a stimulant. However, Officer Prim felt he could not “safely do that” if
defendant had “any weapons in his immediate area of his hands.” Defendant was taller
and weighed more than the two officers: defendant was about six feet, three inches tall
and weighed about 210 pounds; Officer Prim was five feet, ten inches tall and weighed
about 190 pounds; and Officer Prim’s partner was five feet, six inches tall and weighed
about 160 pounds.
       Defendant was wearing a t-shirt, which “extended beyond his waistband area,” so
Officer Prim could not see defendant’s waistband area. The t-shirt also partially covered
the pockets of defendant’s shorts. Officer Prim could see “bulges” inside defendant’s
shorts pockets. He could tell there was “something solid” with round edges, “similar [to
the] shape of a cellular phone.” Officer Prim “couldn’t quite determine” what the object
actually was. Based on his “training and experience” as well as his personal safety, he
“wanted to conduct a quick pat search to advise if it was a weapon or a potential
weapon.” From what he had observed, Officer Prim could not “exclude the possibility
that what defendant had in his pockets were concealed weapons.” Officer Prim would
not be able to observe defendant’s hands during some of the tests he planned to
administer to determine whether defendant was under the influence of a stimulant.
       Officer Prim conducted a pat search, which gave him “a better idea” of what
defendant had in his pockets: he detected that the bulges were “a possible cell phone and
a possible lighter.” He did not remove anything from defendant’s pockets at that time.




                                            3
He next conducted a Romberg test,2 observed further indications that defendant was
under the influence, and arrested defendant. Officer Prim then reached into defendant’s
right front pocket—where he had observed the bulges—and removed a cell phone,
lighter, and plastic baggie containing methamphetamine. Officer Prim also removed a
wallet from defendant’s back pocket.
       On cross-examination, Officer Prim acknowledged that at the preliminary hearing,
he had testified to the following order of events: detention, pat search, observation of
symptoms of stimulant use, arrest, and search incident to arrest. However, during the
hearing on the motion to suppress, Officer Prim clarified that it was during the detention
that he had first observed signs suggesting that defendant was under the influence of a
stimulant.
       B.     Charges and Motion to Suppress
       Following a preliminary hearing, defendant was charged with felony possession of
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1) and misdemeanor
using or being under the influence of a controlled substance (Health & Saf. Code,
§ 11550, subd. (a); count 2).
       Defendant moved to suppress evidence pursuant to Penal Code section 1538.5. He
asserted that the prosecution had the burden to justify the detention. (See People v.
Williams (1999) 20 Cal.4th 119, 130.)
       The People opposed the motion to suppress, arguing that the detention was
supported by reasonable suspicion, that it was not unduly prolonged, that the pat search
was justified, that there was probable cause to arrest defendant, and that the
methamphetamine was removed from defendant’s pocket during a lawful search incident



       2
        At the preliminary hearing, Officer Prim described the Romberg test: he
asked defendant to close his eyes and estimate 30 seconds. Defendant estimated that
30 seconds had gone by after only 16 seconds.

                                             4
to arrest. With respect to the pat search, the People argued that Officer Prim reasonably
suspected that defendant had a weapon in his pocket.
       Defendant subsequently filed a “supplemental” motion to suppress. Defendant
focused solely on the pat search, arguing that there were no “specific and articulable facts
to support a suspicion that [he] was armed and presently dangerous.”
       After a hearing at which Officer Prim testified, defendant argued that the initial pat
search was not justified by a reasonable suspicion that defendant was armed and
dangerous.
       The prosecutor argued that the search was justified by Officer Prim’s observation
of a bulge from a solid object in defendant’s pocket, the obstruction of defendant’s
waistband area by his long t-shirt, the signs of “potential stimulant use,” the fact that the
officer would not be able to see defendant’s hands during further investigation, and the
fact that the officers were “comparatively substantially smaller” than defendant.
       The trial court denied defendant’s motion to suppress. The trial court found
Officer Prim’s testimony “to be credible.” The trial court noted that Officer Prim was
“going to conduct a further investigation regarding whether the defendant was under the
influence,” but “would not be able to see his hands.” Officer Prim was “concerned about
officer safety and concerned specifically because of the bulge in the defendant’s pocket.”
The trial court found that although the bulge “turned out to be a cell phone and a lighter
combined,” it could have been “a weapon, either a small gun or a knife by the shape and
the size.” The trial court referenced two cases that had upheld pat searches conducted
after an officer saw “bulges in the front of the waistband.” (See Mimms, supra, 434 U.S.
at p. 107; People v. Snyder (1992) 11 Cal.App.4th 389, 393.) The trial court did not find
it relevant that “the defendant was larger than the two officers” but concluded that “there
was reasonable suspicion.”




                                              5
       C.     Pleas and Sentencing
       After Proposition 47 was passed in November 2014, the information was amended
to charge count 1 (possession of methamphetamine; Health & Saf. Code, § 11377,
subd. (a)) as a misdemeanor. Defendant pleaded no contest to that count and to count 2
(using or being under the influence of a controlled substance; Health & Saf. Code,
§ 11550, subd. (a)).
       The trial court suspended imposition of sentence and placed defendant on court
probation for two years with a 30-day jail term.

                                   III.   DISCUSSION
       Defendant contends the trial court erred by denying his motion to suppress
evidence because Officer Prim was not justified in conducting a pat search. Defendant
further argues that even if the pat search was justified, Officer Prim “acted unlawfully”
when he removed the cell phone, lighter, and baggie of methamphetamine from
defendant’s pocket.
       A.     Standard of Review
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
       B.     The Pat Search
       We first address defendant’s claim that the pat search was unlawful.
       In Terry, supra, 392 U.S. 1, the United States Supreme Court held that the
Constitution permits “a reasonable search for weapons for the protection of the police
officer, where he [or she] has reason to believe that he [or she] is dealing with an armed



                                              6
and dangerous individual.” (Id. at p. 27.) Before conducting a pat search, “[t]he officer
need not be absolutely certain that the individual is armed.” (Ibid.) A pat search may be
conducted where an officer’s observations lead the officer “reasonably to conclude in
light of his [or her] experience that . . . the persons with whom he [or she] is
dealing may be armed and presently dangerous.” (Id. at p. 30.) “[T]he police officer
must be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant” the search. (Id. 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. [Citations.]”
(People v. Dickey (1994) 21 Cal.App.4th 952, 957 (Dickey).) The Fourth Amendment
has never been interpreted to “ ‘require that police officers take unnecessary risks in the
performance of their duties.’ ” (Mimms, supra, 434 U.S. at p. 110.)
       Defendant argues that Officer Prim had no “reasonable basis to believe the bulge
[in defendant’s pocket] was a weapon, having described the bulge as shaped like a cell
phone, an item that many people carry in their pockets.”
       As defendant acknowledges, pat searches have been upheld in other cases where
an officer saw a bulge in the defendant’s clothing. For instance, in Mimms, the United
States Supreme Court found a pat search justified based on an officer’s observation of
“a large bulge” under the defendant’s jacket. (Mimms, supra, 434 U.S. at p. 107.) The
officer “[f]ear[ed] that the bulge might be a weapon.” (Ibid.) The court found “little
question the officer was justified” in conducting a pat search, explaining, “The bulge in
the jacket permitted the officer to conclude that Mimms was armed and thus posed a
serious and present danger to the safety of the officer.” (Id. at p. 112.)
       Defendant asserts that because the bulge in his pocket was “shaped like a cell
phone,” Officer Prim had no reason to believe defendant was armed. However, the
bulges were not just from a cell phone but from a cell phone, lighter, and baggie of

                                              7
methamphetamine. As the trial court in this case observed, weapons come in many
shapes and sizes. Moreover, Officer Prim did not testify that the solid object appeared to
be a cell phone but merely that he observed “something solid” with round edges, “similar
[to the] shape of a cellular phone.” Officer Prim “couldn’t quite determine” what the
object actually was, and he could not “exclude the possibility that what defendant had in
his pockets were concealed weapons.” The gist of this testimony was that Officer Prim
suspected that the bulge might be a weapon. (See Mimms, supra, 434 U.S. at p. 107
[officer “[f]ear[ed] that the bulge might be a weapon”].)
       As established by Terry, an officer “need not be absolutely certain that the
individual is armed” before conducting a pat search. (Terry, supra, 392 U.S. at p. 27.)
The officer in Mimms did not testify that he believed the bulge in the defendant’s pocket
to actually be a weapon. The officer in Mimms merely “[f]ear[ed] that the bulge might be
a weapon.” (Mimms, supra, 434 U.S. at p. 107.) Likewise, U.S. v. Chaney (1st Cir.
2009) 584 F.3d 20 (Chaney) upheld a pat search conducted after the officer “observed a
significant bulge, about the size of a fist, in the right front pocket of [the defendant’s]
jeans” and became “concerned that the bulge might be a weapon.” (Id. at p. 23; see id. at
p. 26.) The defendant had also been evasive in response to questioning about his identity
and “what was in his pocket.” (Id. at p. 27.) That evasiveness, “coupled with the size
and rigid nature of the object, gave [the officer] a specific articulable basis for suspecting
that Chaney might be armed, thereby justifying a pat-down search.” (Ibid.)
       The testimony of the officers in both Mimms and Chaney is similar to Officer
Prim’s testimony that he “couldn’t quite determine” what the solid object in defendant’s
pocket was and thus “wanted to conduct a quick pat search to advise if it was a weapon or
a potential weapon.” The essence of this testimony was that Officer Prim suspected that
the bulge might be a weapon. (See Mimms, supra, 434 U.S. at p. 107 [officer “[f]ear[ed]
that the bulge might be a weapon”]; Chaney, supra, 584 F.3d at p. 23 [officer was
“concerned that the bulge might be a weapon”].) As in both Mimms and Chaney, the

                                               8
objective facts supported Officer Prim’s suspicion, since the bulges included “something
solid” that, based on his “training and experience,” made him concerned that the object
could be “a weapon or a potential weapon.”
       Because the bulges in defendant’s pocket provided “specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant[ed]”
the pat search (Terry, supra, 392 U.S. at p. 21), the instant case is distinguishable from
Dickey, in which a deputy testified “that he performed the patdown search for ‘officer
safety’ ” but provided no “ ‘specific and articulable’ facts” indicating that the defendant
might be armed and dangerous. (Dickey, supra, 21 Cal.App.4th at p. 956.) Unlike in this
case, the deputy in Dickey did not observe any bulges in the defendant’s pockets.
       In this case, after defendant was detained based on Vehicle Code and Municipal
Code violations, Officer Prim observed signs indicating that defendant was under the
influence of a stimulant. He intended to conduct a further investigation into whether
defendant was under the influence, during which defendant’s hands would be out of the
officer’s view. Officer Prim also observed bulges in defendant’s pocket that included
“something solid.” Officer Prim suspected that the bulges might be a weapon. (See
Mimms, supra, 434 U.S. at p. 107.) Officer Prim’s testimony thus pointed to “specific
and articulable facts which, taken together with rational inferences from those facts,
reasonably warrant[ed]” the brief pat search for weapons (Terry, supra, 392 U.S. at p. 21)
prior to conducting the further investigation that required him to be in close proximity to
defendant.
       C.     Removal of Items from Defendant’s Pocket
       We next address defendant’s claim that there was no justification to remove items
from defendant’s pocket right after the pat search.
       “[I]n searching a legally detained individual reasonably suspected of being armed,
a police officer must be limited to ‘a careful exploration of the outer surfaces of [the]
person’s clothing’ [citation] until and unless he discovers specific and articulable facts

                                              9
reasonably supporting his suspicion. Only then may an officer exceed the scope of a pat-
down and reach into the suspect’s clothing for the limited purpose of recovering the
object thought to be a weapon.” (People v. Collins (1970) 1 Cal.3d 658, 662 (Collins);
see also Sibron v. New York (1968) 392 U.S. 40, 65.)
       In Collins, officers detained the defendant after observing him engage in “ ‘furtive
actions’ ” including “thrusting his hand into his left front pants pocket.” (Collins, supra,
1 Cal.3d at p. 660.) An officer conducted a pat search, during which he felt a “ ‘little
lump’ ” in the defendant’s left front pants pocket. (Ibid.) The officer extracted the
object, which turned out to be a baggie of marijuana. (Ibid.)
       On appeal, the Collins court found that the search “exceeded lawful bounds.”
(Collins, supra, 1 Cal.3d at p. 661.) Without deciding if the pat search was “justified at
its inception,” the court concluded that the search “became impermissible in its scope”
when the officer reached into the defendant’s pocket, since the officer provided no facts
to indicate that the object felt like a weapon. (Id. at p. 664.)
       Here, the evidence does not show that Officer Prim reached into defendant’s
pocket immediately following the pat search. Rather, he conducted the pat search,
performed a Romberg test to determine whether defendant was under the influence,
arrested defendant, and then removed the items (a cell phone, lighter, plastic baggie
containing methamphetamine, and wallet) during a lawful search incident to arrest.
(See Birchfield v. North Dakota (2016) __ U.S. __ [136 S.Ct. 2160, 2174] [it is a “long-
established rule that a warrantless search may be conducted incident to a lawful arrest”].)
As the items were not removed from defendant’s pocket immediately after the pat search,
the pat search was not “impermissible in its scope.” (See Collins, supra, 1 Cal.3d at
p. 664.)

                                   IV.     DISPOSITION
       The order of probation is affirmed.



                                              10
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




I CONCUR:




__________________________
GROVER, J.




People v. Sacrite
H044419
    Mihara, J., dissenting

           I respectfully dissent. My colleagues conclude that a police officer may justify
    a pat search without identifying any specific, articulable fact suggesting that the citizen
    is armed. I believe we are bound by established Fourth Amendment precedent, which
    requires that a pat search be justified by a reasonable suspicion that the citizen is
    armed. Because the officer in this case did not identify any fact suggesting that
    defendant Irvin Sacrite was armed, the pat search was unjustified. Consequently, I
    would reverse the probation order and direct the court to grant defendant’s suppression
    motion.


                                         I. Background
           Defendant moved to suppress the evidence on the ground that the pat search
    was unjustified. San Jose Police Officer John Prim was the only witness at the
    suppression hearing. He testified that, at 4:00 p.m. on April 16, 2014, he was the
    passenger in an unmarked police vehicle being driven by his partner in downtown San
    Jose. Prim noticed defendant riding a bicycle northbound in the southbound flow of
    traffic. Defendant was carrying a red Budweiser can in his left hand. The can was
    open, and Prim saw defendant drink from the can twice. Prim concluded that
    defendant’s operation of his bicycle violated Vehicle Code section 21650.1 [bicycles
    must go in same direction on the roadway as vehicles] and that his consumption of
    alcohol violated San Jose Municipal Code section 10.12.010 [no consumption of
                                  1
    alcohol on public streets].




1
         Defendant does not challenge the validity of the detention.
       Prim and his partner followed defendant for about a block and then pulled their
vehicle in front of his bicycle. Prim got out of the vehicle and identified himself as a
police officer. Defendant responded: “ ‘[H]ow can I help you, sir?’ ” Prim began
talking to defendant about the Budweiser can. Prim took the can from defendant,
smelled it, and observed that it was cold and about a third full. It smelled like beer.
Prim noticed that defendant was sweating and had “dried, chapped lips” and
“fluttering eyelids.” Defendant was wearing a long T-shirt that covered his waistband
and the “mid-pocket area of the jean shorts” he was wearing. Prim could not see
defendant’s “waistband area,” and he “couldn’t tell” what was in the pockets of
defendant’s shorts because the T-shirt was “blocking half of the pocket.” Prim was
able to discern “bulges inside the pocket I could see from the outside.” He could tell
that the bulges were from “something solid and that they had rounded edges to it,
similar shape of a cellular phone.”
       Prim intended to cite defendant for the two code violations. Because he
“couldn’t quite determine” the nature of the object in defendant’s pocket, “[b]ased on
my training and experience, also my own safety, I wanted to conduct a quick pat
search to advise [sic] if it was a weapon or a potential weapon.” He was not able to
“exclude the possibility” that the object was a weapon. Prim was “unaware if he had a
weapon or not” and thought it was possible that defendant had a weapon. In addition,
Prim had noticed defendant’s “dry, chapped lips, heavy sweating, and fluttering
eyelids,” which were “consistent with someone under the influence of a stimulant,”
and Prim was “still investigating” that possibility. Consequently, he wanted to do a
pat search because he would need to get closer to defendant to see defendant’s pupils
and get a closer look at his lips in order to further investigate whether defendant was
under the influence of a stimulant. “In order for me to safely do that in that he doesn’t
have any weapons in his immediate area of his hands, I conducted a pat frisk search to



                                            2
ensure my safety before I continued with the investigation.” Prim had also observed
that defendant was significantly taller and heavier than either Prim or his partner.
       Prim had defendant put his hands behind his back. He held defendant’s hands
with one hand while he patted defendant’s clothing with the other. During the 20-
second pat search, Prim found no concealed weapons. The pat search gave Prim “a
better idea” of the nature of the bulges. “I was able to detect it was a possible cell
phone and a possible lighter” in defendant’s right front pocket. After the pat search,
Prim performed a “Romberg” test and “noticed symptoms of stimulant use.” On that
basis, Prim arrested defendant and searched him incident to that arrest. During that
search, Prim removed a cell phone, a lighter, and “a plastic baggy” from defendant’s
right front pocket and a wallet from defendant’s back pocket. The “baggy” contained
what appeared to be methamphetamine. Neither Prim nor his partner drew a weapon
at any point during their interaction with defendant.
       The superior court found Prim’s testimony to be “credible.” Although the court
deemed it irrelevant that defendant was larger than either of the two officers, the court
accepted Prim’s explanation that he needed to do a pat search to facilitate further
investigation of whether defendant was under the influence of a stimulant. The court
credited Prim’s observation that during that investigation, Prim “would not be able to
see [defendant’s] hands. [¶] And he was concerned about officer safety and
concerned specifically because of the bulge in the defendant’s pocket.” The court
concluded that the pat search was supported by reasonable suspicion and denied the
motion.


                                      II. Analysis
       Defendant contends that Prim had “no basis to believe appellant was armed
after he saw a cellphone-shaped object in appellant’s pants pocket.”



                                             3
       “A warrantless search is presumed to be unreasonable, and the prosecution
bears the burden of demonstrating a legal justification for the search. [Citation.] ‘The
standard of appellate review of a trial court’s ruling on a motion to suppress is well
established. We defer to the trial court’s factual findings, express or implied, where
supported by substantial evidence. In determining whether, on the facts so found, the
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.)
       A pat search is justified only where the police officer conducting the search can
“point to specific and articulable facts which, taken together with rational inferences
from those facts” demonstrate that the officer “has reason to believe that he is dealing
with an armed and dangerous individual . . . .” (Terry v. Ohio (1968) 392 U.S. 1, 21,
27.) While “[t]he officer need not be absolutely certain that the individual is armed”
(Terry, at p. 27), “[a]n inchoate and unparticularized suspicion or hunch is not
sufficient, nor is the fact the officer acted in good faith.” (In re H.M. (2008) 167
Cal.App.4th 136, 143-144.) “Where specific and articulable facts are absent, the pat
search cannot be upheld.” (Ibid.)
       Prim’s testimony at the suppression hearing failed to identify any “specific and
articulable facts” supporting a reasonable inference that defendant was armed. My
colleagues conclude that Prim’s observation of the “bulge” in defendant’s pocket
supported an inference that defendant was armed. They rely on the United States
Supreme Court’s decision in Pennsylvania v. Mimms (1977) 434 U.S. 106 (Mimms).
In Mimms, the defendant was stopped for driving a vehicle with an expired license
plate. When the defendant stepped out of the vehicle at the officer’s request, the
officer noticed a large bulge under the defendant’s jacket. Fearing that the bulge was a
weapon, the officer frisked the defendant and discovered a firearm in the defendant’s
waistband. (Mimms, at p. 107.) The United States Supreme Court found: “[T]here is
little question the officer was justified. The bulge in the jacket permitted the officer to

                                             4
conclude that Mimms was armed and thus posed a serious and present danger to the
safety of the officer. In these circumstances, any man of ‘reasonable caution’ would
likely have conducted the ‘pat-down.’ ” (Mimms, at p. 112.)
       Unlike the bulge under Mimms’s jacket, which the officer feared was a weapon,
Prim did not claim to fear that the cell-phone-shaped bulge in defendant’s pocket was
a weapon. Nor did he identify any specific fact upon which he could have based a
reasonable suspicion that the bulge was a weapon. Instead, Prim’s testimony was that
he was “unaware if [defendant] had a weapon or not” and could not “exclude the
possibility” that the bulge was a weapon. Prim did not even claim that he had a
“hunch” that the bulge was weapon.
       My colleagues’ repeated claims that “Officer Prim suspected that the bulge
might be a weapon” are inaccurate and misleading. Prim never testified that he
“suspected that the bulge might be a weapon.” Yet my colleagues make this
inaccurate claim repeatedly. On page 2 of the majority opinion, my colleagues say:
“The officer conducted a pat search because he suspected that the bulge might be a
weapon . . . .” On page 8 of the majority opinion, my colleagues say: “The gist of this
testimony was that Officer Prim suspected that the bulge might be a weapon.” Also on
page 8 of the majority opinion, my colleagues say: “The essence of this testimony was
that Officer Prim suspected that the bulge might be a weapon.” On page 9 of the
majority opinion, my colleagues say: “Officer Prim suspected that the bulges might be
a weapon.”
       Prim did not testify that he “suspected” that the bulge might be a weapon, and
this was neither the “gist” nor the “essence” of his testimony. Instead, he testified that
he “couldn’t quite determine” the precise nature of the cell-phone-shaped object in
defendant’s pocket and could not “exclude the possibility” that the object was a
weapon. Prim never articulated a suspicion that the bulge might be a weapon but only
a lack of certainty as to the precise nature of the cell-phone-shaped object. By basing

                                            5
their conclusion that the pat search was justified on this unsupported inference, my
colleagues undermine their analysis.
       My colleagues’ reliance on United States v. Chaney (1st Cir. 2009) 584 F.3d 20
(Chaney) is misplaced because Chaney is readily distinguishable. Chaney was the
passenger in a vehicle that was stopped for an unlit headlamp. (Chaney, at p. 22.)
When the officer asked Chaney to identify himself, Chaney provided a false name,
was fidgety and nervous, and avoided eye contact. The officer noticed a “bulge” that
was “about the size of a fist” in the front pocket of Chaney’s jeans. (Chaney, at
pp. 22-23.) The officer “testified that in his experience, people sometimes give a false
name when they are carrying a concealed weapon without the required permit.”
(Chaney, at p. 26.) The officer was “concerned that the bulge might be a weapon,”
and he asked Chaney what was in that pocket. Chaney did not respond and became
more nervous. (Chaney, at p. 23.) When the officer repeated the question, Chaney
“shifted his weight,” reached into his rear pocket, produced a wad of napkins, and told
the officer that there was nothing in his front pocket. The officer noticed that when
Chaney moved the “bulge . . . remained rigid.” The officer again directed Chaney’s
attention to the front pocket containing the bulge, and Chaney “shoved” the napkins
into the pocket, pushing the “bulge” lower. (Ibid.) It was only at this point that the
officer decided to conduct a pat search, which led to the discovery of a weapon in
Chaney’s pocket. (Chaney, at p. 24.) The First Circuit Court of Appeals rejected
Chaney’s claim that the pat search was unjustified. (Chaney, at p. 27.)
       The facts of this case are not remotely similar to those in Chaney. The First
Circuit upheld the pat search because “Chaney’s evasiveness and failure to identify
what was in his pocket, coupled with the size and rigid nature of the object, gave
Officer Brown a specific articulable basis for suspecting that Chaney might be armed,
thereby justifying a pat-down search.” (Chaney, supra, 584 F.3d at p. 27.) The
specific articulable facts present in Chaney are precisely what was lacking in this case.

                                            6
The officer in Chaney, unlike Prim, identified multiple specific and articulable facts
suggesting that the bulge in Chaney’s pocket was a weapon. Chaney had provided a
false name, which the officer knew to be associated with illegal weapon possession,
and was evasive in response to inquiries about the contents of the pocket. “[C]oupled
with the size and rigid nature of the object” in Chaney’s pocket, these facts supported a
reasonable suspicion that the object was a weapon. None of those facts was present
here. Defendant was polite, cooperative, and responsive to Prim’s inquiries. Nothing
about the cell-phone-shaped “bulge” in defendant’s pocket suggested that it was
anything other than a cell phone, and nothing about defendant’s conduct indicated that
he was carrying a weapon. I find no support for my colleagues’ position in Chaney.
       My colleagues maintain that People v. Dickey (1994) 21 Cal.App.4th 952
(Dickey) is “distinguishable” because the deputy in Dickey did not provide any specific
and articulable facts indicating that the defendant was armed. (Maj. opn., ante, at
p. 9.) In Dickey, “[t]he deputy testified that he performed the patdown search for
‘officer safety’ and because appellant ‘potentially may have been armed.’ ” (Dickey, at
p. 956.) The sole difference between Dickey and this case is Prim’s observation of the
cell-phone-shaped bulge in defendant’s pocket. However, nothing about that bulge
suggested that defendant was armed, rather than merely in possession of a cell phone.
The deputy’s testimony in Dickey was indistinguishable from Prim’s testimony that he
could not “exclude the possibility” that defendant was armed. I agree with the Dickey
court that “[w]ithout ‘specific and articulable’ facts which show that the suspect may
be armed and dangerous, these conclusions add nothing. In every encounter with a
citizen by the police, the citizen may potentially be armed.” (Dickey, at p. 956.)
       When an officer cannot articulate any fact that supports something more than a
mere possibility that a citizen is armed, the officer is not entitled to conduct a pat
search. Here, the pat search was unjustified, and I would hold that the superior court
erred in denying defendant’s suppression motion.

                                             7
                    _______________________________
                    Mihara, J.




People v. Sacrite
H044419
Trial Court:                Santa Clara County Superior Court
                            Superior Court No.: C1484687


Trial Judge:                Hon. Ron M. Del Pozzo


Attorney for Appellant:     Laurel Simmons,
Irvin Sacrite               under appointment by the Court of Appeal


Attorneys for Respondent:   Xavier Becerra,
The People                  Attorney General
                            Gerald A. Engler,
                            Chief Assistant Attorney General
                            Jeffrey M. Laurence,
                            Senior Assistant Attorney General
                            Catherine A. Rivlin,
                            Supervising Deputy Attorney General
                            Allan Yannow,
                            Deputy Attorney General




People v. Sacrite
H044419
