Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J229599. Gregory S. Tavill, Judge.
Ronald M. Bobo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
D.D. challenges the juvenile court’s decision to deny his motion to suppress evidence, after which he admitted to misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), was placed on probation for one year, and was released to the custody of his parents. As discussed below, we affirm the juvenile court’s decision.
The facts are taken from Officer Owen’s testimony at the hearing on D.D.’s motion to suppress held on January 6, 2010.
On September 18, 2009, at about 8:00 p.m. Hesperia School Police Officer Owen was on duty at a high school football game. Officer Owen received a call on the school radio from a school official that “a disturbance was occurring” near the ticket booth. When Officer Owen arrived at the ticket booth, no disturbance was ongoing and D.D. was the only student in the area. Officer Owen asked, “Who is it?” and a vice-principal and a teacher both pointed at D.D. as he walked away. D.D. appeared agitated, and was cussing and “flaring his arms.” Officer Owen yelled at D.D. to stop, but D.D. looked over his shoulder and kept walking. Officer Owen walked the 15 to 20 feet over to D.D., grabbed him by the left hand and walked him over to the fence near the ticket booth, using a “minor [amount] of force” or a “control hold” to get D.D. to walk to the fence. Officer Owen described D.D. as “defiant, asking me why I was touching him, why I was stopping him, things like that.”
Officer Owen testified that he decided to detain D.D. before getting more details from the vice principal and teacher about D.D.’s involvement in the disturbance, “Because of his demeanor, his aggressive nature, I didn’t want to stop and leave him and talk to the vice-principal, I wanted to stop him and find out what was going on.”
Officer Owen had D.D. place both of his hands on the fence and conducted a pat down search for weapons. He did so because of D.D.’s demeanor and because he had been told D.D. had caused a disturbance. Officer Owen felt a “small round object” in D.D.’s right front jeans pocket. He asked D.D. if he could see what the item was, and D.D. consented. Officer Owen reached into the pocket and retrieved a plastic sandwich bag containing a round object he believed to be the drug Ecstasy.
On October 23, 2009, the People filed a delinquency petition alleging that D.D. had unlawfully possessed a controlled substance, the drug Ecstasy. The possession was charged as a felony. On December 4, 2009, counsel for D.D. filed a motion to suppress evidence under Welfare and Institutions Code section 700.1.
On January 6, 2010, the juvenile court heard and denied the motion. D.D. then admitted the possession as a misdemeanor. On February 4, 2010, the juvenile court declared D.D. a ward of the court, placed him on one year of formal probation, and placed him in the custody of his parents. This appeal followed.
Discussion
D.D. argues the juvenile court erred when it denied his motion to suppress the Ecstasy pill found in his pocket. This is because Officer Owen unlawfully detained and searched D.D., the search exceeded the scope of a lawful patdown for weapons, and D.D.’s consent to search his pocket was invalid because it was the fruit of an unlawful detention and search. As discussed below, we conclude that both the detention and search were lawful, the search did not exceed the scope of a lawful pat down for weapons, and D.D.’s consent was valid.
A. Standard of Review
In reviewing the denial of a motion to suppress evidence, “[w]e 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. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
B. The Detention Was Reasonable
“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.)
Here, the trial court found that Officer Owen had a reasonable suspicion that D.D. had committed a breach of either Penal Code section 415 (fighting, using offensive words, disturbing another person with loud noise) or section 415.5 (disturbing the peace on school grounds). We agree with this conclusion, based on the evidence that the school personnel who had called in a report of a disturbance at the ticket booth, had pointed to D.D. as he walked away, and that D.D. was agitated, cussing and flailing his arms, which indicated he may have just been involved in the disturbance.
C. The Search was Reasonable
“An officer, in the course of the criminal investigation, may pat down the suspect’s outer clothing where the officer has reason to believe the suspect may be armed and dangerous. [Citation.]” (People v. Lopez (2004) 119 Cal.App.4th 132, 135-136.) “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.” (Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry).) “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Ibid.)
Here, Officer Owen had a reasonable suspicion that D.D. had committed a breach of the peace. Further, D.D. at first resisted the officer’s attempts to do his duty to investigate this crime, in violation of Penal Code section 148 (willfully resisting a peace officer in the discharge of his duties), when D.D. failed to stop when Officer Owen told him to, and the officer had to take D.D. by the hand in a “control hold” to the fence to conduct the investigation. As the trial court correctly reasoned, Officer Owen at that point had good reason to conduct a pat down search of D.D. for weapons, both because the officer was reasonably concerned for his safety and that of those around him because of D.D.s actions and attitude, and because he had probable cause to arrest D.D. for resisting an officer in the performance of his duties, and thus the search was lawful as incident to an arrest.
D. The Officer Did Not Exceed the Scope of the Patdown Search
“As a general rule, an officer may not search a suspect’s pockets during a patdown unless he or she encounters an object there that feels like a weapon. [Citation.] However, under what has been termed the ‘plain-touch’ exception to the warrant requirement [citation], the officer may seize an object that is not a weapon if ‘its incriminating character is “immediately apparent.”’ [Citation.]” (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1237 (Lennies H.).) Since the scope of the patdown search is limited by its justification-a search for weapons-if the incriminating character of an object felt in the patdown is not apparent by the time the officer determines that it is not a weapon, the object may not be seized. (See Lennies H. [no invasion of privacy if incriminating character apparent while searching for weapons]; Minnesota v. Dickerson (1993) 508 U.S. 366, 375 [same].)
Here, Officer Owen testified that he “felt an unknown item” in D.D.’s pants pocket. In his police report, Officer Owen wrote that he “felt a small round object” in the pocket. He also testified that the Ecstasy pill was the only item in the pocket, and that it took him “only a second or two” to determine that it was small and round, and thus not a weapon. Under the legal authorities cited above, this search did not exceed the limits of the patdown search because the incriminating nature of the item seized-that it was some sort of pill-was apparent immediately when the officer determined it was not a weapon. Given the presumption in favor of upholding the trial court’s ruling, we resolve any conflict in favor of the trial court’s ultimate ruling and find substantial evidence that the detection of the Ecstasy pill comes within the “plain touch” exception to the Terry restriction to weapons on warrantless, patdown searches.
E. D.D. Consented to the Search of His Pocket
Ultimately, D.D.’s attempt to suppress the Ecstasy pill found in his pocket fails. The detention and patdown search for weapons were both lawful, and the patdown search did not exceed its proper scope, and thus there is no reason to suppress the evidence. (People v. Williams (1988) 45 Cal.3d 1268, 1299.) Moreover, D.D. voluntarily consented to the search of his pocket. Defendant does not challenge the voluntariness of his consent, but rather argues that his consent was ineffective because it was tainted by an illegal detention and search. As discussed ante, the detention and search were lawful and thus D.D.’s consent was valid.
Disposition
The juvenile court’s decision is affirmed.
We concur: RICHLI J., CODRINGTON J.