California Court of Appeal Aug 21, 2015 No. D066071Unpublished
Filed 8/21/15 P. v. Gutierrez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066071
Plaintiff and Respondent,
v. (Super. Ct. No. SCN324578)
GUMERSINDO GUTIERREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Sim von
Kalinowski, Judge. Affirmed.
Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
In this case, during the course of a patdown search, a police officer rubbed the flat
palm of his hand over the coin pocket of the jeans defendant and appellant Gumersindo
Gutierrez was wearing. When the officer did so, he felt a bulge in the coin pocket;
immediately thereafter, his fingertip went over the bulge and the officer felt a granular
substance, like salt and some sort of plastic packaging. The officer then reached into the
officer's reach into pocket unlawful because soft object in pocket did not "reasonably
support a belief that [the officer] had located a weapon on defendant's person"]; People v.
Dickey (1994) 21 Cal.App.4th 952, 957 (Dickey) [where patdown revealed no hard
objects but only soft object in pocket, officer's " 'squeeze[ ]' " of soft object and retrieval
from pocket "was unlawful"].)
III
With these legal principles in mind, we turn to the merits of Gutierrez's argument
on appeal. Our immediate difficulty with his contentions is that, in arguing Nanez's
search exceeded the bounds of a lawful Terry patdown, Gutierrez relies on two factual
premises that are not supported by the record. Gutierrez suggests 1) that when Nanez felt
the bump in Gutierrez's coin pocket he did not at that point have any basis upon which to
suspect the coin pocket contained narcotics and 2) that Nanez then consciously conducted
a further search by running his fingertip over the coin pocket and only then had a
reasonable suspicion that Gutierrez was carrying contraband.
With respect to the first premise—that feeling the bump by itself did not give
Nanez reason to suspect that it contained methamphetamine—the record shows that in
fact there was a great deal to suggest the bump contained contraband. At the time Nanez
conducted the patdown, Nanez knew that Gutierrez: was a felon and recently released
from parole; was the member of a criminal street gang; had been almost inside a car he
did not own and shortly thereafter claimed he did not know who owned the car; and was
in a high crime area at night. This factual context suggested that Gutierrez was engaged
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in some form of criminal behavior; indeed these circumstances were sufficiently
incriminating that on appeal Gutierrez does not dispute that Nanez had reason to detain
him and conduct the Terry search. When, under circumstances that suggested Gutierrez
was involved in criminal behavior, Nanez then felt a bulge in Gutierrez's coin pocket,
based on his experience in investigating drug offenses and use of the coin pocket as a
place to secret drugs, Nanez could reasonably suspect the bulge was contraband. On the
basis of that suspicion, Nanez could then either confirm his suspicion by using his finger
to further examine the bulge or simply retrieve the bulge.
In this regard, the search performed by Nanez was akin to the search permitted in
Dibb. In Dibb, a police officer stopped a car because it lacked current registration and
because two occupants were not wearing seatbelts. The defendant got out of the car and
was holding a fanny pack; with the defendant's permission, the officer looked inside the
fanny pack and found a magazine for a .45 caliber pistol, a scale that smelled of
methamphetamine, a small plastic bag and a telephone pager. The defendant also had a
pager. When the officer thereafter conducted a Terry patdown search of the defendant,
he felt something "lumpy [with] volume and mass" under the defendant's pants. (Dibb,
supra, 37 Cal.App.4th at p. 835.) The officer directed the defendant to sit on a street
curb, reached under the defendant's pants and pulled out a plastic bag that was between
his left knee and calf. The bag contained methamphetamine. In finding that the Terry
patdown had given the officer probable cause to believe the defendant was concealing
contraband, the court stated: "When [the officer] searched defendant, he felt an unusual
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lump. The lump was located in an unusual location not commonly utilized to carry
everyday items. [Citation.] [The officer's] tactile perception of the lump, combined with
the other circumstances, created a reasonable inference that the lump was contraband."
(Dibb, supra, 37 Cal.App.4th at p. 837, italics added.)
In short, on this record, Nanez's discovery of the lump itself was sufficient to
permit him to further investigate his suspicion and consciously rub the coin pocket with
his fingertip or simply retrieve the suspected contraband.
Secondly, however, it is by no means clear from Nanez's testimony at the hearing
on Gutierrez's motion to suppress that he consciously rubbed his fingertip over the coin
pocket. A fair interpretation of Nanez's testimony, and the one apparently adopted by the
trial court, would be that, in the course of moving the palm of his hand over the coin
pocket, Nanez's fingertip quickly moved over the coin pocket, not consciously, but
simply as an incident of the way the patdown occurred, and in that manner the granular
character of the contents of the bulge became apparent to Nanez. Under such an
interpretation, in which Nanez's fingertip made contact with the coin pocket as an
incident of the patdown, no violation of Gutierrez's rights occurred.
Contrary to Gutierrez's argument on appeal, the circumstances in this record are in
marked contrast to the ones considered in Dickerson and Dickey. Gutierrez argues that,
after feeling the bulge in Gutierrez's coin pocket as part of the patdown, Nanez's use of
the tip of his finger to then quickly rub against the coin pocket went beyond the limited
patdown Terry allows to search for weapons. In Dickerson, during a lawful patdown, the
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officers found a lump in defendant's pocket. At issue was whether the officer could
continue to squeeze the lump to determine whether it was contraband. According to the
trial court's finding, "the officer determined that the lump was contraband only after
'squeezing, sliding and otherwise manipulating the contents of the defendant's pocket'—a
pocket which the officer already knew contained no weapon." (Dickerson, supra, 508
U.S. at p. 378.) The court held that once the officer concluded that the pocket did not
contain a weapon, his continued manipulation exceeded the scope of a patdown
authorized under Terry because it was "unrelated to 'the sole justification of the search
[under Terry:] . . . the protection of the police officer and others nearby.' [Citation.]"
(Dickerson, at p. 378.) Importantly, the court noted that the trial court found "that the
incriminating character of the object was not immediately apparent to him. Rather, the
officer determined that the item was contraband only after conducting a further
search . . . ." (Id. at p. 379.) The court therefore held that seizure of the cocaine from the
defendant's pocket was unconstitutional. (Ibid.)
Here, as we have noted, based on his experience in other narcotics arrests and all
the circumstances he observed at the time he first felt the bulge with palm of his hand,
Nanez could conclude that the bulge was contraband. Unlike the officer in Dickerson, he
did not need to manipulate the coin pocket to be suspicious of its contents and, as found
by the trial court, did not manipulate it. Rather, the record here shows that in quickly
rubbing his fingertip over the coin pocket, at most Nanez merely confirmed what the
record shows he could and already did reasonably suspect.
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The circumstances here are in even more marked contrast to those considered in
Dickey, where police officers came upon the defendant, who was not known to them, in
the middle of the day on a rural road. In Dickey, the court found the officers did not have
reason to detain the defendant in the first instance and conduct a Terry search; moreover,
the court found that, in any event, in squeezing a soft bulge he felt while patting down the
defendant, the officer had exceeded the bounds of Terry search. (Dickey, supra, 21
Cal.App.4th at pp. 955-957.) Here, of course, the totality of the circumstances not only
justified a brief detention, but those circumstances were very pertinent in informing
Nanez's evaluation of the bulge he felt in the coin pocket.
The motion to suppress was properly denied.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
HALLER, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a police officer's tactile identification of narcotics during a lawful patdown search did not exceed the scope of the Fourth Amendment, as the officer's actions were either a reasonable confirmation of suspicion or an incidental consequence of the patdown.
Issues
Whether a police officer's fingertip contact with a bulge in a suspect's pocket during a patdown search exceeded the permissible scope of a Terry search.
Whether the officer had sufficient reasonable suspicion to believe the bulge was contraband based on the totality of the circumstances.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“At most, the record here shows the fingertip inspection was either a conscious effort to confirm the officer's well-founded suspicion that narcotics were in the coin pocket or an unintentional consequence of the patdown itself.”
“In either event, it did not infringe on Gutierrez's Fourth Amendment rights.”