Opinion
A130642
11-30-2011
In re S.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J1001522)
The juvenile court denied S.T.'s (the minor) motion to suppress, declared him a ward of the court, and committed him to the Orin Allen Youth Rehabilitation Facility for six months. The minor contends the court erred by denying his motion to suppress because he was detained without reasonable suspicion. We conclude the encounter between the minor and the police officer was consensual and the minor consented to the patsearch. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the combined hearing on the minor's motion to suppress and the issue of jurisdiction.
In November 2010, the People filed a Welfare and Institutions Code section 602 petition alleging the minor possessed a concealed firearm (Pen. Code, § 12021, subd. (a)), and possessed fewer than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). The minor moved to suppress pursuant to Welfare and Institutions Code section 700.1, contending the police officer did not have reasonable suspicion to detain him. The People opposed the motion. They argued the encounter was consensual and the minor consented to the search. In mid November 2010, the court held a combined hearing on the motion to suppress and the issue of jurisdiction.
Prosecution Evidence
At 11:30 a.m. on October 30, 2010, San Pablo Police Officer Jeremy Callanan was "dispatched to a report of suspicious people" in the area of Ridge and Vale Roads in San Pablo. The individual who called the police to make the report said "there [were] two suspicious juveniles walking in the area." The caller did not recognize the juveniles and wanted a police officer to contact them. The caller, however, did not report that the minors had engaged in any type of criminal activity. Callanan drove to the area and called for a backup officer to assist him.
According to Callanan, the area between Ridge, Vale, and Willow Roads is a culde-sac known as "lover's lane" where "a lot of suspicious people" go "to have sex, smoke any type of substance, [and] drink . . . ." There have "been a lot of burglaries in that area." On Cherry Road, a few blocks from the cul-de-sac, Callanan saw two teenagers — later identified as the minor and his friend, L.R. —"walking southbound on Willow Road away from the area the caller was calling from." They matched the caller's description. The minor had candy or "some food product" in his hands and was "licking his lips or his gums, making a sound."
Callanan pulled his patrol car up next to the minor and his friend "and asked them if [he] could speak to them." Callanan was dressed in a police uniform. He did not activate his car's lights or sirens and he did not block their path. Callanan said, "'Gentlemen, can I speak to you?'" and they said, "'Yeah, sure.'" At that point, Callanan saw the minor put the remaining piece of whatever he was eating in his pocket, so "for safety reasons," Callanan told both teenagers, "'Don't put your hands in your pockets, please. . . . Let me see your hands. Keep your hands where I [can] see them.'" He then asked them to sit on the curb and cross their legs. He said, "'Gentlemen, can you take a seat on the curb for me.'"
Callanan explained to the minor and his friend that he "stopped them [because] . . . there were two suspicious people in the area of Ridge Road . . . ." The minors denied being in that area and said they had been walking along Cherry Road "the entire time coming from the store." Callanan asked the teenagers for their names and dates of birth; he also asked whether they were coming from Ridge Road and where they were going. By that time, a uniformed backup officer had arrived. Callanan asked the teenagers if he could "pat them down for weapons . . . because of the baggy clothes they were wearing and because it was a possible burglary or possible prowling/possible burglary, I was checking for any contraband." L.R. replied, "'Go ahead.'" Callanan asked L.R. to stand up; Callanan "patted him down for contraband and . . . did not locate anything on him." Callanan asked the minor whether he had any "knives, guns, drugs or needles . . . ." "[T]hen, halfway through [the question]," the minor "stood up and placed his hands behind his head" without saying anything. Callanan interpreted the minor's actions as "implied consent" to search.
Callanan patsearched the minor, felt a gun, and removed a loaded .32 caliber revolver from the right front pocket of the minor's pants. Callanan arrested the minor and took him to the police station. At the police station, Callanan found four baggies of marijuana in the breast pocket of the minor's jacket. The minor waived his Miranda rights; he said he found the gun and "knew it was illegal." He claimed the marijuana was "for personal use and he bought it for $5 a bag."
Defense Evidence
The minor and L.R. were walking to a friend's house when Callanan approached them. The minor was eating a piece of candy; when Callanan got out of the car, the minor put the remaining piece of candy in his pants pocket. Callanan asked to talk to them and L.R. agreed. The minor, however, did not respond to the question. Callanan told the two teenagers he wanted to talk to them and "he told [them] to stand right there." Callanan did not pause between asking whether he could talk to the teenagers and telling them to "'[s]tand right there.'"
The minor complied with Callanan's instruction; as he did so, Callanan told the two teenagers to sit on the curb "in a commanding way." He also told them to cross their legs and to keep their hands where Callanan could see them. Then he asked them for their names, addresses, and dates of birth, and "what [they] were doing around here. . . ." Callanan asked a total of 10 questions. The minor did not feel he could ignore Callanan's instructions and walk away; he "felt like [he] had no choice but to sit there and listen to [Callanan]." He was "pretty scared" when he saw Callanan pull up and he knew that he would get into trouble if he ran away from him. The minor explained that he wanted to cooperate because he was worried about getting into trouble.
Callanan asked whether he could search L.R. and L.R. agreed. Next, Callanan instructed L.R. to stand up, put his hands behind his head, and to spread his legs. Callanan searched L.R. and told him to sit down on the curb. Then Callanan "told" the minor "to get up." The minor testified, "I did the same thing [L.R.] did. He told me to put my hands behind my head and spread my legs." Callanan asked the minor whether he had anything "illegal" and then he "start[ed] pat searching [him]."
The Court's Order
The court characterized the minor's testimony as "very self-interested" on whether Callanan asked to speak to him and whether Callanan ordered him to assume the search position. The court explained — and defense counsel agreed — it was a "credibility issue" between Callanan and the minor on the "initial stop" and the patsearch. The court denied the motion to suppress and sustained the allegations in the petition, determining "the search was proper, [and] consent was voluntary[.]" At the dispositional hearing, the court adjudged the minor a ward of the court and committed him to the Orin Allen Youth Rehabilitation Facility for six months.
DISCUSSION
Standard of Review
When we review the juvenile court's denial of the minor's motion to suppress evidence, "we view the record in the light most favorable to the [juvenile] court's ruling, deferring to those express or implied findings of fact supported by substantial evidence. [Citations.] We independently review the [juvenile] court's application of the law to the facts. [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 969; see also In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236 [same standard of review applies to juvenile court proceedings].)
The Juvenile Court Did Not Err By Denying the Suppression Motion
The parties agree the exchange during "initial questioning" between the minor and Callanan was a consensual encounter. The minor, however, contends Callanan's "prolonged contact, and ultimate command . . . to sit on the curb with his legs crisscrossed converted the initial encounter into a detention." The minor argues there was no reasonable suspicion of criminal activity to justify the detention and that his consent to the patsearch was the product of the unlawful detention. The threshold issue is whether the minor was detained. We conclude he was not.
The People contend the minor forfeited this claim by failing to raise it in the trial court. We disagree. At the hearing on the motion to suppress, counsel for the minor argued the "critical turning point" in the case was whether the consensual encounter became a detention when the minor sat down on the curb and crossed his legs. The parties discussed this issue at length at the hearing. In his moving papers and at the hearing, the minor satisfied his obligation to "mak[e] a prima facie showing the police acted without a warrant" and to "point out any inadequacies" in the People's justification for the warrantless search. Therefore — and contrary to the People's claim — the minor did not forfeit the argument that he was detained when he sat on the curb and crossed his legs. (People v. Williams (1999) 20 Cal.4th 119, 135; People v. Smith (2002) 95 Cal.App.4th 283, 303, fn. 6.)
Police contacts with individuals fall into three broad categories: (1) consensual encounters; (2) detentions; and (3) formal arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821; Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).) The Fourth Amendment does not protect every encounter between the police and a citizen. (In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) As the United States Supreme Court has explained, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." (Florida v. Royer (1983) 460 U.S. 491, 497; Wilson, supra, 34 Cal.3d at p. 789; Florida v. Bostick (1991) 501 U.S. 429, 434 (Bostick) [a detention does not occur when a police officer approaches a person on the street and "asks a few questions"].)
"[N]o reasonable suspicion is required on the part of the officer" before initiating a consensual encounter. (In re Manuel G., supra, 16 Cal.4th at p. 821; People v. Hughes (2002) 27 Cal.4th 287, 327.) To determine whether an encounter is consensual, a court considers "all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." (Bostick, supra, 501 U.S. at p. 439; Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Put another way, an encounter is consensual if, after considering the totality of the circumstances, "a reasonable person would feel free to disregard the police and go about his or her business. . . ." (In re Manuel G., supra, 16 Cal.4th at p. 821.) "What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs." (People v. Ross (1990) 217 Cal.App.3d 879, 884, disapproved on another point as stated in People v. Walker (1991) 54 Cal.3d 1013, 1022.)
In contrast, a detention requires 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.) A detention occurs when the police, by physical force or show of authority, restrain a person's liberty. (Bostick, supra, 501 U.S. at p. 434.) "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. [Citations.]" (United States v. Mendenhall (1980) 446 U.S. 544, 554; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) Other factors include the time and place of the encounter, whether the defendant was informed he was free to leave, whether the police indicated the defendant was suspected of a crime, whether the police retained the defendant's documents, and whether the police exhibited other threatening behavior. (See, e.g., Wilson, supra, 34 Cal.3d at p. 790; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227.)
The minor contends he was detained when Callanan "asked [him] to sit on the curb with his legs crisscrossed, and hands showing." He relies on People v. Rodriguez (1993) 21 Cal.App.4th 232, 238, where police officers approached the defendant and his friends and ordered them to "stay there" while they were patted down for weapons. They were then told to sit down while the officers interviewed them one at a time. The Rodriguez court held the officers detained the defendant because "[n]o reasonable person under these circumstances would believe he was free to leave." (Id. at p. 238.)
Rodriguez does not assist the minor for one significant reason: here and in contrast to the law enforcement officer in Rodriguez, Callanan did not order, direct, or command the minor to sit on the curb. He "asked" the teenagers to do so by saying, "'Gentlemen, can you take a seat on the curb for me.'" "Such a request, an asking, reasonably cannot be construed as a show of authority sufficient to transform the encounter into a detention." (People v. Franklin (1987) 192 Cal.App.3d 935, 942.) Moreover, the questions Callanan asked the minor and his friend after they sat on the curb were nonaccusatory, routine, and brief. They would not have caused a reasonable person to believe his liberty was being restrained.
There is no indication Callanan raised his voice when he asked the two teenagers to sit on the curb, nor is there any indication Callanan suggested compliance with his request might be compelled. The minor testified Callanan told him to sit on the curb "in a commanding way," but the trial court rejected the minor's characterization. We must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Davis (1995) 10 Cal.4th 463, 509, internal quotation marks omitted.)
The remaining circumstances surrounding the encounter do not suggest the minor was detained. The encounter took place during the day. Callanan was alone when he approached the two teenagers and he did not activate his patrol car's lights or siren when he approached them. He did not stand in front of the minor, draw his weapon, or physically touch or restrain the minor. Under these circumstances, we conclude a reasonable person in the minor's position would have believed he was free to leave. Thus, the minor's encounter with Callanan was consensual.
The arrival of a backup officer as the minors sat on the curb does not alter our conclusion. There is no evidence in the record about the backup officer's actions — the only things we know about the backup officer is the officer was in uniform and that he or she arrived before Callanan patsearched the minor and his friend. Nor are we persuaded by the minor's claim that he did not feel free to "terminate the encounter." The test of whether a reasonable person would feel free to leave is "an objective test, and . . . 'the subjective belief of the individual citizen is relevant . . . .'" (Castaneda, supra, 35 Cal.App.4th at p. 1227, quoting In re Christopher B., supra, 219 Cal.App.3d at p. 460.)
Wilson, supra, 34 Cal.3d at pages 790-791 is distinguishable. In Wilson, an undercover narcotics officer — who had been monitoring incoming flights from Florida to discover transportation of drugs into California — saw the defendant and another man arrive at the Los Angeles International Airport on a flight from Miami. (Id. at p. 780.) The officer followed the defendant and the other man through the terminal, and then approached the defendant as he stood next to his car parked at the curb. (Id. at pp. 780-781.) The officer asked the defendant if he "'might have a minute of his time'" and the defendant agreed. (Id. at p. 781.) The officer then told the defendant he was conducting a narcotics investigation, "'and that we had received information that he would be arriving today from Florida carrying a lot of drugs.'" (Ibid., italics & fn. omitted.)
The California Supreme Court concluded the defendant was detained when the officer accused him of transporting narcotics because a reasonable person, when confronted by a narcotics officer and accused of importing illegal drugs, would not feel free to leave or terminate the encounter. (Wilson, supra, 34 Cal.3d at pp. 790-791.) Wilson is distinguishable. Here, Callanan did not accuse the minor of committing a crime. He simply asked the minor and his friend to sit on the curb and told them he had received a report of suspicious people in the area. He asked the teenagers general questions about their names, dates of birth, and their direction of travel. This situation bears no relationship whatsoever to the one in Wilson, where the officer followed the defendant and told him he was under suspicion of transporting narcotics.
We are not persuaded by the minor's reliance on People v. Garry (2007) 156 Cal.App.4th 1100, 1111-1112. In Garry, the police officer observed the defendant from his patrol car for approximately five to eight seconds. Then the officer "bathed defendant in light, exited his police vehicle, and, armed and in uniform, 'briskly' walked 35 feet in 'two and a half, three seconds' directly to him while questioning him about his legal status." (Id. at p. 1111.) On appeal, Division Two of this court noted, "rather than engage in a conversation, [the police officer] immediately and pointedly inquired about defendant's legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that [the officer's] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was "'"not free to decline [his] requests or otherwise terminate the encounter."'" (Id. at pp. 1111-1112, fn. omitted, quoting In re Manuel G., supra, 16 Cal.4th at p. 821.)
Here and in contrast to the officer in Garry, Callanan did not rush at the minor, immediately question him, or illuminate him with a police spotlight. Nor did Callanan behave in an aggressive or intimidating manner. He simply asked the two teenagers if he could speak to them and, after they agreed, asked them to keep their hands out of their pockets and to sit on the curb. As a result, Garry is inapposite. Under the circumstances present in this case, we cannot conclude Callanan detained the minor when he asked him to sit on the curb. (See, e.g., Ross, supra, 217 Cal.App.3d at p. 885 [no detention where officer asked for the defendant's name, requested identification, and "'asked' but did not demand that [she] remove her hands from her pockets"]; Ford v. Superior Court (2001) 91 Cal.App.4th 112, 127-128 [no detention where the defendant cooperated with police and willingly accompanied the police to the station].)
Relying on People v. Aldridge (1984) 35 Cal.3d 473, 477, the minor argues the consensual encounter became a detention when he stood up and assumed the search position. In Aldridge, a police officer drove to a liquor store parking lot and saw the defendant among a group of people. As they saw the police car, the men walked, and then ran, across the street. A second police officer arrived and "left his vehicle to interrogate the four men[.]" (Id. at p. 476.) The people "remaining on the [parking] lot were ordered to place their hands against the wall of the store." (Ibid.) The second police officer ordered the defendant and his companions to "put their packages on the ground and stand next to the patrol car[.]" (Ibid.) The California Supreme Court determined, without discussion, the defendant was detained. (Id. at p. 477.) Factual differences prevent Aldridge from controlling here. In this case, Callanan did not get out of his car to "interrogate" the minor, nor did he order him to drop what he was carrying and place his hands on his head. Without waiting for Callanan to ask him to do anything, the minor voluntarily stood up and placed his hands on his head.
Aldridge was superseded by statute on another ground in People v. Souza (1994) 9 Cal.4th 224, 232.
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"Where a consensual encounter has been found, police may inquire into the contents of pockets, . . . ask for identification, . . . or request the citizen submit to a search." (Franklin, supra, 192 Cal.App.3d at p. 941.) Here, the juvenile court found the minor agreed to the patsearch, presumably based on Callanan's testimony that the minor stood up and placed his hands on his head before Callanan finished asking him whether he had any weapons, drugs, or needles. We must defer to that finding. (People v. Ayala (2000) 24 Cal.4th 243, 279.)
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
Jones, P.J. We concur: Needham, J. Bruiniers, J.