• Patdown for Weapons
• Reasonable Suspicion vs. a Hunch That a Person May be Armed

A patdown for weapons is illegal absent sufficient reasonable suspicion to believe the subject may be armed.  An officer’s knowledge that a detained individual has a prior weapons offense on his record, but with no indication that violence might have been involved, is legally insufficient to justify a patdown for weapons.

Vacaville Police Officer Chris Hill was on patrol at around 1:30 a.m. on January 3, 2020, when he observed defendant Juan Pantoja driving “rather quickly” (although within the 25 mph speed limit) while making a right turn onto Brown Street, in an area referred to as a “high-crime area.”  Officer Hill decided to follow defendant.  Noticing that his license plate light and his third brake light located in the rear window were not working, he decided to make a traffic stop.  As defendant pulled into an apartment complex parking lot, Officer Hill turned on his overhead lights and initiated the traffic stop.  Contacting defendant (the vehicle’s sole occupant), Officer Hill vaguely recognized him, noting that defendant was wearing a “baggy,” hooded sweatshirt.  When defendant identified himself by providing his driver’s license, Officer Hill remembered him—as he wrote in his police report—as having “a history of violence and firearm possession, and (that) he was at the time an investigative lead in a homicide.” However, in later testimony, Officer Hill was unable to recall any specific crimes of violence in which defendant might have been involved.  And the homicide case referred to above apparently was something in which he was no more than a witness.  Officer Hill did testify to having had prior contacts with defendant a handful of times, and that he “also (had) seen his name in briefing logs.” Additionally, Officer Hill “thought” he’d transported defendant once when defendant was arrested for possession of firearms.  However, the officer acknowledged in testimony that he was unable to recall having any personal contacts with him when a crime of violence was involved.  Back to the circumstances of the traffic stop, Officer Hill testified that he did not notice anything that might have been considered unusual (e.g., no smell of marijuana, no contraband in plain sight, and no indication defendant might have been drinking.)  A records check showed that defendant’s license was valid and that he was not on probation or parole, defendant telling the officer he’d completed probation two years earlier (i.e., 2018).  In response to Officer Hill’s questioning, defendant gave a logical explanation as to why he was out so late (buying a burrito).  Asked if he had any marijuana in the car, defendant claimed he never touched the stuff.  Even though Officer Hill did not have any reason to search defendant’s car, he asked for permission to do so anyway.  Defendant declined.  Despite all of the above indications that there was nothing unusual occurring during this contact (aside from his refusal to let Officer Hill search his car), the officer asked defendant to get out of the car and put his hands behind his head because he was going to issue him a citation for the vehicle’s lighting infractions.  In later testimony, Officer Hill stated that he “elected to remove him from the vehicle and pat him down so that (he) could compete the citation,” inferring, apparently, that this was necessary in order to write the ticket safely. Asked by the prosecutor whether he believed “defendant was armed or dangerous at that moment,” Officer Hill responded:  “He was wearing baggy clothing.  He had [a] hoodie on and jeans. The hoodie naturally has bulges in it, so based upon defendant’s history of weapons, I elected to remove him from the vehicle and pat him down so I can complete the citation.”  Officer Hill, however, failed to mention in his police report any bulges in defendant’s clothing.  And he acknowledged in testimony that it was cold outside at the time of the traffic stop.  Asked a second time by the prosecutor if he believed defendant was presently armed and dangerous, Officer Hill testified: “There's a good possibility or chance, yes.”  It was also noted, however, that although defendant did not make any furtive gestures or other sudden movements, he did appear “to get nervous” when he was told that the officer was about to pat him down.  The patdown resulted in the recovery of a loaded pistol in his waistband area, underneath his sweatshirt hoodie.  Being charged in state court with being a felon in possession of a firearm (Pen. Code § 29800(a)(1)), defendant filed a motion to suppress.  After hearing the above evidence, the trial court granted defendant’s motion, finding the patdown to be illegal. With the case against defendant being dismissed, the People appealed.

The First District Court of Appeal (Div. 2) affirmed.  The issue on appeal, as it was in the trial court, was the legality of the patdown for weapons under the circumstances of this case.  Such a limited search for weapons has long been recognized as lawful whenever “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”  (King v. State of California (2015) 242 Cal.App.4th 265, 282; citing Terry v. Ohio (1968) 391 U.S. 1.)  Under such circumstances, a patdown of a detained person for weapons has been consistently upheld by the courts.  However, such a search violates the Fourth Amendment absent the officer being able to articulate sufficient facts to establish at the very least a “reasonable suspicion” to believe that the suspect may be armed.  As noted by the Court: “‘The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ ([Terry, supra, 392 U.S.] at p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.” (People v. Dickey (1994) 21 Cal.App.4th 952, 956. . . .) “[A]n ‘inchoate and unparticularized suspicion or “hunch”’ is insufficient.” (Italics added; In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305.)  In this case, the only factors the officer could point to that might have indicated to him that defendant was armed was that the area was known as a high crime area and the officer’s somewhat vague (or at least poorly described) recollection that defendant had a prior history of being involved in an offense that involved weapons.  Although noting in his report that defendant also had a history of violence, when pressed on the issue while testifying, he could not recollect any such instances.  The fact that defendant had been off probation for some two years indicated that any prior offenses had to have been some time well before his arrest here.  Being in a so-called “high crime area” by itself is clearly insufficient to justify a patdown.  If it were otherwise, anyone and everyone caught in that area could be patted down for weapons.  Secondly, having a prior history of weapons offenses is also of little significance.  The case law clearly establishes the rule that a person’s history of weapons offenses is insufficient, by itself, to justify a patdown.  Here, Officer Hill testified that he was aware of defendant having been arrested on one occasion for the illegal possession of a firearm.  But that arrest, based upon the record as established here, was years before. There is federal authority from other jurisdictions holding that a person merely having criminal record by itself, even if it involved a firearm, is not sufficient to create a reasonable suspicion to believe that he may be armed.  (See United States v. Foster (4th Cir. 2011) 634 F.3rd 243, 246; United States v. Mathurin (3rd Cir. 2009) 561 F.3rd 170, 177; United States v. Davis (10th Cir. 1996) 94 F.3rd 1465, 1469; United States v. Sandoval (10th Cir. 1994) 29 F.3rd 537, 542.)  Even when combined with the fact that a person with such a criminal history is found to be in a “high-crime area,” to allow an officer to pat that person down for weapons casts too broad a net to be constitutionally permissible.  Other than that, the People argued that the fact that defendant was wearing a baggy sweatshirt was a relevant factor.  The Court disagreed, noting that defendant’s clothing choices were consistent with the ambient temperatures at that time of night, and that the officer did not testify to having seen any suspicious bulges in defendant’s clothing that might have signaled the presence of a weapon.  Aside from this, defendant here was totally cooperative.  His refusal to consent to a search of his vehicle was within his rights, and cannot be later used as a factor indicating that he might have been armed. As for defendant’s connection to a pending homicide investigation, Officer Hill knew no more than that he was “an investigative lead in a homicide.”  Nothing else occurred that Officer Hill could use as an indication that defendant might have been armed.  As such, the Court held that the People failed to establish that patting defendant down for weapons under these circumstances was supported by an articulable reasonable suspicion that he might be armed, and was thus illegal.

The People did cite one case that seemed to support the legality of the patdown in this case:  People v. Bush (2001) 88 Cal.App.4th 1048.  In Bush, the appellate court made a very interesting observation:  “In our job as appellate court judges, we have been called upon to review hundreds upon hundreds of criminal convictions. Our experience has led us to the conclusion that, unfortunately, felons convicted of illegal weapons offenses (in the past) often later carry concealed weapons, and they do so more than six years after an initial conviction. Moreover, while some persons who are ‘very violent’ reform such tendencies, many, many others do not.”  (pg. 1053.)  But the Court here differentiated Bush from the situation with which Officer Hill was faced, noting that the defendant in Bush had a history of violence in addition to the weapons possession.  (See pg. 1050:  “(T)he dispatcher further informed the officer the driver ‘had a history of violence, possession of weapons and was reported to be a kick-boxer.’”) In contrast, Officer Hill knew no more about this defendant other than that he had apparently been arrested once before for a weapons-related offense, suffered a felony conviction as a result, and was subsequently on probation which had ended some two years before.  So am I going to criticize Officer Hill for patting defendant down under these circumstances?  Not at all!  I might note that both he and the prosecutor could have been better prepared for Officer Hill’s testimony at the motion to suppress, it all being a little vague as to what Officer Hill knew about defendant and didn’t know.  But we probably would have lost this case anyway.  That having been said, my philosophy has always been: “When in doubt, pat the sucker down!”  So long as you have some reason for believing that he may be armed, it’s better to err on the side of caution and do that patdown. Had Officer Hill not patted Juan Pantoja down, he could be dead today.  The up side to all this, despite having the gun suppressed and the case dismissed, is that Officer Hill is alive and an illegal gun has been taken off the street.  I would classify this as a “win-win” situation for the Good Guys.