Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD060781, Valeriano Saucedo, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
INTRODUCTION
Appellant, Javier A., was charged a petition pursuant to Welfare and Institutions Code section 602 on May 1, 2007, with feloniously carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)(4), count one). On May 22, 2007, the juvenile court conducted a contested jurisdictional hearing. The court granted a defense request for additional time to file a motion to suppress.
Unless otherwise indicated, all further statutory references are to the Penal Code.
The juvenile court heard appellant’s suppression motion on May 29, 2007, and denied it on June 1, 2007. The court found the allegation true. Appellant admitted an allegation that he violated the terms of his probation. On June 15, 2007, the juvenile court declared appellant’s offense to be a misdemeanor (§ 17, subd. (b)). On appeal, appellant contends the trial court erred in denying his suppression motion.
A petition was filed on January 10, 2007, alleging appellant violated the terms of his probation by absconding from a group home.
FACTS
Just after 8:00 p.m. on April 29, 2007, Officer Osvaldo Dominguez of the Visalia Police Department was dispatched to 700 West Robin to investigate a report that a vicious dog was loose on the street. Dominguez drove to 615 West Robin because, earlier that day, Dominguez had been confronted by a pit bull running from that residence toward his patrol car as he exited it.
After parking his car, Dominguez encountered six to ten males and females in the front yard of the residence. The people in the yard were wearing gang attire and drinking beer. Dominguez asked to talk to the person responsible for the residence. Because of the time of night and the fact that some people in the yard were intoxicated, Dominguez asked them to remain seated and to position their hands where he could see them. Dominguez asked those present to remove their hands from their pockets and to keep them visible. As Dominguez was speaking to those in the front yard, “the responsible person of the house arrived in a vehicle” and identified herself. She was later arrested on a warrant, along with a second subject.
Everyone, except appellant, complied with Dominguez’s request to keep their hands visible. Dominguez knew appellant because appellant had been involved in a police activity league boxing program. Appellant was one of the better kids in the program. Dominguez was disappointed that appellant failed to comply with the request to take his hands out of his pockets.
Because appellant did not take his hands from his pockets, Dominguez came over to conduct a patdown search. Dominguez asked appellant if there was anything he should know about. Appellant remained unresponsive. Dominguez conducted a brief patdown search and found a knife in appellant’s right pocket. The knife was a kitchen knife that had been filed down to a sharp point and had sharp edges on both sides. Dominguez explained the knife had the detailed craftsmanship of a jailhouse shank.
Dominguez conducted a warrant check that indicated appellant had a no-bail warrant. Appellant was arrested and taken into custody. The dog Dominguez had seen earlier that day was located in the backyard of 615 West Robin.
Appellant testified he was at 615 West Robin the evening of April 29, 2007, hanging out with friends. Appellant was helping the friend’s mother chop carrots for dinner. Appellant pulled out a knife from the cabinet. When the friend’s mother left on an errand, appellant placed the knife in his pocket. Appellant was walking around the yard when officers approached and asked him if he lived there.
An officer approached appellant and asked him what was in his pocket. Appellant said he was sitting and his hands were on the chair. Appellant said he “was constantly putting my hands in my pocket and putting my hand on the chair.” Appellant thought he attracted the officer’s attention because he kept placing his hands in his pocket. Appellant did not believe he was wearing gang attire. Appellant initially took his hands out of his pockets, but ignored the officer’s questions because the officer came at him “with a loud tone.”
According to appellant, the officer asked him if he had any weapons in his pocket. Appellant tried to get the officer’s attention to tell him that he had a knife in his pocket. As appellant reached into his pocket to retrieve the knife, the officer told him to “Step away from [his] pocket.” The officer patted appellant down, took the knife, and placed appellant into handcuffs.
DISCUSSION
Appellant contends the incriminating evidence seized should have been suppressed because he was illegally detained when the officer told him to sit down and remove his hands from his pocket.
The propriety of a patdown search is assessed under Terry v. Ohio (1968) 392 U.S. 1 (Terry), which held that a police officer who lacks probable cause to arrest can undertake a patdown search only “where he has reason to believe that he is dealing with an armed and dangerous individual ….” (Id. at p. 27.) “The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” (Id. at p. 29.) The “officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts,” reasonably support a suspicion that the suspect is armed and dangerous. (Id. at p. 21.) However, “[t]he 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.)
A person may be subjected to a limited intrusion upon his or her personal liberty for the purpose of protecting officers, even where the police do not suspect that person was involved in any crime. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415 [passengers ordered out of car for officer safety]; People v. Hannah (1996) 51 Cal.App.4th 1335, 1340-1347 (Hannah) [request for suspect to sit down a minimal intrusion and reasonable for officer safety]; People v. Samples (1996) 48 Cal.App.4th 1197, 1211-1212 [officer safety justifies request that passenger exit vehicle during traffic stop].)
When Dominguez was dispatched to investigate a loose, vicious dog, he arrived at 615 West Robin. Dominguez immediately encountered at least six, and as many as ten, people dressed in gang attire. They were drinking beer. The person responsible for the house was not immediately present. It was evening when that person arrived, as Dominguez was talking to the group in the front yard, the location of the dog had not yet been established.
Although the dispatcher apparently reported that the loose dog was at or around 700 West Robin, Dominguez had encountered a loose pit bull at 615 West Robin earlier that same day. We do not find his stop at 615 West Robin to be unreasonable.
When the responsible person for the house did arrive, she had an outstanding warrant for her arrest.
Under these circumstances, Dominguez chose the minimum possible level of detention for officer safety. He asked people to sit down and leave their hands visible. Ordering one to remove his or her hands from pockets is not a detention. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1238 (Frank V.).) Such an order has been characterized as a minimal intrusion. (Id. at pp. 1238-1239; People v. Strafford (1972) 28 Cal.App.3d 405, 410.) In his reply brief, appellant attempts to distinguish Frank V., arguing that the officer there was in a gang neighborhood and the suspect there did not place his hands in his pockets until after the investigating officer began a frisk search. Here, the officers faced at least six people in gang attire, who were drinking beer. Appellant himself testified that he kept putting his hands into and out of his pocket. We find this case and Frank V. to be substantially similar and apply the holding of Frank V. to the instant action.
In People v. Franklin (1991) 192 Cal.App.3d 935, 941 (Franklin), this court made a distinction between asking a suspect to remove his hands from his pockets and ordering a suspect to do so. Franklin found, however, that the suspect in that case was asked, not ordered, to remove his hands from his pockets. (Id. at p. 941-942.) The suggestion in Franklin that an order to remove hands from pockets constitutes a detention is dictum and does not constitute the holding of that case. (See People v. Sobick (1973) 30 Cal.App.3d 458, 464-465.)
Appellant acknowledges Dominguez testified that the people in the front yard wore gang attire, but argues Dominguez did not know they were actually gang members and did not note the incident happened in a gang neighborhood. We do not find the appellant’s attempted distinction between an officer encountering six to ten people wearing gang attire and an officer going into a “gang neighborhood” to be compelling. The same considerations of officer safety are present in either situation.
Dominguez’s conduct was similar to that followed by officers in Hannah. Appellant was the one person who refused to take his hands out of his pocket. Under the totality of the circumstances, Dominguez was entitled for officer safety to conduct a brief Terry frisk of appellant. “The judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations.” (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
DISPOSITION
The juvenile court’s judgment is affirmed.