From Casetext: Smarter Legal Research

In re Jesus O.

California Court of Appeals, Fifth District
Mar 25, 2008
No. F052904 (Cal. Ct. App. Mar. 25, 2008)

Opinion


In re JESUS O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JESUS O., Defendant and Appellant. F052904 California Court of Appeal, Fifth District March 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. JJD061300 Valeriano Saucedo, Judge.

Matthew D. Roberts, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

INTRODUCTION

Appellant, Jesus O., was charged in a petition pursuant to Welfare and Institutions Code section 602 on November 3, 2006, with obstruction or delaying of a peace officer (Pen. Code, § 148, subd. (a)(1), count one) and possession of one ounce or less of marijuana (Health & Saf. Code, § 11357, subd. (b), count two). On January 31, 2007, the juvenile court heard appellant’s suppression motion. On February 8, 2007, the court denied the motion and appellant admitted the allegations of the petition.

Unless otherwise indicated, all further statutory references are to the Penal Code.

On April 24, 2007, the juvenile court declared appellant a ward of the court and placed him on probation upon various terms and conditions. On appeal, appellant contends the trial court erred in denying his suppression motion.

FACTS

At the suppression hearing, Dinuba Police Officer Chad McMullen testified he was assigned to the special enforcement unit which investigates gang-related criminals. McMullen had over 1,000 contacts with gang members. According to McMullen, most of the time gang members arm themselves when walking the streets. McMullen had at least three previous contacts with appellant. During the prior contacts, appellant carried weapons on his person.

The record is unclear concerning how many of McMullen’s past encounters with him that appellant was carrying weapons.

On September 22, 2006, McMullen saw appellant walking with a group of friends that McMullen knew from Delph and Dinuba. It was 9:15 p.m. Based on the fact that appellant had carried weapons in the past, McMullen motioned, or called, for appellant to come over so McMullen could talk to him. McMullen wanted to make sure appellant was not carrying a weapon as he was in a “safe park area” for families. According to McMullen, at this point appellant was free to leave.

McMullen did not point his service weapon at appellant and did not use an amplification device to get appellant’s attention. Appellant walked over to McMullen. When McMullen asked appellant if he was carrying a weapon, appellant said, “no.” McMullen said he knew appellant was on active Tulare County probation, but was not specifically aware of whether appellant was subject to a search condition. McMullen asked appellant to raise his hands for a quick patdown to make sure he was not carrying weapons. McMullen knew appellant was a member of a gang. Appellant had told McMullen he was affiliated with a gang.

McMullen was standing next to at least three, perhaps more, officers. When appellant approached McMullen, McMullen directed appellant to place his hands on his head. Appellant was not under a gang injunction. When appellant was detained, he was walking through a public park that was open to the public. The only thing appellant was doing was walking through the park. McMullen had not heard any complaints concerning appellant. McMullen did not ask for appellant’s consent to pat him down.

As the officer conducted the patdown search, appellant ran away. When appellant was apprehended, he was searched and marijuana was found on his person. After taking the matter under advisement, the trial court denied appellant’s suppression motion.

DISCUSSION

Appellant contends the incriminating evidence seized should have been suppressed because it was the fruit of an unlawful detention and an unlawful patdown search. As we will explain, appellant’s initial encounter with McMullen was consensual, McMullen’s attempted patdown of appellant was based on articulable facts justifying officer safety, and appellant’s flight justified a full detention.

Consent

There is no detention when an officer merely approaches an individual to ask a few questions. As long as a reasonable person would feel free to go about his or her business and disregard the officer, the encounter is consensual. To determine if a particular encounter constitutes a seizure, courts must assess the coercive effect of police conduct as a whole. Circumstances establishing a seizure may include the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or use of language or a tone of voice indicating compliance of the request might be compelled. (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)

Officer McMullen saw appellant walking through the park. McMullen called appellant over to talk to him. McMullen testified that appellant was free to leave. McMullen did not display a weapon. Although there were multiple officers present with McMullen, they did not approach appellant. In fact, McMullen called out to appellant and appellant voluntarily approached McMullen. There is no evidence in the record that McMullen used coercive tone of voice or language. Appellant’s initial encounter with McMullen was consensual.

Patdown

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.)

The articulable facts noted by McMullen that would justify a limited patdown search of appellant were that McMullen had encountered appellant in the past and found appellant in possession of weapons. Although McMullen did not know if appellant was subject to an automatic search condition, McMullen was aware appellant was on probation. McMullen knew appellant was a member of a gang. “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.) Based on his history with appellant, McMullen was justified in conducting a brief Terry stop and frisk of appellant.

Flight

The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects the right to be free of unreasonable searches and seizures. (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A detention, or a brief investigative stop, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).)

A detention is reasonable under the Fourth Amendment when it is based on an objective manifestation that criminal activity is afoot and that the person stopped is engaged in that activity. (Souza, supra, 9 Cal.4th at p. 230.) The detaining officer must articulate more than an inchoate, unparticularized suspicion, or hunch, of criminal activity. (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124.) The officer must be able to point to specific articulable facts that, considered under the totality of the circumstances, provide an objective manifestation that the person detained may be involved in criminal activity. (Souza, supra, 9 Cal.4th at p. 231.)

The possibility of an innocent explanation for a person’s conduct does not prevent the officer from entertaining a reasonable suspicion of criminal conduct. The principal function of police investigation is to resolve any ambiguity in the person’s conduct and to establish whether the activity is legal. (Souza, supra, 9 Cal.4th at p. 233.)

Flight is a proper consideration, and indeed, a key factor in determining whether police have sufficient cause to detain. (Souza, supra, 9 Cal.4th at p. 235.) Flight affords a basis for an inference of guilt, especially where a minor is aware an officer seeks to talk to him and bolts away. (In re Rafael V. (1982) 132 Cal.App.3d 977, 982-983; also see People v. Johnson (1991) 231 Cal.App.3d 1, 13-15 [flight and struggle with officers is more than evidence of innocent intent]; People v. King (1977) 72 Cal.App.3d 346, 349-350 [flight establishing right of officer to detain].)

Here, appellant voluntarily walked over to McMullen. McMullen asked appellant if he had any weapons. When appellant said no, McMullen asked him to raise his arms so he could patdown appellant (for officer safety) for weapons. Appellant immediately ran away. Given the facts that McMullen told appellant he was merely checking for weapons, appellant was on probation, was a member of a gang, and appellant had been armed in one or more prior encounters with McMullen, McMullen could reasonably view appellant’s flight as evidence of criminal conduct.

The detention and subsequent search of appellant, therefore, was not based on a mere inchoate, unparticularized suspicion, or hunch, of criminal activity. We must view the evidence in the light most favorable to the judgment. The circumstances reasonably justify the finding of the juvenile court. We cannot reverse only because the circumstances might support a contrary finding. This rule applies to express and implied findings. (Manuel G., supra, 16 Cal.4th at p. 823.)

DISPOSITION

The juvenile court’s judgment is affirmed.


Summaries of

In re Jesus O.

California Court of Appeals, Fifth District
Mar 25, 2008
No. F052904 (Cal. Ct. App. Mar. 25, 2008)
Case details for

In re Jesus O.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESUS O., Defendant and Appellant.

Court:California Court of Appeals, Fifth District

Date published: Mar 25, 2008

Citations

No. F052904 (Cal. Ct. App. Mar. 25, 2008)