Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ09013373
Pollak, Acting P. J.
After denial of his motion to suppress evidence, appellant F. G. entered an admission to one count of possession of a controlled substance. He was made a ward of the court and placed on probation. Appellant now renews his argument that the evidence against him was obtained during an unlawful detention and warrantless search. He also challenges a probation condition prohibiting him from carrying burglary tools. We conclude that the detention and search were lawful, but agree that the probation condition is problematic and should be modified.
BACKGROUND
At approximately 11:42 p.m. on August 29, 2009, Oakland Police Officer Michael Ricchiuto and his partner were driving on the 2200 block of International Boulevard in a marked police car when Ricchiuto noticed a person, later identified as appellant, wearing a blue belt and blue shoes. Ricchiuto testified that based on his training and experience, he understood that stretch of International Boulevard to be a “high narcotic, high gang activity area” associated with the Norteño street gang. Norteños commonly wear the color red. Ricchiuto also testified that members of the Sureño street gang, rivals of the Norteños, commonly wear the color blue to advertise their gang association.
In the preceding two weeks, the area where appellant was walking had been the site of extreme violence involving the Sureños. On August 18, a Sureño gang member was murdered near International Boulevard. Within five days, a Sureño murdered a member of another gang, allegedly in retaliation. In view of this recent history, Ricchiuto was surprised to see a person “wearing blue in a mostly red area.” Ricchiuto also noticed that as appellant walked, visibly wearing colors associated with the Sureño gang, he was continuously grabbing or checking his waistband. Concerned that appellant might be a Sureño gang member hiding a weapon as he entered territory “controlled” by a rival gang, Ricchiuto decided to approach appellant and investigate.
Ricchiuto and his partner pulled over and exited their police car without using sirens, emergency lights or the vehicle’s P.A. system. They approached appellant without drawing their guns or shouting commands, and asked him where he lived. Appellant appeared nervous, his hands were shaking and he “couldn’t give [the officers] a straight answer.” At this point, Ricchiuto decided to do a patsearch for weapons, and asked appellant to place his hands behind his head.
Using the “grasping hand” method, Ricchiuto began to search appellant’s outer clothing. Concerned that appellant might be carrying razor blades or other small weapons, Ricchiuto felt the coin pocket of appellant’s jeans. While doing so, he felt “a slippery bag which contained a powdery substance” that he recognized to be cocaine. Ricchiuto handcuffed appellant and placed him under arrest. He then conducted a more thorough search and discovered cocaine and marijuana in appellant’s coin pocket.
PROCEDURAL HISTORY
A petition filed in Alameda County Superior Court alleged that appellant violated Health & Safety Code section 11350, subdivisions (a) and (b) (possession of controlled substances) and section 11357, subdivision (b) (possession of less than one ounce of marijuana), bringing him within the court’s jurisdiction under Welfare and Institutions Code section 602, subdivision (a). Appellant moved to suppress the confiscated drugs under Welfare and Institutions Code section 700.1. On October 6 the court heard and denied the motion. Appellant then admitted to possession of cocaine in violation of section 11350, subdivision (a), and the other charges were dismissed.
Appellant was declared a ward of the court and placed on probation. Included in the probation conditions announced orally by the court is the requirement that appellant not possess burglary tools, to which appellant timely objected. Although no such condition is included in the written minute order, the parties assume that the prohibition remains a condition of probation. Appellant has timely appealed the denial of his suppression motion and imposition of the probation condition.
DISCUSSION
I.
The Fourth Amendment guarantees to all people the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (U.S. Const., 4th Amend.) Although an officer can detain an individual during the course of an investigation without probable cause to make an arrest, such a detention may not exceed the limits imposed by the Fourth Amendment. (Terry v. Ohio (1968) 392 U.S. 1, 22 (Terry).) Any evidence procured during the course of an illegal detention must be suppressed. (People v. Gallant (1990) 225 Cal.App.3d 200, 206.)
A detention has occurred when, “ ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” (In re Kemonte H. (1990) 223 Cal.App.3d 1507, 1511.) Appellant’s detention began when Ricchiuto asked him to place his hands behind his head, not when Ricchiuto first approached him on the street. (See People v. Rivera (2007) 41 Cal.4th 304, 309 [“law enforcement officers may approach someone on the street... and converse if the person is willing to do so”]; United States v. Mendenhall (1980) 446 U.S. 544, 554.)
“On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court’s ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court that are supported by substantial evidence and independently determine whether the facts support the court’s legal conclusions.” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739.)
A.
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) The “relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty, ’” and a defendant’s lawful actions, when considered as a whole, may provide an officer with the reasonable suspicion of criminal activity needed to detain a suspect. (United States v. Sokolow (1989) 490 U.S. 1, 9-10.)
Ricchiuto testified to three specific facts that he considered suspicious: appellant’s display of blue shoes and a blue belt, colors associated with the Sureño street gang, as he walked through an area “controlled” by a rival gang; his conduct in “checking his waistband continuously”; and his nervous demeanor and inability to “give a straight answer” when approached and questioned by the police. The trial court deemed these facts sufficient to give rise to reasonable suspicion, relying primarily on appellant’s display of Sureño gang colors in an area associated with the rival Norteño gang.
Appellant correctly argues that “mere membership in a criminal street gang” cannot by itself support an inference of criminal activity sufficient to justify a detention. (People v. Hester (2004) 119 Cal.App.4th 376, 392.) Furthermore, the fact that appellant was present late at night in a “high narcotic, high gang activity area” offers only weak support for a detention. (People v. Bower (1979) 24 Cal.3d 638, 645.) As the Bower court emphasized, “Many citizens of this state are forced to live in areas that have ‘high crime’ rates or they come to these areas to shop, work, play, transact business, or visit relatives or friends.” (Ibid.) There is nothing inherently suspicious about such activity.
Appellant argues that the time of day at which a detention occurs is also of limited importance in determining whether that detention is objectively reasonable. (See People Bower, supra, 24 Cal.3d at p. 645 [“No reasonable suggestion of criminality is added by the fact it was dark when the officer observed appellant.”].) Ricchiuto, however, did not appear to rely on this factor when deciding to detain appellant.
Nonetheless, these factors are not to be considered in isolation. When placed in the context of the other facts mentioned by Ricchiuto, we agree with the trial court that they provided ample grounds for a reasonable suspicion that appellant might be engaged in criminal activity. There had been two violent incidents involving Sureño gang members in the area in the past two weeks. These recent murders reinforced Ricchiuto’s concern that appellant “possibly was concealing a weapon and going into [an] opposing gang area.” Ricchiuto testified that appellant’s display of Sureño colors was “not at all” common in the area: “[T]his is mostly a Norteño area. Everybody there generally wears red.” Moreover, Ricchiuto testified that he observed appellant “checking his waistband continuously” as he walked, which concerned the officer because “that’s generally where people hide weapons... [such as] a gun, knife, or anything like that.” (See People v. Lee (1987) 194 Cal.App.3d 975, 983.) Finally, Ricchiuto testified that appellant appeared extremely nervous when approached, that his hands were shaking and that he “couldn’t give a straight answer” when asked to state his residence. While mere nervousness in responding to police questioning may not in itself be highly unusual or probative of illegal activity (Illinois v. Wardlow (2000) 528 U.S. 119, 124), it is a factor to be considered and in some circumstances may support a suspicion of wrongdoing. (See Florida v. Rodriguez (1984) 469 U.S. 1, 4, 6 [two defendants incorrectly identifying themselves contributed to officers’ reasonable suspicion].)
Considering these circumstances together, appellant’s behavior set him apart from others in this particular part of Oakland, allaying any concern that the officer was simply exploiting general gang activity in the neighborhood to justify an indiscriminate and abusive Terry stop. (People v. Bower, supra, 24 Cal.3d at p. 645; see Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion (1999) 60 Ohio L.J. 99, 127-132.)
Appellant contends that two relatively recent cases support his argument that the detention was unjustified: People v. Perrusquia (2007) 150 Cal.App.4th 228 and People v. Hester, supra, 119 Cal.App.4th 376. Both cases are distinguishable. In Perrusquia, police officers were briefed in the morning about a series of armed robberies at local 7-Eleven stores and instructed to monitor the stores. On patrol, the officers noticed a car parked with its engine idling next to the exit of an open 7-Eleven. The driver was crouched low in his seat, and as the officers approached he began fumbling and appeared to drop something to the floor of his car. He then exited the vehicle and quickly moved towards the store, at which point the officers detained him. (People v. Perrusquia, supra, at pp. 230-232.) The court held that these facts did not justify the detention (id. at p. 234), but as pointed out by another court, “In Perrusquia, factors unrelated to the defendant-the nature of the location and the recent string of robberies-formed the primary basis for the officer’s detention of the defendant” (In re H.M. (2008) 167 Cal.App.4th 136, 148). The defendant’s presence at the 7-Eleven and his exit from the vehicle were not suspicious activities on his part that could justify a reasonable suspicion that he was engaged in illegal conduct. Here, in contrast, it was appellant’s unusual behavior in the high crime area-the colors he wore, constant grabbing at his waistband, and an inability to answer questions in a straightforward manner-that provided reason to suspect appellant in particular and to justify his detention.
In Hester, officers stopped a vehicle at night after spotting someone they believed to be an associate of the East Side Crips street gang in the car. The officers were aware that a drive-by shooting had occurred earlier that day, and the East Side Crips were believed to have been involved. Suspecting that the occupants of the car might all be East Side Crips and armed, the officers stopped the vehicle. (People v. Hester, supra, 119 Cal.App.4th at pp. 383-384.) The Hester court noted that the only particularized behavior that the officers relied on in justifying the stop was the presence of one suspected member of a street gang in the vehicle, and it held that the detention was unreasonable. (Id. at p. 392 [“Mere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention.”].) Here again, however, Ricchiuto did not rely solely on appellant’s gang affiliation. Appellant’s display of Sureño colors in an area controlled by a rival gang, his constant grabbing at his waistband and nervousness when approached by the police together constituted unusual behavior that, when considered in light of the character of the neighborhood and the recent shootings involving Sureño gang members, supported Ricchiuto’s reasonable suspicion that appellant might be engaged in criminal activity and carrying a weapon.
B.
When conducting a Terry stop, an officer who justifiably believes that the person he has detained is potentially armed and dangerous may conduct a limited search for concealed weapons. (Adams v. Williams (1972) 407 U.S. 143, 146.) “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” (Ibid.) An officer in such a situation can pat down a suspect’s outer clothing to feel for weapons without exceeding the Fourth Amendment’s restrictions. (Terry, supra, 392 U.S. at pp. 24-25.)
On the other hand, an officer can search the inside of a suspect’s pocket for contraband only as an incident to arrest which (absent an arrest warrant) must be supported by probable cause. (People v. Limon (1993) 17 Cal.App.4th 524, 536.) “[P]robable cause may be furnished by the officer’s actual tactile perception of narcotics during a pat-search for weapons... or by the officer’s identification of an item which, when coupled with other circumstances, creates a reasonable inference that the item is contraband.” (People v. Valdez (1987) 196 Cal.App.3d 799, 806.) If a police officer conducts a pat-search and “feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified.” (Minnesota v. Dickerson (1993) 508 U.S. 366, 375-376.) If the identity of the object as contraband is not immediately apparent, any expansion of the search “beyond what is necessary to determine if the suspect is armed... is no longer valid under Terry and its fruits will be suppressed.” (Id. at p. 373 [identity of lump in suspect’s jacket not immediately apparent where officer manipulated the object to determine whether lump was contraband]; accord, People v. Collins (1970) 1 Cal.3d 658, 662 [feeling a “soft object” in a suspect’s pocket generally will not support further investigation].)
Ricchiuto testified that after detaining appellant, he employed the “grasping hand” method to feel appellant’s outer clothing for weapons. He used the same technique to check appellant’s coin pocket, based on his knowledge “that generally people keep razor blades and small weapons in there.” At that point he “felt a slippery bag which contained a powdery substance which [he] recognized to be cocaine.” Ricchiuto was trained in identifying narcotics by touch (including through denim) and he had participated in searches involving powder cocaine five to seven times on the street and numerous times in the police academy.
Appellant asserts that there were no other circumstances to support Ricchiuto’s determination that the substance he felt was cocaine, but if the officer’s testimony is accepted, no other circumstances are required. (See People v. Valdez, supra, 196 Cal.App.3d at p. 806.) Appellant contends that Ricchiuto was unable to distinguish cocaine from some other powdery substance through appellant’s jeans, but this contention simply contradicts the officer’s testimony and finds no support in the record. The fact that Ricchiuto testified on cross-examination that he had a “pretty good idea” what the substance was does not undermine the validity of the search. The standard is whether Ricchiuto had a reasonable belief that the substance was contraband and therefore had probable cause to arrest appellant for possession, not whether he was unequivocally certain that the bag contained cocaine. (See People v. Dibb (1995) 37 Cal.App.4th 832, 835-837.) Nothing in the record indicates that Ricchiuto was “engaging in fanciful speculation” about the nature of the substance that he felt. (People v. Lee, supra, 194 Cal.App.3d at p. 984.) Rather, he “formed a definite belief based on articulable facts and on considerable training and experience in the tactile characteristics” of powder cocaine. (Ibid. [upholding officer’s search based on his experience and training in recognizing balloons filled with narcotics by touch].)
Finally, appellant argues that the “grasping hand” technique of searching for weapons is inherently unconstitutional because it allows an officer to manipulate the contents of a suspect’s pockets as part of the initial patsearch, thus sanctioning a warrantless intrusion into the inside of a person’s pocket without the necessary probable cause. (See Minnesota v. Dickerson, supra, 508 U.S. 366.) Terry and its progeny authorize a “careful exploration of the outer surfaces of a person’s clothing.” (Terry, supra, 392 U.S. at p. 16; People v. Dibb, supra, 37 Cal.App.4th at pp. 835-836.) This articulation echoes Ricchiuto’s description of the “grasping hand” method as simply “feeling the outer clothing for any kind of weapon.” Furthermore, Terry did not purport to establish the limits of a permissible pat-down. When an officer reasonably believes that a suspect may be armed and dangerous, it would be “ ‘unreasonable to deny [him] the power to take necessary measures to determine whether the person is in fact carrying a weapon.’ ” (People v. Ritter (1997) 54 Cal.App.4th 274, 279 [quoting Terry, supra, 392 U.S. at p. 24.].) As this court pointed out over 20 years ago in rejecting a similar challenge, “[r]ecognizing that the purpose of the patdown is to dispel the suspicion that a person is armed, it seems to us that something more is contemplated than a gingerly patting of the clothes.... [I]n order to rule out the presence of a weapon the officer may have to determine an object’s ‘weight and consistency.’ [Citation.] We fail to see how this can be accomplished without using some sort of gripping motion.” (People v. Lee, supra, 194 Cal.App.3d at p. 985.)
Ricchiuto’s use of the “grasping hand” technique was “ ‘reasonably designed to discover... hidden instruments” such as razor blades or other small objects. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237.) The record contains no evidence that Ricchiuto did not recognize the apparent nature of the substance in appellant’s pocket from his initial touching, without any further manipulation or intrusion into the pocket. The method used by Ricchiuto to search appellant for weapons, therefore, was not inherently unconstitutional. As the patsearch otherwise complied with constitutional standards, the trial court properly denied appellant’s motion to suppress.
II.
Appellant argues that the probation condition imposed by the juvenile court prohibiting him from carrying burglary tools is invalid under the test set out by the California Supreme Court in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292. He also argues that the condition is unconstitutionally vague. Juvenile court probation orders are reviewed for abuse of discretion. (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)
Welfare and Institutions Code section 730, subdivision (b) authorizes a juvenile court to “impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” A condition of probation is invalid if it (1) has no relationship to the offense for which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.) Thus, if a condition forbids conduct that is otherwise lawful, the condition must either have some relationship to the offense that the minor committed or be reasonably related to potential future criminal behavior. (Ibid.) Additionally, probation orders must comply with due process standards. Due process requires that a probation condition provide the probationer with a standard of conduct specific enough for him “to know what is required of him, and for the court to determine whether the condition has been violated.” (People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325.)
Although the Lent test was formulated with respect to adult offenders, juvenile court probation orders are governed by the same standards (In re Josh W., supra, 55 Cal.App.4th at p. 6), except that juvenile courts generally have somewhat broader discretion in formulating appropriate probation conditions (In re R.V. (2009) 171 Cal.App.4th 239, 246-248; In re Frankie J. (1988) 198 Cal.App.3d 1149, 1153). A juvenile court must take both the minor’s offense and his social history into account in formulating probation conditions. (In re R.V., supra, at p. 246.)
Appellant contends that the challenged condition fails to comply with the Lent test and that it is unconstitutionally vague. It is clear that the challenged probation condition is not justified by the first Lent factor: it has no relationship to the drug offense upon which the determination of wardship was based. It is also doubtful whether the condition can be justified under the third Lent factor, that it be reasonably related to future criminality. To support a probation condition under this rationale, “[t]here must be some rational factual basis for projecting the possibility that [the] defendant may commit a particular type of crime in the future.” (In re Martinez (1978) 86 Cal.App.3d 577, 583.) In Martinez, the court invalidated a condition subjecting an adult probationer convicted of battery on a police officer to warrantless searches because “nothing in the defendant’s past history or in the circumstances of the offense indicate a propensity on the part of the defendant to resort to the use of concealed weapons in the future.” (Ibid.) Similarly, appellant here had no prior juvenile record and his possession of drugs provides little rational support for projecting that he will engage in burglary in the future. The Attorney General seeks to distinguish Martinez on the grounds that the present case involves a juvenile probation condition, giving the court broader discretion (In re Sheena K. (2007) 40 Cal.4th 875, 889), and that appellant’s admitted membership in a gang makes it more likely that he will become involved in other crimes, including burglary (see, e.g., People v. Lopez (1998) 66 Cal.App.4th 615, 626; People v. Leon (2010), 181 Cal.App.4th 943, 949-952 [upholding probation conditions restricting a defendant’s ability to associate with known gang members or otherwise participate in gang-related conduct as reasonably designed to prevent future criminal behavior]). We need not determine whether these distinctions are sufficient to uphold the challenged condition because we find other factors dispositive.
The Attorney General implicitly concedes that as it now reads the challenged condition is not authorized by the second Lent criterion because possession of burglary tools is not necessarily criminal. However, in responding to appellant’s vagueness argument, the Attorney General points out that “burglar tools” is defined by statute. (Pen. Code, § 466.) “If the statute gives fair warning before the commencement of criminal prosecution, ” the Attorney General argues, “it serves to provide fair notice to a juvenile probationer.” Although the Penal Code provision does specify a variety of tools that may well be readily recognized as burglary tools, the list also includes some common tools such as crowbars, screwdrivers and master keys, which cannot be so identified, as well as an open-ended reference to “other instrument[s] or tool[s].” Most importantly, the possession of such tools is unlawful only if the possessor has the “intent feloniously to break or enter into” a building or other structure. (Pen. Code, § 466.) The condition as stated by the trial court does not fairly advise appellant what he may not possess because the condition is not limited to tools that appellant knows are intended to be used to facilitate a burglary.
Penal Code section 466 reads in relevant part: “Every person having upon him or her in his or her possession a picklock, crow, keybit, crowbar, screwdriver, vise grip pliers, water-pump pliers, slidehammer, slim jim, tension bar, lock pick gun, tubular lock pick, bump key, floor-safe door puller, master key, ceramic or porcelain spark plug chips or pieces, or other instrument or tool with intent feloniously to break or enter into any building... is guilty of a misdemeanor.”
The Attorney General readily acknowledges that “if this court believes that additional protection is necessary, it may modify the condition to include knowledge by appellant that the possessed instruments are burglar tools, ” citing In re Victor L. (2010) 182 Cal.App.4th 902 and People v. Leon, supra, 181 Cal.App.4th 943. Appellant’s reply brief similarly states, “If this court upholds imposition of the no burglar’s tools condition of probation, appellant agrees and asks the court to impose [a scienter or knowledge] element.” Modifying the condition to prohibit appellant from possessing any tools or other instruments that he knows are intended to be used to unlawfully break or enter into the property of others will resolve appellant’s objections both to the breadth of the condition and to its compliance with the Lent test. So restricted, the condition will prohibit only illegal activity, bringing it within the Lent standard and avoiding vagueness concerns. (See, e.g., People v. Lopez, supra, 66 Cal.App.4th at p. 629 [modifying condition prohibiting defendant from associating with gang members to require knowledge that the person is a gang member]; People v. O’Neil (2008) 165 Cal.App.4th 1351, 1356-1358.)
DISPOSITION
The matter is remanded with directions to modify the condition of probation prohibiting appellant from carrying burglary tools to prohibit appellant from possessing any tools or other instruments that he knows are intended to be used to unlawfully break or enter into the property of others. In all other respects the jurisdictional and disposition orders are affirmed.
We concur: Siggins, J., Jenkins, J.