People v. Pantoja, A162591
| Docket Number | A162591 |
| Decision Date | 24 March 2022 |
| Citation | 77 Cal.App.5th 483,299 Cal.Rptr.3d 85 |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Juan PANTOJA, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Krishna A. Abrams, Solano County District Attorney; Karen Jensen, Deputy District Attorney, for Plaintiff and Appellant
Jonathan Soglin, San Francisco, Deborah Rodriguez under appointment by the Court of Appeal, for Defendant and Respondent
Defendant Juan Pantoja filed a motion to suppress evidence of a firearm found on his person when he was patted down during a traffic stop. The trial court granted defendant's motion and then dismissed the case. The District Attorney appeals.
We affirm.
In January 2020, the Solano County District Attorney filed a one-count felony complaint charging defendant with possession of a firearm by a felon ( Pen. Code,1 § 29800, subd. (a)(1) ). The next month, defendant filed a motion to suppress evidence gathered on January 3, 2020 (§ 1538.5), arguing the evidence was obtained as the result of an unreasonably prolonged detention and illegal search.
On April 12, 2021, the magistrate heard defendant's suppression motion at the preliminary hearing. The only witness was Vacaville police officer Chris Hill.
Officer Hill testified he was on duty around 1:30 a.m. on January 3, 2020, when he saw a silver Dodge turn right onto Brown Street. The car "caught [his] attention because it was going rather quickly" although it was traveling within the speed limit of 25 miles per hour. Hill turned around to follow the Dodge and noticed the license plate light and third brake light located at the back window of the vehicle appeared not to be working.
As the Dodge pulled into an apartment complex parking lot, Hill turned on his overhead lights and initiated a traffic stop. Defendant was the driver and sole occupant of the car. Hill vaguely recognized him, and when defendant gave his name, Hill testified he remembered defendant "had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide."2 Hill had prior contact with defendant a handful of times and had "also seen his name in briefing logs." He thought he transported defendant once when defendant was arrested for possession of firearms. Hill did not recall having any contact with defendant when a crime of violence was involved.
When Hill approached the driver's side door, the window was rolled down and defendant asked if the officer wanted his license, registration, and proof of insurance. There was no smell of marijuana and no contraband in plain view. Hill saw no signs that defendant was intoxicated. Hill ran a record check and learned defendant had a valid license and was not on probation or parole. Hill asked where defendant was coming from (he said he went to get a burrito) and when he got off probation (he answered, 2018). Hill asked if there was weed in the car, and defendant said he did not smoke weed. Hill asked defendant if he could take a look in the vehicle for contraband, and defendant declined.
After defendant declined to consent to a search, Hill asked defendant to get out of his car and put his hands behind his head because Hill was going to issue him a citation for the vehicle lighting infractions. Around this time, another officer arrived on the scene.
The prosecutor asked whether Hill believed "defendant was armed or dangerous at that moment." Hill responded, Asked again if he believed defendant was presently armed and dangerous, Hill answered, "There's a good possibility or chance, yes."
Defendant did not make any furtive gestures and did not make any sudden movements during the traffic stop, but "he appeared to be getting nervous" when Hill told him he was going to pat him down. As Hill patted defendant's front waistband area, he felt what he recognized as a handle to a handgun. He lifted the front of defendant's hoodie and saw a revolver. Defendant was arrested. Hill inspected the revolver, which was loaded with five rounds. The traffic stop occurred in a high-crime area.
On cross-examination, Hill agreed it had been years since he had seen defendant arrested. Defense counsel also established that in his police report of the incident Hill did not mention any bulges in defendant's clothes and apparently did not describe defendant's sweatshirt as baggy. Hill acknowledged that it was cold outside at the time of the traffic stop, Hill usually takes only about five minutes to write a traffic citation, and in fact there was no arrest warrant for defendant in the homicide case in which he was "an investigative lead."
In support of the motion to suppress, defense counsel argued the prosecution failed to establish "reasonable articulable facts that Mr. Pantoja was armed and presently dangerous at the time," noting there was no evidence of contraband, no furtive or evasive movements, and defendant complied with the traffic stop. He pointed out there was no proof defendant had "any arrests by the Vacaville Police within years of this occurring" and the prosecution cited no authority that "specifically says knowledge of a ... defendant's history from years prior allows them to pat search at will." Defense counsel further observed that Hill initially left defendant alone inside his car while Hill returned to his patrol car to run the record check, which suggested the officer did not actually believe defendant was armed or presently dangerous at the time of the traffic stop.
The prosecutor argued the totality of the circumstances supported Hill's reasonable belief that defendant was armed or dangerous, citing defendant's baggy clothing, that it was dark outside and in the car, that the stop was in a high-crime area, and that Hill knew of "defendant's history of violence and weapons possession."
The trial court granted defendant's motion to suppress, explaining:
" ( King v. State of California (2015) 242 Cal.App.4th 265, 283, 195 Cal.Rptr.3d 286.)
( People v. Dickey (1994) 21 Cal.App.4th 952, 955–956, 27 Cal.Rptr.2d 44 ( Dickey ).) "[A]n ‘inchoate and unparticularized suspicion or "hunch" ’ is insufficient." ( In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305, 254 Cal.Rptr.3d 88 ( Jeremiah S . ).)
In Dickey , for example, the Court of Appeal held a pat-down search was not justified based on circumstances that the defendant "(1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, (4) or because baking powder was found in a film canister" because "[n]one of these considerations, considered singly or in combination, would lead an officer to ‘ "... reasonably believe in the possibility that a weapon may be used against him...." ’ " ( Dickey , supra , 21 Cal.App.4th at p. 956, 27 Cal.Rptr.2d 44.) In Jeremiah S. , the pat search of a minor who was detained with a companion just before midnight on suspicion of robbery was not justified where the two minors were smaller than the officers, the officers had no information that the robbery being investigated involved weapons, the minors followed officer instructions, and they made no furtive, unusual or sudden movements. ( Jeremiah S ., supra , 41 Cal.App.5th at p. 306, 254 Cal.Rptr.3d 88.) In In re H.H. (2009) 174 Cal.App.4th 653, 660, 94 Cal.Rptr.3d 450 the pat search could not be justified based on the totality of the circumstances where a "minor was stopped for a traffic infraction, not a crime of violence," at 11:30 p.m., because "the time and...
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