In re Ricky M.

Filed 8/9/07 In re Ricky M. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A petition filed in the Sacramento County Superior Court, sitting as a juvenile court, alleged that Ricky M. came within the provisions of Welfare and Institutions Code section 602 by unlawfully carrying on his person a switchblade knife having a blade two inches or more in length (Pen. Code, 653k). After denying the minors motion to suppress evidence (Welf. & Inst. Code, 700.1), the juvenile court conducted a contested jurisdictional hearing, sustained the petition, and placed the minor on six months supervised probation (Welf. & Inst. Code,  725, subd. (a)). The minor appeals, contending his motion to suppress evidence should have been granted. We shall affirm.

FACTS

As the minor does not challenge the juvenile courts finding that his weapon was a switchblade, we discuss only his suppression motion.

The motion

The minor moved to suppress all evidence and statements obtained after his warrantless arrest, alleging among other things that his detention was unlawful. The People replied that the officers had reasonable suspicion of criminal activity and the minors involvement in that activity when he was detained.

Evidence

At the hearing on the motion, Galt Police Officer Wesley Pittman testified that around 9:00 p.m. on June 29, 2006, he was on foot patrol in uniform at the Galt Festival, along with two other Galt police officers and two armed private security officers.^[1] A woman whom the officers did not know told them that some persons in attendance were intoxicated and causing problems. The officers did not ask her to identify herself or to give any further details.

The woman pointed to a group of seven or eight people at a table 30 to 40 feet away, who appeared to range in age from mid-teens to late twenties. As the officers approached them, they were sitting quietly. However, Officer Pittman recognized one as a person who had been asked to leave the festival about two hours before because he was under the influence of alcohol.

After arresting that person, Pittmans training officer directed Pittman to contact a person sitting across the table (the minor) to determine whether he was intoxicated. As Pittman looked at him and started to walk over to him, he got up and tried to leave. He went only two or three feet before one of the private security officers detained him. After the minor was detained, Pittman detected a strong odor of alcohol on the minors person.^[2]

Officer Pittman asked the minor whether he was carrying any weapons. He said that he had a knife in his front pants pocket. Performing a patdown search, Pittman found the knife, determined that it was a switchblade, and arrested the minor.

Argument

The minors counsel argued: When the minor was detained there were no specific articulable facts which would have caused the officers to suspect reasonably that criminal activity had occurred, was occurring, or was about to occur, and that the minor was involved in it. The civilian complaint was unspecific. When the officers approached the table they did not see anyone misbehaving. There was no evidence that the minor even knew the other people at the table. His mere proximity to someone whom the officers decided to arrest did not give them reasonable suspicion of any criminal activity on the minors part. Notwithstanding Officer Pittmans brand-new claim that he smelled alcohol on the minors person, there was no evidence that the minor was under the influence. Because his detention was unlawful, his purported consent to the search of his person was of no effect.

The courts ruling

The juvenile court found Officer Pittman credible. Because (1) he was a relatively inexperienced officer, (2) his report focused on the charge for which he had arrested the minor, and (3) the minor had not been grossly intoxicated, it was plausible that Pittman had simply forgotten to record his recollection of smelling alcohol on the minors person.

In any case, the minors detention was lawful aside from whether Pittman smelled alcohol on him. The officers received a citizen complaint (presumptively reliable, absent evidence of bias or a motive to mislead) about an apparently intoxicated group who had been causing problems; this complaint clearly required investigation. Then the officers saw that someone who had been asked to leave for intoxication was in the group -- heightening their suspicion that the group, apparently containing teenagers, might be consuming alcohol, a crime for minors. Next, within apparently mere seconds, they saw the minor sitting near the person known to be intoxicated, making it reasonable to investigate whether the minor possessed alcohol even if he did not appear intoxicated. Pittmans attention was directed to the minor while the private security guard, acting at the behest of the police, had already detained him to keep him from walking away.^[3] It was reasonable to detain the minor briefly to investigate his possible possession or consumption of alcohol. While the minor was detained, Pittman could properly ask him, for purposes of officer safety, whether he had any weapons on him. His affirmative answer gave Pittman probable cause to search him. Therefore, both the detention and the search of the minor were lawful.

DISCUSSION

Defendant contends that his motion should have been granted because Officer Pittman lack reasonable suspicion to detain him. We disagree.

Standard of review

Reviewing the denial of a motion to suppress evidence in juvenile proceedings, we consider the evidence most favorably to the trial courts ruling and uphold the courts express or implied findings of fact if supported by substantial evidence, but decide independently whether the challenged search or seizure was lawful. (In re Cody S. (2004) 121 Cal.App.4th 86, 90.) The legality of a search depends on its reasonableness under all the circumstances. (Id. at p. 91.) The reasonable suspicion required to justify a search is a lower standard than probable cause. (Ibid.)

The minors arguments

The minor asserts in his opening brief that the trial courts finding of reasonable suspicion was in error because: (1) The citizen complaint was insufficiently specific. (2) When the officers observed the group complained of, they saw nothing unusual. (3) The minors mere proximity to someone else suspected of wrongdoing did not arouse reasonable suspicion as to the minor. (4) The officers did not see the minor with that other person at or near the time he was told to leave the festival. (5) When they did see the minor, they saw nothing suspicious or out of the ordinary about him. (6) The minors attempt to leave did not arouse reasonable suspicion because he might simply have been going to walk to the restroom or to return home. In his reply brief, the minor further asserts: (1) It was mere speculation that he belonged to the same group as the arrested subject, because he was sitting on the opposite side of the table and no evidence connected him to anyone else there. (2) If he did not appear to be intoxicated or in possession of alcohol, his age was irrelevant. (3) The objective facts known to the officers would have justified at most a consensual encounter with the minor. We are not persuaded.

The minor sets the bar for reasonable suspicion too high. To justify a brief investigative detention, the officers did not need to be certain that the group or the minor was involved in criminal activity; they needed only articulable objective facts which created a suspicion, under the totality of the circumstances, that criminal activity might be afoot. (Illinois v. Wardlow (2000) 528 U.S. 119, 123 [145 L.Ed.2d 570, 576] (Wardlow); United States v. Sokolow (1989) 490 U.S. 1, 7 [104 L.Ed.2d 1, 10] (Sokolow).)

Contrary to the minors view, the citizen complaint initially gave the officers enough for that purpose. The informant told them that a specific group of people sitting at a nearby table were intoxicated and causing problems. Nothing in the record suggests any reason why the officers should have disbelieved or doubted this tip. It gave them ample reason to go and check out the group without taking additional time to question the informant.^[4]

So far as the minor claims that his proximity to a group member who had been ordered to leave due to intoxication two hours before but had either stayed or returned in violation of the order did not give grounds for reasonable suspicion as to him personally, we disagree. When a person who appears underage is in the company of someone already known to the officers to have been intoxicated hours before and to have refused to obey their orders to leave, and both are part of a group which has been recently reported by a citizen to be intoxicated and causing problems, the officers have reasonable suspicion that the minor may be violating the laws against minors possession or consumption of alcohol.

The fact that the minor tried to leave when the officers approached provided additional reasonable cause for a detention. [U]nprovoked flight upon noticing the police or nervous, evasive behavior can be pertinent to determining reasonable suspicion. (Wardlow, supra, 528 U.S. at p. 124 [145 L.Ed.2d at p. 576].) Although a person approached by the police without reasonable suspicion or probable cause may go about his business or refuse to cooperate, unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not going about ones 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 individuals right to go about his business or to stay put and remain silent in the face of police questioning. (Id. 528 U.S. at p. 125 [145 L.Ed.2d at p. 577].)

The fact that someone might try to evade the police for innocent reasons does not make it unlawful for them to stop him and detain him briefly to find out whether grounds exist to investigate further. This minimal intrusion does not offend against the Fourth Amendment to the United States Constitution. (Wardlow, supra, 528 U.S. at pp. 125-126 [145 L.Ed.2d at p. 577].)

The minor relies on Ybarra v.Illinois (1979) 444 U.S. 85 [62 L.Ed.2d 238] (Ybarra)), but Ybarra is distinguishable.

In Ybarra, officers executed a warrant authorizing them to search a bar and the person of a bartender who had allegedly sold heroin there. They had no objective grounds to believe that any patron then on the premises, including Ybarra, had purchased heroin from the bartender or anyone else there. They did not recognize Ybarra or see him do anything suspicious. Nevertheless, they searched him, along with the other patrons (purportedly for weapons), and found heroin on him. (Ybarra, supra, 444 U.S. at pp. 87-91 [62 L.Ed.2d at pp. 243-245].)

In finding that the officers conduct violated the Fourth Amendment, the Supreme Court stated: [A] persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citations.] Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. (Ybarra, supra, 444 U.S. at p. 91 [62 L.Ed.2d at p. 245]; italics added.)

Since Ybarra deals mainly with probable cause to justify a warrantless search, it does not support the minors claim that mere propinquity to others independently suspected of criminal activity (Ybarra, supra, 444 U.S. at p. 91 [62 L.Ed.2d at p. 245]) can never give rise to the reasonable suspicion required for an investigative detention. (See Sokolow, supra, 490 U.S. at p. 7 [104 L.Ed.2d at p. 10]; In re Cody S., supra, 121 Cal.App.4th at p. 91.)

Ybarra addresses reasonable suspicion only in rejecting the States fallback argument that the search could be justified under the stop-and-frisk standard articulated in Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889] (Terry). The court disagreed because, unlike in Terry, the officers had no reasonable belief that [Ybarra] was armed and presently dangerous, . . . the predicate to a patdown of a person for weapons. [Fn.] (Ybarra, supra, 444 U.S. at pp. 92-93 [62 L.Ed.2d at p. 246].) Here, in contrast to Ybarra and Terry, the officers did not detain the minor to perform a nonconsensual patdown search. Thus, this holding in Ybarra is also inapposite.

Because the officers had reasonable suspicion that the minor might be involved in criminal activity, they were justified in detaining him for further investigation when he tried to leave. (Wardlow, supra, 528 U.S. at pp. 124-125 [146 L.Ed. 2d at pp. 576-577].) It does not matter that he could have had innocent reasons for leaving: they were entitled to find out whether or not that was the case.^[5] (Ibid.)

Finally, the minor asserts that the facts here at most justified a consensual encounter. (See In re Manuel G. (1997) 16 Cal.4th 805, 821.) However, he does not cite any authority supporting this proposition. (In re Manuel G., at the cited passage, merely defines the nature of a consensual encounter and distinguishes such an encounter from a detention. (Ibid.)) In any event, [t]he reasonableness of the officers decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques. (Sokolow, supra, 490 U.S. at p. 11 [104 L.Ed.2d at p. 12].)

The minor does not argue that Officer Pittman was not entitled to ask him whether he had a weapon once he was detained, or that his answer was involuntary. We agree with the trial court that Pittmans question was reasonable under the circumstances and once the minor had answered affirmatively Pittman had probable cause to search the minors person.

DISPOSITION

The judgment is affirmed.

SIMS , J.

We concur:

BLEASE , Acting P.J.

DAVIS , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] At that time, Officer Pittman had been a Galt patrol officer for about four months. One of the other officers there was Pittmans training officer.

^[2] On cross-examination, Pittman admitted that he did not put this fact into the report he wrote that night or into a follow-up statement written four months later. On redirect, he testified that he simply forgot to include it.

^[3] The minor accepts the courts finding that the private security officer was acting as an agent of the police for Fourth Amendment purposes.

^[4] We reject the minors claim that there was no substantial evidence he even knew the others at the table. The trial court impliedly found otherwise, calling the persons at the table a group, as one would expect persons sharing a table at a town festival to be. No evidence supports the minors contrary speculation.

^[5] The minor asserts that Wardlow, supra, 528 U.S. 119, is inapposite because he did not engage in headlong flight, as did the suspect there. (Id. at p. 124 [145 L.Ed.2d at p. 576].) But Wardlow does not purport to hold that only headlong flight is enough to arouse reasonable suspicion.