Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JW08-6276
Margulies, J.
A police officer responded to a radio report that two young Black males, both dressed in dark clothing, had broken into a car. The officer and his partner soon spotted appellant, who was dressed in dark jeans and a white T-shirt, standing a block from the crime scene with two other Black youths wearing dark clothing. As the police approached them, the young men began walking away. When the officer eventually stopped appellant for questioning, he spotted a pistol in appellant’s waistband. Appellant contends that he was detained without reasonable suspicion. We affirm.
I. BACKGROUND
The San Francisco District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a) alleging possession of a concealable firearm by a minor (Pen. Code, § 12101, subd. (a)(1)(c)) and carrying a loaded firearm while in a public place (Pen. Code, § 12031, subd. (a)(2)(D)).
San Francisco Police Officer Steven Needham testified that on April 13, 2008, he received a radio report of an auto burglary. He and his partner, Officer Minkel, drove to the general area of the 1400 block of Webster Street, where the auto burglary occurred. The report described the suspects as two Black male juveniles wearing dark clothing. Within five minutes after receiving the call, the officers saw three Black youths about a block away from Webster Street. Two were wearing all-dark clothing and the third, appellant, was wearing dark jeans and a white T-shirt.
When they saw the officers stop and leave their patrol car, the three youths began walking in the opposite direction. Needham and Minkel walked after them at a brisk pace. As they walked, the three youths turned around occasionally to look at the officers. The group soon split, one youth going in a different direction from the other two. Needham followed the pair, while Minkel walked after the individual. Within a minute, the remaining pair also split up. Needham followed appellant, assuming other officers would pick up the second youth.
After appellant turned again to look behind him, Needham sped up and called to him. Appellant stopped walking and turned without speaking to face the officer. When Needham was about five feet from appellant, he asked appellant whether he had any weapons. Appellant did not respond. As Needham conducted a “body scan” of appellant, looking him up and down, he noticed an “unusually large bulge in [appellant’s] waistband” under his T-shirt. When Needham reached out and touched the bulge, he immediately recognized it as the handle guard of a pistol. He pushed appellant to the ground and recovered the pistol.
Appellant moved to suppress evidence of the pistol on the foregoing record. After the juvenile court denied the motion, appellant admitted that he had violated Penal Code section 12101, subdivision (a)(1), being a minor in possession of a concealable firearm.
II. DISCUSSION
Appellant contends that his motion to suppress evidence of the firearm should have been granted because the officer lacked reasonable suspicion to detain him.
“The federal Constitution’s Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. . . . ‘A seizure occurs whenever a police officer “by means of physical force or show of authority” restrains the liberty of a person to walk away.’ [Citation.] . . . [¶] When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] . . . [¶] But ‘not all seizures of the person must be justified by probable cause to arrest for a crime.’ [Citation.] In Terry v. Ohio [(1968) 392 U.S. 1], the United States Supreme Court created a limited exception that allows police officers to ‘stop and . . . frisk for weapons’ when they have an ‘articulable suspicion [the] person has committed or is about to commit a crime.’ [Citation.] Thus, an officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ‘ “some objective manifestation” that criminal activity is afoot and that the person to be stopped is engaged in that activity.’ [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 673–674.)
“The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.] [¶] . . . [T]o be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.” ’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ ” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
“ ‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ ” (People v. Brendlin (2008) 45 Cal.4th 262, 268.)
We conclude that, given all the circumstances, Officer Needham had a reasonable suspicion based on specific articulable facts that appellant had been involved in criminal activity. Appellant and his two companions fit the general description of the burglars—Black juveniles dressed in dark clothing. They were found within a block of the site of the burglary five minutes after the officers received the burglary report. As Needham and Minkel left their vehicle, the youths walked away, turning to watch the officers as they walked. When pursued, the youths split off, one-by-one, in a manner the officers could properly view as evasive. By the time Needham stopped appellant, the youths’ correspondence to the general description, the nearness in time and place, and their evasive conduct all supported a reasonable suspicion that they were involved in the car break-in. (See, e.g., People v. Souza (1994) 9 Cal.4th 224, 241 [evasive conduct]; People v. Conway (1994) 25 Cal.App.4th 385, 390 [nearness in time and place].)
Appellant first argues that the description of the burglars was too vague to be meaningful because the victim told a separate investigating officer merely that the burglars were Black, without specifying their age. What the victim told that investigator, however, is irrelevant to determining Needham’s reasonable suspicion because he had no direct contact with either the victim or that investigator. Instead, we must determine the reasonableness of Needham’s suspicion from the information provided in the radio report to which he was responding. (People v. Aldridge (1984) 35 Cal.3d 473, 478, superseded by statute on another ground as stated in People v. Souza (1994) 9 Cal.4th 224, 232.) The radio report described the burglars as juveniles.
Appellant also contends that the description, even if it is taken to include the burglars’ youth, was still too vague to support a detention. Reasonable suspicion, however, must be determined not merely from the description of the suspects, if any, but from all relevant circumstances. (People v. Wells, supra, 38 Cal.4th at p. 1083.) Needham relied not only on the description of the suspects but also on the fact that these youths, who fit the general description, were found a block from the crime scene, five minutes after the crime report, and acted in an evasive manner when approached. Taken together, these circumstances are adequate to support an investigatory stop. In re Tony C. (1978) 21 Cal.3d 888, superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733, relied on by appellant, lacked this additional context. The arresting officers had stopped youths who were on the street during school hours in a high crime neighborhood, following a report a day earlier that three Black males had committed a burglary (Tony C., at p. 896); unlike Needham, the officers in Tony C. could not cite the nearness in time, the more specific description, including age and clothing, or the evasive conduct.
Appellant argues that the youths’ conduct should not be viewed as evasive because they could have split off for innocent reasons—for example, to return to separate homes. The officer viewed their conduct as evasive, however, not merely because they split up but also because they walked away when approached and kept looking back as they walked. In any event, the mere fact that conduct is consistent with lawful activity does not disqualify its use if, under the circumstances, it could also raise suspicions. (People v. Conway, supra, 25 Cal.App.4th at p. 390.)
Appellant also argues that the description could have fit a large number of people, since the neighborhood’s residents are approximately 50 percent African-American and dark clothing is common. While this may be true, the relevant issue is the description together with the remaining circumstances. As discussed above, the description considered along with the other circumstances was sufficient.
Appellant points out that he personally did not fit the description provided. In making this argument, appellant claims that Needham testified that he was wearing blue jeans. In fact, Needham reported him as wearing dark-colored jeans. His pants therefore fit the general description. Although it is true his white T-shirt differed, he could readily have shed a dark jacket. The discrepancy is therefore not sufficient to render the officer’s suspicion unreasonable.
On the page of the transcript cited by appellant in support of his claim he was said to be wearing blue jeans, Needham testified that appellant “had a white t-shirt on and dark jeans.”
Appellant finally argues, citing Ybarra v. Illinois (1979) 444 U.S. 85, that because the victim reported only two youths, he was detained solely because he was in “mere propinquity to others independently suspected of criminal activity.” (Id. at p. 91.) Save for his white T-shirt, appellant fit the general description as well as the other two youths. The other factors relied on by the officers—nearness in time and place and evasive conduct—applied to him as well. Appellant was not detained merely because he was with the other youths; reasonable suspicion attached to him also.
Because we find grounds to support an investigatory stop, we do not reach the Attorney General’s argument that the officer’s conduct did not constitute a “detention” of appellant.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J. Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.