Filed 3/25/16 P. v. Fannon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE MICHAEL FANNON,

Defendant and Appellant.

F070189

(Super. Ct. No. 1466191)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Linda A. 

McFadden, Judge.

Paul Kleven, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Nora S. 

Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Kane, J. and Smith, J.
2

After denial of his motion to suppress evidence of methamphetamine found during 

a search of his person (Pen. Code, § 1538.5)1 and denial of his motion pursuant to 

section 995, defendant Ronnie Michael Fannon pled no contest to possession of a 

controlled substance (Health & Saf., § 11377, subd. (a)). The trial court granted him 

Proposition 36 probation. On appeal, he contends the trial court erred in denying his 

motion to suppress because the officer’s search for his identification was unlawful and 

vitiated his subsequent consent to the search that led to discovery of the 

methamphetamine. We conditionally reverse and remand for further proceedings.

FACTS

I. Evidence

On May 5, 2014, at the hearing on the motion to suppress, Modesto Police Officer 

Taylor Aja testified that on December 3, 2013, at about 12:30 p.m., he was driving his 

patrol vehicle on routine patrol when he saw a car fail to stop at a stop sign. He followed 

the car and initiated a traffic stop. Defendant, who was the driver, pulled into the 

driveway of a residence and Officer Aja pulled up behind him. Defendant immediately 

stepped out of the car with one of his hands in his pocket. Officer Aja believed this 

behavior was unusual for a traffic stop and he took it as a “danger factor.” Officer Aja 

asked defendant to take his hand out of his pocket and he complied. Officer Aja 

approached. He told defendant the reason for the traffic stop and asked for his 

identification. He also asked defendant if he was on either probation or parole. 

Defendant said he was not on either. Officer Aja “removed [defendant’s] ID from his 

wallet, which [defendant] said was in his back pant pocket.” Then Officer Aja asked 

defendant if he had anything illegal on his person. Defendant said he did not. Officer 

Aja asked if he could check him. Defendant said it was all right for him to do so. When 

Officer Aja searched him, he found a plastic baggie containing 0.51 grams of 

 

1 All statutory references are to the Penal Code unless otherwise noted.
3

methamphetamine, a useable amount. Officer Aja immediately placed defendant in 

handcuffs and arrested him. 

After receiving Miranda2 warnings, defendant responded to Officer Aja’s 

questions, explaining that the substance was methamphetamine. Defendant had bought it 

for $20 about an hour earlier and had not used any of it yet. He said he had been using 

methamphetamine for about seven years and preferred snorting it. He used it once or 

twice a week. He agreed it was bad for his health.3 

The defense played a video of defendant’s traffic stop (exhibit A) taken from 

Officer Aja’s body camera.4 The video did not capture the entire traffic stop, and the 

audio began even later. At the start of the video, defendant was standing facing the 

driver’s side of his car with his hands behind his back. Officer Aja was directly behind 

him, and defendant’s wallet and keys were already on top of the car in front of him. As 

he stood behind defendant, Officer Aja searched in defendant’s pockets and found a cell 

phone and a baggie containing methamphetamine, both of which Officer Aja set on top of 

the car. At this point, the video’s audio began. Officer Aja told defendant they were not 

being honest with each other (apparently referring to defendant’s unrecorded statement 

that he had nothing illegal on his person). Officer Aja then appears to have handcuffed 

defendant. Officer Aja asked defendant if he had anything else on him that Officer Aja 

needed to know about, specifically any needles he might be carrying. Defendant said, 

“No, I don’t do that.” Officer Aja asked defendant if he was on probation or parole, and 

he said he was not. Officer Aja searched defendant further, then took him to sit in the 

back of the patrol vehicle, which was parked in the driveway behind defendant’s car with 

 

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

3 On cross-examination, defense counsel asked only whether defendant complied 

when Officer Aja asked him to remove his hand from his pocket, and whether the order 

of events to which Officer Aja had testified was accurate. 

4 The video, which does not have a transcript, is part of the record on appeal. 
4

its lights activated. After defendant sat down, Officer Aja asked him if there was 

anything in the car he needed to know about, including drugs. Defendant said there was 

not. Officer Aja asked if it was okay for him to check and defendant said, “Yeah, sure.” 

Officer Aja approached the car to begin searching. At this point (after two minutes and 

19 seconds), defense counsel stopped the video. 

II. Argument and Ruling

Defense counsel argued that the search of defendant’s back pocket for his wallet 

was illegal because there existed neither reasonable suspicion he was armed and 

dangerous to support a Terry5 patdown, nor probable cause to support a more invasive 

search for evidence. Counsel summarized: “So at that point this becomes an illegal 

search at the point when he goes in and goes into his person to get the wallet. That’s one 

point.” Counsel further argued that Officer Aja’s testimony regarding the sequence of 

events did not match those in the video (referring specifically to Officer Aja’s asking 

defendant if he was on probation or parole after he had already started searching him),

and thus Officer Aja’s credibility was undermined. Counsel argued it was “very murky 

at this point whether there was even any consent.” 

The prosecutor argued that defendant’s consent to the search of his person and 

Officer Aja’s discovery of the drugs both occurred before the video began. He argued 

there was no evidence disputing defendant’s consent. The prosecutor did not mention the 

search for identification. 

Defense counsel responded: “What we do know is that [defendant] is detained, 

there’s a full search going on, and he’s asked whether he’s on probation or parole after 

the search is commenced. That’s out of order from what Officer Aja testified, and it 

doesn’t match up, and for those reasons, we would argue that both for the removal of the 

 

5 Terry v. Ohio (1968) 392 U.S. 1 (Terry).
5

wallet and for the full search itself, that those are both bad searches, and, therefore, the 

evidence obtained from such should be suppressed.” 

At this point, the following occurred:

“[PROSECUTOR]: If there’s any further questions about the clarity 

of what happened that night or that day, People would simply request 

Officer Aja retake the stand to clarify. He’s here with us.

“THE COURT: He’s rested.

“[PROSECUTOR]: He’s rested, but there is a way for—to reopen 

testimony.

“[DEFENSE COUNSEL]: That’s improper after Counsel’s argued.

“THE COURT: I think I’ve heard enough.

“This is a problem with these body cameras, because they’re—the 

quality is not always what it should be, and it is difficult to determine at 

what point it began to record. There was some period of time when there 

was no audio portion. I could see [defendant’s] back, but I couldn’t really 

tell what was going on or what was being said. Certainly the initial stop 

was a valid one, there was a traffic violation, and that’s a valid reason to 

make the stop.

“So the question is for the Court to decide whether we’re dealing 

with a Terry situation where there was reasonable suspicion and the officer 

could have done a stop-and-frisk, which is usually what a Terry case is, just 

a pat-down, [defendant], it’s not a full search, or whether there was a 

consent to search as argued by [the prosecutor].

“In that regard, I did make a note of the officer’s testimony that 

when he first contacted [defendant], [defendant] immediately stepped out of 

the vehicle, which he said was a little bit unusual in his experience, and he 

had his right hand in his pocket, which alerted him to a potential issue of 

danger. Frequently officers make further inquiry in order to preserve 

officer safety in those situations.

“And so there would be two possible bases for which the Court 

could uphold the search. One would be officer safety, and the other would 

be that there was a consent.
6

“I can’t tell from the video if, as argued by [defense counsel], if 

[defendant] was in fact detained. I couldn’t see—I could see basically his 

shoulder area, but I couldn’t tell if his arms were behind his back and he 

was in a—from the video if he was actually detained. There was nothing to 

indicate that he was not free to go. And I certainly understand the 

argument raised in the written points and authorities that frequently people 

in [defendant’s] situation do not feel free to leave, and I understand that. 

However, it does appear that, based on Officer Aja’s testimony, that 

[defendant] gave permission to search, and it was following that permission 

to search that the suspected methamphetamine was located.

“And so on that basis, the Court will deny the motion.” 

DISCUSSION

I. Law

“[W]hen the basis of a motion to suppress is a warrantless search or seizure, the 

requisite specificity is generally satisfied, in the first instance, if defendants simply assert 

the absence of a warrant and make a prima facie showing to support that assertion. Of 

course, if defendants have a specific argument other than the lack of a warrant as to why 

a warrantless search or seizure was unreasonable, they must specify that argument as part 

of their motion to suppress and give the prosecution an opportunity to offer evidence on 

the point. [Citation.] For example, defendants who believe the police failed to comply 

with the knock-notice requirement of Penal Code section 844 cannot simply bring a 

motion to suppress alleging a warrantless search or seizure and then wait until the appeal 

to raise the knock-notice issue. Rather, defendants must specify the knock-notice issue in 

the course of the trial court proceeding. [Citations.]

“Moreover, once the prosecution has offered a justification for a warrantless 

search or seizure, defendants must present any arguments as to why that justification is 

inadequate. [Citation.] Otherwise, defendants would not meet their burden under 

section 1538.5 of specifying why the search or seizure without a warrant was 

‘unreasonable.’ This specificity requirement does not place the burden of proof on 

defendants. [Citation.] As noted, the burden of raising an issue is distinct from the 
7

burden of proof. The prosecution retains the burden of proving that the warrantless 

search or seizure was reasonable under the circumstances. [Citations.] But, if defendants 

detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must 

object on that basis to admission of the evidence or risk forfeiting the issue on appeal.

“In sum, ... defendants must specify the precise grounds for suppression of the 

evidence in question, and, where a warrantless search or seizure is the basis for the 

motion, this burden includes specifying the inadequacy of any justifications for the search 

or seizure. In the interest of efficiency, however, defendants need not guess what 

justifications the prosecution will argue. Instead, they can wait for the prosecution to 

present a justification. Moreover, in specifying the inadequacy of the prosecution’s 

justifications, defendants do not have to help the prosecution step-by-step to make its 

case. The degree of specificity that is appropriate will depend on the legal issue the 

defendant is raising and the surrounding circumstances. Defendants need only be

specific enough to give the prosecution and the court reasonable notice. Defendants 

cannot, however, lay a trap for the prosecution by remaining completely silent until the 

appeal about issues the prosecution may have overlooked.” (People v. Williams (1999) 

20 Cal.4th 119, 130-131 (Williams).)

The Fourth Amendment guarantees the right to be free of unreasonable searches 

and seizures by law enforcement personnel. A warrantless search or seizure is presumed 

to be unlawful. (U.S. Const., 4th Amend.; Mincey v. Arizona (1978) 437 U.S. 385, 390.) 

“The prosecution always has the burden of justifying the search [or seizure] by proving 

[it] fell within a recognized exception to the warrant requirement.” (People v. Williams

(2006) 145 Cal.App.4th 756, 761.) Consent is a well-established exception to the warrant 

requirement. (People v. James (1977) 19 Cal.3d 99, 106 (James).) “It has been long 

recognized that police officers, possessing neither reasonable suspicion nor probable 

cause, may nonetheless search an individual without a warrant so long as they first obtain 

the voluntary consent of the individual in question.” (United States v. Blake
8

(11th Cir. 1989) 888 F.2d 795, 798; People v. Jenkins (2000) 22 Cal.4th 900, 971.) 

Consent is a question of fact to be determined in light of all of the circumstances and 

proved by a preponderance of the evidence. (James, supra, at p. 106 & fn. 4.)

“‘[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a

search, he has the burden of proving that the consent was, in fact, freely and voluntarily 

given.’” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 222; James, supra, 19 Cal.3d 

at p. 106.) This additional “burden cannot be discharged by showing no more than 

acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968) 

391 U.S. 543, 548-549.) The prosecution must show that “the defendant’s manifestation 

of consent was the product of his free will and not a mere submission to an express or 

implied assertion of authority.” (James, supra, 19 Cal.3d at p. 106, fn. omitted.) Consent

cannot be “the result of duress or coercion, express or implied.” (Schneckloth v. 

Bustamonte, supra, at p. 248.)

“The rule is clearly established that consent induced by an illegal search or arrest 

is not voluntary, and that if the accused consents immediately following an illegal entry 

or search, his assent is not voluntary because it is inseparable from the unlawful conduct 

of the officers. (E.g., People v. Lawler (1973) 9 Cal.3d 156, 163-165 [(Lawler)]; 

Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155; People v. Johnson (1968) 68 Cal.2d 

629, 632-634; People v. Haven (1963) 59 Cal.2d 713, 719.) In Lawler this principle was 

applied to vitiate a consent which immediately followed an illegal pat-down search.” 

(Burrows v. Superior Court (1974) 13 Cal.3d 238, 251 [“[P]etitioner’s assent to the 

search of his car was the product of the unlawful search of his office; thus the trial court 

erred in failing to grant the motion to suppress the evidence taken from his car.”].) The 

People “‘have the burden of proving ... that the consent was lawful ... and was not 

inextricably bound up with unlawful conduct.’” (Lawler, supra, at p. 163.)

“Where there is substantial evidence supporting the conclusion that consent to 

search was given voluntarily, an implied finding to this effect implicit in the order 
9

admitting the evidence pursuant to such consent, is binding on appeal. [Citations.]

Where evidence on the issue of the voluntary nature of the consent conflicts, the finding 

of the lower court that the consent was voluntary ... must be upheld.” (People v. 

Robinson (1974) 41 Cal.App.3d 658, 668-669.)

Where, as here, a motion to suppress is submitted to the superior court on the 

preliminary hearing transcript, “the appellate court disregards the findings of the superior 

court and reviews the determination of the magistrate who ruled on the motion to 

suppress, drawing all presumptions in favor of the factual determinations of the 

magistrate, upholding the magistrate’s express or implied findings if they are supported 

by substantial evidence, and measuring the facts as found by the trier against the 

constitutional standard of reasonableness.” (People v. Thompson (1990) 221 Cal.App.3d 

923, 940.) We independently review the applicable law and its application to the facts 

(People v. Carter (2005) 36 Cal.4th 1114, 1140) and affirm the magistrate’s ruling if 

correct under any legal theory (People v. Zapien (1993) 4 Cal.4th 929, 976). We review 

“issues relating to the suppression of evidence derived from governmental searches and 

seizures ... under federal constitutional standards.” (People v. Troyer (2011) 51 Cal.4th 

599, 605.)

II. Analysis

A.

Defendant contends Officer Aja’s search of his pocket and wallet for identification

violated his Fourth Amendment rights and vitiated his subsequent consent to the search 

of his person that resulted in discovery of the methamphetamine. He argues that not even 

a patdown search was justified, much less an invasive search of his pocket and wallet for 

identification. He explains that his subsequent consent to a further search of his person 

for anything illegal was not a product of his free will, but merely a submission to 

Officer Aja’s assertion of authority. 
10

The People counter that the facts do not support defendant’s claim because “no 

evidence was presented or elicited on cross-examination that [Officer Aja] took the wallet 

from [defendant’s] pocket,”

6 and thus defendant “has failed to show any unlawful 

conduct that would invalidate [his] consent to search his person for anything illegal.” 

Citing People v. Farrara (1956) 46 Cal.2d 265 (Farrara), the People explain that 

“[defendant’s] conviction cannot be reversed in the absence of evidence to support a 

conclusion that Officer Aja acted illegally in obtaining [defendant’s] wallet.” 

We agree that the facts regarding Officer Aja’s search for defendant’s 

identification were undeveloped at the hearing—but it was not defendant’s burden to 

develop them. In any event, the evidence did prove that Officer Aja removed defendant’s 

identification from his wallet without a warrant and then obtained consent from defendant 

to conduct the subsequent warrantless search that produced the methamphetamine. After 

presentation of the evidence, defendant raised the issue of the warrantless prior search for 

identification, presenting an argument as to why the prosecution’s consent justification 

for the subsequent search was inadequate. At this point, the prosecution should have 

been allowed to present further evidence to address defendant’s issue because the 

prosecution continued to bear the burden of proving a justification for the subsequent 

warrantless search. (Williams, supra, 20 Cal.4th at pp. 130-131.) But the prosecution 

never got that chance because the magistrate refused to reopen to allow the prosecutor to 

elicit further testimony from Officer Aja. 

Contrary to the People’s suggestion, Farrara, supra, 46 Cal.2d 265 does not 

propose that a defendant bears any greater burden in making a motion to suppress than 

that described in Williams. In Farrara, the defendants contended on appeal that the 

 

6 We agree there was no direct evidence that Officer Aja removed the wallet from 

defendant’s pocket, but we note that the prosecutor did not object or comment when 

defense counsel referred in argument to Officer Aja’s search of defendant’s pocket and 

removal of his wallet from his pocket.
11

evidence against them had been obtained through their illegal arrests and searches, and 

that the evidence should have been excluded at trial. But the defendants had not even 

raised the issue at trial by objecting to the evidence or by showing that the officers acted 

without a warrant.7 (Farrara, supra, 46 Cal.2d at pp. 267-268.) The Supreme Court first 

noted that the trial occurred before the court’s decision in People v. Cahan (1955) 

44 Cal.2d 434, which held that “evidence obtained in violation of the constitutional 

guarantees is inadmissible.” (Id. at p. 445.) Next, the court explained that no objection 

was made to the introduction of the allegedly inadmissible evidence at trial, and no 

evidence was presented to show that the officers acted lawfully or unlawfully—including 

no evidence to show whether or not the officers had warrants. The court reiterated its 

holding in Badillo v. Superior Court (1956) 46 Cal.2d 269: “‘[T]he defendant makes a 

prima facie case when he establishes that an arrest was made without a warrant or that 

private premises were entered or a search made without a search warrant, and the burden 

then rests on the prosecution to show proper justification.’” (Farrara, supra, at p. 268.) 

The court explained: “In the present case, on the contrary, there is no such evidence, and 

to reverse the judgment it would be necessary to presume that the officers acted illegally 

and that the trial court erred in admitting the evidence so obtained. It is settled, however, 

that error will not be presumed on appeal [citations], and in the absence of evidence to 

the contrary it must also be presumed that the officers regularly and lawfully performed 

their duties.” (Farrara, supra, at pp. 268-269.) 

Here, the evidence established that Officer Aja conducted both the search for 

identification (which may or may not have included removing defendant’s wallet from 

his pocket) and the subsequent search for anything illegal without a warrant. Farrara is 

inapposite.

 

7 A pretrial motion to suppress was not made. We note that section 1538.5 was 

enacted in 1967.
12

B.

Next, the People argue that even if Officer Aja did remove defendant’s wallet 

from his pocket, the magistrate impliedly found defendant consented to the search for 

identification, and we are bound by that implied factual finding if supported by 

substantial evidence. 

Assuming the magistrate impliedly found defendant voluntarily consented to the 

search for identification, we conclude such a finding was not supported by substantial 

evidence. The only evidence regarding defendant’s possible consent to Officer Aja’s 

search for his identification was that Officer Aja asked him for identification and 

defendant responded that his wallet was in his back pocket. Whether defendant’s single 

statement in response to Officer Aja’s request for identification constituted voluntary 

consent depended on the totality of the circumstances, and the prosecution bore the 

burden of proving those circumstances—which might have included, for example, other 

communications or gestures between Officer Aja and defendant, or circumstances 

describing the conditions of the detention at the time of that interaction.8 In this case, we 

 

8 See, for example, United States v. Winston (1st. Cir. 2006) 444 F.3d 115, 117 

(after handcuffing defendant, agents asked him for identification; he told them it was in 

nightstand in his bedroom; agents could not find nightstand; defendant pointed to 

nightstand with his shoulder; agents opened drawer to find his wallet on top of cash; 

consent to search implied); id. at p. 121 (“While the agents did not explicitly ask for 

permission to open the drawer to retrieve [defendant’s] identification, the circumstances 

described would reasonably lead the agents to conclude that [defendant] was consenting 

to the opening of the drawer in the nightstand to allow for the retrieval of his wallet and 

identification.”); id. at p. 122 (routine and mundane nature of request for identification 

weighed heavily in favor of voluntariness; mundaneness of identification makes it 

unlikely that agents would bother to use coercive methods to obtain it); United States v. 

Lewis (7th Cir. 2010) 608 F.3d 996, 999-1000 (when asked for his identification, 

defendant immediately replied it was on a speaker in the bedroom; consent to enter 

bedroom implied because defendant specified that identification was located there in 

response to officer’s question rather than saying “‘Yes’ or ‘I don’t have it with me’ or 

‘I’ll go get it,’ which would not have implied consent to enter the bedroom”; “there was 

no evidence that [defendant] ever objected to the entry or that any coercion was used”; 

court was “troubled, however, by the fact that all these events happened so quickly and 
13

cannot conclude defendant’s single statement describing the wallet’s location provided 

substantial evidence of his voluntary consent to Officer Aja’s search of his wallet. That 

single fact, without the context of other circumstances, did not prove voluntary consent. 

Defendant thereafter properly raised the issue of the unlawful search for identification, 

but the magistrate foreclosed the prosecution’s opportunity to prove voluntary consent or 

another justification for the warrantless search of the wallet. The issue was not fully 

litigated.9

C.

The People also argue Officer Aja’s limited search for defendant’s identification, 

even if it included a search of both his pocket and his wallet, was permissible under 

People v. Loudermilk (1987) 195 Cal.App.3d 996 (Loudermilk). They maintain Officer 

 

that the detectives never asked for clarification from [defendant] regarding his somewhat 

ambiguous response”); State v. Aucoin (La.Ct.App. 1992) 613 So.2d 206, 209-210 

(officer’s opening of defendant’s wallet and removal of her license constituted an 

unreasonable search; reasonable and appropriate conduct would have been for the 

officers to return defendant’s wallet to her and request that she remove her identification 

and give it to them); see also United States v. Jaras (5th Cir. 1996) 86 F.3d 383, 390 

(consent to search suitcases not implied from defendant’s silence or failure to object 

because officer did not expressly or implicitly ask for his consent to search).

9

In our opinion, the magistrate’s finding that defendant was not detained was also 

not supported by substantial evidence. The magistrate stated she could not discern from 

the video whether defendant was detained and whether his arms were behind his back. 

We believe the video clearly shows that defendant’s arms were behind his back, that 

Officer Aja was standing directly behind him, and that Officer Aja’s patrol vehicle with 

lights activated was blocking defendant’s car in the driveway. Accordingly, we conclude 

the magistrate’s finding that “[t]here was nothing to indicate that [defendant] was not free 

to go” was not supported by substantial evidence. The video demonstrates that defendant 

was detained and not free to leave. We also note that ordinary traffic stops are 

investigatory detentions. (People v. Suff (2014) 58 Cal.4th 1013, 1054; Brendlin v. 

California (2007) 551 U.S. 249, 255 [“The law is settled that in Fourth Amendment 

terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is 

limited and the resulting detention quite brief.’”].)
14

Aja was simply responding to defendant’s verbal direction to the wallet’s location in his 

pocket and Officer Aja’s removing it was reasonable.

Loudermilk and other cases like it, however, have upheld a warrantless search for 

identification where the defendant made an attempt to frustrate the officer’s efforts to 

identify him by refusing to identify himself, claiming not to possess identification, or 

providing a false or suspicious identification. In Loudermilk, officers stopped a 

hitchhiking defendant who matched the description of a person suspected of committing a 

firearm assault. The officers asked the defendant to produce identification and the 

defendant responded that he did not have any. One of the officers then performed a 

patdown search for weapons and felt what appeared to be a wallet in the defendant’s rear 

pocket. The officer reached in, removed the wallet, opened it, and began searching for 

identification. (Loudermilk, supra, 195 Cal.App.3d at p. 1000.) Noting that the right to 

inquire into a suspect’s identity is necessary for an effective investigatory detention, the 

court stated: “To require defendant ... to display his driver’s license or other proof of 

identification is a minor intrusion which is strictly limited to the sole justification of the 

detention.” (Id. at p. 1002; see Terry, supra, 392 U.S. at p. 29.) “[T]he Terry suspect 

may not lie to the officer with impunity about his identity if there is a quick and 

minimally intrusive method of resolving the doubt.” (Loudermilk, supra, at p. 1002.) 

The court concluded that the seizure of the defendant’s wallet was reasonably related to 

the purpose and scope of the investigative detention and that “the officer was not 

conducting a general ‘fishing expedition’ for whatever evidence he could find, but 

[merely seeking to ascertain] the defendant’s identity.” (Ibid.) Where the defendant 

“lied to the officer and himself created the confusion as to his own identity[,] [t]he 

seizure of [his] wallet was minimal and strictly limited to the legitimate inquiry into his 

identity.” (Id. at p. 1004.)

The Loudermilk court also observed: “We must emphasize that we do not hold 

that a suspect may be detained and searched merely because he either refused to identify 
15

himself or refused to produce proof of identification. Nor do we hold that each time an 

officer conducts a Terry stop he may immediately conduct a search for identification. 

The rule we announce does not provide officers with unfettered discretion and does not 

open citizens to harassment. Our decision, allowing the officer to seize the wallet, is 

limited to the unique facts of this case, where defendant lied to the officer and himself 

created the confusion as to his own identity. The seizure of defendant’s wallet was 

minimal and strictly limited to the legitimate inquiry into his identity. We conclude that 

the seizure of defendant’s wallet was reasonable within the meaning of the Fourth 

Amendment.” (Loudermilk, supra, at p. 1004, second italics added; see People v. Long

(1987) 189 Cal.App.3d 77, 81-82 [defendant stated his name but denied having any 

identification on him; officer noticed a wallet-sized bulge in his rear pants pocket; officer 

directed defendant to look through his wallet; defendant removed wallet and made 

evasive movement; defendant thumbed through wallet and said nothing in the wallet 

would identify him; officer asked defendant to hand over the wallet, in which he found 

identification and methamphetamine]; id. at p. 88 [“defendant’s oral statement of his 

name was suspect when he insisted he had no identification while appearing to carry a 

wallet and, in addition, he seemed intoxicated”; officer’s intrusion was minimal]; State v. 

Flynn (1979) 92 Wis.2d 427, 447-448 [defendant not only refused to identify himself but 

became increasingly belligerent; he used obscenities and persisted in refusing; officer 

removed wallet and searched for identification].)

Here, there was no evidence defendant attempted to frustrate Officer Aja’s effort 

to identify him or was uncooperative in any way. Indeed, the video suggests defendant 

was generally cooperative, at least during the events captured on the video.10 As a result, 

Loudermilk is also inapposite.

11

 

10 The video did not capture the events surrounding the search for identification. 

11 We note that defendant correctly points out that a warrantless search for 

identification is not justifiable as part of a Terry patsearch. (People v. Garcia (2006) 
16

D.

In summary, we conclude defendant raised the issue of the prior warrantless

search for identification as an inadequacy in the prosecution’s consent justification for the 

subsequent search that produced the methamphetamine. The prosecution retained the 

burden to prove a justification. Because the evidence did not support an implied finding 

that the search for identification was lawful, and because the magistrate prevented the 

prosecution’s presentation of further evidence to carry its burden, the issue was not fully 

litigated below. We will remand the matter for a full hearing on the issue of the 

lawfulness of the search for identification and, if found to be unlawful, its effect on 

defendant’s subsequent consent to the search that produced the methamphetamine. (See 

§ 1260 [appellate courts “may ... remand the cause to the trial court for such further 

proceedings as may be just under the circumstances”].)12

DISPOSITION

The judgment is conditionally reversed and remanded to the trial court with 

directions to reopen the hearing on the motion to suppress for the reasons expressed in 

this opinion. If the court concludes the suppression motion was properly denied, the 

judgment should be reinstated. If not, the court should grant the suppression motion and

allow defendant to withdraw his no contest plea.

 

145 Cal.App.4th 782, 788 (Garcia) [Terry does not justify a patdown search for ordinary 

evidence, including identification; “[t]here is no legal justification for a patdown search 

for identification”].)

12 We do not reach the prosecution’s claim that any taint from an unlawful prior 

search was attenuated.