LEGALUPDATES.COM

During a lawful pretextual traffic stop, patting down a gang member for weapons is not illegal when other factors (being in a gang area, another gang member found to be armed) provide a reasonable suspicion to believe that he may be armed. Time taken to ensure officers’ safety does not result in an unduly prolonged detention. 

• Detentions for investigation 

• Prolonged detentions 

• Pretextual traffic stops 

• Pat downs for weapons 

Pretextual traffic stops are legal. When in an area that opposing violent street gangs both claim as their territory, and after a gun has already been found on one gang member, patting down a second gang member for weapons is lawful.  

Absent the discovery of other criminal activity, prolonging a traffic stop beyond the time it would reasonably take to complete the mission of the traffic stop is an “unlawfully prolonged” detention and in violation of the Fourth Amendment.  

An officer taking the time to ensure officers’ safety during a traffic stop does not illegally prolong the traffic stop. 

San Diego Police Department officers Arreola and Vina were working?with detectives from the department’s street gang unit early one September evening when they were directed by Detective Patrick from the gang unit to pull over a vehicle that was in violation of Vehicle Code § 26708(a), illegally tinted windows. Although the vehicle’s windows were in fact illegally tinted, the detective’s true interest was to investigate the vehicle’s occupants for any possible gang affiliation.  

The detective’s motives were prompted by the fact that they were in an area known by the detective to be contested gang territory claimed by both the City Heights Juniors and Eastside San Diego, both known to be criminal street gangs with a history of violence. Doing as directed, Arreola flashed his lights and activated his siren, signaling to the driver that he was to pull over and stop. The driver complied, pulling into an alleyway where he stopped and rolled down his window.  

Arreola got out of the police vehicle but held back behind a wooden utility pole as he asked the other occupants to roll down all the vehicle’s (tinted) windows, front and back. The occupants did as requested, revealing four people in the car: defendant Christopher Esparza, driving; Eduardo Yescas, in the right front passenger seat; Delfino Osnaya, in the left back seat behind the defendant; and Lorena Davila, in the right back seat behind Yescas.  

Arreola approached Esparza and stood back behind him, immediately adjacent to Osnaya in the left rear passenger seat, from where he had an unobstructed view of most of the car’s interior. Noting four people inside, Arreola called for backup as Officer Vina approached the passenger side of the car. Arreola asked Osnaya for identification while telling Esparza to turn off the engine and produce his driver’s license.  

As Esparza was looking for his license, Arreola questioned Osnaya, who apparently didn’t have any ID, and wrote his identifying information on a notepad. Osnaya admitted to having been arrested in Nevada for possession of a controlled substance. As this was going on, the first cover unit, apparently containing a gang unit detective, arrived at the scene. Arreola gave the detective Esparza’s license and the notepad containing Osnaya’s information, asking him to run a warrant check on both of them.  

Moments later, Detective Hansel from the gang unit arrived. Hansel had been monitoring several local gangs, including the City Heights Juniors, identifying new members, locating social media accounts and staying up to date on each individual’s parole and probation status. As the detective walked up to the car, he immediately recognized Osnaya, commenting on the fact that he was “always strapped.” (This term is not defined in the court ruling. I'm guessing it means Osnaya was always armed, thus the need for a pat down.) Hansel told Arreola that they needed to pat down Osnaya for weapons.  

Hansel also recognized the defendant, referring to him as “Christian Esparza,” which defendant immediately corrected to “Christopher.” The detective also recognized Yescas as a gangster, although he couldn’t remember his name. Hansel told the other officers that the male occupants of the vehicle were members of the City Heights gang. (Davila, the sole female in the car, was pretty much ignored.) 

As more backup units arrived, Osnaya was asked to step out of the car and was patted down for weapons. A loaded “ghost gun,” one without a serial number, was recovered from his waistband. This led to the pat down of everyone else in the car. When Esparza was patted down, he was found to be in possession of another loaded pistol. Osnaya and Esparza were arrested. The total time between when officers Arreola and Vina initially approached the car and Esparza’s arrest was about seven minutes, as recorded by the officers’ bodycams.  

Esparza and Osnaya were charged together in state court with various weapons-related offenses. The defendants’ joint motion to suppress the respective firearms discoveries at the preliminary examination (pursuant to P.C. § 1538.5) and at the subsequent motion to dismiss in the trial court (per P.C. § 995) were both denied. Esparza appealed. 

The Fourth District Court of Appeal (Div. 1) affirmed the trial court rulings.  

Two issues were litigated on appeal:  

• the legality of the pat down of defendant for weapons  

• whether Esparza’s detention during this traffic stop was unlawfully prolonged  

Esparza conceded that a “pretextual traffic stop” — stopping a vehicle for an observed traffic offense when the officer’s true motivation is to investigate other, more serious criminal offenses — was lawful. See Whren v. United States?(1996) 517 U.S. 806.)  

Discussion 

As for the legality of the pat down of Esparza and the right to detain suspects, there’s a pile of relevant case law discussing both issues, beginning with the U.S. Supreme Court’s decision in Terry v. Ohio (1968) 392 U.S. 1. In Terry (at pg. 10), the Supreme Court held that when a police officer develops a reasonable suspicion that “criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” both (1) an investigatory detention and (2) a pat-down search for weapons are constitutionally permissible under the?Fourth Amendment.  

Additional case law tells us that “reasonable suspicion” is less than probable cause (United States v. Arvizu?(2002) 534 U.S. 266, 274.), but more than a mere “hunch.” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 236; and Kansas v. Glover.)  Further, the suspicion must?be based on “specific reasonable inferences which [officers are] entitled to draw from the facts in light of [their] experience[s].” (Terry, at p. 27). Whether reasonable suspicion exists depends on an evaluation of the “totality of the circumstances.” (United States v. Cortez?(1981) 449 U.S. 411, 417.)   

Given that Esparza conceded that the traffic stop itself was lawful, the court moved onto the question of whether he had been lawfully patted down for weapons.  

Pat Down for Weapons 

Esparza argued that given his “calm conduct and agreeable demeanor” during the traffic stop, there was insufficient reasonable suspicion to justify his pat down. 

The court disagreed. First, the fact that a defendant might have been calm, cool and cooperative is irrelevant. And second, when determining the existence or non-existence of a reasonable suspicion that a person may be armed, a court is to look at the “totality of the circumstances.” The fact that each such suspicious circumstance in isolation (such as defendant’s membership in a violent street gang, his presence in a contested gang area or that another individual in the car was found with an illegal firearm) may be insufficient to justify a pat down, is also irrelevant. As noted by the court, by the time officers conducted the pat down of Esparza, they had already gathered a considerable amount of specific information.  

First, they had determined Esparza had been identified by a veteran gang detective as an established gang member who was driving a car in the company of at least two other gang members.  

Second, it was noted that the defendant was driving through territory claimed by both his gang and a rival group, both of which were known for violent activity. 

Third, a firearm (moreover, a ghost gun) with a magazine of ammunition had just been found on one of his passengers.  

“Given that ‘consideration of the modes or patterns of operation of certain kinds of lawbreakers’ is a permissible point of reference from which a ‘trained officer [can] draw inferences and make deductions” (United States v. Cortez, supra, at p. 418), there was enough here to reasonably infer that (Esparza) may have been armed and dangerous in that moment,” the appellate court ruled.  

That’s all it takes to establish the necessary reasonable suspicion that he might be armed, justifying a pat down for weapons. 

Unduly Prolonged Detention 

Esparza’s second argument focused on the length of his detention, asserting it was “unduly prolonged” because it went beyond the officers’ necessary tasks, including running his license and issuing him a citation for tinted windows.  

“(M)ost vehicle stops are ‘analogous to a so-called “Terry?stop” (Berkemer v. McCarty) to accomplish the “mission” of the traffic stop.  (Rodriguez v. United States (2015) 575 U.S. 348, 354.) The “mission of a traffic stop” typically includes checking the validity of the driver’s license, the vehicle’s registration, for outstanding warrants and then writing a citation.  (See United States v. Gorman (9th Cir. 2017) 859 F.3rd 706, 714.)   

In its analysis, the court agreed with the defendant in that “the initial detention seems to have been motivated by something other than the Vehicle Code violation.” In other words, what we have here is known as a “pretextual stop.” As conceded by Esparza and as noted above, stopping a vehicle for an observed traffic offense when the officer’s true motivation was to investigate other more serious criminal offenses for which there is not yet reasonable suspicion, is lawful.  (Whren v. United States, supra.) Still, unless the traffic stop is limited to the time it should have taken to complete the mission of the traffic stop (absent other reasonable suspicion of further criminal activity being developed during that time), the stop itself will be labeled as “unduly prolonged.”  

Although difficult to discern here due to the way the court words it, it appears that the issue in this case was whether delays during the traffic stop precipitated by officer-safety concerns rendered the stop illegally prolonged. Citing Arreola’s repeated tactics to ensure his safety and the safety of others during this potentially dangerous traffic stop, the court ultimately ruled that reasonable delays prompted by an officer’s safety concerns do not unlawfully prolong a traffic stop.  

In this case, for instance, Arreola took his time in making direct contact with Esparza, using a nearby pole to shield him from the vehicle’s occupants until he could get everyone to roll down their tinted windows. He called for backup as soon as it became apparent that he and Vina were outnumbered, waiting approximately two minutes for that backup to arrive. He then moved up only as far as the left rear passenger seat, from where he could see as much of the inside of the vehicle as possible. He held onto Esparza’s driver’s license and Osnaya’s hand-written information until there was another officer available to do a warrant check.  

When told the occupants were indeed gang members and that Osnaya was “always strapped,” he immediately brought Osnaya out of the car so he could be patted down for weapons. Upon discovering a concealed weapon on Osnaya, he initiated the pat down of all the other vehicle occupants, including Esparza, for officer-safety purposes.   

The bottom line is, Arreola did indeed take his time, but only because he was justifiably concerned for the safety of everyone present. Thus, the court ultimately ruled, he did not unduly prolong the detention beyond what was necessary under the circumstances.   

In its legal analysis, the court never mentions that the time from when the stop was initiated until the pistol was recovered from Esparza was only seven minutes. I typically advise cops that around 10 minutes or so is what courts generally expect for an officer to complete the mission of a traffic stop, absent the discovery of some other illegal activity justifying an extension of the detention.  

But in reality, that’s not always true. Every case depends upon its own unique circumstances. If in this case, for instance, the officers hadn’t dedicated some time for safety purposes, but instead prolonged the detention for an extra two or three minutes so that they could sit around and all toke on a joint (that’s legal, in California, is it not?), then the detention would have no doubt been held to be illegally prolonged despite only being seven minutes. 

Ultimately, you need to move a stop along expeditiously, but not unsafely, without any unjustifiable dillydallying. 

By the way, California’s attempt to outlaw — or at least restrict — pretextual vehicle stops (SB 50, adding new V.C. § 2804.5) failed to pass the Senate. But it appears that certain law enforcement agencies in California have taken it upon themselves to prohibit their officers from conducting pretextual traffic stops anyway (LAPD, for one). As a result, the number of traffic stops in Los Angeles has plummeted. The reasoning behind this policy, at least in L.A., is that tactics such as pretextual traffic stops were being used disproportionately against people of color, according to its own statistics. This may very well be true in certain jurisdictions. All I know is that in my training as a former San Diego Police Department cop, my first patrol lieutenant required the patrol officers on his watch to make more traffic stops and get out of the car more often, contacting as many individuals (regardless of color) in their cars and on the streets as possible. 

That’s the only way you are going to prevent crime, as opposed to merely reacting after the fact. Made sense to me, and still does. It seems to me that if such a proactive policy is inappropriately being used to discriminate against certain minorities — never an acceptable practice — better training, closer supervision and disciplinary measures (up to and including termination) would be a better and more effective way to address the problem. 

The automobile exception to the search warrant requirement: Warrantless searches of vehicles under the automobile exception require that there be probable cause to search those areas of the vehicle searched.   

Searches of Vehicles; The Automobile Exception; Probable Cause and the Scope of an Automobile Search  

The automobile exception to the search warrant requirement allows for a warrantless search of a vehicle anywhere in that vehicle for which there is probable cause to believe seizeable items are located.  

On April 1, 2021, detectives from the Stockton Police Department were surveilling a gang funeral expecting criminal street gang members connected to prior shootings to be in attendance. The detectives were in plain clothes and in unmarked police vehicles. One detective recognized a particular juvenile based on photographs he had seen and prior conversations he had had with other detectives after a recent shooting at the juvenile’s home. He was aware that the juvenile was on searchable probation with a firearm restriction. In his observations of this juvenile, the detective believed that he was carrying a firearm.   

This conclusion was based upon the detective’s observation of an unidentifiable object protruding from the juvenile’s right front waistband as the juvenile held onto that area as he walked. The juvenile also walked as if he was trying to prevent the object in his waistband from causing his pants to fall.   

Another detective on the surveillance team confirmed via radio broadcast that he was able to clearly see a black handgun in the juvenile’s waistband. This juvenile was further observed contacting another minor, later identified as the defendant, Hilario Leal, Jr., and a woman. The three of them walked over to Leal’s car.   

Although the juvenile walked toward the car’s closed trunk at one point, at no time was the trunk observed to be open. The juvenile then walked back to the gravesite as Leal and the woman drove away. It appeared that by the way the juvenile was holding his waistband that he was still carrying the firearm. Leal was soon observed driving back to the gravesite as the juvenile approached his car a second time.   

This time, the juvenile, still holding his waistband, walked toward the car’s trunk. Although the detective’s view “was kind of obstructed for 10 to 15 seconds,” the trunk was never actually observed to be opened. The juvenile then walked to the rear driver’s side door, still with his hand on his waistband. He opened the door and sat in the rear seat while “appearing stiff in the waistband area unlike a “normal person would sit down.”   

He was then observed bending at the waist and laying down on the seat. He then reached toward his waistband while turning toward the back side of the front seat, away from the detective, and moving his hand toward his chest. The juvenile then got out of the car, no longer appearing to be stiff.   

These observations, in conjunction with the fact that the juvenile was observed adjusting his pants and walking away from Leal’s car without holding his waistband, led the detective to believe that the juvenile had just placed the firearm underneath the front passenger seat in Leal’s car. The detective broadcast these observations over the radio.   

As Leal drove away from the area, the detective requested via his radio that officers follow Leal until an enforcement stop could be made by a marked patrol car. Leal was followed to a barbershop, where he went inside. A uniformed officer in a marked patrol car followed Leal to the barbershop and detained him when he came out.   

When told by the officer that he was going to search his car, Leal “became nervous,” and told the officer that he did not want his car searched. The officer proceeded to search his car anyway. However, no firearm was found under the driver’s seat or anywhere else in the passenger compartment.   

So, the officer extended his search to the vehicle’s trunk where he found a loaded Glock handgun. Leal was charged in state court with various gun-related offenses and his motion to suppress the firearm was denied. He pleaded no contest to being a felon in possession of a firearm. Sentenced to one year in county jail, suspended, with a year of informal probation, Leal appealed.  

The Third District Court of Appeal reversed. The issue on appeal, not surprisingly, was the legality of the warrantless search of Leal’s car. The basic rules are well settled: The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. The general rule is that warrantless searches are unreasonable.   

However, there are several well recognized exceptions. The exception advanced by the People in this case is commonly referred to as the “automobile exception.” “The automobile exception provides that ‘police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.’” (People v. McGee?(2020) 53 Cal.App.5th 796, 801.)  

But this well-recognized exception does not necessarily allow for a search of the entire car. It depends upon the circumstances. “The scope of a warrantless search is ‘defined by the object of the search and the places in which there is probable cause to believe that it may be found.’” (United States v. Ross (1982) 456 U.S. 789, 824.)  

Probable cause exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States?(1996) 517 U.S. 690, 696.)  

Leal argued that under the unique circumstances of this case, while there may have been probable cause to believe that there was a gun hidden under the back side of the front seat, the same cannot be said for the trunk. The court agreed.  

In reviewing the cases where the automobile exception applied, the court found warrantless searches of trunks and other enclosed compartments in a vehicle were justified in three categories of circumstances:  

(1) Officers have probable cause to believe contraband or evidence of a crime will be found specifically in the trunk or other enclosed compartment;  

(2) A search of the passenger compartment reveals contraband or other evidence generating further probable cause to search the trunk or other enclosed compartment;  

(3) probable cause exists as to the entire car (i.e., that the contraband or?evidence of a crime will be found somewhere in the car).  

The search of the trunk here does not fit within any of these categories. Specifically, the court held that “when an officer has probable cause to believe contraband or evidence of a crime will be found specifically in the passenger compartment of a vehicle (as compared to having probable cause to believe it will be found somewhere in the vehicle), and no other subsequent discovery or information provides further probable cause to believe the evidence will be found in the trunk, an officer’s search of the trunk exceeds the permissible scope of a warrantless search under the automobile exception.” 

The officer in this case was acting upon information relayed to him from the detective. That information included the detective’s observations of a person (referred to above as “the juvenile”) carrying around what appeared to be a firearm. The juvenile was observed (as described in detail above) entering the back seat area of defendant’s vehicle and bending down as if placing the firearm under the rear portion of the front seat.  

Subsequent observations of the juvenile supported this conclusion when it reasonably appeared that the juvenile no longer had possession of the firearm after exiting defendant’s car. At no time did it ever appear that the juvenile had access to the trunk of that car.  

So, while probable cause clearly existed to support the officers’ suspicions that the juvenile had hidden a firearm in the passenger area of Leal’s car, extending the search to the vehicle’s trunk exceeded the scope of the search as allowed by the automobile exception.  

While there was probable cause to believe the juvenile had stashed a firearm in the area behind the driver’s seat, there was no probable cause to believe that he could have put it in the trunk instead. As such, searching the trunk violated the Fourth Amendment.  

In so ruling, the court rejected the People’s argument that because the detective’s view of the trunk had been obscured for some 10 to 15 seconds while the juvenile and several other of his companions stood nearby, that it was reasonable to assume that the gun may have been placed in there during that time.  

This argument ignores the simple fact that there was no evidence to support the argument that this was in fact what happened. What “may” have happened, with no evidence to support that conclusion, does not establish probable cause.  

The court further rejected the People’s argument that because it is possible to gain access to the trunk of this model of automobile by unlocking and lowering the back of the back seat, the officers should have been able to search the trunk as well. As pointed out by the court, there was again no evidence to support the argument that the back seat was lowered or even unlocked.  

The People further argued that defendant’s nervousness and objection to having his car searched accounted for something. The court rejected this argument out of hand, noting that nervousness about the search certainly did not, in and of itself, establish probable cause to search the trunk. (People v. Moore?(2021) 64 Cal.App.5th 291, 302.) It also goes without saying that a citizen has a right to object to officers conducting a warrantless search of his vehicle.  

Lastly, and perhaps most importantly, the court rejected the People’s argument that because there was probable cause to believe a firearm would be found somewhere in the car, the whole car, including its trunk, was subject to a warrantless search. To the contrary, “the United States Supreme Court ‘made a distinction between probable cause to believe that [contraband is] in a particular section of the car, and probable cause to believe that [contraband is] generally within the car.’” (United States v. Seals?(5th Cir. 1993) 987 F.2nd 1102, 1107, fn. 8; citing and discussing (United States v. Ross, supra; and California v. Acevedo (1991) 500 U.S. 565.)  

Ross and Acevedo tell us that when the existing probable cause is limited to a specific area of the car, only that area may be searched under the automobile exception. It does not extend to the entire vehicle.  

Under the facts of this case, the officers’ probable cause was limited to a specific area within the passenger seating compartment. There was no probable cause supporting the argument that that area should be extended to the trunk. 

This case makes a lot of sense when you think about it. The “automobile exception” is exactly that: an exception to the rule that warrants are generally required when conducting a search.  

Secondly, this exception does not eliminate the need for probable cause. If you had no probable cause to search a vehicle itself, you don’t magically inherent the right to search a vehicle just because you’ve got nothing better to do, or even because the driver appears to be nervous or declines to give consent.  

And remember that this search comes within the “automobile exception.” It is not a “search incident to arrest,” which is a whole different legal theory allowing for warrantless searches under different specific circumstances.  

The defendant here was not under arrest when his car was searched, nor would he have been if no gun was found. For officers to justify a warrantless vehicle search under the automobile exception, he or she must be able to convince a court that there was either probable cause to believe the sought-after evidence could have been anywhere in the vehicle, or at least in the specific area that that evidence was in fact found.  

Failure to do that will result in your evidence being suppressed.