Opinion
D057925
09-14-2011
In re GEORGE G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GEORGE G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. J225622)
APPEAL from an order of the Superior Court of San Diego County, Lawrence Kapiloff, Judge. Affirmed.
George G. (Minor) challenges the trial court's order denying his motion to suppress a switchblade knife and marijuana that a police officer found on his person after detaining him on the street as part of an investigation of a recent painting of gang graffiti in the vicinity of the detention. We affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Discovery of Graffiti and the Subsequent Detention and Search of Minor
Officer Brian Maddox of the Chula Vista Police Department's gang suppression unit was on patrol at approximately 9:00 p.m. when he noticed a cinderblock wall had been vandalized with gang graffiti that was not there the previous day. The graffiti was painted in an area in which the Vario Chula Vista criminal street gang operated; and the graffiti contained the letters VCV and two gang monikers, Clever and Looney.
After discovering the graffiti, Officer Maddox continued to patrol the area in his police car. Less than a block away from the graffiti, he spotted Luis J., whom he knew, based on previous encounters, to be Looney of the Vario Chula Vista criminal street gang. Minor was standing very close to Luis in a corner created by the wall of a convenience store and a dumpster. Both boys were 17 years old at the time and were wearing hooded sweatshirts and baggy shorts.
After recognizing Luis, Officer Maddox drove toward Luis and Minor, who then began to approach the police car. Officer Maddox asked Luis and Minor to sit on the curb and also asked them what they were doing. Luis said they were visiting a friend who lived in the area but was unable to identify the friend or state where they were going. Officer Maddox told Luis and Minor that he had discovered graffiti nearby and asked Luis if he had painted it. Luis said no. Officer Maddox scanned the area where Luis and Minor had been standing but found no spray paint cans, rollers or other items that might have been used to paint the graffiti.
Officer Maddox next decided to search Luis for weapons. He made this decision to ensure his safety, basing the decision on his knowledge that Luis was a member of the Vario Chula Vista criminal street gang, that he was in gang territory, and that gang members often carry weapons to defend themselves or to use offensively against others. In Luis's sweatshirt pocket, Officer Maddox found a homemade "slung shot" (a small mass of metal or stone attached to a chain or strap that can be used as a weapon). He then arrested Luis, performed a more thorough search, and discovered a small quantity of marijuana.
After arresting Luis, Officer Maddox asked Minor whether he had any weapons. Minor responded that in his sweatshirt pocket he had a "butterfly knife" (a foldable knife with a blade nearly four inches long that can be opened with a flick of the wrist). Officer Maddox then arrested Minor, performed a more thorough search, and discovered a small quantity of marijuana. B. The Trial Court Proceedings
The People filed a juvenile wardship petition against Minor (Welf. & Inst. Code, § 602, subd. (a)) alleging two counts: (1) Minor carried on his person a switchblade knife having a blade two or more inches long (Pen. Code, § 653k); and (2) Minor possessed not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). The People sought to have Minor declared a ward of the court.
Minor moved the trial court to suppress the switchblade knife and marijuana on the ground they were obtained by means of unlawful search and seizure. The court denied the motion.
After a contested hearing, the trial court sustained the allegations of the petition. At the subsequent dispositional hearing, the court declared Minor a ward of the court and placed him on probation. Minor filed a notice of appeal the following day.
The notice of appeal designates the trial court's order sustaining the allegations of the petition as the order being appealed. That order, however, is not appealable. (In re James J. (1986) 187 Cal.App.3d 1339, 1342-1343; In re Conley (1966) 244 Cal.App.2d 755, 760-762.) In accordance with the rule of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.405(a)(3); In re Kenneth J. (2008) 158 Cal.App.4th 973, 978, fn. 5), we shall deem the notice to have designated the dispositional order, which is appealable (In re Florance (1956) 47 Cal.2d 25, 27; In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138).
II
DISCUSSION
Minor argues the trial court erroneously denied his suppression motion. According to Minor, Officer Maddox lawfully could not (1) stop him because Officer Maddox did not have reasonable suspicion he was involved in recent criminal activity or (2) frisk him because Officer Maddox did not have reasonable suspicion he was armed and dangerous. Without such reasonable suspicion, Minor contends the evidence must be suppressed as having been obtained in violation of his right "to be secure . . . against unreasonable searches and seizures." (U.S. Const., 4th Amend.; see Mapp v. Ohio (1961) 367 U.S. 643, 655 ["all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"].) After setting forth the applicable standard of review, we will address these contentions. A. Standard of Review
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) B. The Detention and Frisk of Minor Did Not Violate the Fourth Amendment
We first address Minor's contention that Officer Maddox did not have sufficient grounds to stop and question him. The basic legal principles we must apply to determine whether the detention of Minor violated the Fourth Amendment are firmly established. A police "officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow))To justify a stop, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts," would " 'warrant a man of reasonable caution in the belief' that the [stop] was appropriate." (Terry v. Ohio (1968) 392 U.S. 1, 21, 22 (Terry).)An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity or is wanted for past criminal conduct. (United States v. Cortez (1981) 449 U.S. 411, 417 & fn. 2.) The level of suspicion required to justify an investigatory stop "is obviously less than that for probable cause" (i.e., a fair probability that evidence of crime will be found) and is also "considerably less than proof of wrongdoing by a preponderance of the evidence"; rather, "[t]he Fourth Amendment requires 'some minimal level of objective justification' for making the stop." (United States v. Sokolow (1989) 490 U.S. 1, 7.) When assessing the constitutional validity of an investigatory stop, a reviewing court "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing." (United States v. Arvizu (2002) 534 U.S. 266, 273.)
Applying these principles, we conclude Officer Maddox's detention of Minor did not violate the Fourth Amendment. Officer Maddox's discovery in Vario Chula Vista gang territory of gang graffiti that was not present the previous day indicated recent criminal activity (vandalism) had occurred in the area. (See Pen. Code, § 594, subd. (a) [defining vandalism to include defacement of real property with graffiti].) Less than a block away from the graffiti, Officer Maddox saw Luis, whom he knew to be a gang member and whose gang moniker (Looney) was included in the graffiti. Thus, as Minor concedes, it was reasonable for Officer Maddox to detain Luis because he had a particularized suspicion that Luis had recently committed a crime. It was also reasonable for Officer Maddox to suspect that Minor was involved in the vandalism, based on the additional facts that: (1) the graffiti contained another gang moniker (Clever); (2) Minor and Luis were the same age and were standing close together; (3) they wore similar baggy clothing capable of concealing spray paint cans or other items used to paint graffiti; (4) they were standing in a corner that suggested they were trying to avoid detection; and (5) Luis gave an evasive response when Officer Maddox asked what the boys were doing in the area. (See, e.g., Wardlow, supra, 528 U.S. at p. 124 [presence in high-crime area and evasive behavior are relevant factors in determining reasonable suspicion]; United States v. Lamela (1st Cir. 1991) 942 F.2d 100, 102 [wearing baggy clothing suitable for concealment of contraband, in combination with other factors, may raise reasonable suspicion]; In re Carlos M. (1990) 220 Cal.App.3d 372, 382 [defendant's proximity to suspect, shortly after and near scene of crime, justifies investigatory stop of defendant when crime committed by more than one person].) Thus, based on the totality of the circumstances, Officer Maddox lawfully could detain Minor and ask "a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (Berkemer v. McCarty (1984) 468 U.S. 420, 439.)
We reject Minor's contention that there was no reason for Officer Maddox to suspect Minor's involvement in the vandalism other than his presence with Luis and that such presence was insufficient to justify the detention. It is true, as Minor insists, that an individual's mere proximity to someone else suspected of criminal activity does not by itself give rise to reasonable suspicion the individual was also engaged in that activity. (People v. Pitts (2004) 117 Cal.App.4th 881, 888-889; In re Carlos M., supra, 220 Cal.App.3d at p. 382.) As explained in the text, however, in this case there was much more than mere proximity.
Having determined that Officer Maddox properly detained Minor, we now turn to Minor's contention that Officer Maddox did not have sufficient grounds to frisk him for weapons. As with the detention, the basic legal principles we must apply to determine whether the frisk violated the Fourth Amendment are also firmly established. When a police officer reasonably suspects a crime has been committed and the persons he has detained may be armed and dangerous, the officer may "conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." (Terry, supra, 392 U.S. at p. 30.) "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 . . . ." (Adams v. Williams (1972) 407 U.S. 143, 146.) To justify a frisk for weapons, the officer need not have probable cause to arrest the individual or "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." (Terry, at p. 27.) The officer's reasonable suspicion must be directed at the person to be frisked (Ybarra v. Illinois (1979) 444 U.S. 85, 94) and must be based on specific, articulable facts (Terry, at p. 21). As with an investigatory stop, the determination whether an officer had reasonable suspicion to frisk for weapons is based on the totality of the circumstances. (People v. Avila (1997) 58 Cal.App.4th 1069, 1074.)
Applying these principles, we conclude Officer Maddox could frisk Minor for weapons without violating the Fourth Amendment because several facts combined to raise a reasonable suspicion Minor might have been armed and dangerous. First, Minor was with Luis, a known member of the Vario Chula Vista criminal street gang, at night in gang territory less than a block away from the scene of a recent gang-related crime in which Luis was suspected of involvement. Since it is "common knowledge that members of criminal street gangs often carry guns and other weapons," "[w]hen an officer observes conduct giving rise to a reasonable suspicion an individual is involved in criminal activity, and that activity occurs in an area known for recent, violent gang crime, these facts together go a long way toward establishing reasonable suspicion the individual is armed." (In re H.M. (2008) 167 Cal.App.4th 136, 146, 147; see also In re Frank V. (1991) 233 Cal.App.3d 1232, 1241 [officer in gang neighborhood at night could frisk minor in company of person suspected of traffic violation who drove away from curb in front of house known for gang activity].) Second, Officer Maddox had found a weapon on Luis only moments before he asked Minor whether he had any weapons and then frisked him. When a police officer who is investigating a recent crime detains a suspect and another person with the suspect and finds a weapon on the suspect, the officer may ask the other person whether he has a weapon and also frisk him. (People v. Smith (1968) 264 Cal.App.2d 718, 721.) Third, Minor was wearing a hooded sweatshirt and baggy shorts that could easily conceal a weapon. The wearing of baggy clothing, when coupled with other suspicious circumstances, furnishes the requisite grounds to support a patdown for weapons. (People v. Collier (2008) 166 Cal.App.4th 1374, 1377, fn. 1.) Hence, under the totality of the circumstances, Officer Maddox had reasonable suspicion to frisk Minor for weapons.
In light of our conclusion that other circumstances justified Officer Maddox's frisk of Minor, we need not and do not address Minor's contention that Officer Maddox could not frisk him based on his admission that he had a butterfly knife in response to Officer Maddox's question about weapons. (See People v. Medina (2003) 110 Cal.App.4th 171, 176 [driver's admission he had rock cocaine in his pants in response to police officer's question whether driver had anything officer should know about prior to search did not justify search when driver was stopped for broken taillight, and police officer had no reason to suspect driver was armed and dangerous].)
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Finally, our decision that Officer Maddox's detention and frisk of Minor did not violate the Fourth Amendment is strongly supported by the decision in the factually similar case of In re Stephen L. (1984) 162 Cal.App.3d 257. In that case, police officers assigned to a criminal street gang detail encountered six people standing near a wall that had been vandalized with gang graffiti within the past two days. The park was a known hangout for a particular gang; the police had received complaints of vandalism and graffiti in the park; and four of the six individuals, excluding the minor, were known members of that gang. When the officers approached, the individuals split into two groups and walked in different directions. The officers detained them, conducted patdown searches, and found a knife on the minor. The minor was declared a ward of the court and placed on probation. (Id. at pp. 259-260.)
On appeal, the minor contended he "was illegally detained and that the cursory search for weapons on him was constitutionally improper." (In re Stephen L., supra, 162 Cal.App.3d at p. 260.) Our colleagues in the Second District were "mystified, after a recital of the foregoing facts, just what improvement in conduct [they were] being urged to require of police officers in a situation such as [t]here presented. Certainly, the patrolling of parks and recreational areas is desirable. The investigation of vandalism and persons found next to new instances of the same is an activity for which police officers are hired. Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers' past experience would be most careless. Furthermore, it is the character of the incident and not the degree of acquaintanceship with suspects which should determine the conduct of a conscientious police officer. (Thus, it certainly should not be contended that the police officers were entitled to pat-down search only the four suspects they previously knew and not the [m]inor who was an integral part of the group found next to the vandalized wall.)" (Ibid.)
We agree fully with the foregoing analysis. We also find equally applicable to this case the In re Stephen L. court's conclusions that (1) the "record abounds with the required articulable facts for detention," (2) the "circumstances more than warranted the cursory search of [the minor]," and (3) the "rulings of the learned trial judge in this matter were correct." (In re Stephen L., supra, 162 Cal.App.3d at p. 261.)
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
BENKE, Acting P. J.
AARON, J.