Filed 3/3/14 P. v. Wedlow CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

THE PEOPLE,                                                          B247510

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA078246)
         v.

ISIAH WEDLOW,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mark E.
Windham and Katherine Mader, Judges. Affirmed.
         Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Nima Razfar, Deputy Attorneys General for Plaintiff and Respondent.
                                          _______________________
       Following the denial of a motion to suppress evidence, Isiah Wedlow pleaded no
contest to carrying a loaded and unregistered handgun (Pen. Code, § 12031, subd. (a)(1)),
a felony, and having a concealed firearm on his person (Pen. Code, § 12025,
subd. (a)(2)), a misdemeanor.1 On appeal Wedlow concedes he was lawfully detained
but contends the semiautomatic handgun discovered in his waistband during a pat search
should have been suppressed because the deputy sheriff who had detained him did not
reasonably believe he was armed and dangerous. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Wedlow’s motion to suppress was heard in conjunction with the preliminary
hearing. The evidence at the hearing established on June 2, 2011 Los Angeles County
Deputy Sheriff Ramon Munoz and his partner were on routine patrol near a middle
school at approximately 3:15 p.m. as school was letting out. Wedlow was walking along
the curb, and Deputy Munoz saw him put a piece of chewing gum in his mouth and toss
the wrapper on the ground. Deputy Munoz got out of his patrol car and called Wedlow
over to him. Wedlow backed away quickly and looked left and right as if he wanted to
run away. Although it was a warm day, Wedlow was wearing a black hooded sweatshirt;
and his hands were inside the front pouch-pocket. Deputy Munoz asked Wedlow to
remove his hands; Wedlow complied. Deputy Munoz testified he had intended only to
talk to Wedlow about littering but, “because of his demeanor and he was wearing a heavy
sweater in summer—on June 2, it was a warm day—I patted him down for weapons.”
The deputy felt a hard object in Wedlow’s waistband and discovered a .380 caliber
semiautomatic firearm.

1
       Pursuant to the plea agreement, the trial court suspended imposition of sentence
and placed Wedlow on summary probation for two years on condition he complete
25 days of service with the California Department of Transportation. Under the terms of
the agreement, if Wedlow successfully completed probation, his conviction for carrying a
loaded and unregistered handgun would be dismissed. However, if he violated probation,
he could be sentenced to a three-year state prison term. Wedlow thereafter violated
probation, and a year after the original sentencing hearing the trial court sentenced him to
an aggregate state prison term of two years.


                                             2
       At the conclusion of the hearing defense counsel argued there was no reasonable
suspicion to justify the pat search for officer safety under Terry v. Ohio (1968) 392 U.S. 1
[88 S. Ct. 1868, 20 L.Ed.2d 889] (Terry) and asserted the firearm should be suppressed.
The court, acting in the limited role of magistrate, denied the suppression motion without
addressing the Terry issue, concluding, because Deputy Munoz had probable cause to
arrest Wedlow for littering, the search was valid as a search incident to arrest. Wedlow
was held to answer.
       Wedlow renewed his suppression motion in superior court under Penal Code
section 1538.5, subdivision (i). The People asserted the pat search was appropriate under
Terry based on Deputy Munoz’s reasonable belief Wedlow was armed and dangerous and
was also valid as a search incident to arrest. The court denied the motion on both bases,
concluding as to the Terry pat search, “The fact that the defendant did not react like a
normal person would react if a police officer said, ‘I’m stopping you, stop,’ but instead
backed away, hesitated, moved away, kept his hands in his pockets, wasn’t wearing the
right clothing for the weather, officer is by himself, for those reasons alone, I think that
he had a right to conduct a pat down.”2 Wedlow then entered his no contest plea pursuant
to the negotiated agreement.
                                       DISCUSSION
       1. Standard of Review
       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,



2
      Because we conclude Deputy Munoz’s pat search was lawful under Terry, we
need not reach the court’s alternative conclusion the semiautomatic handgun was
discovered during a valid search incident to arrest.


                                              3
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. (People v. Zamudio (2008) 43 Cal.4th 327, 342.)3
       2. The Law Governing Pat Searches
       When a police officer reasonably suspects a crime has been committed and the
individual he 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].) To justify a pat search for
weapons, the officer need not have probable cause to arrest the individual nor “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.) The officer’s reasonable suspicion must be directed at
the individual to be searched (Ybarra v. Illinois (1979) 444 U.S. 85, 95 [100 S.Ct. 338, 62
L.Ed.2d 238]) and must be based on specific, articulable facts. (Terry, at p. 21; see
In re H.M. (2008) 167 Cal.App.4th 136, 143 [“a limited frisk for weapons is justified
where 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’”].)
       The determination whether an officer had reasonable suspicion to conduct a pat
search for weapons is based on the totality of the circumstances. (People v. Avila (1997)
58 Cal.App.4th 1069, 1074.) Reasonable suspicion must be based on “commonsense




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.)


                                              4
judgments and inferences about human behavior.” (Illinois v. Wardlow (2000) 528 U.S.
119, 125 [120 S.Ct. 673, 145 L.Ed.2d 570].)
       3. The Trial Court Properly Denied Wedlow’s Suppression Motion
       Wedlow does not dispute that Deputy Munoz properly detained him after seeing
him litter on public property, an infraction committed in the deputy’s presence.
Nonetheless, Wedlow asserts the pat search violated the Fourth Amendment because it
was not supported by a reasonable suspicion Wedlow was armed and dangerous.
       This is a close case, but we conclude there were specific and articulable facts
sufficient to support Deputy Munoz’s decision to conduct a pat search for officer safety:
(1) Wedlow was wearing an incongruously heavy sweatshirt in warm weather.
(2) Wedlow’s hands were concealed in the front pouch-pocket of the sweatshirt.
(3) When directed by Deputy Munoz to approach him, Wedlow seemed nervous,
hesitated, looked around and backed away, appearing to Deputy Munoz as if he wanted to
flee. (4) Wedlow, an adult, was detained near a middle school at a time when the
students were on the street, heading for home. The superior court’s factual finding that
Wedlow behaved abnormally when commanded by Deputy Munoz to approach him and
its implied finding the heavy sweatshirt worn by Wedlow could conceal a weapon—
whether a gun or a knife—were fully supported by the record.4
       To be sure, as our dissenting colleague points out, Wedlow did not in fact flee; and
he responded to Deputy Munoz’s order to show his hands. But Wedlow’s decision to
cooperate when confronted by Deputy Munoz does not negate the reasonableness of the
deputy’s initial, commonsense judgment, based on his experience and training (see Terry,
supra, 392 U.S. at p. 27), that Wedlow could be armed and thus dangerous. (See
In re H.M., supra, 167 Cal.App.4th at p. 144 [“[n]ervous, evasive behavior is a pertinent


4
       Although Deputy Munoz did not use the term “baggy” or “bulky” to describe the
sweatshirt worn by Wedlow on a warm June day, given his specific identification of the
garment as one of the reasons he decided to conduct a pat search, there can be no doubt
he thought it could conceal a weapon.


                                              5
factor in determining a reasonable suspicion” detained suspect was armed, citing Illinois
v. Wardlow, supra, 528 U.S. at p. 124]; People v. Collier (2008) 166 Cal.App.4th 1374,
1377-1378 & fn. 1 [the wearing of baggy clothing, coupled with other suspicious
circumstances, can furnish the requisite facts to support a pat search for weapons]; People
v. Lopez (2004) 119 Cal.App.4th 132, 137 [loose or baggy clothing capable of concealing
a weapon properly considered as one factor supporting decision to conduct a pat search];
cf. In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [heavy coat considered as one
factor justifying limited search for weapons].)
       Nothing in Ybarra v. Illinois, supra, 444 U.S. 85 compels the contrary conclusion.
At the time of that decision, an Illinois statute authorized law enforcement officers
executing a search warrant to also search all individuals at the location identified in the
warrant to protect the officers from attack and prevent the disposal or concealment of
evidence. In Ybarra police officers had a warrant authorizing the search of a tavern and a
specific bartender for evidence of possession of heroin. Once inside the tavern, pursuant
to the Illinois statute, one of the officers conducted a “cursory search for weapons” of the
nine to 13 customers present, including Ybarra. Six packets of heroin were discovered in
Ybarra’s pants pocket, and he was arrested and charged with unlawful possession of a
controlled substance. Ybarra’s motion to suppress the evidence was denied, and he was
convicted. The Supreme Court reversed his conviction, holding the search of Ybarra
violated the Fourth Amendment: The police had no reason to believe Ybarra “had
committed, was committing or was about to commit any offense under state or federal
law.” In addition, he “made no gestures indicative of criminal conduct, made no
movements that might suggest an attempt to conceal contraband, and said nothing of a
suspicious nature to the police officers.” (Id. at p. 91.) Thus, there was no probable
cause to search Ybarra. (Ibid.)
       In addition, the Supreme Court held the pat search of Ybarra was not supported by
a reasonable belief he was armed and dangerous under Terry: “Ybarra, whose hands
were empty, gave no indication of possessing a weapon, made no gestures or other
actions indicative of an intent to commit an assault, and acted generally in a manner that

                                              6
was not threatening. At the suppression hearing, the most Agent Johnson could point to
was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits
could be expected on almost any tavern patron in Illinois in early March.” (Ybarra v.
Illinois, supra, 444 U.S at p. 93.)
       Here, in marked contrast, Wedlow’s choice of clothing—a heavy sweatshirt on a
warm June day—was unusual; his hands were concealed; he appeared nervous in the
presence of the deputy; and his initial physical movements suggested an intention to flee.
In sum, based on the totality of the circumstances, Deputy Munoz reasonably believed his
safety was at risk; and the decision to pat search Wedlow was justified. (People v.
Dickey (1994) 21 Cal.App.4th 952, 957 [“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.”].) Wedlow’s suppression motion was properly denied.
                                      DISPOSITION
       The judgment is affirmed.




                                                PERLUSS, P. J.

       I concur:



              WOODS, J.




                                            7
ZELON, J., Dissenting:

       I respectfully dissent.
       In Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868] (Terry), the
United States Supreme Court held a patsearch is justified only when the officer
reasonably believes, based on the totality of the circumstances, the particular person he or
she is questioning or detaining is armed and dangerous to the officer or to others. In
doing so, the Court explicitly recognized that a patsearch “is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong resentment,
and it is not to be undertaken lightly.” (Id. at p. 17.) It is with that admonition in mind
that I conclude the facts in this difficult case cannot support the search.
       Deputy Munoz testified he conducted the patsearch for officer safety because
Wedlow seemed to want to run away, appeared nervous, and was wearing a heavy
sweatshirt in warm weather. There was additional evidence Wedlow’s hands were
initially concealed in his front pouch-pocket, and he was detained near a middle school,
at a time when the students were leaving for home. However, none of these facts,
considered singly or in combination, would lead an officer to “‘reasonably believe in the
possibility that a weapon may be used against him’” or others nearby. (People v. Dickey
(1994) 21 Cal.App.4th 952, 956.) Wedlow did not flee, and he responded promptly to
Munoz’s request to show his hands. Indeed, there was no evidence Wedlow was being
uncooperative, let alone threatening. (Compare People v. Mendoza (2011) 52 Cal.4th
1056, 1082 [patsearch of three individuals justified in part by one individual’s hostile
reaction towards single officer during consensual encounter]; In re H.M. (2008) 167
Cal.App.4th 136, 144 [patsearch justified in part by suspect’s threatening movements and
failure to obey officer’s commands].) Furthermore, nothing in Munoz’s description of
the sweatshirt suggested it was baggy or capable of concealing a weapon. (Compare
People v. Mendoza, supra, 52 Cal.4th at p. 1082 [patsearch justified in part by
individual’s baggy clothing, which could hide a weapon]; People v. Collier (2008) 166
Cal.App.4th 1374, 1377-1378.) While the setting of the search was relevant, Munoz did
not testify that any middle school students were in close proximity or likely to be harmed
by a weapon in Wedlow’s possession. In any event, the time and location of the
encounter “are insufficient by themselves to cast reasonable suspicion on an individual.”
(People v. Medina (2003) 110 Cal.App.4th 171, 177 [patsearch of driver following traffic
stop not justified when based solely on driver’s presence in high crime area late at
night].)
       Particularly instructive here is Ybarra v. Illinois (1979) 444 U.S. 85, in which the
police entered a bar with a search warrant to search the bartender for narcotics. In
executing the warrant, the officers conducted a weapon search of everyone in the bar. An
officer pat-searched the defendant and discovered six packets of heroin in his pants
pocket. (Id. at p. 89.) The officer maintained the protective search was justified because
the defendant was wearing a three-quarter length lumber jacket. (Id. at p. 93.) In
rejecting this justification, the United States Supreme Court observed this type of
clothing might be expected on almost any bar patron in Illinois in early March. (Ibid.)
The Court observed the defendant’s hands were empty, he gave no indication he
possessed a weapon, made no gestures or other actions suggesting an intent to commit an
assault, and did not act in a threatening manner. (Ibid.) The Court concluded the police
failed to articulate any specific facts justifying a patsearch of the defendant, noting
“[n]othing in Terry can be understood to allow a generalized ‘cursory search for
weapons’ or, indeed, any search whatever for anything but weapons.” (Id. at pp. 93-94.)
       As in Ybarra, the defendant here displayed his empty hands, was cooperative, and
did not threaten the officer. Although he was wearing a sweatshirt on a warm day, the
record does not demonstrate that it could conceal a weapon.




                                              2
        The facts of this case also stand in contrast to those in the other cases relied on by
the majority. In People v. Collier, supra, 166 Cal.App.4th at 1378, the court pointed out
two circumstances of significance which caused it to uphold the validity of the search.
First, the stop was for drugs and “guns often accompany drugs.” In addition, the officers
had probable cause to search the car and intended to do so, leading the court to conclude
that the officer need not continue his investigation without a search in light of the
defendant’s size, his baggy clothing, and the knowledge that he may have been using
drugs. (Ibid.) None of the factors relied on by the Collier court were identified in this
case.
        In People v. Lopez (2004) 119 Cal.App.4th 132, officers responded to a call about
a man who had threatened another with a gun. Defendant, who was belligerent and
refused to cooperate, was wearing baggy clothing and had a large heavy object visible in
his front pocket. Defendant reached toward the front of his pants several times during the
encounter, prior to the search. Again, none of the factors relied on by the court can be
found in this record.
        Finally, in In re Frank V. (1991) 233 Cal.App.3d 1232, officers observed
Frank V., and another man, leaving the curb of a known gang house at night in a gang
neighborhood. When they stopped the men, Frank V. was wearing a heavy coat, with his
hands in his pockets; after being instructed to take his hands out, he attempted to reach
into his pockets again. That action, in addition to the location and the other observations
of the officers, was held to provide an “additional factor” to justify the search. (Id. at
p. 1241.) Again, no such factors can be found in this search of an individual who
dropped a gum wrapper in the middle of the day.
        In concluding the patsearch of Wedlow exceeded constitutional boundaries, I am
mindful, as is the majority, that “[t]he 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, supra, 21 Cal.App.4th at p. 957; see
Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 [54 L. Ed. 2d 331, 336, 98 S.Ct. 330].)

                                               3
However, where, as here, the totality of circumstances yields no specific, articulable facts
that would reasonably lead to a conclusion that the safety of the officer or safety of others
was at risk, the patsearch should not be upheld.




                                                         ZELON, J.




                                              4
