THE PEOPLE, Plaintiff and Appellant,
v.
VICTOR MANUEL LIMON, Defendant and Respondent.
Court of Appeals of California, Sixth District.
*528 COUNSEL
George W. Kennedy, District Attorney, and Jay P. Dufrechou, Deputy District Attorney, for Plaintiff and Appellant.
Stuart Rappaport, Public Defender, and Stephen Elrick, Deputy Public Defender, for Defendant and Respondent.
OPINION
BAMATTRE-MANOUKIAN, J.
An information charged defendant Victor Manuel Limon with possessing heroin for sale (count one; Health & Saf. Code, § 11351) and possessing cocaine for sale (count two; Health & Saf. Code, § 11351). Defendant made an unsuccessful suppression motion at his *529 preliminary hearing. He renewed the suppression motion in the superior court based on the transcript of the preliminary hearing and on further testimony. (Pen. Code, § 1538.5, subd. (i).) The superior court granted defendant's motion and concluded that the police did not have probable cause to remove a closed key box from defendant's pocket. The People indicated they were unable to proceed in light of the court's ruling and the superior court dismissed the case.
On appeal the People contend that the police had probable cause to remove the closed key container from defendant's pocket. For the reasons stated below, we agree and reverse the order of dismissal.
Facts
The facts are essentially uncontradicted. (1) "`Insofar as the evidence is uncontradicted, we do not engage in a substantial evidence review, but face pure questions of law.' [Citation.]" (People v. Trujillo (1990)
On March 9, 1992, at 12:30 p.m. San Jose Police Officer Paul Panighetti and his partner Officer Shuper were walking to their patrol car across a grassy field of the Arbuckle Elementary School. Officer Panighetti testified that he saw the following events occur about 200 yards away. Defendant, wearing a red cap, was standing near another male at the rear of a carport of an apartment complex near the elementary school. Defendant walked about 10 feet away to a pickup truck, bent down near the right front wheel well, removed something, and walked back to the other male. The men touched hands. At the preliminary examination, Panighetti testified that he saw the men exchange something, although he could not see what they exchanged. At the superior court hearing, he clarified that he could not see what was in their hands. Defendant walked back to the truck and placed something where he had previously removed something. The other fellow walked out of the carport and out of Panighetti's view. This took a minute or less.
Panighetti and his partner, Officer Shuper, walked over to investigate. They were in plain clothes.
Panighetti lost sight of defendant for about a minute as Panighetti walked around some apartments. When he next saw defendant, defendant was wearing the same red cap, standing at his original location, and talking to a woman who was sitting in a car.
As Panighetti and Shuper approached defendant, Panighetti saw 2 other males standing about 10 to 15 feet from defendant near a car in the carport. *530 Other individuals were 20 to 30 feet away in a walkway between 2 apartment buildings.
Shuper approached defendant while Panighetti walked up to the two men. Shuper asked defendant to step away from the car containing the woman. Panighetti asked the two men to step away from the building. While Panighetti was talking with the two men, he noticed a syringe on a pile of junk next to an open car in the carport.
When all three suspects were together, Panighetti pat-searched them. Defendant was cooperative and not aggressive. Defendant did not reach for his pocket.
In defendant's left front pants pocket, Panighetti felt a hard, rectangular object about three inches long, one and one-half inches wide, and three-quarters of an inch deep. Panighetti did not recognize it by touch.
Panighetti asked defendant in English what was in his pocket. Defendant did not appear to understand the question. Panighetti pulled defendant's pocket open and looked in. Panighetti saw a hide-a-key box with a magnet on the back.
Panighetti removed the box from defendant's pocket and told Shuper to ask defendant in Spanish if he could look inside. Shuper talked to defendant. Defendant replied. Shuper told Panighetti to go ahead and look inside. Inside Panighetti found four packages of heroin and two packages of cocaine. Shuper found nothing in the truck's wheel well.
The above observations of defendant's conduct had a special significance to Officer Panighetti due to his training and experience in investigating drug crimes. He had been working in the narcotics unit for four years and had participated in over seven hundred investigations involving heroin and cocaine. He explained as follows.
Panighetti thought he saw a drug transaction when defendant removed something from near the truck's wheel well and handed something to a man who then left. When he saw defendant talking to a woman sitting in a car, Panighetti thought it was another buyer.
In Panighetti's experience, street-level drug dealers sell drugs on the streets and in carports. Buyers walk or drive up, engage in a quick transaction, and leave. The dealers often hide their drugs nearby and retrieve them as needed.
*531 Panighetti was familiar with defendant's location. It was designated in San Jose as a crackdown area for drugs and weapons. The area is known for gang activity, violence, and drugs. Although Panighetti could not provide statistics, he had seen about 20 drug transactions in that large block of apartment buildings.
Employees of the nearby elementary school told Panighetti they had seen drug transactions in the carports. Panighetti had seen three or four drug transactions in the same carport over the past six and one-half years. He had arrested someone in the past three months for buying crack cocaine in the same carport.
When Panighetti saw a syringe in the carport, it confirmed his suspicion about drug activity. Syringes are commonly used to inject narcotics.
Panighetti had three reasons for pat-searching defendant. One was that Panighetti and his partner were outnumbered not only by the three suspects but also by the other people in the immediate area. The second reason was that drug dealers often carry weapons, although Panighetti could not give a percentage. The third reason was that the area was known for weapons. Panighetti had arrested people carrying firearms, knives, and baseball bats in the area.
Panighetti testified: "I didn't know if he was armed and dangerous at that time, but I did believe that the propensity for him being armed was significant enough for me to pat search him." Panighetti acknowledged that he saw no weapon on defendant and had no idea whether he had a weapon.
When Panighetti felt the hard, rectangular object in defendant's pocket, he thought it might have been a knife, either folded or in a case.
When Panighetti saw the hide-a-key box in defendant's pocket, he "had a pretty good suspicion" that narcotics were inside. Panighetti had seen narcotics in a key case once before, although he could not recall the details.
Was defendant's detention justified?
(2a) Officer Panighetti acknowledged that what he observed was consistent with a person retrieving a key from a hide-a-key container for an associate. However, it also had a criminal connotation in light of Officer Panighetti's experience.
(3) As this court explained in People v. Wilkins (1986)
Panighetti knew defendant's location as a site for drug activity. (4) While a person cannot be detained for mere presence in a high crime area without more (People v. Aldridge (1984)
(2b) Defendant was not merely present in a drug-ridden area. Defendant engaged in what appeared to be a hand-to-hand exchange. Though an exchange of an unrecognizable object for money on a street in a high crime area does not justify arrest (Cunha v. Superior Court (1970)
In In re Frederick B., supra,
In People v. Jones (1991)
We need not resolve this conflict in authority about the significance of merely receiving money on the street in an area known for drug sales. Here *533 there was more than an apparent exchange. Before and after the exchange defendant walked over and reached into an apparent hiding place. This conduct suggested drug sales.
In People v. Maltz (1971)
Defendant seeks to distinguish Maltz in that the arresting officers had made about 100 drug arrests in the immediate area, the defendant's conduct occurred in the 3-hour daily span of greatest drug activity, in 40 minutes the defendant had engaged in 2 exchanges, and the defendant's conduct was consistent with other drug transactions in the area. (14 Cal. App.3d at pp. 391-393.) In our view these additional circumstances in Maltz demonstrate why the officers had probable cause to arrest. Here we are only concerned at this point with reasonable grounds to detain.
Defendant relies on People v. Conley (1971)
In re Tony C. (1978)
People v. Conley, supra,
We conclude that reasonable grounds to detain defendant existed based on the officer's specific knowledge of prior drug activity in the area and in the carport, defendant's hand-to-hand exchange, and defendant's hiding something in connection with the exchange.
Were the pat-search and the look into defendant's pocket justified?
(5) As the United States Supreme Court has recently restated, "`[W]hen an officer is justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others,' the officer may conduct a patdown search `to determine whether the person is in fact carrying a weapon.' [Citation.] `The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence....' [citation] ... [A] protective search permitted without a warrant and on the basis of reasonable suspicion less than probable cause must be strictly `limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.'" (Minnesota v. Dickerson (1993)
(6) Officer Panighetti's reasons for pat-searching defendant were that he and his partner were outnumbered, drug dealers often carry weapons, and that the area was known for weapons. While the fact the officers were outnumbered might not justify a pat-search, here there were other factors as well.
The connection between weapons and an area can provide further justification for a pat-search. As In re Frank V. (1991)
*535 In People v. Huerta (1990)
We recognize while Officer Panighetti did not have a prior determination by a magistrate that there was probable cause to believe defendant was a drug dealer, he still had some basis, summarized above, for believing defendant was selling drugs. "`[I]t is not unreasonable to assume that a dealer in narcotics might be armed'" and subject to a pat-search. (U.S. v. Salas (9th Cir.1989)
We conclude that Officer Panighetti had an objectively reasonable belief that defendant might be armed and dangerous. The belief was based on the combination of the officer's knowledge of the prevalence of drugs and weapons in the area, the propensity of drug dealers to have weapons, and the other evidence summarized above justifying defendant's detention for selling drugs.
Defendant contends the pat-search was invalid because it was merely routine. He relies on Panighetti's response to the following cross-examination. "Would you be likely to pat search a person you believe to be engaged in a drug transaction in the high narcotics and high crime area?" "I would like to pat search him." We do not understand this response to be Panighetti's complete rationale for the pat-search. He simply gave a hypothetical answer to a hypothetical question. He also elaborated in other testimony about his above stated reasons for pat-searching defendant. Cases prohibiting routine pat-searches are distinguishable. (E.g., Santos v. Superior Court (1984)
Defendant separately challenges Officer Panighetti's action in widening and looking into defendant's pocket after the pat-search revealed a hard, rectangular object. When a police officer's frisk of a detainee reveals a hard object that might be a weapon, the officer is justified in removing the object into view. (People v. Brown (1989)
Byrd v. Superior Court (1968)
Was retrieval of the hide-a-key box from defendant's pocket justified?
(7a) Defendant contends that once Officer Panighetti saw that the hard object in defendant's pocket was a hide-a-key box, the officer could not remove it without probable cause to arrest defendant. Defendant further contends that Panighetti did not have probable cause to arrest him.
(8) As explained in People v. Valdez (1987)
A recent United State Supreme Court holding is similar. Minnesota v. Dickerson, supra,
(7b) Thus far we have concluded that the officer had reasonable grounds to detain and pat-search defendant and look into his pocket due to his hand-to-hand exchange and his stashing conduct in an area known for drug activity and weapons, and an unrecognizable, hard, rectangular object in his pocket. The superior court reached the same conclusions. The superior court then concluded that the discovery of the hide-a-key box did not elevate the officer's knowledge to the level of probable cause to arrest defendant. We disagree.
(9) As this court stated in In re Brian A. (1985)
(10) As explained by People v. Nonnette (1990)
People v. Nonnette further explained, "`... whether a common container constitutes a suspicious circumstance, capable of contributing to the totality *538 of circumstances necessary for probable cause, depends on the total factual context in which the container is observed, including the prior experience of the observing officer with containers of the sort at issue....'" (
(7c) Here Officer Panighetti testified that he had seen narcotics in a key case once before. This experience alone might not establish the likelihood that narcotics were in defendant's key box. In People v. Chapman (1990)
We conclude that probable cause to arrest defendant for possessing drugs arose from combining the discovery of the hide-a-key box in defendant's pocket with the other circumstances summarized above indicating that what defendant was exchanging and concealing was drugs. An officer with probable cause to arrest can search incident to the arrest before making the arrest. (Rawlings v. Kentucky (1980)
It is irrelevant whether Panighetti believed he had probable cause. Panighetti originally testified, "it was pretty close to having enough probable *539 cause to arrest him. But then I asked him what it was, and he couldn't answer me because of the language barrier." Panighetti later testified that upon seeing the key container he felt he had enough to arrest defendant. This court reviews the objective reasonableness of the facts known to the officer, not the officer's legal opinion about those facts. (Cf. People v. Gonzales (1989)
(11) Defendant contends the People are unable to rely on probable cause to seize the key box because they raised this theory too late. According to defendant it was first raised in argument at the end of the superior court hearing. Since the superior court's ruling depended on the nonexistence of probable cause, this theory is subject to review on appeal. Defendant cites no case precluding appellate consideration of a theory actually adopted by a trial court because the theory was raised too late in the trial court.
The danger in late introduction of a new theory is that the defendant may be prevented from developing relevant facts during examination. (People v. Superior Court (1972)
In light of our conclusion that Officer Panighetti had probable cause to arrest defendant for possessing drugs and to seize and open the hide-a-key box in defendant's pocket, we do not discuss whether the officers opened the key box with defendant's voluntary consent.
Disposition
The order of dismissal is reversed.
Cottle, P.J., and Wunderlich, J., concurred.
Respondent's petition for review by the Supreme Court was denied September 29, 1993.
NOTES
Notes
[1] In light of this decision, at oral argument the People withdrew their alternate contention that the search could be justified under a lesser standard of reasonable suspicion as in People v. Clark (1989)