Is Pat-Down Search for No Having Identification Legal in California ?
In People v. Dickey (1994) 21 Cal.App.4th 952, the appellate court invalidated a patdown search under the following circumstances: An officer detained the defendant, who was parked on a rural road in the daytime and had not committed any observed Vehicle Code violations.
The defendant could not produce a driver's license or vehicle registration papers, but the officer determined the car was registered to the defendant. The defendant twice refused permission to search his car.
The officer was unable to find anything in plain view to justify a search. The defendant permitted the officer to search a backpack in the car, though the defendant said it was not his. Inside, the officer found a toothbrush and a film canister containing a powder which the defendant said he used to brush his teeth, but which the officer suspected to be baking soda, a cutting agent for narcotics.
The officer asked the defendant and his passenger to accompany him to the rear of the car. The defendant was nervous and sweating despite the fact that it was a cool day.
The officer admitted the defendant was "not aggressive," but nevertheless patted him down "for my safety." The patdown search uncovered a baggie containing narcotics. (Id. at pp. 954-955.)
The appellate court found that the patdown search could not be justified based on the fact 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, or (4) because baking powder was found in a film canister. (Dickey, supra, 21 Cal.App.4th at p. 957.) The court held that these circumstances, individually or together, did not create a reasonable suspicion the defendant might be armed and dangerous. (Id. at pp. 956-957.) The court also rejected the premise that the defendant's alleged "moving around in the driver's seat" amounted to a suspicious "furtive gesture." (Id. at p. 956, fn. 2.)