Jim Porter: Pat-down search turns up 9mm pistol | SierraSun.com

Jim Porter: Pat-down search turns up 9mm pistol

While on patrol for the Antioch Police Department, Officers Malone and Andelin observed Christopher Lee Osborne, defendant, standing next to a green Lexus. The trunk was open and Osborne was holding exposed wires. He immediately shut the trunk and appeared and#8220;real nervous.and#8221; (A police report favorite). A second man took off running with Officer Andelin in chase.

Officer Malone looked inside the Lexus and saw the passenger door panel stripped off and the trim around the stereo had been removed. There were screwdrivers and pliers on the front passenger seat. Andelin told Malone he thought Osborne was on parole.

Malone suspected Osborne was burglarizing the Lexus, and given that Osborne was considerably larger than he was, Malone handcuffed him and did a pat-down search. Amazingly, Osborne said he had a gun and had just been released from parole. Felony stupidity. Indeed, a loaded 9 mm semi-automatic was found in his right front pant pocket.

But it gets worse. Officer Malone then removed a backpack from the right front floor of the Lexus and found in it a loose, white crystal substance, a green plant-like substance and several pills. Could be vitamins but probably not. As the officers were loading Osborne for a trip to the jailhouse, they learned the most interesting part about this case.

The Lexus was registered to Osborne. Just as bizarre, the Court Opinion never mentioned a word about why Osborne would be stripping his own vehicle. Maybe he was installing a stereo and new door paneling.

Osborne was tried and convicted of possession of a controlled substance for sale (I was right, it was not vitamins), with a firearm enhancement plus being a felon in possession of a firearm and ammunition. He was sentenced to six years in state prison. He challenged based on the following arguments.

Osborne contended that officer Malone was not justified in detaining him. Under California law, a suspect may be detained if an officer has and#8220;a reasonable suspicion that criminal activity is afoot and that the suspect is connected with it.and#8221; A mere and#8220;hunchand#8221; is insufficient to justify a stop but probable cause is not required.

Given the open trunk with wires hanging out and the accomplice running away and that Osborne appeared nervous and may have been on parole and with screwdrivers, pliers and other tools strewn across the passenger seat with the paneling ripped out and#8212; all that justified Officer Malone to suspect Osborne was either burglarizing or stripping the Lexus, so he could be detained. In fact, the Court noted that an officer would have been remiss in his duties had he not detained Osborne.

Osborne next contended that officer Malone was not justified in doing a patsearch on his person. I always thought it was a pat-down search. Not my area.

California law is clear: in order to patsearch, an officer must have a reasonable suspicion that the defendant is presently armed and dangerous.

The Court of Appeal concluded that under the totality of circumstances it was reasonable for Malone to believe Osborne may have been armed with weapons or a knife or screwdriver. Burglars often carry weapons. Patsearch justified.

Osborne then argued that being handcuffed was a de facto arrest requiring probable cause. The Court of Appeal easily concluded that it is not an arrest if the handcuffing is brief and reasonably necessary under the circumstances to safely evaluate the patsearch. The officer need not and#8220;take the risk that the (defendant’s) answer might be a bullet.and#8221;

Search of vehicle

And last, Osborne argued that the search of his Lexus (did I mention he owned the Lexus?) was a violation of the Fourth Amendment.

As the Court concluded, when Officer Malone found the nine-millimeter in Osborne’s pant pocket, he had probable cause to arrest him for illegal possession of a firearm by a felon and could therefore conduct and#8220;a search incident to an arrest.and#8221; A mere traffic stop would not justify such a search. Step by step they got him.

Biggest question of all

Now you tell me what Osborne was doing to his own Lexus that got him into all this trouble.

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe, Incline Village and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firm’s website, http://www.portersimon.com.

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