People v. Carter CA1/3

Filed 1/23/14 P. v. Carter CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A137085 v. GREGORY CARTER, (San Mateo County Super. Ct. No. SC075506A) Defendant and Appellant.

Defendant Gregory Carter challenges the denial of his motion to suppress evidence. He contends he was detained and frisked without cause, that a pat search exceeded the bounds of a legitimate Terry1 stop, and that the detention was unlawfully prolonged. We conclude the evidence defendant sought to suppress was the product of a legitimate Terry search, so we affirm. BACKGROUND The evidence is from the preliminary hearing, where defendant first brought his suppression motion. Daly City Police Officer Korey Sprader was patrolling John Daly Boulevard near Mission Street around 1:12 a.m. on January 2, 2012. It was a chilly night. As Officer Sprader turned left onto Mission on a green light, he saw defendant walking across the intersection in “a dangerous fashion.” There was no crosswalk, and the officer explained that “the way he was crossing, if I hadn’t been paying attention, I could have hit him.”                                                              1 Terry v. Ohio (1968) 392 U.S. 1, 21 (Terry). 1

Officer Sprader pulled up next to defendant, got out of his patrol car and asked defendant for his name and identification. Defendant said his name was Gregory Carter and that he did not have identification with him. He was wearing a sweatshirt with a leather jacket over it and two pairs of pants. After some further conversation, Sprader asked defendant for permission to search him. Defendant refused. When his backup officer arrived about five minutes later, Officer Sprader proceeded to simultaneously search defendant for weapons and identification. He testified: “I was kind of doing a two-for-one just for safety reasons. For safety reasons and to do things systematically, I was kind of doing the pat search and that search [for identification] at the same time.” The location was a high-crime area with heavy pedestrian traffic, “which means while you’re standing outside your car with somebody it’s more dangerous for you if other people are around.” There had been several violent crimes in the area, including a homicide the previous year, and Sprader had conducted numerous investigations involving the intersection. Officer Sprader positioned himself behind defendant and had defendant place his hands behind his back. Beginning with defendant’s shoulders and working down, he frisked defendant for weapons while he also searched defendant’s pockets for identification. Within “minutes” of starting his search, Sprader reached into defendant’s jacket pocket and retrieved a San Francisco Police Department booking sheet bearing defendant’s picture, name, birth date and contact information. He then stopped looking for identification, but continued to frisk defendant for weapons and found a loaded revolver tucked into defendant’s waistband. Defendant was arrested and charged with possession of a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm in public. It is undisputed that defendant was arrested because of the gun and not for jaywalking. Defendant moved to suppress all evidence obtained from the search at the preliminary hearing. The magistrate determined that Officer Sprader found the gun while 2