1

Filed 3/2 4 /22 ; Certified for Publi cation 4/13/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Appellant ,

v. JUAN PANTOJA , Defendant and Responde nt. A1 62591
(S olano County Super. Ct. No. FCR 349721 )

Defendant Juan Pantoja filed a motion to suppress evidence of a firearm found on his person when he was patted down during a traffic stop.
The trial court granted defendant ’ s motion and then dismissed the case. The District Attorney appeal s

. We affirm. FACTUAL AND PROCEDURAL BACKGROUND
In January 2020 , the Solano County District Attorney filed a one

- count felony complaint charging defendant with possession of a firearm by a felon ( Pen. Code, 1 § 29800, subd. (a)(1)). The next month, defendant filed a motion to suppress evidence gathered on January 3, 2020 (§ 1538.5 ) , arguing the
evidence was obtained as the result of an unreas onably prolonged detention and illegal search

.

1 Further undesignated statutory references are to the Penal Code.2

Hear ing on Defendant ’ s Suppression Motion and Preliminary Examination On April 12, 2021, the magistrate heard defendant ’ s suppression
motion at the preliminary hearing. The only witness was Vacavil le police officer Chris Hill. Officer Hill testified h e w as on duty around 1:30 a.m. on January 3, 2020, when he saw a silver Dodge turn right onto Brown Street. The car

“ caught [ his ] attention because it was going rather quickly” although it was traveling within the speed limit of 25 miles per hour. Hill turned around to follow the Dodge and noticed the license plate light and third brake light located at the back window of the vehicle appeared not to be working.
A s t he Dodge pulled into a n apartment complex parking lot, Hill turned on his overhead lights and initiated a traffic stop

. Defendant was the driver
and sole occupant of the car

. H ill vaguely recognized him , and when defendant gave his name, Hill testified he remembered defendant “ had a history of violence and firearm possession, and he was at the time an investigative lead in a homicide.” 2 Hill had prior contact with defendant a handful of time s and had “also seen his name in briefing logs.” He thought
he transported defendant once when defendant was arrested for possession of
firearms. H ill did not recall having any contact with defendant when a crime of violence was involved.
When Hill ap proached the driver ’ s side door, the window was rolled down and defendant asked if the officer wanted his license, registration, and proof of insurance. There was no smell of marijuana and no contraband in plain view. Hill saw no signs that defendant was intoxicated. Hill ran a

2 Ini tially, the trial court sustained a defense objection to this testimony based on lack of foundation and hearsay . The prosecutor stated the evidence was only for “the effect on the listener” (and so not for the truth), and the court allowed the testimony for that purpose.3

record check and learned defendant had a valid license and was not on probation or parole. Hill asked where defendant was coming from (he said he

went to get a burrito ) and when he got off probation (he answered, 2018)

. Hill ask ed if there was weed in the car , and defendant said he did not smoke
weed. Hill asked defendant if he could take a look in the vehicle for
contraban d, and defendant declined. After defendant declined to consent to a search, Hill asked defendant to get out of his car and put his hands behind his head because Hill was going to
issue him a citation for the vehicle lighting infractions

. Around this time, another officer arrived on the scene. The prosecutor asked whether Hill believed “defendant was armed or dangerous at that moment.” Hill responded, “ He was wearing baggy clothing.
He had [a] hoodie on and jeans. The hoodie naturally has bulges in it, so based upon defendant ’ s history of wea pons, I elected to remove him from the vehicle and pat him down so I can complete the citation.” Asked again if he believed defendant was presently armed and dangerous, Hill answered , “There ’ s a good possibility or chance , yes

. ” Defendant did not make an y furtive gestures and d id not make any sudden movements during the traffic stop, but “he appeared to be getting nervous” when Hill told him he was going to pat him down

. As Hill patt ed defendant ’ s front waistband area, he felt what he recognized as a h andle to a handgun. He lifted the front of defendant ’ s hoodie and saw a revolver. Defendant was arrested . Hill inspected the revolver, which was loaded with five rounds. The traffic stop occurred in a high

- crime area. O n cross
- examination, Hill agreed it had been years since he had seen defendant arrested. Defense counsel also established that in his police report of the incident H ill did not mention any bulges in defendant ’ s clothes and4

a pparently did not describe defe ndant’s sweatshirt as baggy

. Hill acknowledged that it was cold outside at the time of the traffic stop , Hill

us ually takes only about five minutes to wr ite a traffic citation , and in fact
there w as no arrest warrant for defendant in the homicide case in which he was “an investigative lead.” In support of the motion to suppress , d efense counsel argued the prosecution failed to establish “reasonable articulable facts that Mr. Pantoja was armed and presently dangerous at the time , ” noting there was no evidence of contraband, no furtive or evasive movements , and defendant complied with the traffic stop. He pointed out there was no p roof defendant had “ any arrests by the Vacaville Police within years of this occurrin g ” and the prosecution cited no authority that “ specifically says knowledge of a

. . . defendant ’ s history from years prior allows them to pat search at will. ”
Defense counsel further observed that Hill initially left defendant alone
i n side his car wh ile Hill returned to his patrol car to run the record check, which suggest ed the officer did not actually believe defendant was armed or presently dangerous at the time of the traffic stop. The prosecutor argued the totality of the circumstances supported
Hill ’ s reasonable belief that defendant was armed or dangerous , citing defendant ’ s baggy clothing, that it was dark outside and in the car , that the stop was in a high

- crime area, and that Hill knew of “defendant ’ s history of violence and weapons possession.” Trial Court Ruling s The trial court granted defendant ’ s motion to suppress, explaining: “[T] he officer is we l l within his rights to remove a detainee from a vehicle while the investigation is proceeding, and that includes traffic stops and minor citations; however, in order

. . . to conduct a pat search, there must be5

specific and articulable facts known to that officer that would lead that officer to believe that he was presently armed and dangerous. W hen you asked this officer that exact question, his answer was, ‘ There was a good chance, ’ which
to me means that that ’ s all speculative, and he didn ’ t have any s pecific or articulable facts to believe that this individual was presently armed or dangerous. [¶] Therefore, I ’ m going to grant the motion to suppress

. The motion to suppress being granted, there ’ s insufficient evidence for a holding
order and this matt er is discharged and his bond is exonerated

. And that concludes Mr. Pantoja ’ s matters and that concludes our calendar for today. ”
DISCUSSION Constitutional Principles “In Terry v. Ohio (1968) 392 U.S. 1 ( Terry ), the United States Supreme Court held that there exists ‘a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probabl e cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of
others wa s in danger. ’ ” ( King v. State of California (2015) 242 Cal.App.4th 265, 283 .)

“ ‘The sole justification of the search .

. . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an
intrusion reasonabl y designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ ( [ Terry , supra , 392 U.S. ] at

p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences the refrom which reasonably support a6

suspicion that the suspect is armed and dangerous.” ( People v. Dickey (1994) 21 Cal.App.4th 952, 955

– 956 ( Dickey ) .) “ [A] n ‘ inchoate and unparticularized suspicion or “ hunch ” ’ is insufficient. ” ( In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305 ( Jeremiah S .) .)
In Dickey , for example, the Court of Appeal held a pat

- down search was not justified based on circumstances that the defendant “(1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, (4) or because baking powder was found in a film canister” because “ [n]one of these considerations, considered singly or in combination, would lead an officer to

‘ “

. . . reasonably believe in the possibility that a weapon may be used against
him. .

. . ” ’ ” ( Dickey , supra , 21 Cal.App.4th at p. 956 .) In Jeremiah S. , the pat search of a minor who was detained with a companion just before midnight on suspicion of robbery was not justified where the two minors were smaller than the officers, the officers had no information that the robbery being investigated involved weapons , the minors followed officer instructions, and they made no furtive, unusual or sudden movements. ( Jeremiah S

. , supra , 41 Cal.App.5th at p. 306 .) In In re H.H. (2009) 174 Cal.App.4th 653,
660 the pat search could not be justified based on the totality of the
circumstances where a “minor was stopped for a traffic infraction, not a crime of violence,” at 11:30 p .m., because “the time and location of the encounter, though relevant, ‘ are insufficient by themselves to cast reasonable suspicion

on an individual

. ’ ” (

Accord People v. Medina (2003) 110 Cal.App.4th 171,
177

– 178 ( Medina ) [ rejecting the Attorney General ’s argument that the time of day and location may in combination be sufficient by themselves to justify

a Terry stop and frisk].)7

Standard of Review “In reviewing a trial court’s decision to grant a motion to suppress evidence, we rely on the trial court’s express and implied factual findings, provided they are supported by substantial evidence, to independently
determine whether the search was constit utional. [Citation.] ‘Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court.’ [Citation.] It is the tr ial court’s role to evaluate witness credibility, resolve conflicts in the testimony, weigh the evidence, and draw factual inferences. [Citation.] We review those factual findings under the deferential substantial evidence standard, considering the
evide nce in the light most favorable to the trial court’s order. ” ( People v. Lee (2019) 40 Cal.App.5th 853, 860

– 861 , 870 [affirming the grant of a motion to suppress evidence obtained from an unconstit utional car search] .) Analysis Defendant was stopped for a vehicl e code infra ction in this case . He was cooperative at all times during the traffic stop, he did not appear to be intoxicated, his driver’s license was valid, he answered Officer Hill’s questions, he made no furtive or sudden movements , and Hill did not describe any other behavior by defendant that suggested he was armed and dangerous.
W hen asked whether he believed defendant was armed or dan gerous, Hill cited (1) the fact defendant was wearing baggy clothing that “naturally has bulg es in it” and (2) “ defendant’s history of weapons ” as reasons to pat
him down. Asked again , “did you believe he was presently armed and dangerous?” Hill responded , “T here’s a good possibility or chance, yes.” The trial court found Hill’s second response indicated his belief was “ all8

speculative, and he didn’t have any specific or articulable facts to believe that this individual was presently armed or dangerous. ” Considering the evidence in the light most favorable to the trial court’s ruling and defer ring to the court’s implied factual and credibility findings , we conclude the court properly granted defendant’s motion to suppress. First, the trial court reasonably could have discounted Hill’s testimony
that defendant’s clothing contributed to reasonable suspicion given the facts
th at Hill did not write in his police report that defendant’s clothes were suspiciously bulging or baggy and, at the suppression hearing, he acknowledged the bulges were “natural” and that it was cold outside that night. The District Attorney rel ies on People v. Rios (2011) 193 Cal.App.4th 584, for the proposi ti on that “baggy or bulging clothing” may be relevant to
the reasonable suspicion analysis , b ut the facts of Rios are readily distinguishable. In Rios , a probation officer “was dealing with a probable gang member who was overly dressed for the weather, belligerently refused to answer his questions or cooperate with him, and continued to make evasive movements even after [the officer] asked him to stop ” and the court hearing the suppressi on motion credited the officer’s testimony that, based on all these factors, he believed Rios “ was trying to hide a weapon .” ( Id . at p. 599.) Here, i n contrast, defendant was dressed appropriately for the weather, he cooperated with Officer Hill during t he traffic stop, he made no furtive or
sudden movements, and Hill never testified that any of defendant’s conduct suggested he was trying to hide a weapon

. Second, we agree with defendant that Hill’s description of “defendant’s history of weapons” was insufficient to support reasonable suspicion

. Hill testified he was aware of defendant having been arrested for possession of9

weapons on one occasion , 3 b ut it had been years since defendant was
arrested. Defendant cites federal authority holding tha t a person’s criminal record is not sufficient to create reasonable suspicion to support a detention

or search. 4 (See United States v. Foster (4th Cir. 2011) 634 F.3d 243, 246

– 247 ( Foster ) [ “ ‘ A prior criminal record “ is not, standing alone, sufficient t o create reasonable suspicion ” ’ ” ] ; United States v. Mathurin (3d Cir. 2009) 5 61 F .3d 170, 177 [“a past criminal conviction, never mind an arrest record, is not sufficient alone for reasonable suspicion; law enforcement agents must support this fact with sufficient corroborating evidence ”].) For example, in United States v. Davis (10th Cir. 1996) 94 F .3d 1465, 1469, the court observed, “Knowledge of a person’s prior criminal involvement is not, standing alone, sufficient to create reasonable suspicion .” In Davis , the court
held the circumstances that the defendant was in a high crime area, that he
wal ked away from the police , dropp ed eye contact , and kept his hands in his pockets and that the officer knew the defendant had a criminal record did not support a reasonable suspicion that the defendant was unlawfully carrying a firearm. ( Id . at pp. 1469

– 1470.) 5

3 Although he initially referred to defend ant having “a history of violence and firearm possession,” Hill did not provide any information about alleged violence and could not recall any contact with defendant that involved a crime of violence. Hill did not mention violence when explaining why he elected to pat defendant down.

4 “Questions regarding the suppression of evidence are controlled by federal constitutional law.” ( People v. Miranda (1993) 17 Cal.App.4th 917, 923, fn. 4 [ discussing federal case law in review of the denial of a motion to suppress].)

5 T hese federal cases consider what circumstances are sufficient to support reasonable suspicion for an officer to detain a n individual, but the

same reasoning applies to the question of reasonable suspicion to pat down10

For t he proposition that an officer’s history of weapons possession is sufficient by itself to justify a pat search, the District Attorney cite s People v.
Bush (2001) 88 Cal.App. 4th 1048

. In that case, an officer stopped a vehicle for missing r egistration stickers on the rear license plate. The officer learned
the driver’s license was suspended and the car’s registration was not current,
and the dispatcher further informed the officer the driver “ ‘had a history of violence, possession of weapo ns and was reported to be a kick

- boxer.’ ” ( Id . at p. 1050.) Because the officer was concerned for his safety, after another officer arrived, he had the driver get out of the car and searched the car. ( Ibid .) On appeal, the driver argued the officer was not entitled to rely on the information from the dispatcher because it was six years old. The Court of Appeal concluded the search was justified , reasoning: “ In our job as appellate court judges, we have been called upon to review
hundreds u pon hundreds of criminal convictions. Our experience has led us to the conclusion that, unfortunately, felons convicted of illegal weapons offenses often later carry concealed weapons, and they do so more than six years after an initial conviction. Moreo ver, while some persons who are ‘ very violent ’ reform such tendencies, many, many others do not. The information possessed by the dispatcher was not unreasonably stale. That information provided ‘ specific and articulable facts ’ which reasonably warranted the officer in believing that defendant was dangerous and could gain immediate control of weapons. ” ( Bush , supra , 88 Cal.App.4th at p. 1053.)
Bush is distinguishable because Officer Hill in this case did not know from personal knowledge or a dispatch report that defendant was “very

an individual. ( See Medina , supra , 110 Cal.App.4th at p. 177 [“ Although the Supreme Court ’ s discussion on this subject addresses the propriety of Terry stops, the court ’ s conclusions ap ply with equal force in determining the reasonableness of Terry frisks ” ].)11

violent ” (Hill mentioned seeing defendant’s name in briefing logs, but he did

not testify defendant was reported to be violent ) , and he knew only that defendant had been arrested for possession of a weapon many years ago

. “[K] nowledge of a person ’ s prior criminal involvement (to say nothing of a mere arrest) is alone insufficient to give rise to the requisite reasonable suspicion. ” ( United States v. Sandoval (10th Cir. 1994) 29 F.3d 537, 542 .) 6
T he District Attorney a lso argue s the circumstances that the stop occurred in a high crime area and that defendant was “an investigative lead in a homicide” contributed to a reasonable suspicion defendant was armed and dangerous. But mere presence in a high crime area , by itself, does not justify a pat down search. ( Medina , supra, 110 Cal.App.4th at p. 177 [ weapon search not justified merely because the suspect was in a high gang area late at night].) This principle certainly applies in this case, where it appears defenda nt was stopped as he pull ed into his own apartment complex. And “ a person ’ s Fourth Amendment rights cannot be lessened simply because
he or she is ‘ under investigation ’ by the police. Just as an officer ’ s knowledge of a suspect ’ s past arrests or convicti ons is inadequate to furnish reasonable suspicion; so too is knowledge that a suspect is merely under investigation, which is an even more tentative, potentially innocuous step towards determining criminal activity .” ( Foster , supra , 634 F.3d at p. 247 .)

6 As Sandoval explains, i f prior criminal history alone sufficed to create reasonable suspicion , “ any person with any sort of criminal record

— or even worse, a person with arrests but no convictions

— could be subjected to a Terry

- type investigative stop by a law enforcement officer at any time without the need for any other justification at all. Any such rule would clearly run counter to the requirement of a reasonable suspicion

. . . .” ( Sandoval , supra , 29 F.3d at p. 543.)12

In short, we conclude, viewing the evidence in the light most favorable

to the trial court’s ruling, Officer Hill’s pat search of defendant was not supported by reasonable suspicion. DISPOSITION
The orders granting defendant ’ s motion to suppress and dismissing the complaint are affirmed.13 _________________________ Miller, J.

WE CONCUR:

_________________________ Stewart, Acting P.J.

_________________________ Mayfield, J. *

A162591, People v. Pantoja

* Judge of the Mendocino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.1

Filed 4/13/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Appellant ,
v. JUAN PANTOJA , Defendant and Responde nt. A1 62591
(S olano County Super. Ct. No. FCR349721 )

BY THE COURT:
The opinion in the above

- entitled matter filed on March 24, 2022 , was not certified for publication in the Official Reports. For good cause and pursuant to California Rules of Court, rule 8.1105, it now appears that the opinion should be published in the Official Reports, and it is so ordered.

Dated: _______________________

________________________________ Stewart , Acting P.J

.2

Court: Solano County Superior Court
Trial Judge: Hon

. Stephanie Grogan Jones
Krishna A. Abrams, Solano County District Attorney; Karen Jensen, Deputy District Attorney, for Plaintiff and Appellant
Jonathan Soglin, Deborah Rodriguez under appointment by the Court of Appeal, for Defendant and Respondent

A162591, People v. Pantoja