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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

 Plaintiff and Respondent, 

v.

DEVON THOMAS, 

 Defendant and Appellant.

2d Crim. No. B322270

(Super. Ct. No. BA498943)

(Los Angeles County)

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. 
2

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 

1 The factual background is based on evidence presented at 

both the preliminary hearing and the hearing on Thomas’s 

motion to suppress evidence. 
3

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.) 
4

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.” 
5

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 
6

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. 
7

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.