Appellate Court Throws Out Conviction Based on Unreasonable Terry Search

Yolo-Count-Court-Room-400The Third District Court of Appeals has tossed out another conviction in Yolo County, this time overturning a plea agreement after Judge Kathleen White erred in denying the defendant’s motion to suppress evidence illegally obtained.

The appellate court ruled this week, that “the patdown search was unjustified because the officer did not have reasonable suspicion defendant was armed and dangerous” and “the search exceeded the scope of determining if defendant had weapons.”

Having agreed with the defendant that the search for weapons was unlawful, the court reversed the judgment which will effectively throw the case out completely.

The defendant in this case had pled no contest to transporting methamphetamine and admitted a prior drug conviction. The trial court placed him on Proposition 36 probation for three years.

The Facts of the Case

According to the facts as told by the 3rd DCA, On January 16, 2010, at around 10:45 p.m., Yolo County Sheriff’s Deputy Gary Richter stopped his police car behind a Camaro parked in the back of the Wayside Market in Knights Landing. The defendant and passenger and another individual stepped out of the Camaro.

Deputy Richter recognized the other individual from a previous drug arrest. He called out to defendant and the other individual and asked to search them both.  The other individual walked back toward his police car and allowed Deputy Richter to search her because she “was on searchable OR [own recognizance] from the court.”

However, the defendant did not consent to the search and stayed next to the car.

According to the court’s account, “Deputy Richter then informed defendant that due to the time of night and [the other individual’s] behavior he was going to pat defendant for weapons.”

The account continues, adding that during the patdown, Deputy Richter felt something “hard and cylindrical” in defendant’s left pocket.

Deputy Richter then “manipulated the object [and] noticed it was approximately four inches long with a large bulbed end.”

He reached into the pocket and found a glass pipe. Deputy Richter then further searched defendant’s pocket and found a cigarette package, opened it, and found methamphetamine.

The defendant would move to supress the evidence.  According to the Deputy’s testimony, “he patted down defendant because he thought defendant might have weapons because of the time of night and the fact that [the other individual] might have been under the influence.”

They continue, “Deputy Richter further testified that in the past [the other individual] had a pocket knife on her, but had never been aggressive or given him reason to fear his safety. However, Deputy Richter also testified that he did not recognize defendant.”

The trial court denied defendant’s motion to suppress, stating, “one of the appellate cases said that — how do they say it– weapons and drugs are like sharks and remoras. I[f] you find the remora, you better start looking for the shark. That’s what Deputy Richter did… Suppression motion denied.”

Following the denial of the motion to suppress the evidence, the defendant would plead no contest to one count of transportation of methamphetamine and admitted a prior drug conviction and was granted three years of Proposition 36 probation.


The DA’s Office, in response to the claim of an unreasonable search, argued that the defendant’s “close physical and functional association” with a suspected user of methamphetamine supported Deputy Richter’s reasonable suspicion that defendant “may have been involved in possessing or transporting methamphetamine,” which then supported the reasonable suspicion defendant had “arm[ed] himself with a weapon.”

The 3rd DCA cites the description of a “Terry stop,” named for Terry v. Ohio, 392 U.S. 1 (1968), “After a stop, police officers may conduct a limited search of a suspect if they have reason to believe the suspect is armed and dangerous.”

They add, “This exception to the warrant requirement is limited, confined in scope to intrusions reasonably designed to discover weapons.”

However, there also needs to be a suspicion that the subject is armed and dangerous.

They write, “Although a Terry frisk does not require probable cause, it is justified only when “specific and articulable facts . . . taken together with rational inferences from those facts,” warrant a suspicion that a suspect is armed and dangerous.”

For Deputy Richer, his suspicion was based on the belief that the defendant’s counterpart was high on meth and that they came out of the same vehicle together.

Judge White justified the search, arguing that “weapons and drugs are like sharks and remoras,” therefore she is “suggesting that the presence of drugs always indicates the presence of weapons.”

The appellate court finds that “this suggestion is without merit.”

It argues that this case is substantially different from another case, People v. Simpson (1998) Cal.App.4th 854, which was used as the authority by Judge White.  In Simpson they were dealing with a known drug trafficker.  That court used the analogy of sharks and remoras in the context of “investigating cocaine and marijuana sales” and “large quantities of illegal drugs.”

However, this case is substantially different, as the officer used the fact that the individual might have been under the influence of meth as the basis for searching the defendant for weapons.

They write, “Here, we are faced with a weapons frisk and not questioning a “known drug trafficker” without Miranda warnings.” 

They continue, “When Deputy Richter searched [the other individual], he did not locate any drugs and was left with just a suspicion she was under the influence of methamphetamine based on her “red, bloodshot eyes [and] [continuous] fidgeting around, moving around . . . .”

Moreover, “Deputy Richter’s previous contact with [the other individual] was an arrest for drug possession, not as a drug trafficker. Therefore, he did not have “probable cause to believe substantial quantities of illegal drugs w[ould] be found.”

They then argue that if you extend this analogy to a case such as this it would lead to an “absurd result,” namely, “Like a remora feeds off of a shark, a person who is in close proximity to a suspected drug user would be unable to survive without a weapon.”

They argue that in some circumstance the belief that “some drug dealers carry weapons can form the basis of a reasonable suspicion that a narcotics dealer is armed.”  However, first the officer must have a reason to believe that the suspect does in fact deal drugs.

The Third DCA then hammers the DA’s Office, “The People’s argument is without merit. The People provide a post hoc rationalization for Deputy Richter’s patdown that is based on no more than mere assumption.”

They finally argue, “Deputy Richter provided no evidence to support a belief that defendant sold drugs. Therefore, his testimony about the “time of night” and his belief that Wyniarczuk was under the influence of a “central nervous system stimulant” could not form the basis of any reasonable suspicion that defendant was armed in this case.”

They then conclude, based on the totality of the circumstances, “The specific and articulable facts known to Deputy Richter did not warrant a reasonable suspicion that defendant was armed and dangerous.”

The court rules, “Because the patdown search of defendant was unlawful, the trial court erred in denying his motion to suppress.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. mreichel

    Great ruling for this defendant.

    Now, will the judge, the Deputy DA, or the officers continue to believe that they were right and continue to rule, argue and practice law enforcement the way they did before or will this instruction from the appellate court help only this defendant? One would hope that officer Richter would now feel he has had the law explained to him and he can’t do this again; that the Deputy DA on the case would not make this argument again; that the judge would not make the same ruling again.

    The appellate court did not state “This is a close case. We can see 2 sides to this point.” They stated “That has no merit.”

    Let’s hope for the best, for the law.

    Good job to the Vanguard for letting us know this.

  2. David M. Greenwald

    At first I was inclined to agree Elaine, but thinking about it a bit more, I don’t. You need to have a reason to believe the person has a weapon on them in order to do a patdown search. Just being high is not a reason to believe they have a weapon on them. We still have the right against unreasonable search and seizure and this seems like exactly the kind of scenario that the constitution was meant to prevent.

  3. Superfluous Man


    “Just being high is not a reason to believe they have a weapon on them…”

    You haven’t heard the trite saying among LE…”where there are drug…there are guns.”

  4. David M. Greenwald

    I understand that view if you are talking about drug dealers, but not if you are talking about a guy with .10 grams of meth in his pipe.

  5. Roger Rabbit

    Wow, I am surprised the normal Reisig Lovers are not calling the courts stupid and wrong, every time Reisig gets over turned for “cowboy” tactics, people should realize how serious this is. Higher courts do not like to rule against lower courts or DA’s, it is not good for the system, so when they do it, it is serious. Reisig has to be the most over-turned DA in the State, yet everyone will be crying prove it. Well someone proved it again that Reisig and band of thugs do what they want in court and unless and until someone higher stops them, they keep doing it with impunity.

    Perhaps when defendants can file suit against crooked DAs for this crap, then it will change. Opps forgot, DAs are exempt and have immunity for their acts. Wonder why it continues?

    As for the people that want to discount and challenge my comments, I know Reisig personally, I have seen him lie and forget his actions and have memory loss on the stand and under oath, I have watched him call people that believe in God “bible thumpers” and talk about them as idiots behind their back and then the next day when speaking to victims talk about God Bless the victims, I have watched him intimidate and force attorneys out of the office if they did not go along with his strong arm tactics and unethical tactics, I have watched him conspire to release his false and misleading press releases knowing they were false in order to conceal the real facts. I have watched him tell people to write comments defending him and making people that work for him defend him to “prove” their loyalty, the courts proved he tried to lie and hide the Gang injunction, two of his senior cops testified against him for hiding evidence in a murder trial, and many more issues surround him, so spare me the I don’t know Reisig crap.

    He is a thug in a suit and in time he will be seen for what he is, expect by those that refuse to see or believe anything unless you can prove it. Proof is relative and is very different depending on who you ask. Hell you can’t 9 high court judges to agree on anything and most decisions by them are 5 to 4, yet they all have the same so called “PROOF”.

    I assure you the people defending Reisig and attacking me are gaining favor with Mr. Reisig and they are getting brownie points for being good little boys, maybe a raise or maybe a promotion or maybe a better office, but you can bet they are getting their marching orders from the head Thug!

    Jeff knows who I am and he knows I am right or he would be trying to come after me and the last thing he wants is for me to get on the stand and publicly “Prove” what I am saying and why I believe what I do. So he hides like a coward and plays his games behind the scenes.

    I know what I say is true so it really does not matter what Reisig’s cronies want to say or try and censor me since they don’t want or like to hear what they can’t see or don’t want to believe. See those who are in Mr. Reisig’s circle forget this is still America and people have freedom of speech, even if they are not allowed to disagree with Reisig or say anything against him. lol, Reisig even wrote a policy for the DA office making it a discipline offense to talk negative about him. But only a great fair honest guy would do that?

    And for the first person to cry Prove it, YOU prove I am wrong or not being truthful.

  6. E Roberts Musser

    dmg: “At first I was inclined to agree Elaine, but thinking about it a bit more, I don’t. You need to have a reason to believe the person has a weapon on them in order to do a patdown search. Just being high is not a reason to believe they have a weapon on them. We still have the right against unreasonable search and seizure and this seems like exactly the kind of scenario that the constitution was meant to prevent.”

    You tell me – what is “articulable suspicion”? Try and define it…
    Here is wikipedia definition, which makes my point I think:
    “Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an “inchoate and unparticularized suspicion or ‘hunch’ ”;[1] it must be based on “specific and articulable facts”, “taken together with rational inferences from those facts”.[2] Police may briefly detain a person if they have reasonable suspicion that the person has been, is, or is about to be engaged in criminal activity; such a detention is known as a Terry stop. If police additionally have reasonable suspicion that a person so detained may be armed, they may “frisk” the person for weapons, but not for contraband like drugs. Reasonable suspicion is evaluated using the “reasonable person” or “reasonable officer” standard,[3] in which said person in the same circumstances could reasonably believe a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.”

    There is a huge amount of wiggle room in this definition…

  7. Logos

    The adduction employed by the local constable (the presence of drugs infers the likely presence of a weapon) as the predicate and justification for performing an illegal search is patently convoluted, illogical and an inveterate violation to the spirit and practical application of the law.

    What next?

    Searches instigated by virtue of tarot card readings?

    The Appellate Court’s action was sound.

  8. David M. Greenwald

    I find it interesting Elaine, that here the court quotes from the Terry decision and you quote from Wikipedia.

    Even within the Wikipedia article they make it clear that the search cannot be for drugs but has to be for weapons.

    The question here is whether the possession or in this case being under the influence of drugs means you there is a reasonable suspicion that you would have weapons. The appellate court in this case completely rejected the sharks and ramoras analogy argued by the DA and adopted by the court. And ruled that possession of drugs was not sufficient.

  9. E Roberts Musser

    dmg: “It argues that this case is substantially different from another case, People v. Simpson (1998) Cal.App.4th 854, which was used as the authority by Judge White. In Simpson they were dealing with a known drug trafficker. That court used the analogy of sharks and remoras in the context of “investigating cocaine and marijuana sales” and “large quantities of illegal drugs.””

    So what constitutes a “drug trafficker”? And notice it is one more exception to the general rule, and the general rule is pretty murky. Now put yourself in the place of a cop. All this less than clear verbiage is running through your head, and the cop has to make a split second decision. The real question for me is: does this cop regularly make mistakes, or is this his first one? The “articulable suspicion” standard is loosey-goosey enough that it does not suprise me if law enforcement occasionally makes a mistake. If on the other hand, a particular police dept/officer continues to make mistake after mistake, that is a different story. What do we have here? You haven’t really indicated this in your article, so I’m not going to And just to add a layer of complication, appellate courts are not always right either…

  10. kathryndruliner

    elaine: it is a “Terry search”, not a terry stop. Also, I agree with David that it is interesting that you, a lawyer, would quote Wikpedia, at best a sometimes reliable secondary source, rather than the primary source, the Terry case itself. That is the law, as I’m sure you remember from law school. Even if you don’t have access to the law library, you can get the Terry case on line now without Lexis or any other payment, just enter the words into your search engine. Then read the case.

    As for the “articulable suspicion” standard; lets step back and think for a minute about where this comes from and why. This is based on the rights of all Americans to be free from random searches of their bodies by police. Think about the uproar over the searches at the airports by the government employees hired to keep terrorists off our planes. But there, the American citizen has an option — he can walk away and not try to fly on the plane. Then, he is free from an unreasonable search.

    If we had no 4th Amendment protection while walking, driving our cars, or in our homes, and the police could search for any reason, no reason, harassment reasons, or as the court said here the DA’s made up reason, there is no 4th Amendment. How would you like that?

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