In re Markey B.

Filed 10/20/06 In re Markey B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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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In this juvenile delinquency case, Markey B. (the minor) admitted an allegation that he possessed rock cocaine. He appeals, contending the juvenile court erroneously denied his motion to suppress because police officers conducted an unreasonable search and seizure. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2005, around 6:30 p.m., uniformed Sacramento Police Officers Kyle Jasperson and Ryan Bullard were patrolling in the Oak Park area in a marked police car. Officer Jasperson had patrolled Oak Park for at least four years and knew it as a known drug area, which means “an area where narcotics are commonly sold, bought . . . and where a lot of narcotics arrests are frequently made.” Officer Jasperson was driving and noticed two people standing in front of a small, eight-unit apartment complex that had been designated as an active “problem oriented police officers” project. Officer Jasperson had previously received numerous calls of narcotics complaints in the area of this apartment complex. The two individuals, one of whom was the minor, were standing almost directly underneath a “no loitering” and “no trespassing“ sign posted on the apartment building. Officer Jasperson had never seen the minor before, but because he had personally met 90 percent of the apartment tenants he stopped his patrol car.

Officers Jasperson and Bullard watched the two stand in front of the apartment complex for 10 to 20 seconds before they stopped the patrol car. Officer Jasperson had eye contact with the two individuals as he drove up the street and “[i]t wasn’t until [he] stopped that they started walking away.” Officer Jasperson backed the patrol car up closer to the two individuals, and Officer Bullard got out of the patrol car and called them over. Officer Jasperson asked the minor his name and if he was on probation or parole. During this encounter, Officer Jasperson observed the minor manipulating something in his mouth. Officer Jasperson asked the minor to open his mouth and the minor complied. In the minor’s mouth, Officer Jasperson saw an off-white, rock-like substance wrapped inside a clear piece of knotted plastic that he suspected was rock cocaine. Officer Jasperson told the minor to spit out what was in his mouth but the minor instead attempted to swallow it. Officer Jasperson then squeezed the minor’s cheeks to open his mouth and the minor spit out the object.

After a petition was filed alleging he had possessed rock cocaine, the minor moved, pursuant to Welfare and Institutions Code section 700.1, to suppress the object found in his mouth. The juvenile court denied that motion. The minor appeals.

DISCUSSION

I

Standard Of Review

In reviewing a motion to suppress, we defer to the trial court’s findings of fact that are supported by substantial evidence. We select the applicable law and apply constitutional principles to the trial court’s factual findings de novo. (Ornelas v. United States (1996) 517 U.S. 690, 696-698 [134 L.Ed.2d 911, 919-920]; People v. Alvarez (1996) 14 Cal.4th 155, 182.)

II

Reasonableness Of The Detention

The minor contends there were no specific and articulable facts to justify Officers Jasperson’s initial detention. He contends Officer Jasperson was acting on a hunch, which falls short of the Fourth Amendment requirement of reasonable suspicion. The People concede the detention of the minor constitutes a seizure but argue that the facts warranted a reasonable suspicion that the minor might have been loitering with intent to commit a drug offense, in violation of Health and Safety Code section 11532.

The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905].) “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. Souza (1994) 9 Cal.4th 224, 231.)

Health and Safety Code section 11532 provides, “It is unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit [a narcotics] offense. . . .” Loitering is defined as, “to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.” (Health & Saf. Code, § 11530, subd. (a).)

At the time the officers detained the minor, Officer Jasperson had personally met 90 percent of the tenants living in the apartment complex, but had never before seen the minor. Officer Jasperson knew the complex was in a known drug area, which he described as “an area where narcotics are commonly sold, bought, where we commonly receive a lot of narcotics complaints, and where a lot of narcotics arrests are frequently made.” Further, he had received numerous calls of narcotics complaints at the particular apartment complex. Officer Jasperson watched the boys stand in front of the apartment complex for 10 to 20 seconds before stopping the patrol car in front of them. When he did so, the boys began to walk away. It was at this point the detention occurred.

The facts known to Officer Jasperson at the time of the detention were sufficient to justify a reasonable suspicion the boys were violating Health and Safety Code section 11532. Under the circumstances, a suspicion that the minor was lingering without a lawful purpose and with the intent to commit a narcotics offense was objectively reasonable given Officer Jasperson’s knowledge of most of the tenants at the complex, previous narcotics activity at the complex, and the minor’s reaction of walking away upon seeing the patrol car stop.

Having concluded there was a reasonable basis for the initial detention, the only possible issue remaining is the extent of the detention. The minor contends an investigative stop must be “carefully tailored to its underlying justification . . . last[ing] no longer than is necessary to effectuate the purpose of the stop.” (Florida v. Royer (1983) 460 U.S. 491, 500 [75 L.Ed.2d 229, 238].) The reasonableness of an investigative stop must be viewed in light of the totality of the circumstances. (United States v. Knights (2001) 534 U.S. 112, 118 [151 L.Ed.2d 497, 505].) The Supreme Court has held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” the officer may briefly stop the suspicious person to either dispel or confirm that suspicion. (Terry v. Ohio, supra, 392 U.S. at p. 30 [20 L.Ed.2d at p. 911].) Here, the investigative stop consisted of Officer Jasperson asking the minor his name and if he was on parole or probation. This investigative stop was very brief because Officer Jasperson quickly noticed the minor manipulating something in his mouth which led to the discovery of the cocaine. Accordingly, we conclude the detention was reasonable.

III

The Search Of The Minor

The minor argues the evidence of the cocaine should be suppressed because it was derived from an unreasonable search by Officer Jasperson. The minor contends that the officer patted down and “frisked” him. Officer Jasperson denied conducting a patdown search of the minor.

The minor’s argument misses the point. The contraband was not obtained as a result of a patdown or “frisk.” The contraband was obtained when Officer Jasperson asked the minor to spit out the substance in his mouth which he saw and suspected was rock cocaine. When the minor refused to do so and attempted to swallow it, Officer Jasperson squeezed the minors cheeks causing him to open his mouth and spit out the object.

Since we have already concluded that this initial stop was reasonable, the evidence gained from it was not subject to suppression.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

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