Opinion
G031550.
11-3-2003
In re JESUS M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JESUS M., Defendant and Appellant.
Turner Green Afrasiabi & Arledge, and Peter R. Afrasiabi under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court made Jesus M. a ward of the court[] after he admitted he possessed methamphetamine and a device for smoking methamphetamine in violation of Health and Safety Code sections 11364 and 11377, subdivision (a). He contends the juvenile court erred when it denied his motion to suppress evidence and when it ordered him not to associate with anyone of which his parents or probation officers disapproved, as a condition of his probation. We affirm the juvenile courts order.
Jesus was 17 at the time of the encounter with the officers. However, he turned 18 a couple of weeks after the arrest, which was his age at the time of the suppression hearing and change of plea.
FACTS
Around 1:00 a.m. in the middle of April 2002, Anaheim Police Officer Randy Adams saw Jesus, a minor, riding a bicycle with no headlight. The officer stopped Jesus because he was violating Vehicle Code section 21201, subdivision (d) as well as curfew. When Adams approached Jesus, he noticed that the minor kept putting his hands into his sweatshirt pocket. Adams told him to remove his hands and keep them visible to the officers. Jesus removed his hands, and then almost immediately replaced them into the pocket. This little interplay repeated itself two or three times, and on the third request to remove his hands, Jesus pulled the fabric taut as his hands came out. Adams could see a distinct bulge in the area of Jesuss waistband. Fearing the bulge was a weapon—a circumstance that Adams had personally encountered "many" times—he lifted Jesuss sweatshirt.[] The item was a glass pipe, protruding about five inches above the waistband, and Adams immediately recognized it as a "meth pipe," commonly used to smoke methamphetamine.
In this appeal, Jesus repeats his argument from below that Adams "had no idea what [the bulge] was[.]" The record reveals that Adams "believed it was a weapon." On cross-examination, he was asked "at the time you saw the bulge, you didnt know exactly what it was, correct?" Adams stammered, then said "I had no idea what it was. I had my beliefs but I didnt know what it was, no." Immediately thereafter, on redirect, he was asked why he believed it was a weapon. His response was, "its been my experience that oftentimes weapons are carried there, in the waistband, for quick access, and I have recovered many guns from peoples waistbands, many knives, clubs, hammers. . . ." The prosecutor inquired further, "Was there anything particular about the way the bulge looked that led you to think it might be a weapon?" Adams responded, "I believed that it was the butt of a gun sticking out. . . .[because] the handle, I mean I didnt notice it at first because his clothing was so baggy. I didnt conduct a pat down search of him because at the time I had an officer with me, and we outweigh him . . . ." As the lower court accepted Adamss belief of a weapon as a credible statement, we resolve any inconsistency in favor of that assessment. (See People v. Slaughter (1984) 35 Cal.3d 629, 638.)
The officers placed Jesus under arrest for possession of the meth pipe, and then searched him incident to that arrest. In Jesuss front pants pocket, Adams found a plastic baggie containing apparent methamphetamine.
From the time Adams approached Jesus until he was arrested, no more than five minutes transpired during which a brief conversation occurred concerning the lateness of the hour, the local curfew, Jesuss residence and his business at that hour. They also asked him whether he was on probation or parole.
DISCUSSION
Suppression Motion
Jesus argued that Adams had no right to lift his sweatshirt, irrespective of what Jesus was doing with his hands, because Adams failed to pat him down before proceeding any further. Moreover, he contends the officers unduly prolonged their conversation with him for the specific purpose of conducting an illegal search of his person. Thus, Jesus alleges the juvenile court erred when it denied his motion to suppress evidence.
In reviewing a denial of a suppression motion, we accept those trial court factual findings supported by substantial evidence. As to all assessments of credibility and resolutions of conflict, the magistrates findings must be upheld. (See People v. Laiwa (1983) 34 Cal.3d 711, 718.) We then exercise our own judgment as to whether, as a matter of law, those facts reflect the search or seizure was reasonable under the Fourth Amendment. (People v. Brown (1998) 62 Cal.App.4th 493, 496.)
Attacking the detention as unduly prolonged, Jesus proposes that Adams had only the authority to cite him for the traffic infraction and let him go on his way. (See People v. Miranda (1993) 17 Cal.App.4th 917, 926-927 ["when an officer makes such a traffic stop, the stop may last only so long as is reasonably necessary to perform the duties incurred by virtue of the stop."]; see also People v. McGaughran (1979) 25 Cal.3d 577, 581-582.) However, there is no evidence the detention was unduly prolonged: It lasted at the most five minutes, the majority of which was consumed with trying to get Jesus to keep his hands out of his front pockets, a normal and essential safety procedure. Secondly, the officers could not have released Jesus to go on his way: He was in violation of curfew being alone on the streets at that hour.
Finally, there was no proof that his bicycle light was even functional, a necessary condition before the bike could be legally ridden. As noted in Miranda, "[i]f the officer reasonably believes the vehicle is in a dangerously unsafe condition, then he or she may submit it to `appropriate "inspection" and "tests," and if the vehicle is exposed to danger, the officer may require the driver to proceed to a safer location before continuing the process. [Citation.]" (People v. Miranda, supra, 25 Cal.3d at p. 927.) But before Adams and his partner could test the bicycle, their safety was threatened by the weapon-like bulge in Jesuss waistband, which required their immediate attention. As Adams testified, he believed the item "was a weapon" as soon as he saw it. Nothing about the officers conduct was unreasonable.
As an alternative argument, Jesus contends the officers failed to voice the "specific and articulable facts" essential to support a pat down for weapons. (See Terry v. Ohio (1968) 392 U.S. 1, 21.) Even if they had, Jesus argues, the officers searched Jesus without conducting the acceptable pat down for weapons. Due to the officers failure to employ the less invasive procedure of a pat down, the pipe and subsequently seized methamphetamine should have been suppressed.
In determining whether a detention and pat down are justified, we must take into account "the totality of the circumstances" surrounding the incident (People v. Souza (1994) 9 Cal.4th 224, 231), including "the reasonable inferences which [the officer] is entitled to draw from the facts in the light of his experience." (People v. Ray (1999) 21 Cal.4th 464, 477.) Additionally, we are aware that "[c]ircumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.]" (People v. Russell (2000) 81 Cal.App.4th 96, 101-102.)
Jesuss own conduct necessitated the officers reaction. His repeated failure to comply with the most basic request would have prompted even a rookie officer to question his noncompliance. When he pulled out his hands on the third request, thereby revealing a weapon-like bulge at the waistband, the officers had to respond immediately and definitively. The purpose of patting along the outside of clothing is to determine if there is any hard item present on the detained person that may be used as a weapon. Adams could see that there was such a hard item without frisking Jesus, and it was tucked in the waistband just like the "many guns" or knives he had discovered on detained persons in the past. That the item was something that could be used as a weapon was a reasonable inference to draw under these circumstances, considering Adamss experiences and the clearly defined shape of a hard item revealed by the stretched fabric.
Jesus relies on selected language from a series of cases, but they actually support the reasonableness of this seizure, excepting one.[] In People v. Fay (1986) 184 Cal.App.3d 882, an officer failed to pat the defendant before withdrawing a cellophane "lump" from Fays pants pocket. Had the officer patted him, the officer would have known the item could not have been a weapon. (Id. at p. 891.) However, the seizure was upheld as reasonable because the information the officer had at the moment he seized the baggie of heroin would have supported an arrest, based as it was on the reasonable inference that Fay was the second man involved in a narcotics sale as seen by an informant. This inference was substantiated by Fays act of reaching into his pocket after the officers approached, mimicking his codefendant who discarded heroin from his pants pocket upon eye contact with the officers. (Id. at p. 893.)
The one case comprising the exception is People v. Holt (1989) 212 Cal.App.3d 1200 in which an officer approached two illegally parked vehicles, one car and one van. Holt, the driver of the car, was leaning into the drivers window of the van, whose driver—a woman—was crying. The officer noticed Holt had a sheathed knife on his belt, and removed it to secure the safety of everyone involved. As he did so, he also noticed that a foil-wrapped ball was in Holts pants pocket. Because the officer inferred this generically wrapped item was contraband without basing that on any facts, the seizure of it was held unreasonable. (Id. at pp. 1206-1207.) Not only did the officer fail to articulate any reason for his belief that the ball was contraband, it failed to be contraband. It contained $2900 in bills, which became contraband only after the discovery of a baggie of methamphetamine. The presence of the drugs in the same proximity with the money then led to the inference that the drugs were possessed for the purpose of sales.
This case is clearly distinguishable from our own. For one thing, Adams testified he believed the item was a weapon based on similar past experiences. Thus, there was a factual basis for his belief. Moreover, the lower court found Adams to be entirely credible, while rejecting Jesuss conflicting testimony.
Similarly, in People v. Lee (1987) 194 Cal.App.3d 975, officers were justified in detaining Lee after an informant had related that one of twoor three men had offered to sell heroin. As the officers approached three men at the intersection, one of them yelled, "rollers!" This warning was known to the officers as a way of alerting others in the narcotics trade that police were in the area. At this shout, Lee turned and began to walk away. When the officers approached him, Lee reached inside his jacket, just as the officers had seen other narcotics traffickers do when withdrawing a gun. Telling him to freeze, the officers approached, patted him and immediately recognized that a clump of soft lumps was a stash of heroin-filled balloons. The seizure of the heroin was upheld because the officers experiences supported their sincere belief that what they felt was contraband. (Id. at pp. 983-984.) As stated in Lee, if the officer forms "a definite belief based on articulable facts and on considerable training and experience in the tactile characteristics of narcotics-filled balloons[,]" then the seizure of the contraband following a pat down for weapons is justified, even though the pat down eliminated any fear that a weapon was concealed. (Id. at p. 984.)
Adams, like the officers in Lee and Fay, reacted to his observations in a reasonable and justified way. Based on the clear delineation of a hard, weapon-like object stuck in Jesuss waistband and Adamss experiences with weapons stuck in the waistbands of other detainees, he was justified in seizing it without first patting the outside of Jesuss clothing. Anything less would have been more than just foolhardy.
Probation Conditions
Jesus contends the juvenile court imposed the non-association condition without proper limitations, such as a requirement that Jesus know the person belongs to the "prohibited" class. (See People v. Lopez (1998) 66 Cal.App.4th 615, 627-629.) The court verbally imposed the proper limitation when it ordered the probation conditions in Jesuss presence. The court specifically instructed him to "not associate with anyone that you know falls into any of these categories: Anyone on probation or parole or [who] is a gang member or anyone you know using drugs or selling illegal drugs."
A juvenile court has broad discretion in formulating conditions of juvenile probation and "may 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." (Welf. & Inst. Code, § 730, subd. (d).) A non-association clause worded in this fashion is a most reasonable condition for the probation of a young person caught with illegal drugs and paraphernalia.
A "probation condition `will not be held invalid unless it "(1) has no relationship to the crime of 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 . . . ." [Citation.]." (In re Frank V. (1991) 233 Cal.App.3d 1232, 1242, emphasis added.) This condition has a distinct relationship to the crime Jesus stands guilty of, and can inhibit or prevent future criminal conduct of the same variety. Thus, the condition cannot be held invalid.[]
Jesus argues that the transcript of the hearing is meaningless because the minute order and the probationers papers reflect the allegedly improper condition of non-association with anyone of whom his parents or the probation officer disapproves. We are not reviewing anything but the courts actual order, which we uphold. We suggest, however, that the superior court supervise its probation department to ensure the department conforms its paperwork to the courts orders.
The order of the juvenile court is affirmed.
WE CONCUR: OLEARY, J. and ARONSON, J.