Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J07-01482
NEEDHAM, J.
S.B. appeals from the juvenile court’s jurisdictional and dispositional orders continuing his wardship. (Welf. & Inst. Code, § 602.) In particular, he contends the court erred in denying his motion to suppress evidence under Welfare and Institutions Code section 700.1. We will affirm the orders.
I. FACTS AND PROCEDURAL HISTORY
A supplemental juvenile wardship petition alleged against S.B. one felony count of possession of a firearm by a minor. (Pen. Code, § 12101, subd. (a).)
A. Motion to Suppress
S.B. filed a motion to suppress evidence that he possessed a semi-automatic firearm in his waistband at the time of his offense. (Welf. & Inst. Code, § 700.1.) At a hearing on the motion, the following evidence was presented.
Richmond Police Officer Ernest Loucas testified that on March 28, 2009, he was patrolling an area where several black male juveniles had been involved in a shooting the previous day. At approximately 4:17 p.m., he observed “a group of five black juveniles standing in a play area in a parking lot behind the address of 1317 Virginia Avenue.”
One of the juveniles was S.B., whom Officer Loucas saw or spoke to daily during the officer’s shifts. Officer Loucas had personally conducted a probation search of S.B.’s home five months earlier in October 2008, and S.B.’s probation officer had informed Officer Loucas that S.B. had a search and seizure clause as a condition of his probation. Since then, S.B. had told Officer Loucas that he was still on probation. On that basis, Officer Loucas testified that he was aware of S.B.’s status as a probationer subject to a search and seizure clause when he saw him in the play area.
S.B. and the other juveniles were “huddled up[,] down at the ground” and their “movements appeared consistent with street-level narcotics sales.” “It appeared” to Officer Loucas “as if they were moving something around on the ground,” which led him to “assume[] they were attempting to hide something near the play area.” He explained that drug dealers “usually place their stash in one area and sell in another.” As Officer Loucas approached in his patrol vehicle, the juveniles looked up, made eye contact with the officer, and “appeared to be nervous.” Three of the juveniles walked in one direction, a fourth went off in another direction, and S.B. walked by himself in a third direction. S.B. looked back at Officer Loucas as he walked away. Officer Loucas radioed for backup units.
Officer Loucas watched from his patrol car as S.B. walked to the rear of an apartment building and stood on a porch, looking at the officer. After about two to five minutes, the officer saw that the other juveniles had entered another building, and he walked toward S.B.
Officer Loucas walked to an opening in a chain-link fence that partially surrounded the back yard of the premises where S.B. was standing. From about 10-15 feet away from S.B., Officer Loucas asked him, “why don’t you come here and talk to me,” or words to that effect. S.B. just stood there silently, which the officer found “a little strange because he’s never had a problem talking to me in the past.” The officer again asked S.B. if he would come talk to him. S.B. continued to stand silently where he was, and then he sat down.
Based on his training and experience, Officer Loucas believed something was wrong, so he “took a couple steps closer” to S.B., until he was about seven or eight feet away. The officer recalled: “Based on [S.B.]’s behavior, his refusal to comply with my request, I believed that he may have something illegal on him.” The officer also noted that S.B. was holding a cigar in one hand and was wearing large baggy clothing, preventing him from determining whether S.B. was concealing a weapon. Remaining about seven to eight feet away, Officer Loucas asked S.B. “what was going on” and if he possessed anything illegal. S.B. reached into his pocket, and the officer warned him not to. S.B. then stated that he had some “weed” on him.
Officer Loucas, accompanied by another officer who had arrived on the scene, approached S.B., advised him that he was under arrest for possession of marijuana, and conducted a search. In the course of the search, the officers found a semiautomatic handgun in S.B.’s waistband and marijuana in S.B.’s pocket.
The juvenile court denied the motion to suppress, finding that Officer Loucas knew that S.B. was on probation subject to a warrantless search and seizure clause at the time of the search. The court observed as well that S.B.’s court file showed he was placed on probation in 2007 with no termination date. No one disputed that the conditions of S.B.’s probation included a valid warrantless search and seizure clause.
B. Jurisdictional and Dispositional Order
The court sustained the petition alleging felonious possession of a firearm by a minor. S.B. waived his right to a dispositional report and consented to immediate disposition. In accordance with the probation department’s recommendation, the court ordered S.B. to be placed in a rehabilitation facility for nine months, with all previously-imposed terms and conditions of wardship to remain in effect.
This appeal followed.
II. DISCUSSION
S.B. contends the juvenile court erred in denying his motion to suppress. Specifically, he urges: he was detained by Officer Loucas when the officer told him to come down from the porch and asked him if he possessed anything illegal; the officer lacked reasonable suspicion to justify the detention; the officer did not actually know whether S.B.’s probation search condition existed at the time of the search; and evidence of the firearm found in his waistband should therefore have been suppressed. We review the court’s findings for substantial evidence and independently determine whether those facts support the court’s legal conclusion. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
A. Detention
For purposes of the Fourth Amendment, a detention occurs when an officer’s physical restraint or show of authority would have conveyed to a reasonable person that he or she was not free to leave or otherwise terminate the encounter. (California v. Hodari D. (1991) 499 U.S. 621, 628; Florida v. Bostick (1991) 501 U.S. 429, 436.) The totality of the circumstances, including the officer’s language and tone of voice, are to be considered in determining whether a detention occurred. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Here, from 10-15 feet away, Officer Loucas twice asked S.B. if he would come talk to him; S.B. did not respond. From seven to eight feet away, the officer asked S.B. if he possessed anything illegal, and S.B. said he had marijuana. Leading up to and during this admission, Officer Loucas did not physically restrain him, did not make any intimidating gesture or significant display of authority, did not draw his gun or baton, gave no ultimatum, and had not activated the siren or the lights on his patrol vehicle. He was apparently the lone officer engaged in the encounter at the point he asked S.B. to approach and talk to him. Nothing in the officer’s words or actions would convey to a reasonable person that he was not free to leave or ignore the officer’s inquiries.
S.B. argues that the second time Officer Loucas asked S.B. to come talk with him, the officer “commanded” him off the porch. Officer Loucas never used the word “commanded” in describing his statements to S.B., although he did not protest when defense counsel incorporated the word into some of his questions. There is no evidence, however, of any particular words or tone of voice that would lead a reasonable person to conclude he had to submit to the officer. Indeed, the fact that S.B. did not obey Officer Loucas and come off the porch further suggests that whatever the officer said, and how he said it, was not so significant a display of authority as to constitute a detention.
S.B.’s reliance on People v. Roth (1990) 219 Cal.App.3d 211, is misplaced. There, the court ruled that a detention occurred when a police officer shined a spotlight on the defendant, stopped his patrol vehicle, got out of the vehicle along with a second officer, and “commanded” the defendant to approach to speak to him. (Id. at p. 215.) In Roth, however, the trial court had expressly found that the officer “commanded” the defendant to approach him (id. at p. 215, fn. 3); here, by contrast, the court made no such finding. The evidence of Officer Loucas’ statements to S.B., in the totality of all the circumstances in this case, does not amount to a detention.
S.B. also argues that he was detained because Officer Loucas blocked the exit to the residential property to which S.B. had retreated. Not so. The officer was standing at least seven feet away from S.B. and, although he was positioned at an opening in a chain link fence, the chain link fence did not surround the entire back yard. Therefore, the evidence is insufficient to conclude that the officer had cut off S.B.’s possible exit routes.
S.B. refers us in this regard to People v. Wilkins (1986) 186 Cal.App.3d 804, and U.S. v. Drayton (2002) 536 U.S. 194, both of which are distinguishable. In Wilkins, the court held that the occupants of a vehicle were seized when a police officer positioned his patrol car in a manner that prevented the other vehicle from exiting. (Wilkins, at p. 809.) In Drayton, it was held that the police had not seized the defendants when officers boarded a bus and began questioning passengers. (Drayton, 536 U.S. at p. 203.) The officers in Drayton had not blocked the defendants’ exit (id. at pp. 203-204); neither did Officer Loucas in this case.
Based on the evidence in this matter, the encounter between S.B. and Officer Loucas remained voluntary or consensual at the time S.B. told the officer that he possessed marijuana. S.B.’s admission that he possessed marijuana provided sufficient cause to search his person, or constituted probable cause for his arrest and justified a search incident thereto, and it was in the course of that search that the officers discovered and seized his handgun. The court did not err in denying the motion to suppress.
B. Reasonable Suspicion
If a person is detained, the detention survives Fourth Amendment scrutiny if the officer had an “articulable suspicion that the person has committed or is about to commit a crime.” (In re Manuel G., supra, 16 Cal.4th at p. 821.) Reasonable suspicion is a particularized and objective basis for suspecting that the person is involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 230-231.)
In the matter before us, if Officer Loucas had detained S.B. by asking or telling him to step off the porch and talk to him, the detention was lawful because the officer had a reasonable suspicion that S.B. was involved in criminal activity. S.B. and the others were in a parking lot within an area of a shooting that had occurred the previous day. The officer understood that S.B. was on probation. S.B. and his companions were huddled at the ground, appearing to be moving something around on the ground as if to hide it, which the officer considered to be consistent with narcotics sales. When he approached, the juveniles made eye contact with him, appeared nervous, stood up, and walked away in different directions. S.B. continued to look at the officer for a few minutes, and when Officer Loucas asked him to approach and speak to him, S.B. refused, which was not S.B.’s usual behavior. Based on his personal knowledge of and relationship with S.B., Officer Loucas was suspicious. He also noticed that S.B. was holding a cigar, which he noted was consistent with marijuana possession, and was wearing large baggy clothing that concealed his waistband so that he could not determine if S.B. had a weapon. These facts constitute an articulable suspicion that S.B. was engaged in criminal activity.
S.B. points out that Officer Loucas did not actually see an exchange of money or contraband, there was no report of recent drug activity in the area, and the juveniles walked away rather than ran away. None of these is necessarily required, however, for a finding of reasonable suspicion. (See Souza, supra, 9 Cal.4th at p. 234-235 [flight, including a “very quick walk” from officers, can be a key factor in determining whether police had sufficient cause to detain].)
S.B. also argues that the act of walking away from an officer, making eye contact with the officer, or handling objects does not in itself create a reasonable suspicion sufficient for a detention. In the matter before us, however, we do not have just one of those circumstances in isolation, but a combination of circumstances which, together with the other circumstances we have discussed, provide a satisfactory basis to conclude that Officer Loucas possessed a reasonable suspicion that S.B. was involved in criminal activity at the time he asked or “commanded” S.B. to come off the porch. For this reason, the cases on which S.B. relies are inapposite. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 785 [no reasonable suspicion when the only proffered basis for articulable suspicion was the defendant’s eye contact with the officer and continuing to look in his general direction]; People v. Henze (1967) 253 Cal.App.2d 986, 987-990 [officers’ observation of two men, whom they did not know, dividing objects that shone in the sunlight was insufficient to justify the later stop of their vehicle, although “[t]he added showing [that would be required] need amount to very little more than what we already have”]; People v. Jones (1991) 228 Cal.App.3d 519, 524 [passing money from one person to another in area known for narcotics activity, without more, did not give rise to a reasonable suspicion].)
Accordingly, if there was any detention at all, S.B.’s admission to the officer that he had marijuana on his person was given in the context of a lawful detention. S.B.’s admission, combined with the other circumstances, gave the officers reasonable suspicion to search S.B.’s person, or probable cause to arrest him and conduct a search incident to arrest, during the course of which the officers found the handgun on S.B.’s person. On this basis as well, the denial of S.B.’s suppression motion did not constitute reversible error.
C. Probation Search Condition
By accepting a search and seizure condition of probation, a probationer gives advance consent to a search, such that a police officer may conduct a reasonable search even without a particularized suspicion of criminal activity. (See, e.g., Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 1252.) For a search to be valid pursuant to a warrantless search and seizure condition, the officer must know of the condition at the time of the search. (In re Jaime P. (2006) 40 Cal.4th 128, 136 [juvenile probationer]; Myers, at p. 1254 [adult probationer].)
In the matter before us, the juvenile court ruled that the detention and search were constitutional because Officer Loucas knew that S.B. was subject to a valid warrantless search and seizure probation condition. S.B. contends there was insufficient evidence to support the finding that Officer Loucas actually knew that S.B. was subject to the search condition at the time of the search.
Substantial evidence supported the court’s finding. Officer Loucas testified that he was aware of S.B.’s probation search condition on the day in question. The officer explained that he had conducted a probation compliance search of S.B.’s residence just five months earlier in October 2008, and S.B.’s probation officer had informed him that S.B. was subject to a search condition. Between October 2008 and the time of the search in March 2009, Officer Loucas and S.B. had conversations about his probation status. The officer testified that S.B. “has told me that he’s on probation, and I have inquired when he is going to be discharged from that probation....” There was no evidence that the officer had any uncertainty as to whether S.B. was still on probation or was still subject to the search condition when he conducted the search. From the evidence at the hearing, it could reasonably be inferred that Officer Loucas affirmatively knew that S.B. was still on probation and subject to the search condition at the time of the offense.
S.B. argues that the officer merely knew that S.B. had been on probation subject to a search condition in the past, and simply assumed there continued to exist an operative warrantless search and seizure condition when he told S.B. to come down from the porch. He is incorrect. The officer did not assume S.B. was subject to a search condition based on the October 2008 information, but held the belief based also on subsequent conversations with S.B. about his probation and when it was going to expire.
S.B. insists that more is required, based on the court’s opinion in Myers, supra, 124 Cal.App.4th 1247. In Myers, the defendant had a search and seizure condition of his probation. (Id. at p. 1251.) One day an officer stopped him and asked if he was on probation or parole, and the defendant said he was not. (Ibid.) The officer, unaware of whether the defendant had a search condition, went ahead and searched the defendant anyway and found contraband. (Ibid.) After the search, the officer discovered that the defendant was on probation and subject to search and seizure. (Ibid.) The court held that the probation condition did not justify the search, because the officer did not know whether the defendant had such a condition at the time of the search. (Id. at pp. 1252, 1254.)
Myers is obviously distinguishable from the matter at hand, because in that case the officer did not know whether the defendant was on probation or had a probation search condition, while here Officer Loucas knew both. S.B. nonetheless seizes upon the following excerpt from Myers, in which the court addressed a different issue: “Although Myers gave [the officer] incorrect information, Myers’s response should have prompted [the officer] to conduct a record check where he would have discovered Myers was on probation and subject to a search condition.” (Id. at p. 1256.) Based on this language, S.B. argues that because Officer Loucas did not know for certain that S.B. was still subject to the search condition on March 28, 2009, he had to contact dispatch and check S.B.’s record to make sure before he detained and searched S.B.
S.B. is incorrect. In the passage on which S.B. relies, the court in Myers was merely explaining why the defendant’s lie to the police – claiming he was not on probation or parole – did not bar application of the exclusionary rule to the officer’s illegal search. In no way did Myers purport to require an officer who knows about an individual’s probation search condition to confirm that he knows what he already knows. Nor did it suggest that an officer who personally knows a defendant, believes he is still on probation subject to a search condition, and has asked the probationer if he is still on probation, should have to confirm his understanding with dispatch before conducting the search.
In the final analysis, S.B. was not detained when he told Officer Loucas that he possessed marijuana, Officer Loucas had a reasonable suspicion sufficient to detain S.B. at the time, and in any event the search of S.B.’s person was lawful due to his probation search condition. S.B. therefore fails to demonstrate that the court erred in denying his motion to suppress. He asserts no other error in the jurisdictional and dispositional orders from which he appeals.
III. DISPOSITION
The orders are affirmed.
We concur. JONES, P. J., SIMONS, J.