Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TJ15893. Mark Frazin, Juvenile Court Referee.
Steve Cooley, District Attorney, Phyllis C. Asayama and Jennifer C. McDonald, Deputy District Attorneys, for Plaintiff and Appellant.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Respondent.
COOPER, P. J.
This is an appeal by the People from the juvenile court’s grant of Luis R.’s motion to suppress evidence -- a gun found in his front pocket. We conclude the juvenile court correctly applied Terry v. Ohio (1968) 392 U.S. 1 (Terry) and concluded that a search for identification was not appropriate grounds for a search absent probable cause to arrest. But the juvenile court also should have considered whether the search was incident to a lawful arrest. We reverse the juvenile court’s order and remand the case to the juvenile court to consider whether there was probable cause to arrest Luis prior to the search.
PROCEDURAL BACKGROUND
In a Welfare and Institutions Code section 602 petition, Luis was charged with possession of a firearm by a minor in violation of Penal Code section 12101, subdivision (a)(1) and with having a concealed weapon in violation of Penal Code section 12025, subdivision (a)(2). Luis filed a motion to suppress evidence under Welfare and Institutions Code section 700.1. The juvenile court granted Luis’s motion and dismissed the case. The Attorney General appealed from that order. The appeal is proper pursuant to Welfare and Institutions Code section 800, subdivision (b)(1).
FACTUAL BACKGROUND
I. Facts In the Light Favorable To the People
At a hearing Deputy Sheriff Kevin Johnson testified that on May 26, 2006, at approximately 10:00 a.m. he was patrolling the Artesia transit station. He was there to do a “truancy sweep for juveniles.” Johnson noticed Luis because Luis appeared to be a minor. Johnson asked Luis if he was going to school and if he had a metro pass. Luis responded “no” to each question. Johnson asked where he went to school and Luis responded Jordan High. Johnson asked Luis to step over to a railing. Not having a metro pass is a violation for which Johnson previously cited people.
Johnson asked Luis for identification in order to determine his age, but Luis did not have any identification. Johnson then decided to do a cursory search for weapons. Prior to conducting the search, Johnson asked Luis if he had anything illegal. At the time Johnson asked Luis if he had anything illegal, Johnson was holding Luis’s hands. Luis responded, “yes, I have a gun in my pocket.” Johnson then searched Luis and found a .25 caliber handgun. Johnson testified that the cursory search was for his protection. He also testified that Luis gave his consent when Officer Johnson retrieved the gun.
II. Facts In the Light Favorable to Luis
When Luis said that he did not have a metro pass and because he looked like he was a minor, Johnson asked him to step over to the railing. “It is custom with us, if someone doesn’t have any type of identification, we do a cursory search.” Johnson conducted a cursory search because Luis “didn’t have an I.D.” When Johnson asked him to step to the railing he “was going to do a cursory search. Customarily, we have them put their hands behind their backs. I had my hands clasped with both of his and asked, ‘do you have anything illegal in your possession?’ ” Johnson did not see anything that would suggest Luis had a gun until Luis told him.
The purpose of the detention was to identify Luis. Johnson was not citing him pursuant to an arrest. When Johnson retrieved the gun from Luis’s pocket, Luis was handcuffed.
III. Juvenile Court Findings
The court stated that “the only issue, to me, is whether or not -- whether the patdown was reasonable. I don’t believe it was an illegal detention or detention that had exceeded the limit . . . .” The court found “[t]he police officer clearly indicated that . . . what he did was he took the minor . . . to a railing area and placed his hands . . . behind his back, held on to the minor’s hands and proceeded to initiate a pat down. Prior to the patdown, he asked the minor if he had any weapons, and the minor indicated that he did, and then he retrieved the weapon.”
The court found the patdown “exceeded the detention.” The officer did not state that he patted down the individual because of concern for “officer’s safety.” It was unreasonable to patdown a person for weapons just because the person did not have any identification.
DISCUSSION
Police may detain a suspect “based only on a ‘reasonable suspicion’ that the suspect has committed or is about to commit a crime.” (People v. Bennett (1998) 17 Cal.4th 373, 387.) The parties do not dispute the reasonableness of the initial detention. The juvenile court found the detention to be appropriate and it is supported by evidence that Luis did not have a metro pass (Pen. Code § 640) and that he had a youthful appearance but was not in school at 10:00 a.m. (Educ. Code § 48200). A violation of Penal Code section 640 is punishable by a fine not to exceed $250 and by community service. (Pen. Code § 640, subd. (a).) A violation of Education Code section 48200 may subject a student to an arrest. (Educ. Code § 48264.)
The issue is on appeal is whether the patdown search was consistent with the Fourth Amendment. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” (U.S. Const., 4th Amend.) It is made applicable to the states through the Fourteenth Amendment. (Maryland v. Pringle (2003) 540 U.S. 366, 369.)
“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. [Citation.] 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. Hoyos (2007) 41 Cal.4th 872, 891; see also People v. Hester (2004) 119 Cal.App.4th 376, 385.)
I. Substantial Evidence Supports The Juvenile Court Finding That the Search Violated The Principles of Terry v. Ohio (1968) 392 U.S. 1
Terry v. Ohio (1968) 392 U.S. 1 (Terry), a landmark case applying the Fourth Amendment, considered the narrow question of “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.” (Terry, supra, 392 U.S. at p. 15.) Terry instructed that absent probable cause, a “stop and frisk” search is permissible “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others . . . .” (Id. at pp. 12, 24.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Id. at p. 27.) Terry established a two-part inquiry in determining whether a search is reasonable: “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (Id. at p. 20.)
A. A Search For Identification Is Not Legitimate Under Terry
Here Officer Johnson gave conflicting testimony regarding the basis for his search of Luis. Johnson testified that the search was conducted because Luis did not have identification. But Johnson also testified that the search was for weapons only. In light of this conflicting testimony, the juvenile court could have credited Johnson’s testimony that it was the custom to search a minor who did not have identification. A search for identification violates the Fourth Amendment as the juvenile court correctly determined. (People v. Garcia (2006) 145 Cal.App.4th 782, 787.)
B. Luis’s Statement That He Had A Gun Does Not Show the Search at Its Inception Was Proper
Citing People v. Uribe (1993) 12 Cal.App.4th 1432 (Uribe), the People argue that “[a]lthough Deputy Johnson testified that it was his custom to search all detainees who failed to produce identification, a practice which is clearly not in step with the protections of the Fourth Amendment, his subjective intent is irrelevant in the analysis.” Several cases have held that an officer’s subjective intent in conducting a traffic stop does not render an otherwise lawful stop unreasonable. (Id. at p. 1438; People v. Parnell (1993) 16 Cal.App.4th 862, 875 (Parnell); People v. Miranda (1993) 17 Cal.App.4th 917, 926.) For example, if the officer thought he might find cocaine and stopped a car for making an illegal u-turn and an unsafe lane change, the valid stop was okay even if there were an ulterior motive for the stop. (Uribe, supra, 12 Cal.App.4th at p. 1438.)
In Uribe, it was undisputed that the officer had had a valid and an invalid rationale for the stop. (Parnell, supra, 16 Cal.App.4th at p. 874 [prior to the stop defendant committed two traffic violations].) However, here -- the court found Johnson searched Luis for identification, which the People acknowledge was invalid. In contrast to Uribe, the facts found by the juvenile court here indicated that at the time Johnson decided to search Luis, the only reason for the search was for identification. At that time, there was no objectively reasonable basis to believe that Luis was armed. Johnson did not see anything that would suggest Luis had a gun until Luis told him of the gun. The distinction between this case and Uribe is significant because it renders this case more analogous to People v. Medina (2003) 110 Cal.App.4th 171 (Medina) than to Uribe. In Medina, the defendant’s statement that he had a rock in his pocket did not absolve the taint from the initial improper decision to restrain and search Medina. “Because the decision to restrain Medina’s hands and search him was based solely on his presence in a high crime area late at night, both the detention and the search were unlawful.” (Id. at p. 178.) Under the facts as interpreted by the juvenile court and viewed in the light most favorable to Luis, Luis’s statement that he had a gun even though it was made prior to the actual search was made after Johnson restrained Luis and decided to search him for identification. The statement therefore was “obtained through the exploitation of the illegal search and seizure.” (Id. at p. 179.)
II. The Search May Have Been Proper Search Incident To An Arrest
The juvenile court’s analysis was correct as far as it went. However, Terry applies only where there is no probable cause for arrest. (United States v. Robinson (1973) 414 U.S. 218, 228 (Robinson).)
The juvenile court did not consider whether Johnson had probable cause to arrest Luis prior to the search. The issue is not forfeited because the prosecutor argued “if [the minor] is subject to [an] arrest, then he is subject to [be] search[ed], not even a patdown.” (See People v. Superior Court (2007) 151 Cal.App.4th 85, 94.) The prosecutor specifically was focused on the failure to provide identification, but the juvenile court rejected the entire theory that a search could be incident to a lawful arrest. The court also noted for the record that the prosecutor did submit a case which the court did not “believe to be on point” because “we had agreed that the arrest wasn’t the issue.” But there was no evidence that the prosecutor actually conceded that Luis was not subject to a lawful arrest prior to the search. The court should have considered arrest as an alternative basis for the search.
The court cited People v. Dickey (1994) 21 Cal.App.4th 952, for its disagreement with the prosecutor. The Dickey court applied Terry and found that the patdown search could not be upheld because there were no specific facts indicating the defendant was armed and dangerous. (Id. at p. 956.) However, Dickey did not consider the alternative ground of probable cause for arrest.
“[A] search may be made of the person of the arrestee by virtue of the lawful arrest.” (Robinson, supra, 414 U.S. 218 at. p. 224.) “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” (Id. at p. 234.) “It is the fact of the lawful arrest which establishes the authority to search . . . .” (Id. at p. 235.) A search incident to arrest may be proper even where the violation carries only a small fine. (People v. McKay (2002) 27 Cal.4th 601, 605.) The search may be before the arrest. (People v. Simon (1955) 45 Cal.2d 645, 648; Rawlings v. Kentucky (1980) 448 U.S 98, 111.) The validity of the arrest cannot depend on items found in the search. (U.S. v. Han (4th Cir. 1996) 74 F.3d 537, 541.)
Johnson expressly testified that the search was not incident to an arrest. Notwithstanding his testimony, the appropriate test of whether a search is incident to an arrest is an objective one. The United States Supreme Court recently held “an action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ [Citations.] The officer’s subjective motivation is irrelevant.” (Brigham City, Utah v. Stuart (2006) __ U.S. ___, [126 S.Ct. 1943, 1948].) In assessing probable cause we also apply an objective test. (People v. Limon (1993) 17 Cal.App.4th 524, 539.) “ ‘Probable cause for arrest exists “when the facts known to the arresting officer ‘would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ ” (Id. at p. 537.)
It is clear that Johnson found the gun after the search and therefore it cannot serve as the basis for the lawful arrest. Luis’s statement that he had a gun was after Johnson had restrained him (and possibly handcuffed him). As explained above, absent probable cause to arrest Luis, this case is indistinguishable from Medina, supra, 110 Cal.App.4th at page 175. However, if there were probable cause to arrest Luis prior to the search, this case is distinguishable from Medina in that an alternative basis for the search would exist.
Therefore the critical questions are whether Johnson had probable cause to arrest Luis and searched him prior to a lawful arrest. Although the parties debate this issue in this court, we conclude that it should first be considered by the juvenile court. While we have rejected Luis’s argument that the issue is forfeited, Luis’s argument that he did not have sufficient opportunity to litigate the issue is persuasive because the juvenile court narrowed the issue to whether “the patdown was reasonable.”
DISPOSITION
The order suppressing the gun found in Luis’s pocket is reversed. The case is remanded to the juvenile court. If the court finds there was probable cause to arrest Luis prior to the search based either on his absence from school or his failure to have a metro pass, it should deny Luis’s motion to suppress. If the court finds no probable cause to arrest Luis prior to the search, it should grant Luis’s motion to suppress.
We concur: FLIER, J., EGERTON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.