In re Larry S.

Filed 10/12/06 In re Larry S. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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After his motion to suppress evidence was denied, minor Larry S. admitted he was within the provisions of Welfare and Institutions Code section 602 in that he possessed a firearm. (Pen. Code, § 12101, subd. (a)(1).) Three related allegations were dismissed. He was continued as a ward of the court and ordered to serve 26 days in juvenile hall with credit for time served, followed by a commitment to the Sacramento County Boys Ranch for a maximum three years eight months.

On appeal, the minor contends his suppression motion should have been granted because (1) he was unlawfully detained, and (2) information obtained during the detention, which led to discovery of the firearm, is the fruit of a poisonous tree. We shall affirm the judgment.

FACTS FROM SUPPRESSION HEARING

Prosecution Case-in-Chief

On the afternoon of November 12, 2005, Sacramento Police Department Sergeant Charles Husted assisted the Drug Enforcement Administration (DEA), which planned to conduct a parole search of the Williams residence. Husted sat alone in a marked patrol car across the street from the Williams residence and was responsible for ensuring that no one entered before the DEA task force arrived.

Sergeant Husted saw a Chevrolet with no front license plate approaching his location. The car parked in front of the house next to the Williams residence. Three males got out of the car. The minor was the driver. At this time, Husted remained in his patrol car.

When he saw the males walking toward the Williams residence, Sergeant Husted left his car and approached them on foot. Husted also radioed for other officers to respond. When he was about 20 to 25 feet away, Husted said “hello” and asked the males whether they lived at the Williams residence. The person who had been in the front passenger seat told Husted that the minor lived at that address. Husted then asked the minor if he lived there and he said that he did.

Sergeant Husted explained that he was assisting an investigation and that no one could enter the house until the other officers arrived. The former front seat passenger stated he had not done anything wrong and walked away. Husted said, “I’m not going to chase you. So bye.” The person jogged, then ran out of sight. Husted made no attempt to pursue him. He asked the two remaining males “what that was all about.” They claimed not to know.

Sergeant Husted told the duo that other officers should be on the scene shortly and said he would like the duo to sit down on the curb until the officers arrived. Husted made this request for his own safety. The duo sat on the curb in front of the minor’s car. Husted radioed a description of the person who had run away.

After the two males sat, Sergeant Husted asked the minor for his name and birth date. The minor provided that information and indicated he did not have a driver’s license or other identification. Husted asked the other person the same questions.

Shortly thereafter, the members of the DEA task force arrived and prepared for the parole search. Sergeant Husted asked the minor whether the Chevrolet belonged to him, and he said he had purchased it recently. Husted asked whether there was anything illegal in the car, and the minor answered, “nothing that he knew of.” Husted explained that the car likely would be towed because the minor did not have a driver’s license and that, prior to the tow, the police would inventory the car. Husted looked inside the car and found a .25-caliber semiautomatic pistol under the driver’s seat. Husted relayed the information to a task force investigator, who photographed the pistol and conducted an inventory search of the car.

Defense

The minor testified in his own behalf. He claimed he had never previously gone onto the Williams property. When the minor parked his car and opened the door, Sergeant Husted quickly moved in his direction. The minor was walking to a neighbor’s garbage can when Husted said, “stay right there.” Husted’s hand was on his holstered gun. The minor’s two friends stood outside the car. Husted asked their names. Then one of the minor’s friends fled. Husted yelled, “get back here” and radioed the individual’s description. He told the minor and his other friend to sit down. Then Husted handcuffed the minor.

Shortly afterward, other law enforcement officers arrived. One of them handcuffed the minor’s friend. Sergeant Husted spoke with three other officers. Then Husted searched the minor’s car while another officer watched the minor.

Juvenile Court Ruling

The juvenile court found that Sergeant Husted was a credible witness. The court found Husted properly prevented the minor and his companions from entering the subject house. However, Husted did not prevent them from leaving, as evidenced by the fact that “one of them successfully fled on foot.” The court concluded that the minor, who had seen “his friend successfully take off running,” was free to leave even though he did not interpret Husted’s remarks to so indicate. The court explained that Husted’s use of his radio to communicate that a person (the former front seat passenger) had fled the scene did not reasonably indicate to the minor that the minor was not free to leave.

DISCUSSION

The minor contends he was detained in violation of the Fourth Amendment, and the evidence (firearm) found as a result of that detention was inadmissible. He claims the juvenile court erred by concluding the encounter was consensual. We find no prejudicial error.

“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser); People v. Weaver (2001) 26 Cal.4th 876, 924.)

In this case, Sergeant Husted told the minor that other officers should be on the scene shortly and that he would like the duo to sit down on the curb until the officers arrived. Husted made this request for his own safety. He believed, and a reasonable officer in his position would believe, that there “may be something going on with the three of them,” including the person who had fled, “at that point.”

The most reasonable interpretation of Sergeant Husted’s remarks is that the minor would be free to leave “shortly,” once the other officers arrived “on the scene.” Husted subjectively believed that because he “didn’t tell them that they weren’t free to leave,” his omission “would be an indication that they could leave,” even before the other officers arrived. However, a reasonable person could discern that such a premature departure would pose additional risk for Husted’s safety and that Husted would not condone that result.

The record supports the juvenile court’s finding that the minor “saw his friend successfully take off running,” but it does not support an inference that the minor knew the friend had “successfully fled on foot.” The minor was advised of the involvement of other, unseen officers, and he could only speculate whether his friend’s flight would prove to be successful notwithstanding Sergeant Husted’s radio broadcast of the friend’s description to the other officers.

The juvenile court correctly reasoned that Sergeant Husted may not have intended his radio broadcast to be a direction to detain the fleeing individual; rather, Husted could communicate “all kinds of information,” for a variety of reasons, without intending that the individual be detained. But the fact that the broadcast could serve alternate purposes highlights its ambiguity, not its utility as an objective indication that the minor was free to leave. In short, neither the friend’s flight nor the radio broadcast reasonably tended to suggest that the minor was free to leave before the other officers arrived. For these reasons, we conclude the minor was detained until the other officers were expected on the scene.

The Attorney General contends that if a detention took place when Sergeant Husted told the minor to sit on the curb, the detention was reasonable in light of his unexplained arrival at the scene of a DEA task force search. We agree.

In Glaser, supra, 11 Cal.4th 354, the California Supreme Court held: “When, in the course of initiating a search under warrant of a private residence for illegal drugs or related items, police officers encounter on the premises a person whose identity and connection to the premises are unknown and cannot immediately be determined without detaining the person, the officers may constitutionally detain him or her for the period of time required and in the manner necessary to make those determinations and to protect the safety of all present during the detention. If the person is determined to be an occupant of the home to be searched, he or she may be detained, pursuant to [Michigan v.] Summers [(1981) 452 U.S. 692 [69 L.Ed.2d 340]], for the duration of the search. (Summers, supra, 452 U.S. at p. 705 [69 L.Ed.2d at p. 351].) If the person is determined not to be an occupant, further detention is proper only if justified by other specific, articulable facts connecting him or her to the criminal activity suspected to be occurring on the premises or establishing a danger to the officers if the person is released.” (Glaser, supra, 11 Cal.4th at p. 374.)

In People v. Hannah (1996) 51 Cal.App.4th 1335 (Hannah), the Court of Appeal applied Glaser to a case involving an arrest warrant, not a search warrant. As in the present case, there was no probable cause to believe a crime was ongoing at the premises to be entered. (Id. at pp. 1339-1343.) But that fact was not determinative; the court “‘must consider the totality of the circumstances’” to determine whether the detention was justified by the officer’s need to protect himself and others involved in the search (id. at p. 1343, quoting Glaser, supra, 11 Cal.4th at p. 366), and the “existence of a warrant is but one factor” that must be considered (ibid.). Hannah noted that Glaser is founded upon Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889], in which the frisking police officer had neither a search warrant nor an arrest warrant. (Hannah, supra, 51 Cal.App.4th at pp. 1340-1341, 1343.)

In People v. Matelski (2000) 82 Cal.App.4th 837 (Matelski), the Court of Appeal majority applied Glaser and Hannah to a probation search. (Id. at pp. 841, 848-849.) Officers went to the house because a probationer had failed a drug test. The defendants were discovered when they walked out the front door. (Id. at p. 841.)

In this case, the officers were initiating a search of a private residence pursuant to a parole condition, which justified their entry as did the search warrant in Glaser and the probation search condition in Matelski. Sergeant Husted had “determined,” to the extent that he could do so based on statements by the minor and his companion, that the minor was an occupant of the premises to be searched, as opposed to a “complete stranger to the premises” who “might . . . be sent on his or her way with little fear of danger to the officers conducting the search.” (Glaser, supra, 11 Cal.4th at p. 373.) Glaser thus supports the minor’s detention, at least until Sergeant Husted developed the further fact that the minor, who was driving, had no driver’s license. Contrary to the minor’s argument, his unlicensed driving is not the fruit of a poisonous tree. The unlicensed driving, and the evident lack of another person to whom the car could be released, justified the inventory search that revealed the firearm. (Cf. People v. Williams (1999) 20 Cal.4th 119, 123 [sole occupant of vehicle had expired license; California Highway Patrol policy required officer to inventory vehicle’s contents and then tow the vehicle].)

The minor attempts to distinguish Glaser, based in part upon facts that the court included in its opinion “only to provide factual context,” even though they were “not relevant” to the issue being decided. (Glaser, supra, 11 Cal.4th at p. 361.) As Glaser explained, the court was “concerned here only with the validity of the initial period of detention by Officer Hughes, ending when [Investigator] Murray returned to the driveway area. The propriety of defendant’s continued detention from that point on, and of the ensuing patdown and other searches, was not decided by the Court of Appeal or raised in the petition, and we decline to decide that question. The events following Murray’s return to the driveway, therefore, will be described only briefly and only to provide factual context. Information acquired by the police after the initial detention, of course, is not relevant to the legality of that detention.” (Ibid.)

Following these prefatory remarks, Glaser explained that “Murray, shining his flashlight on defendant’s face, recognized him; he knew defendant had been arrested on narcotics and weapons charges during a previous search of the [subject] residence and that defendant had at some point suffered a felony conviction and been committed to the California Rehabilitation Center.” (Glaser, supra, 11 Cal.4th at p. 361.) For the reasons stated in Glaser, the fact that nothing similar occurred in this case is irrelevant.

The minor contends that, in contrast to Glaser, he “was across the street from the residence in the daytime and was by all appearances engaging in completely legal behavior.” But his having failed to enter the Williams driveway is not determinative in light of the assertions that he lived at the Williams residence and thus was entitled to enter.

The minor notes that there was “no evidence that the search of the [Williams] residence was for any purpose other than a parole search” of Williams. However, for the reasons stated in Hannah, supra, 51 Cal.App.4th 1335 and Matelski, supra, 82 Cal.App.4th 837, we conclude that Glaser applies to the present parole search and is not “inapposite” to our determination. The minor’s suppression motion was properly denied.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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