In re J.G.

Filed 4/24/07 In re J.G. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Donna L. Crandall, Judge. Affirmed.

Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

J.G. appeals from an order sustaining a petition (Welf. & Inst. Code,  602) charging him with possession of a controlled substance. He argues the trial court erroneously denied his motion to suppress because: (1) the police officer used J.s suspected truancy as a pretext to detain him for unrelated criminal activity; (2) the officer did not have J.s express consent to conduct the search; and (3) the officer was unaware J. was subject to a probation search and seizure condition at the time of the search. As we explain below, we find the encounter was consensual and J. expressly consented to the search, and therefore, we need not address the other issue. We affirm the order.

FACTS

In November 2004, J. pled guilty to assault with a firearm, making criminal threats, possessing a deadly weapon, and engaging in street terrorism for the benefit of a criminal street gang. The juvenile court sentenced him to 365 days in a juvenile facility and placed him on probation. A condition of his probation was to [s]ubmit [his] person, residence[,] and property to search and seizure by any peace/probation officer/school official any time day or night, with or without a warrant, probable cause or reasonable suspicion. At issue here is an incident that occurred over one year later in February 2006.

One early weekday afternoon during normal school hours, Anaheim Police Officer Robert Warren, in uniform and in a marked police car, was patrolling a residential neighborhood in a high drug and gang activity area where a burglary had occurred earlier. He saw three young men, including J. and Hector S. (collectively the minors), walking on the opposite side of the street. Warren thought they should be in school and decided to speak with the minors because of [t]heir young appearance and to see if they had any involvement in the recent burglaries.

Without activating his lights or siren, or blocking their path, Warren pulled onto the wrong side of the road into oncoming traffic, came up behind the minors, and stopped on the street parallel to the minors. From inside his patrol car, Warren said, Hi. What are you guys doing? The minors explained they were walking to the gas station to get food. Warren exited his patrol car with his hand rested on his gun, but he took it off before speaking with the minors.

Hector asked Warren, Why [they] were being pulled over? Warren sarcastically replied, Were you driving? He continued questioning the minors about school and the burglary. The minors explained they attended a continuation school, had already finished school for the day, and did not know anything about the burglary.

Warren requested to see the minors identification. One of the minors complied, but J. and Hector did not have identification. Warren called the minors information into dispatch and pinned the identification to his uniform.

Warren asked J. whether he had any drugs or weapons. J. said he did not. There was conflicting testimony as to what happened next.

At the hearing on the suppression motion, Warren testified he asked J. if [he] could check[,] and J. responded, [y]es. However, Hector testified Warren did not ask J. for permission to search, and J. never consented to the search.

Warren searched J. Warren found a small, black, Ziploc baggie in his right front coin pocket. Warren asked him whether it was weed [or] crystal[,] and he responded, [c]rystal. Warren arrested him. Warren returned the minors identification and stated, You guys can go now[.]

J. was charged with one count of possession of a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). At the hearing on J.s motion to suppress, after hearing Warrens and Hectors testimony, and counsels argument, the juvenile court denied J.s motion to suppress.

In denying the motion, the court stated the following: I am going to work backward in my ruling, starting with the issue of whether or not there was consent to search. [] I dont know whether [Hectors] attention was directed elsewhere at the time . . . Warren asked [J.] whether or not he could search. But [J.] knows hes on probation; he knows hes subject to search and seizure. He said yes. The search had to be consensual. He knows he cant refuse to allow an officer to search, whether hes got cause or whether he doesnt have cause. [] So the search, in this courts opinion, was clearly consensual. [] Whether there was a detention is a more difficult question, because three minors, one of whom is on probation -- and the question was never asked of [Hector] whether he was on probation or whether he had any encounters with law enforcement. [] Im quite sure that [J.] didnt think he was free to leave because he is on probation, so he may have felt he was detained, whether or not he was. [] As for the other two, how they felt really isnt relevant to [J.]. [] Speaking to . . . Warren, your answer when they asked, Why are we pulled over? although I understand why you gave it, it is not a good one. When someone asks a question like that, they should be given a straight answer. [] I absolutely know where your head was, and mine probably would be too and Id be inclined to be sarcastic also. But as a police officer, you have an obligation to give straight answers and not be sarcastic. It gets you in trouble and will get you in trouble. [] Whether or not the encounter was consensual, I think it probably was, because I think [Warren] was in fact doing his job. [] He saw three young-looking male individuals on the street on a weekday in the middle of the day. Its not his responsibility to know the hours of every continuation school or what school is in session during what hours. It is his responsibility to find out what theyre doing out there. [] Whether there were burglaries going on, I dont know. Whether that was just a ruse to engage them in conversation, I dont know. [] But he didnt yell at them as he was driving down the street and pulled over. He didnt use lights or siren. He pulled up and said, Hey, guys, whats going on? [] Hes taller, I would be willing to bet, than all of them. He is a police officer with a gun. And I dont think Ive ever seen a police officer get out of a car yet, who was in uniform, who didnt have his hand on his gun. Whether theyre getting out to go for doughnuts or whether theyre getting out to stop someone, it just seems to be a reflexive action. I do not find that that was intended to intimidate or anything else. [] [S]o all in all, I do find that the encounter was consensual. That although [J.] may have felt he was detained, and then he was, that [Warren] was entitled to talk to them and that the search was consensual. [] So the motion is denied.

J. plead guilty to possession of a controlled substance. The juvenile court found the allegation true and declared him a ward of the court. The court ordered him committed to a juvenile facility for 253 days and probation.

DISCUSSION

An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] The [trial] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 255.)

Consensual Encounter or Detention?

Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.] [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider 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. [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officers display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officers request might be compelled. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.] (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).) Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means. [Citation.] (United States v. Drayton (2002) 536 U.S. 194, 201 (Drayton).)

Here, the evidence supports the trial courts finding the encounter was consensual. Although Warren crossed the street and drove into oncoming traffic to speak with J., Warren drove up from behind the minors and stopped on the street alongside them without activating his lights or siren. When Warren stopped, he did not block their path or tell them to stop.[1] Warren merely asked him what they were doing. When Warren got out of his car, he had his hand on his gun, but when he spoke to J., he did not have his hand on his gun. Warren, who was alone and outmanned, did not brandish his weapon during the entire encounter. There was no evidence Warren touched J. at this point, or spoke in a manner indicating that compliance with his request might be compelled. Warren never told them they were not free to leave[.]

The few facts upon which J. focuses do not show the encounter was anything other than consensual. Contrary to J.s suggestion, Warren did not target him for the burglary. Warren asked him whether he had seen anyone breaking into the houses. We found no evidence, and J. cites to none, that Warren directly accused J. of committing the burglary. In any event, it was permissible for Warren to ask questions of J., so long as there was no coercion. (Drayton, supra, 536 U.S. at

p. 203.) And, Warrens uncommunicated state of mind, i.e., whether he thought J. was involved in the burglary, is of no consequence. (Manuel G., supra, 16 Cal.4th at

p. 821.)

The fact Warren did not correct Hector and tell him the encounter was consensual when Hector asked Warren why he pulled them over does not transform a consensual encounter into a detention. Warren did not tell J. he was free to go, but as J. concedes, he does not have to. (Drayton, supra, 536 U.S. at p. 203.)

The fact Warren had one of the minors identification in no way bears on whether the encounter between Warren and J. was consensual. Asking for identification does not transform a consensual encounter into a detention absent coercive circumstances. (Drayton, supra, 536 U.S. at p. 203.)

Finally, the fact Warren told one of the minors to sit down when he began to kneel or squat while he searched J. does not mean the encounter between Warren and J. was anything other than consensual. And, this was after J. consented to the search, as we explain anon.

Relying on In re James D.(1987) 43 Cal.3d 903 (James D.), In re Humberto O.(2000) 80 Cal.App.4th 237 (Humberto O.), In re Miguel G. (1980)

111 Cal.App.3d 345 (Miguel G.), and In re Jorge S. (1977) 74 Cal.App.3d 852 (Jorge S.), J. complains the trial court failed to apply the correct legal standard in ruling on his motion to suppress. He claims the court erroneously denied the motion because Warren used truancy as a pretext to investigate the burglary when Warren had no reasonable suspicion he was involved in the burglary.

J.s reliance on these cases is misplaced. The cases involved truancy and the scope of an officers powers when investigating truancy. The cases discussed the Education Code provisions dealing with compulsory education, a peace officers power to arrest during school hours, what an officer may do with a truant, and the specific and articulable facts that justify an officer to suspect a person is a truant. The courts also explained the effect of a truancy arrest is to return the absent student to school, as expeditiously as possible, to promote attendance so that students may be educated, and not punishment. The courts opined a truancy arrest is a limited type of arrest that may not be used as a pretext for investigating criminal matters. (James D., supra, 43 Cal.3d at p. 915; Humberto O., supra, 80 Cal.App.4th at p. 242; Miguel G., supra, 111 Cal.App.3d at p. 349; Jorge S., supra, 74 Cal.App.3d at p. 857.)

Here, Warren did not arrest J. for truancy to investigate him for other criminal matters, i.e., the burglary. Warren approached J. to inquire whether he should be in school, because he appeared to be young, and to ask him about a burglary that had been committed earlier in the neighborhood. After Warren asked J. if he could search him, and he consented, which we discuss anon, Warren searched him and found methamphetamine. Warren then arrested him. This was permissible as the encounter was consensual. (Drayton, supra, 536 U.S. at p. 201.) Therefore, based on all the circumstances surrounding the encounter, we conclude Warrens conduct would not have communicated to a reasonable person that he or she was not free to decline Warrens requests or otherwise terminate the encounter.

Consent to Search?

The prosecution bears the burden of showing that the consent to a search is voluntary and unaffected by duress or coercion. [Citations.] In every case, the voluntariness of a consent is a factual question to be decided in light of all the circumstances. [Citation.] The trial courts findings, on the issue of consent, whether express or implied, will be upheld on appeal if supported by substantial evidence. [Citation.] Trial courts may accept an officers testimony that defendant freely consented to the search even in the face of conflicting testimony from defense witnesses. [Citation.] (People v. Miller (1999) 69 Cal.App.4th 190, 202-203.)

Here, there was sufficient evidence for the trial court to find J. consented to Warrens request to search him. Warren testified he asked J. if he could search him, and J. expressly consented to the search. Although Hector testified he did not hear Warren ask J. for consent, the trial court judged the credibility of the witnesses and concluded Warren was credible. Warrens testimony J. consented to the search was substantial evidence supporting the trial courts finding.

J. distorts the record and argues the trial court concluded J. consented to the search based on his probation search condition, but there was insufficient evidence he was on probation and subject to a search condition. He claims the only evidence J. was on probation and subject to the condition was Hectors testimony J. was on probation.[2] We disagree with his characterization of the trial courts ruling.

In ruling on his motion, the trial court stated: I dont know whether [Hectors] attention was directed elsewhere at the time . . . Warren asked [J.] whether or not he could search. But [J.] knows hes on probation; he knows hes subject to search and seizure. He said yes. The search had to be consensual. He knows he cant refuse to allow an officer to search, whether hes got cause or whether he doesnt have cause. [] So the search, in this courts opinion, was clearly consensual.

Although the trial court referenced the probation search condition, the court found Hectors testimony unbelievable (he was not paying attention when Warren requested permission to search), and believed Warrens testimony. The court reasonably concluded J. consented based on Warrens request, and not on the probation search condition.

We conclude the trial court properly denied J.s motion to suppress. Therefore, we need not address J.s final claim a police officer may not rely on a probation search and seizure condition unless the officer is aware of the condition before the search.

Finally, we must note that we share the trial courts disappointment with Officer Warrens response to Hectors question about why they were being stopped. The question, while poorly phrased, deserved a civil and responsive answer.

DISPOSITION

The order is affirmed.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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Analysis and review provided by Vista Property line attorney.

[1] J.s reliance on People v. Jones (1991) 228 Cal.App.3d 519, is misplaced. In Jones, the officer pulled across the street, parked diagonally against traffic, and told defendant to stop. (Id. at p. 523.) Here, Warren did not tell J. to stop.

[2] J. claims the only evidence before the juvenile court he was on probation and subject to a search and seizure condition was Hectors testimony he was on probation, but the Disposition Agreement from the November 2004 matter stating he was subject to a search and seizure condition is in the clerks transcript. His claim is no consequence, however, because we find J. expressly consented to the search.