Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JW-10-6427.
Jenkins, J.
On its own motion, this court consolidated the appeals in Nos. A129922 and A130405 for purposes of disposition.
In A129922, defendant and appellant P.K., a minor, appeals the juvenile court’s jurisdictional and dispositional orders declaring her a ward of the court, and placing her on probation, after she admitted to a wardship petition alleging she carried a concealed firearm. Specifically, the minor contends the juvenile court erred in denying her pre-disposition motion to suppress evidence. We reject the minor’s contention and affirm the juvenile court’s jurisdictional and dispositional orders.
In A130405, the minor appeals the juvenile court’s dispositional order entered after she admitted the allegation in a supplemental petition that she possessed ammunition, found during a search conducted pursuant to conditions of probation imposed under the wardship challenged in A129922. The minor’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Counsel informed the minor of her right to file a supplemental brief and the minor has not filed such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and therefore affirm the juvenile court’s dispositional order.
Factual and Procedural Background
A129922
On August 11, 2010, plain clothes officers from the San Francisco Police Department stopped the minor on Guerrero Street and conducted a pat down search. The officers found a.22 caliber handgun in the minor’s shoulder bag and arrested her. Subsequently, the San Francisco District Attorney (DA) filed a petition pursuant to Welfare and Institutions Code section 602 (section 602). The DA alleged in count one of the petition that the minor carried a concealed firearm, in violation of Penal Code section 12025, subdivision (a)(2), and in count two that the minor possessed a concealed firearm, in violation of Penal Code section12101, subdivision (a)(1).
Pursuant to Welfare and Institutions Code section 700.1, the minor filed a motion to suppress evidence contending the pat down search was illegal. The juvenile court denied the minor’s motion to suppress following a hearing at which the court heard testimony and entertained argument of counsel. Thereafter, the minor admitted count one of the petition, carrying a maximum period of confinement of three years. The minor’s admission was preceded by the court’s advisement to the minor of her constitutional rights and the minor’s knowing waiver of those rights. At a dispositional hearing held on September 30, 2010, the juvenile court declared the minor a ward of court. The court ordered the minor to reside in her parent’s home under the supervision of the probation department and to follow the conditions of probation imposed. The juvenile court’s order of probation was filed on the day of the dispositional hearing. The minor filed a timely notice of appeal on October 4, 2010 (case number A129922).
Section 700.1 applies to motions brought in juvenile court to suppress evidence obtained as the result of an unlawful search or seizure and is the counterpart to Penal Code section 1538.5 in adult proceedings. (In re Ricardo C. (1995) 37 Cal.App.4th 431, 435.)
Testimony presented at the suppression hearing is described below (see Discussion, post).
A130405
On October 7, 2010, San Francisco police and probation officers carried out a juvenile probation search of the minor’s residence. During a search of the minor’s room, officers lifted the top area of P.K.’s mattress and found a small plastic box containing thirteen.22 Caliber bullets. The next day, the DA filed another section 602 petition alleging in a single felony count that the minor possessed ammunition in violation of Penal Code section 12316, subdivision (b)(1), having been previously convicted of an offense under Penal Code section 12025, subdivision (a)(2).
At a hearing on October 12, 2010, the DA orally amended the felony allegation to a misdemeanor allegation. Thereafter, the minor admitted the misdemeanor allegation, resulting in a total maximum period of confinement of three years and four months. The minor’s admission was preceded by the court’s advisement to the minor of her constitutional rights and the minor’s knowing waiver of those rights. At a disposition hearing on November 18, 2010, the juvenile court declared wardship, committed the minor to the care of the probation office for out-of-home placement with her godmother in Oakland, and ordered the minor to comply with specified conditions of probation. The juvenile court’s dispositional order was filed on the same day as the hearing. The minor filed a timely notice of appeal on November 22, 2010 (case number A130405).
Discussion
A. Background
The only witness at the suppression hearing was San Francisco Police Officer Matthew Kenney. Kenney testified that on August 11, 2010, he and Officer Moody were informed by officers in the homicide unit that Raheim Jackson and Javan McLaughlin were two persons of interest in a recent homicide shooting. Kenney knew Jackson and McLaughlin from numerous prior contacts in the Valencia Gardens area at Guerrero Street and 15th Street. Kenney knew that Jackson and McLaughlin did not live at Valencia Gardens, but opined they were affiliated with the 15 Below Street Gang, whose home turf is the Valencia Gardens. Kenney stated that every time he encountered Jackson and McLaughlin, “they have been with members of the 15 Below Street gang.”
Concerning his training and experience with the customs and practices of members of street gangs, Kenney testified gang members do not commonly conceal weapons or contraband on their person but usually hide such items in a place they have immediate access to, such as a planter box or underneath the wheel well of a car. Kenney stated it is also common practice for “individuals who are gangsters or who affiliate with gangsters” to pass off a weapon or contraband to an individual who is less likely to be contacted by police, such as a person with little or no criminal history.
After receiving the information from the homicide unit regarding Jackson and McLaughlin, Kenney and Moody drove to Valencia Gardens. As they proceeded northbound on Guerrero from 15th Street, they saw Jackson and McLaughlin, together with a female, who Kenney identified in court as the minor. The three were “loitering in front of 103 Rosa Parks on the Guerrero Street side.” When Kenney first spotted the three, Jackson was seated on a fire hydrant, McLaughlin was “slightly north of [Jackson’s] location, and [the minor] was approximately eight feet south of [] Jackson. She was standing up against the wall.” Kenney believed the three “were all hanging out together. They were the only three in that area.” The officers decided to contact Jackson and McLaughlin based on the information they had received from homicide, and to contact the minor “to determine if she had lived in the Valencia Gardens, and if so, were [] Jackson and [] McLaughlin guests of hers.”
Kenney and Moody got out of their police vehicle, contacted Jackson and McLaughlin, and conducted pat down searches of both individuals. Moody seized a metal object with a point at one end from McLaughlin’s side sweatshirt pocket. Moody asked McLaughlin if he had any other weapons on his person. McLaughlin responded that he had a small pocket knife. As the officers searched Jackson and McLaughlin, the minor remained in the same spot, standing up against the wall. After Jackson and McLaughlin had been searched, Officer Moody asked them for their names, dates of birth and current addresses. While Moody obtained this information, Kenney looked over at the minor and asked her for her name and if she had any identification. The minor was holding a cell phone to her right ear and ignored Kenney’s question. Just then, Jackson interjected with a comment directed at the minor: “Don’t you have to go see Mom, or go to Mom’s house?” The minor replied, “Yeah, I do.”
Kenney became suspicious at this point, because he wondered why the minor wasn’t answering his question and because he thought Jackson was trying to prompt the minor to leave the area: “So I felt she was trying to hide either her identity or possibly had a weapon on her.” Kenney began to walk towards the minor and told her he needed her name and wanted to make sure she did not have any weapons on her. At this point, Jackson said, “You can’t search her. She is not on probation.” Kenney noticed the minor had a large canvas bag draped over her left shoulder and “grabbed on to the bottom of that canvas bag and I searched the outside.” Kenney testified that he “felt... what [he] recognized to be a butt of a handgun”
When asked to state what led him to believe the minor may have had a weapon on her person, Kenney replied: “First would be based on the information I received earlier in the day regarding these two individuals that these were persons of interest in a recent homicide shooting.... [¶] Another would be the area that we are in. [¶] The actions of [the minor] when I asked her for information and she ignored me and then to have [] Jackson immediately jump in and say, basically, prompt her to leave the area. [¶] I was extremely suspicious that she had something on her person. She had a large canvas bag draped over her shoulder. [¶] So, I believed she had something that she was concealing in that bag.”
B. Analysis
On appeal, the minor asserts the juvenile court improperly denied her suppression motion, and that both the detention and pat down search were unlawful and not supported by reasonable suspicion. We disagree.
1. Applicable Legal Standards
The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9 (Terry).) However, an officer may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion that criminal activity is afoot and that the person to be stopped is engaged in that activity. (See Terry, supra, 392 U.S. at p. 21.) Reasonable suspicion is established if “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.)
Moreover, during an investigatory stop, an officer may conduct a pat down search of the person’s outer clothing if the officer has an objectively reasonable suspicion that the person is armed and dangerous, regardless of whether the officer has probable cause to arrest. (Terry, supra, 392 U.S. at pp. 27, 30; In re H.M. (2008) 167 Cal.App.4th 136, 143.) The test for a pat down search is whether “a reasonably prudent [officer] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. [Citation.]” (Terry, supra, 392 U.S. at p. 27.) The officer need not be absolutely certain that the individual is armed. (Ibid.) In short, “a limited frisk for weapons is justified where the officer ‘can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous.’ [Citations.]” (In re H.M., supra, 167 Cal.App.4th at p. 143.)
“On review of the trial court’s denial of a suppression motion, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment.” (In re H.M., supra, 167 Cal.App.4th at p. 142.)
2. The Minor’s Detention and Pat Down Search Were Lawful
In support of his detention and pat down search of the minor, Kenney pointed to the fact that when he asked the minor for her name and identification, she simply ignored his question. At that same moment, Jackson interjected with a comment to the minor: “Don’t you have to go see Mom, or go to Mom’s house?” The minor immediately replied, “Yeah, I do, ” indicating she was about to leave the scene.
Considered in light of the totality of the circumstances here, these facts provide the requisite “objective manifestation” that the minor may have been concealing a weapon. (People v. Souza, supra, 9 Cal.4th at p. 231.) In this regard, the minor was observed in the company of Jackson and McLaughlin, two known affiliates of the Below 15th Street gang and persons of interest in the current investigation of a recent shooting homicide. The three were hanging out on the gang’s home turf. Based upon his training and experience, Officer Kenney was also aware of the practice, employed by gang members, of passing off weapons to someone standing nearby who they thought was less likely to be subjected to a police search. Under these circumstances, when Jackson prompted the minor to leave the scene, Officer Kenney formed the reasonable suspicion that she might be carrying a weapon for Jackson concealed in the large canvas bag draped over her shoulder. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 [noting that “evasive behavior is a pertinent factor in determining reasonable suspicion”].) Kenney’s suspicions that the minor was Jackson’s “holder” for his handgun was reinforced when Jackson added, “You can’t search her. She is not on probation.”
We conclude, having considered the totality of the circumstances presented here, including the specific facts articulated by Officer Kenney, “in conjunction with rational inferences to be drawn therefrom” (In re H.M., supra, 167 Cal.App.4th at p. 143), that the minor’s detention for investigative purposes was justified and that the record supports the officer’s reasonable suspicion that the minor was armed and dangerous. (Terry, supra, 392 U.S. at p. 27.) Thus, the minor’s detention and pat down search did not violate the Fourth Amendment.
Because the minor’s detention and pat down search were lawful, we affirm the juvenile court’s order declaration of wardship in A129922. Accordingly, the probation search in A130405, which uncovered the ammunition resulting in the filing of a supplemental petition, was also lawful. Moreover, we have independently reviewed the record in A130405, and conclude there are no other issues that require further briefing.
Disposition
In A129922, the juvenile court’s jurisdictional and dispositional orders are affirmed. In A130405, we affirm the juvenile court’s dispositional order.
We concur: McGuiness, P.J., Pollak, J.