People v. Thomas CA2/6 ( 2023 )

Filed 6/28/23 P. v. Thomas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B322270
(Super. Ct. No. BA498943)
Plaintiff and Respondent, (Los Angeles County)
v.
DEVON THOMAS,
Defendant and Appellant.
Following the trial court’s denial of his motion to suppress
evidence, Devon Thomas pled no contest to possession of a
firearm by a felon in violation of Penal Code section 29800,
subdivision (a)(1). The court suspended sentence and placed
Thomas on formal probation for two years. He contends evidence
of the firearm should have been suppressed because the police
officers lacked reasonable suspicion to detain him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
Officer Nehemiah Choe of the Los Angeles Police
Department and his partner were on patrol near Van Ness and
Florence Avenue shortly after midnight on September 6, 2021.
The officers had been conducting extra patrols in the area due to
recent violent crimes and gang activity.
While stopped at a traffic light, Officer Choe saw Thomas
walking on the street about 100 feet away. After spotting the
patrol car, Thomas grabbed an “unknown bulge” at the front of
his waistband and ran across Florence Avenue, toward an illegal
marijuana dispensary shop. Thomas crossed all lanes of traffic,
while holding his waistband and looking in the officers’ direction.
He did not use the nearest marked crosswalk, which was
approximately half a block away.
Thomas stopped running after he crossed the street and
began walking toward the marijuana dispensary, where gang
members often congregate. The officers detained Thomas for
jaywalking before he entered the dispensary.
Officer Choe suspected that Thomas, who was wearing
sweatpants, had been holding the front of his waistband to
conceal a firearm. Based on his training and experience, Choe
was aware that firearms are often illegally concealed in
waistbands, particularly after dark. He had encountered
firearms in waistbands approximately 50 times in his career.
Once Thomas was physically detained, Officer Choe could
see a bulge in his front waistband area. When Thomas reached
for his waistband and pockets a second time, the officers
1The factual background is based on evidence presented at
both the preliminary hearing and the hearing on Thomas’s
motion to suppress evidence.
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conducted a pat-down search. Choe removed a loaded 9-
millimeter handgun from Thomas’s waistband.
On cross-examination, Officer Choe admitted the bulge in
Thomas’s pants could not be seen on his partner’s body-worn
camera video (Defense Exh. A). That video showed Thomas
holding money in one hand as he tried to take off his backpack
with the other. But Choe was able to see the bulge in the video
from his own body-worn camera (People’s Exh. 2).
The trial court found that because Thomas had crossed the
street at or near an unmarked crosswalk, he did not commit the
offense of jaywalking.2 It nonetheless denied Thomas’s motion to
suppress, finding the officers had reasonable suspicion to detain
Thomas and to conduct the pat-down search that revealed the
handgun.
DISCUSSION
Standard of Review
“On appeal from a denial of a motion to suppress evidence
on Fourth Amendment grounds we review the historical facts as
determined by the trial court under the familiar substantial
evidence standard of review. Once the historical facts underlying
the motion have been determined, we review those facts and
apply the de novo standard of review in determining their
consequences. Although we give deference to the trial court’s
factual determinations, we independently decide the legal effect
of such determinations. [Citation.]” (People v. Esayian (2003)
112 Cal.App.4th 1031, 1038; People v. Mateljan (2005) 129
Cal.App.4th 367, 373.)
2 Effective January 1, 2023, jaywalking is no longer a
citable offense unless the person crosses the street dangerously.
(Assem. Bill No. 2147, 2021-2022 Reg. Sess.)
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The Trial Court Did Not Err By Denying
the Motion to Suppress
“[P]olice can stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be
afoot,’ even if the officer lacks probable cause.” (United States v.
Sokolow (1989) 490 U.S. 1, 7 [104 L.Ed.2d 1]; see Terry v. Ohio
(1968) 392 U.S. 1, 30 [20 L.Ed.2d 889] (Terry); People v. Souza
(1994) 9 Cal.4th 224, 231 (Souza).) “‘The “reasonable suspicion”
necessary to justify such a stop “is dependent upon both the
content of information possessed by police and its degree of
reliability[,]” [citation] . . . . tak[ing] into account “the totality of
the circumstances . . . .”’” (People v. Brown (2015) 61 Cal.4th 968,
981.)
If, upon detaining a person based on reasonable suspicion,
the officer “is justified in believing that the individual . . . he [or
she] is investigating at close range is armed and presently
dangerous to the officer or to others” (Terry, supra, 392 U.S. at
p. 24), the officer may conduct a search “limited to that which is
necessary for the discovery of weapons which might be used to
harm the officer or others nearby.” (Id. at p. 26) Thomas
concedes that if Officer Choe and his partner had reasonable
suspicion to detain him, their Terry pat-down search was legally
proper.
Reasonable Suspicion Supported the Detention
Thomas contends his detention was the pretextual stop of a
young black man who, in a high crime area late at night, ran
across the street after seeing the officers’ patrol car. He claims
he “was stopped merely because he fit the profile of the people the
extra [police] patrols were targeting.”
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The trial court ruled otherwise. It correctly noted that once
Officer Choe’s partner exited the patrol car, shined a light on
Thomas and instructed him to “‘stand over here’” and “‘face the
wall,’” “there had to be reasonable suspicion to detain . . .
Thomas. And the only reason supporting that detention would
necessarily have to be Officer Choe’s observation of [Thomas] as
occurred before that point.” That observation included Thomas
(1) “look[ing] in [the officers’] direction as they drove in their
patrol car down Florence Avenue,” (2) “either [running] or quickly
walk[ing] across Florence while holding his front waistband, at
that time of night, when . . . it’s easier to conceal a firearm,” and
(3) “head[ing] apparently in the direction of an illegal dispensary,
where . . . persons often possess weapons.”
The trial court found that “these facts, in addition to
Officer Choe’s testimony that the area had a recent upsurge in
violent crimes, including robberies and shootings, gave the
officers reasonable suspicion to detain [Thomas] to investigate a
possible possession of a weapon or a firearm.”
We conclude substantial evidence supports these facts,
which, when considered in light of the totality of the
circumstances, reasonably warranted the investigative detention.
(Terry, supra, 392 U.S. at p. 21.) Although a person’s presence in
a high-crime area is not by itself enough to create a reasonable
suspicion the person is involved in criminal activity, the “setting
is a factor that can lend meaning to the person’s behavior.
[Citations.]” (People v. Limon (1993) 17 Cal.App.4th 524, 532.)
The same is true of the “time of night” and the person’s “evasive
conduct” or “sudden flight” from police. (Souza, supra, 9 Cal.4th
at pp. 241-242.)
Thomas claims he “was wearing baggy sweatpants and a
backpack at the time . . . , which could more than explain why he
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was holding his waistband while he ran – to keep his pants from
falling down.” Although the officers’ bodycam videos confirm that
Thomas’s sweatpants actually were “form fitting”, “[t]he
possibility of an innocent explanation does not deprive [an] officer
of the capacity to entertain a reasonable suspicion of criminal
conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).)
“[E]xperienced police officers develop an ability to perceive the
unusual and suspicious, and [courts] recognize the right and duty
of officers to make reasonable investigation of such activities.”
(People v. Aldridge (1984) 35 Cal.3d 473, 477.)
Here, Officer Choe testified, based on his training and
experience, that firearms are often illegally concealed in
waistbands, particularly after dark, and that he had encountered
such firearms approximately 50 times in his career. Even if there
was a possible innocent explanation for Thomas’s actions, the
principal function of Choe’s “investigation [was] to resolve that
very ambiguity and establish whether the activity is in fact legal
or illegal . . . .” (Tony C., supra, 21 Cal.3d at p. 894.) Thomas has
not demonstrated error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, J., Acting P.J. BALTODANO, J.
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Ray G. Jurado, Judge
Superior Court County of Los Angeles
______________________________
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Analee J. Brodie, Deputy Attorney
General, for Plaintiff and Respondent.
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