Opinion
C084085
10-04-2017
In re K.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGEMENT] THE COURT:
It is ordered that the opinion filed herein on October 4, 2017, be modified as follows:
On page 3, in the sentence beginning with the words "Detective Hernandez also saw the minor standing near the rear . . . " the words "two women" are deleted and the words "two minors" should be added in their place, so that the sentence is thus modified to read in its entirety as "Detective Hernandez also saw the minor standing near the rear of the Charger, and there was another man sitting in the driver's seat of the car and two minors in the back seat." BY THE COURT: NICHOLSON, Acting P. J. HULL, J. MAURO, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV135631)
In this Welfare and Institutions Code section 602 proceeding, following entry of a negotiated plea, minor K.S. challenges the juvenile court's denial of his motion to suppress evidence. (Welf. & Inst. Code, § 700.1.) We affirm the judgment.
FACTS AND PROCEEDINGS
The parties stipulated to the following facts as the factual basis for the minor's admissions:
On November 22, 2016, officers on patrol observed an individual they recognized from previous contacts who was on formal searchable probation. When officers approached, the 17-year-old minor, who was also present, admitted he too was on searchable probation. One of the officers did a pat-down search of the minor and discovered a loaded semi-automatic handgun in the minor's shirt pocket.
The Sacramento County District Attorney filed a delinquency petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor carried a loaded firearm on his person, (Pen. Code, § 25850, subd. (a)--count one; unless otherwise set forth statutory section references that follow are to the Penal Code), the minor was in possession of a firearm (§ 29610—count two), and the minor possessed a firearm in violation of probation (§ 29815, subd. (a)—count three), all felonies.
The minor filed a motion to suppress evidence on the grounds that he was unlawfully detained by police. The court heard and denied the minor's motion to suppress.
At the contested jurisdiction hearing, the minor admitted count two (minor in possession of a firearm in violation of § 29610) in exchange for dismissal of the remaining counts with consideration at disposition. The court continued the minor as a ward of the juvenile court and revoked and reinstated probation subject to specified terms and conditions, including that the minor be committed to juvenile hall with credit for time served, complete 75 days of electronic monitoring, and complete 28 hours of community service.
The minor filed a timely notice of appeal.
DISCUSSION
The minor contends the officers did not have a reasonable, articulable suspicion of criminal activity on the part of the minor and therefore the minor's detention, search, and arrest were unlawful. The claim lacks merit.
Background
At the hearing on the minor's motion to suppress, the sole witness for the prosecution, Sacramento County Sheriff's Detective Jason Hernandez, testified as follows:
On November 22, 2016, Detective Hernandez and three other officers from a multijurisdictional task force were patrolling in an unmarked van near 65th Street and Sky Parkway in Sacramento, an area they patrolled at least twice a week and an area Detective Hernandez previously patrolled multiple times a day as a patrol officer.
At approximately 5:00 p.m., when it was still light out, Detective Hernandez observed a person named Dominic Taylor standing near the front passenger door of a Dodge Charger parked in a parking lot in an area where officers had contacted Taylor on numerous prior occasions. Detective Hernandez knew Taylor was on searchable probation based upon previous contacts with him. Detective Hernandez also saw the minor standing near the rear of the Charger, and there was another man sitting in the driver's seat of the car and two women in the back seat. The Charger was parked rear first in a parking lot in front of a restaurant.
Detective Jeff Bell, the driver of the patrol van, pulled into the parking lot and activated the red and blue light bar on the van and he, Detective Hernandez, and the other two officers jumped out of the van. All of the officers were armed and wearing badges and tactical raid gear, including bulletproof vests bearing the words "Sheriff's Gang Unit" on the back. As soon as the light bar was activated, the minor immediately "turned 180 degrees away from [the officers] and began walking at a fast pace." Detective Hernandez, who was approximately 20 to 30 feet from the minor when the van stopped in front of the Charger, "did a slow steady jog towards his [the minor's] direction" and began yelling for the minor to stop. The minor looked back and stopped as Detective Hernandez "grabbed ahold of" the minor's left shoulder with his left hand. By that time, the minor was approximately 20 feet from the Charger.
Detective Hernandez asked the minor if he was on probation or parole and the minor said, "Yes, I'm on probation." Detective Hernandez conducted a pat-down search of the minor and felt what he believed to be the butt of a handgun in the minor's right front pocket. He reached into the minor's front pocket and retrieved a loaded handgun.
Detective Hernandez testified he believed the businesses in the area were open, and confirmed that, in making the stop, he was not responding to a call for service, nor did he see any narcotics transactions taking place or any weapons being displayed.
Jorge Lopez testified on behalf of the minor. Lopez testified he was with the minor and three others when he was stopped and searched on November 22, 2016. He stated that, when the officers pulled up in front of the Charger, they got out of the van and said something like, "Don't move" or "Don't run." According to Lopez, the minor did not run but instead stood there "paralyzed" and "shocked" with his hands up. The officers "just started checking him [the minor] and stuff like, you know, pocketing him."
The court denied the minor's motion to suppress, stating in part: "In this case, the totality of the circumstances, from the officer's perspective, would include the fact that [the minor] was in association with [Taylor], who was a known probationer. [¶] We also have not just a young patrolman, but a detective with 11 years' experience who is part of a special task force that was involved in this evaluation. [¶] Bottom line is that given the standard of reasonable suspicion, given the totality of the circumstances, and given the Court's ability to find, if it wishes to, as a matter of fact, that walking away briskly can qualify for justified detention, the Court will deny the [minor's] motion."
On review of a ruling denying a motion to suppress evidence, we view the facts most favorably to the respondent and uphold the lower court's factual findings if supported by substantial evidence. (People v. Woods (1999) 21 Cal.4th 668, 673; People v. Watkins (2009) 170 Cal.App.4th 1403, 1409; In re William V. (2003) 111 Cal.App.4th 1464, 1468.) However, we decide independently whether the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.)
An officer may perform a brief investigative detention based on reasonable suspicion of wrongdoing; probable cause to believe that a crime has occurred or is occurring is not needed. " '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. Hernandez (2008) 45 Cal.4th 295, 299.)
Even if the circumstances observed by the officer might have an innocent explanation, they may still give rise to a reasonable suspicion, which entitles the officer to perform an investigative detention. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146; People v. Glaser (1995) 11 Cal.4th 354, 373 (Glaser); People v. Souza (1994) 9 Cal.4th 224, 242 (Souza).)
The minor contends, and the People concede, the minor was detained when Detective Hernandez yelled for him to stop and put his hand on the minor's shoulder. The minor contends there was insufficient evidence of reasonable articulable facts to support Detective Hernandez's decision to detain him because the sole reason Detective Hernandez decided to enter the parking lot was that he saw Taylor, who was on searchable probation, standing next to the Charger which was parked in an area where Detective Hernandez had contacted Taylor before on numerous occasions. The minor claims the fact that he was standing near Taylor did not give rise to reasonable suspicion that he (the minor) had engaged in or was about to engage in criminal activity. For this assertion, the minor relies on several cases.
First, the minor relies on People v. Hester (2004) 119 Cal.App.4th 376 (Hester). There, the defendant "was arrested after the vehicle in which he was riding was stopped by Bakersfield police officers [Officers Carruesco and Heredia] who believed the vehicle might be involved in criminal activity related to the criminal street gang known as the East Side Crips," and a loaded firearm was discovered in the vehicle. (Id. at p. 382.) After hearing testimony from Officers Carruesco and Heredia, the trial court denied the defendant's motion to suppress evidence of the loaded firearm. (Id. at p. 385.)
The court of appeal reversed. The court described the "whole picture" and the "inferences and deductions" Officer Carruesco made in deciding to stop the three vehicles as follows: "The whole picture consists of the Casa Loma Park shooting, the three cars driving together at 12:30 a.m. in East Side Crips territory, the identification of one occupant as an East Side Crip, and the presence of several Black males in the Chrysler and Chevrolet. [¶] The inferences and deductions include (1) all three vehicles were traveling together; (2) everyone in the Chevrolet was an East Side Crip because they were Black males and were riding with Anderson; (3) everyone in the Chrysler was an East Side Crip because there were two Black males in the car and they were traveling with the Chevrolet; (4) everyone in the Mazda was an East Side Crip because the Mazda was traveling with the Chevrolet, even though Carruesco did not know the age, sex, or race of the occupants; (5) these gang members were aware of the Casa Loma Park shooting; (6) these gang members were expecting retaliation; and (7) these gang members were armed because they were expecting retaliation." (Hester, supra, 119 Cal.App.4th at p. 387.)
The appellate court concluded Officer Carruesco "was unable to state any facts to indicate the occupants in this car were engaged in criminal activity. His assumptions, beliefs, opinions and guesswork are simply not the objective facts and permissible inferences required by the Fourth Amendment." (Hester, supra, 119 Cal.App.4th at p. 390.) The court further concluded, "Carruesco and Heredia acted because a passenger in the vehicle was a member of the East Side Crips. Mere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention. [Citation.] Carruesco and Heredia violated the Fourth Amendment rights of the occupants of the Chevrolet by stopping the vehicle without a particularized and objective basis for suspecting the persons stopped of criminal activity." (Id. at p. 392.)
Next, the minor relies on Sibron v. New York (1968) 392 U.S. 40 (Sibron) where a police officer observed the defendant, someone the officer did not know and had no information about, talking to several known drug addicts over an eight-hour period of time. When the officer later observed the defendant with three known drug addicts, the officer made contact with the defendant and said, " 'You know what I am after.' " (Id. at p. 45 [20 L.Ed.2d at pp. 924-925].) When the defendant reached into his pocket, the officer reached into the same pocket and found packets of heroin. (Ibid.) The trial court denied the defendant's motion to suppress the heroin after the arresting officer testified he believed the defendant was in possession of narcotics because the officer had seen the defendant "conversing with a number of known addicts over an eight-hour period" despite the fact that he had no knowledge of what the defendant and the addicts were talking about, and the defendant had admitted on the stand that he had indeed been talking to the addicts about narcotics. (Id. at p. 47 .) The denial was affirmed on appeal. (Id. at pp. 49-50 .)
The United States Supreme Court reversed. (Sibron, supra, 392 U.S. at pp. 67-68 .) With respect to the detention and search, the court held: "[I]t is clear that the heroin was inadmissible in evidence against [the defendant]. The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time [the officer] accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him. He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that [the officer] was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed 'have been talking about the World Series.' The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security." (Id. at p. 62 .)
Third, the minor relies on Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra), where officers bearing a warrant to search a bar and a particular bartender for controlled substances conducted pat-down searches of all of the bar patrons, finding heroin on the defendant. (Id. at pp. 88-89 [62 L.Ed.2d at pp. 243-244].) The trial court denied the defendant's motion to suppress, and the court of appeal affirmed. (Id. at pp. 89-90 .)
The United States Supreme Court reversed, concluding probable cause to search the defendant was absent because the search warrant said nothing about the bar patrons, and the officers executing the warrant knew nothing about the defendant and had no reason to believe he had committed, was committing, or was about to commit a crime. (Ybarra, supra, 444 U.S. at p. 96 [62 L.Ed.2d at pp. 244, 248-249].) Citing Sibron, the court said, "[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." (Id. at p. 91 .)
Hester, Sibron, and Ybarra do not involve circumstances where, as here, the person challenging the detention and search moved quickly away from or fled from the detaining officer, and on that basis are factually distinguishable.
The minor also urges us to look to U.S. v. Reid (S.D.Cal. 2015) 144 F.Supp.3d 1159 (Reid) for guidance. While we are not bound by the Reid case, we nonetheless discuss it below and conclude that it, too, is distinguishable. In Reid, officers from the gang suppression unit were informed that Easter Sunday was " 'claimed' " as a gang holiday by the Emerald Hills Blood gang. Officers arrived at a park known to be a main hangout for the Emerald Hills Blood gang and approached a large gathering of African-American families, many of whom were affiliated with a violent gang, but who were apparently picnicking and celebrating the holiday. Officers had received 911 reports of fighting and marijuana smoking by African-American adults at the park, but received no additional description of the offenders and no reports of weapons. Once at the park, the officers did not see any fighting or drug use. They "set up around the Park and planned to watch as a marked patrol car arrived at the Park to see if any individuals tried to leave the Park to avoid the officers" thinking they might be able to " 'pick some people off' " or " 'rustle some people up' " as they left the Park. (Reid, supra, 144 F.Supp.3d at pp. 1161-1162.) When Sergeant Spurlock pulled into a parking lot near the park's main entrance in a marked patrol car, the defendant moved quickly away from the patrol car to a vehicle, briefly sat in the back seat of the vehicle and appeared to be " 'dumping' " something into the car, and then walked back toward the park. The defendant was detained and admitted he was on searchable probation. A search of the defendant's car revealed a loaded handgun. (Ibid.)
The trial court granted defendant's motion to suppress. (Reid, supra, 144 F.Supp.3d at p. 1165.) The court noted, "Nervousness, in a high-crime area, without more, is not sufficient to establish reasonable suspicion to detain an individual. [Citation.] Although 'in some circumstances an individual's flight from law enforcement in a high crime area can justify an investigatory seizure[,]' but a suspect's 'simple act of walking away from the officers' is not the equivalent of flight. [Citation.]" (Id. at p. 1163.) The court declined to find, "in today's highly charged climate, that an African American who walks away from police in what appears to be an attempt to avoid police contact, is reasonably suspicious." Finding there was no evidence of flight, the defendant did not sprint away or ignore the police command to stop, he "appeared to be someone who walked briskly away from officers when they arrived at a public park," and he returned to the park despite the presence of the officers, the court concluded, "This does not rise to the level of reasonable suspicion." (Id. at pp. 1163-1164.)
Reid differs factually from the instant case in several important respects. First, the officers in Reid had been briefed that gang members might be celebrating a gang holiday in the park and, after responding to 911 reports of fights and marijuana smoking, decided to stay and see if they could " 'pick some people off' " or " 'rustle some people up' " as they left the park. (Reid, supra, 144 F.Supp.3d at p. 1161.) Here, the officers were patrolling an area they regularly patrolled and stopped specifically because they identified a person on searchable probation with whom they had contacted in that same area on numerous prior occasions. Next, in Reid, the officers suspected many of the people in the park were gang members and possibly on probation but had no specific information regarding any one of them, particularly the defendant. Here, Detective Hernandez saw Taylor and knew from past contacts that he was on searchable probation. Given Taylor's searchable probationary status, the officers were well within their authority to stop to determine if Taylor was abiding by the terms of his probation, which likely included a prohibition against fraternizing with other probationers. To that end, it was not unreasonable to stop and obtain minimal information from Taylor as well as those with him, including the minor. Finally, in contrast to the chain of events in Reid that led up to the detention and search of the defendant, the events here occurred very quickly with the officers pulling into the parking lot and the minor fleeing by walking away at a fast pace as soon as the officers activated the lights on the van. We conclude the facts here differ from those in Reid such that these facts support Detective Hernandez's reasonable, articulable suspicions to detain the minor.
With regard to flight, the minor claims the fact that he walked quickly away from the officers was not, in and of itself, sufficient to provide reasonable suspicion that criminal activity was afoot. In support of that claim, the minor relies on Illinois v. Wardlow (2000) 528 U.S. 119 (Wardlow) and Souza, supra, 9 Cal.4th 224.
In Wardlow, the defendant, who was carrying an opaque bag in an area known for heavy narcotics trafficking, fled when he saw a four-car caravan of officers patrolling the area. The officers followed the defendant, cornered him, and immediately conducted a protective pat-down search, finding a handgun and ammunition. (Wardlow, supra, 528 U.S. at pp. 121-122 [145 L.Ed.2d at pp. 574-575].) Noting that "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion [citations]," the United States Supreme Court stated, "Headlong flight . . . is not necessarily indicative of wrongdoing, but it is certainly suggestive of such," and concluded the officer was justified in suspecting the defendant was involved in criminal activity and investigating further. (Id. at pp. 124-125 .)
The minor attempts to distinguish Wardlow on the basis that he was not holding anything suspicious, he was not in a high crime area, and there was no evidence he fled "headlong," and instead "simply walked away at a fast pace." We are not persuaded.
Detective Hernandez, an 11-year veteran of the sheriff's department, testified he was very familiar with the area, having patrolled it regularly. He recognized Taylor as a probationer subject to search. He further testified that, as soon as the lights on the patrol van were activated, the minor turned completely away from the officers and walked away from them "at a fast pace." While the minor may not have been holding anything, he was with Taylor, a probationer, in an area patrolled often by the gang unit and in which Taylor had been contacted on numerous prior occasions. Based on those facts, Detective Hernandez became suspicious that something was afoot. "Law enforcement officers may 'draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." [Citations.]' " (People v. Hernandez, supra, 45 Cal.4th at p. 299.) Furthermore, although not dispositive, flight from the police is a proper consideration in determining whether such a detention (or attempted detention) was proper. (Souza, supra, 9 Cal.4th at pp. 231-235.) While one could certainly imagine an innocent explanation for the minor's retreat, "that a person's conduct is consistent with innocent behavior does not necessarily defeat the existence of reasonable cause to detain." (Glaser, supra, 11 Cal.4th at p. 373.) The fact that the minor walked at a fast pace rather than running "headlong" away from officers is a distinction without a difference. As the Wardlow court held, while "any 'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure,' . . . unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not 'going about one's business'; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning." (Wardlow, supra, 528 U.S. at p. 125 .) Given that the minor was with a known probationer and, when officers pulled up, wheeled around and walked away at a fast pace, Officer Hernandez's decision to detain the minor was reasonable.
The minor's reliance on Souza is similarly unpersuasive. There, our state's highest court described the pertinent facts as follows: "At approximately 3 a.m., Officer Stackhouse was on patrol in a residential area he described as a 'high crime area.' In almost complete darkness, two people stood near a parked car. One of the two (defendant) leaned toward the car as if talking to someone inside. When Officer Stackhouse directed his patrol car's spotlight into the car's interior, two people in the front seat immediately bent down toward the floorboard, and defendant took off running. From these circumstances--the area's reputation for criminal activity, the presence of two people near a parked car very late at night and in total darkness, and evasive conduct not only by defendant but by the two occupants of the parked car--Officer Stackhouse reasonably suspected that criminal activity was afoot." (Souza, supra, 9 Cal.4th at p. 240.) The defendant was stopped by Officer Stackhouse and searched for weapons. During that pat-down search, a baggie containing cocaine fell out of the defendant's clothing. (Id. at p. 228.) The trial court denied the defendant's motion to suppress the cocaine, and the court of appealed reversed, concluding all the facts known to Officer Stackhouse, including the defendant's flight, did not support reasonable suspicion the defendant was involved in criminal activity. (Id. at pp. 228-229.)
Our state's supreme court granted review to consider, among other things, "whether a person's flight upon encountering a police officer is in itself sufficient to justify an investigative detention." (Souza, supra, 9 Cal.4th at p. 229.) The court held an area's reputation for criminal activity and the time of night are both appropriate factors in considering whether a detention was valid. (Id. at pp. 240-241.) The court further held that consideration of a suspect's evasive actions is also appropriate in determining whether criminal activity is afoot and who is involved. (Id. at p. 241.) The court reversed the judgment of the appellate court, concluding the " 'totality of the circumstances,' " including "the presence on the sidewalk at 3 a.m. of two people who appeared to be talking to the occupants of a car parked in total darkness in an area that Officer Stackhouse described as a 'high crime area,' coupled with the evasive conduct by the occupants and defendant's sudden flight when Officer Stackhouse directed his patrol car's spotlight toward the group, justified a brief, investigative detention to enable the officer to resolve the ambiguity in the situation and to find out whether the activity was in fact legal or illegal." (Id. at p. 242.)
The minor argues that, unlike Souza, it was 5:00 p.m. in the area where he was detained and not completely dark, and businesses near the parking lot were still open. He claims he quickly walked away but did not "break into a sprint" when officers arrived; he did not walk away from "the scene of illegal activity, such as a drug transaction, or an illegal gambling activity"; and there was no suspicious activity and no evidence he was trying to hide anything. While there is no dispute as to the timing of the detention or that businesses in the surrounding area were likely still open, questions such as why the minor walked quickly away, whether the activity he was fleeing from was illegal, and whether the minor was part of that illegal activity were all questions Detective Hernandez was attempting to answer as he assessed the totality of the circumstances, including the minor's flight, and determined there was reasonable suspicion to detain the minor. Again, whether the minor walked away quickly, sprinted away, or fled "headlong" from the officers is a distinction with little import. As we previously stated, "Allowing officers confronted with [unprovoked] flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning." (Wardlow, supra, 528 U.S. at p. 125 [145 L.Ed.2d at p. 577.])
Under the totality of circumstances here, Detective Hernandez's detention of the minor was reasonable. As such, the search of the minor based on the minor's voluntary affirmation that he was on probation was also reasonable, and we therefore need not address further the minor's final contention that the evidence obtained as a result of the search must be suppressed as fruit of the poisonous tree.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: NICHOLSON, Acting P. J. MAURO, J.