Patdown of Gang Member Legal; Suspicion of Being Armed

In San Diego County, early on a September evening, Christopher Esparza was driving a car with three other occupant.  A San Diego Police Department officer pulled over the car for having darkly tinted windows, a violation of Vehicle Code § 26708(a). 

The car was driving through an area known by police to be contested gang territory claimed by both the City Height Juniors gang and the Eastside San Diego gang.

As the reader may suspect, although the tinted windows violation lawfully enabled officers to lawfully stop the vehicle, their true interest was in policing gang activity around the City Heights neighborhood.  Indeed, the officers were collaborating with detectives from the San Diego Police Department Street Gang Unit.

Mr. Esparza then pulled over and the police officer immediately recognized Esparza and two of his passengers as members of the City Heights Juniors gang (also called Sur Trece and Sur Trece Juniors gang).  Backup officers were immediately requested and several squad cars arrived quickly.

One of the police officers believed Delfino Osnaya, the passenger in the backseat behind the driver’s seat, was armed and told the other officer to search him.  The officer said Mr. Osnaya was “always strapped,” meaning always carrying a firearm. 

The patdown of Osnaya yielded a loaded ghost gun in his waistband.  The officers then searched Mr. Esparza and found another loaded weapon. 

All told, the total time between when the officers initially approached Esparza’s car and his arrest was about seven minutes.  The time between the initial approach to Osnaya and his patdown was three and a half minutes.

At trial, both Esparza and Osnaya argued that the officers unduly prolonged the detention and lacked reasonable suspicion to conduct a warrantless search of either defendant.  As a result, all evidence recovered during and after the patdowns should have been suppressed.

The hearing on the motion to suppress was held after the preliminary hearing and testimony by several officers.  After considering the testimony, the judge determined that the stop involved “a very significant officer safety component” that justified officers delaying their investigation and waiting for backup to arrive.

Then once backup arrived, “everything changed” because one of the officers in the backup unit recognized Osnaya and said he had to be searched because he “was always strapped.”  So, officers had a reasonable suspicion to search him without a warrant for officer safety before proceeding with the citation for tinted windows.  So, the search of Osnaya was legally valid and once his weapon was found, under the totality of the circumstances (United States v. Cortez (1981) 449 U.S. 411, 417), the search of Esparza was also justified.  For these reasons, the judge denied the motion to suppress.

Mr. Esparza then appealed the denial of his motion to suppress to the Fourth Appellate District Court.  He again argued that officers lacked reasonable suspicion that he was armed and dangerous when they conducted his patdown; and the detention lasted too long because the traffic stop went beyond what was necessary for the officers to issue him a citation for tinted windows. 

Mr. Esparza pointed out that presence in an area of increased gang activity is not enough alone to justify a weapons search.  In re H.M. (2008) 167 Cal. App. 4th 136, 146.

Also, mere membership in a gang, without more, does not provide reasonable suspicion to patdown an individual.  See Spivey v. Rocha (9th Cir. 1999) 194 F. 3d 971, 978.

The Fourth Appellate District began its analysis by noting the traffic stop was legal since the tinted windows were a Vehicle Code violation.  See People v. Superior Court of Los Angeles County (1972) 7 Cal. 3d 186, 200.

The appellate court then turned to “the watershed criminal procedure decision in Terry v. Ohio (1968) 392 U.S. 1.”  In Terry,  the Supreme Court held that when a police officer harbors a reasonable suspicion that “criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” an investigatory detention and patdown search for weapons is constitutionally permissible under the Fourth Amendment.”  Terry, at p. 30.

Reasonable suspicion is less than probable cause.  United States v. Arvizu (2002) 534 U.S. 266, 274, but is more than a mere “hunch” and must be based on “specific reasonable inferences which [officers are] entitled to draw from the facts in light of [their] experience[s].”  Terry. at p. 27.

Turning to the search of Esparza and the totality of the circumstances, the appellate court pointed out that another officer had identified as an established gang member who was driving a car with at least two other gang members.  At the moment of the stop, he was driving through contested territory, with each gang being known for violent activity, so it was reasonable to be armed.  Moreover, a ghost gun with live ammunition had just been found on his passenger.

As such, the Fourth Appellate District affirmed the trial court’s ruling on the motion to suppress.

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