People v. Thurman

• Decision Date: 14 April 1989
• Docket Number: No. A041237,A041237
• Citation: 257 Cal.Rptr. 517,209 Cal.App.3d 817
• Court: California Court of Appeals Court of Appeals
• Parties: , 57 USLW 2631 The PEOPLE of the State of California, Plaintiff and Respondent, v. James Kevin THURMAN, Defendant and Appellant.

Page 517

257 Cal.Rptr. 517

209 Cal.App.3d 817, 57 USLW 2631

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Kevin THURMAN, Defendant and Appellant.

No. A041237.

Court of Appeal, First District, Division 2, California.

April 14, 1989.

Review Denied July 13, 1989.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Gloria F De Hart, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Gordon S. Brownell, San Francisco, for defendant and appellant.

BENSON, Associate Justice.

Appellant James Kevin Thurman pled guilty to one count of possession of cocaine for sale. (Health & Saf.Code, § 11351.) ¹ He appeals the judgment contending the court erroneously denied his Penal Code section 1538.5 motion to suppress. We affirm the judgment.

We summarize the evidence the court considered in denying appellant's motion to suppress. ² On October 9, 1987, officers for the City of Vallejo served a search warrant at the residence of 949 B Grant Street. The warrant authorized a search of the premises for drugs, narcotic paraphernalia, and papers indicating the identity of a person who participated in a narcotics transaction on October 7, 1987. The warrant did not authorize a search of appellant. Four officers, led by Officer Phillip L. Silva, arrived at the premises shortly after 6 p.m. Officer Silva reached the open front door and advised, "Police, search warrant." He heard what sounded like footsteps running down the hallway. Approximately 15 seconds later, the officers entered the premises with guns drawn. Officer Silva went to the back bedroom. He did not see appellant when he entered the premises.

Jeff Azuar, an officer with nearly 10 years experience, followed Officer Silva into the apartment but remained in the front room area. There, he saw two females and appellant. Appellant was sitting silently and passively on the sofa; he did not threaten the officer. Officer Azuar approached appellant because "he was sitting there with nobody with him." Aware that the search warrant did not authorize a search of appellant for contraband, he nevertheless ordered appellant to stand and "immediately patted him down for weapons for safety." Officer Azuar felt a large bulge in appellant's jacket pocket. It felt like it could have been a gun. Believing it was a weapon, he stuck his hand inside appellant's jacket pocket. He testified that "I wouldn't have stuck my hand in there if I didn't believe so." He then squeezed the object and realized it was not a weapon. Instead, he felt what he thought were "pieces of rock or rock cocaine in a baggie." While he had never seen rock cocaine this large, in his past experience he had grasped rock cocaine on 10-15 occasions, had patted down approximately 50 people for rock cocaine, and knew that the objects "felt like rock." He removed the plastic bag containing rock cocaine and arrested appellant. The exhibit list identifies people's exhibit 1A as a "baggie with 12 large rocks of cocaine."

Discussion

Our standard of review on appeal from the denial of a motion to suppress is well established. We defer to the trial court's factual findings where supported by substantial evidence, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure was reasonable under the Fourth Amendment standards of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

1. The "Terry" pat-down search

Appellant first contends that Officer Azuar subjected him to an unlawful pat-down search in violation of his Fourth Amendment rights. Appellant concedes the right of a police officer to conduct a pat-down search for weapons in the course of a lawful detention and does not contest the propriety of his detention at the time the officers executed the search warrant. Nevertheless, relying on Ybarra v. Illinois (1979) 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238, he argues that the pat down here was prohibited because he was not a resident of the premises where the warrant was served and was not behaving in a threatening manner. Alternatively, he contends that the officer had no reason to believe that appellant was "an armed and dangerous individual" and, therefore, under Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the pat search was unlawful.

In Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, the United States Supreme Court directed its attention to the "... quite narrow question ... whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." (Id. at p. 15, 88 S.Ct. at p. 1877.) Acknowledging the sacred and carefully guarded Fourth Amendment protections afforded the People, Chief Justice Warren, expressing substantially the views of eight members of the Terry court, continued with the analysis of the issue and wrote:

"We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

"In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer and others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." (Id. at pp. 23-24, 88 S.Ct. at p. 1881; fn. omitted.)

The "long tradition of armed violence" by the American criminal, to which the Chief Justice alluded, has not diminished since Terry v. Ohio. Indeed, illicit drug trafficking, now of epidemic proportion, has brought new dimension to this deplorable tradition. Rare is the day which passes without fresh reports of drug related homicides, open street warfare between armed gangs over disputed "drug turf," and police seizures of illicit drug and weapon caches in warranted searches of private residences and other locales. It is well recognized that "... the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence...." (Michigan v. Summers (1981) 452 U.S. 692, 702, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340.) Moreover, as Justice Rehnquist observed in his dissenting opinion in Ybarra v. Illinois, supra, 444 U.S. 85, 106, 100 S.Ct. 338, 350, citing United States v. Oates, 560 F.2d 45, 62: "In the narcotics business, 'firearms are as much "tools of the trade" as are most commonly recognized articles of narcotic paraphernalia.' "

Finding that the pat search of Terry was not unreasonable and that the revolver which had been seized was properly admitted in evidence against him, the Terry Court concluded: "... that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not 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. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation.]" (Terry v. Ohio, supra, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883; fn. omitted; emphasis added.)

We have no hesitation whatever in holding that Officer Azuar acted reasonably and prudently in conducting the pat search of appellant in the circumstances. Here, a neutral and detached magistrate had judicially approved a warranted search for evidence of drug trafficking at the private residence where appellant was found. The officers whose duty required them to execute the warranted search were thus well aware they were engaged in an undertaking fraught with the potential for sudden violence. They were necessarily cognizant of the very real threat that the occupants of the residence were within an environment where weapons are readily accessible and often hidden, nor could they discount the possibility that one or more of the individuals found inside were personally armed.

In this atmosphere Officer Azuar, a 10-year veteran of police work, came upon appellant, at close range, quietly seated on a sofa. That appellant's posture, at that moment, was non-threatening does not in any measure diminish the potential for sudden armed violence that his presence within the residence suggested. To require an officer to await an overt act of hostility, as appellant suggests, before attempting to neutralize the threat of physical harm which accompanies an occupant's presence in a probable drug trafficking residential locale, would be utter folly.

The Terry court...