People v. Metzgar CA3

Filed 5/26/15 P. v. Metzgar CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C077075

Plaintiff and Respondent, (Super. Ct. No. 14F00373)

v.

GARY DEAN METZGAR,

Defendant and Appellant.

Defendant Gary Dean Metzgar was charged with second degree burglary, possession of burglary tools, and possession of drug paraphernalia after a police officer found burglary tools and a methamphetamine pipe in his pockets during a patdown search. Defendant unsuccessfully moved to suppress the evidence against him. On appeal, defendant contends the police officer “did not have reasonable suspicion to detain [him] prior to conducting the patdown search.” We disagree and affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND On January 13, 2014, at approximately 12:09 a.m., Sacramento Police Officer Balwant Jagur was dispatched to a specific alley because a complainant had called advising he heard a “clicking sound” and was worried a burglary was taking place. The officer arrived on the scene alone, without sirens, approximately six minutes later. Officer Jagur scanned the dark alley with his spotlight and saw only one individual, defendant, 20 to 30 feet from where the call indicated a burglary might have occurred. Defendant was dressed in all dark clothing walking out of the alley. The officer parked his car about 20 feet from defendant and put his spotlight on him. He got out of the car and walked at a normal pace toward defendant. He did not draw his weapon. He asked defendant what he was doing in the area, and defendant said his sister lived on Broadway and “he was out to get a breath of fresh air.” Officer Jagur testified defendant seemed nervous. Defendant had his hands in his pockets and Officer Jagur asked, “do you mind keeping your hands out of your pockets.” Defendant initially took his hands out but immediately returned them to his pockets. The officer then “demanded [defendant] to take his hands out of his pocket[s].” When defendant removed his hands the second time, Officer Jagur noticed the tip of a screwdriver and diagonal cutter protruding from defendant’s pocket. Because a screwdriver could be used as a puncture weapon, he conducted a patdown search for officer safety. The patdown search revealed a wire cutter, a flat tip screwdriver, a Phillips screwdriver, a nail file, and tweezers. Based on his training and experience, Officer Jagur believed the recovered items were burglary tools. He also felt a hard cylindrical object with a tube in defendant’s pants, which he believed to possibly be a weapon. After further manipulation, the officer felt it was a methamphetamine pipe. After placing defendant in a patrol car, Officer Jagur checked the alley for evidence of a burglary. He discovered a home in the alley appeared to have been