The California Court of Appeal recently decided In re H.H. (2009 DJDAR 7935), a case involving a minor who was illegally searched after being pulled over for riding a bicycle without proper lighting equipment. When the minor was pulled over he was asked to “step from the bicycle” at which time he took off the backpack he was wearing and said “I am not on probation” and refused to give consent to search his person or his backpack. The officer involved wondered why the minor would say that and used it as a basis for a pat down search. The officer later said that he became concerned that the minor may have a weapon on his person.
It turns out that the minor did have a concealed weapon-a revolver-but that the officer did not have reasonable grounds to perform the pat down search. The trial court refused to grant the minor’s motion to suppress the revolver evidence, and the minor appealed. On appeal, the court held that refusal to consent does not create reasonable suspicion to pat search or probable cause to search. Accordingly, the appeals court reversed the lower court’s denial of the minor’s motion to suppress and remanded for further proceedings.
In its reasoning, the appeals court held that a protective pat down search for weapons is permissible if the officer can point to specific and articulable facts that lead him to believe that he is dealing with an armed and dangerous individual-he need not be absolutely certain that the individual is armed. However, the court stressed that the purpose of the limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.
The appeals court declared that allowing evidence seized on the sole basis of a refusal to consent to a search would be a clear violation of the Fourth Amendment. A motorist who consented to a search could be searched; and a motorist who refused consent could be searched as well. Clearly, the minor’s refusal to consent did not indicate that the minor “had something illegal to hide.” The court stated that there “simply were no specific and articulable facts at the suppression hearing that the minor was armed and dangerous.”
The appellate court ruling reinforces the fundamental teachings of the Fourth Amendment: no search without probable cause. Hiring skilled criminal defense attorneys in CA to help protect your rights is one of the many ways to keep the police force honest. The attorneys at Wallin & Klarich have extensive experience in this area of the law and are ready and willing to help you. Our attorneys can be contacted by phone at 1-888-280-6839 or through our website at www.wklaw.com.