In re Robert D.
Filed 7/16/13 In re Robert D. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re ROBERT D., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT D.,
Defendant and Appellant.
D062373
(Super. Ct.
No. J221354)
APPEAL from
a judgment of the Superior Court
of
County, Joe O. Littlejohn and Browder A. Willis, III,
Judges. Affirmed.
Cynthia
Han, under appointment by the Court of Appeal; Appellate Defenders, Inc. and
Patrick DuNah for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and Eric C.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Robert D. was accused by a petition filed in the
knife, alleged as a misdemeanor. (Pen.
Code, §§ 21310 & 17, subd. (b)(4).)
Following the denial of his motion to suppress evidence on
admitted the allegations in the petition.
He was declared a ward of the juvenile court and placed with his
mother.
Robert
appeals contending the trial court erred in denying his motion to suppress
evidence. We will find his detention and
arrest to be proper and affirm.
STATEMENT
OF FACTS
The events
in this case took place at about 1:30 a.m.
on April 4, 2012, on North
Twin Oaks Valley Road in San
Marcos. At that
time Sergeant Michael Blumenthal of the San Diego County Sheriff's Office was
driving southbound when he noticed a car parked off to the side of the road
with its parking lights on and the engine idling. Aware that there had been a number of
residential burglaries in the area, Blumenthal slowed to observe the parked
car. As he passed the car, Blumenthal
observed Robert raise his head, look at the patrol car and then duck back
down.
Blumenthal
was able to turn around and again approached the parked car from the back. As he approached the car, Blumenthal turned
on his spotlight. Robert again raised
his head up, looked at the patrol car and ducked back down out of view. Blumenthal called for backup and noticed that
the driver's seat of the car was unoccupied.
As he approached
the parked car, Blumenthal observed a scarf draped over the steering
column. Such observation was consistent
with stolen cars where the driver wants to cover a damaged steering column.
When he
approached the car the officer observed Robert.
He was wearing baggy shorts, an oversized white tee shirt and white
socks that covered the portions of his legs that would have otherwise been
visible. Robert told Blumenthal that his
sister owned the car and that she was "up at the house." Blumenthal believed that Robert's manner of
dress was consistent with what he had seen on gang members and persons who had
spent time in custody.
The officer
feared that Robert might be armed. He
told Robert to turn off the engine. He
then handcuffed Robert and took him to the back of the patrol car. By then the backup officer, Deputy Stalzer,
had arrived. Blumenthal sent him up to
the nearby houses to find out if criminal activity was occurring there. Blumenthal then asked Robert if he was
carrying any weapons. Robert said he had
a knife in his left front pocket. Robert
was then placed under arrest.
Blumenthal
testified the reason he handcuffed Robert was that there were three street
gangs in San Marcos and what Robert
was wearing was consistent with those gangs.
He testified that the gangs favor baggy clothing because it is easier to
conceal weapons.
The
juvenile court denied the motion to suppress with the following findings:
"I think that the [deputy] had probable cause to
turn around in the street after he saw somebody in a car bobbing down. There was enough light there on the car for
him to see the person in the car, the person bob down, duck down, as the
[deputy]'s car went by. The [deputy]
made a circle, came back. When he came
back to the car, the person was basically doing [furtive] movements in that
car. The [deputy] indicated that he saw
the person being in the passenger seat of the car and the car's engine was
running, and so that gave rise, from my point of view, to a reasonable
suspicion that somebody else was in the area and the person in the driver seat
is making [a furtive] motion.
"The Court is not really that persuaded by the
dress of this particular person as being a reason for him to do anything if
that was only there. But the fact that
the person bobbed up one time, got back down, and then was kind of bobbing up
-- that's [the] impress[ion] the [deputy] gave the Court in testifying -- and
the engine was running, and so the [deputy] approached the car. Then he sees a scarf covering the steering
wheel area. And I think that the average
[deputy] who is out in the street who has seen cars that were stolen, that the
starting mechani[sm] is punched and cars are hot[-]wired and all this sort, so
the [deputy] said that gave him rise to believe that the car might have been .
. . stolen and this was an attempt to conceal the wires showing.
"The testimony isn't that the [deputy] saw the keys
initially. The [deputy] said he asked
for the keys, because he ordinarily asks for the keys because he recognizes
that cars can be hot[-]wired and he wanted to see if there were keys
there. The fact that there were keys
there did not mean that the car wasn't stolen also.
"Now, you wanted him to rush to see[] whether or
not information was in the system that the car was stolen. But to even [have]
done that first, if the [deputy] had been concerned about his safety, would not
have been dispositive as to whether or not that car had been stolen or
not. It might have been stolen and not
reported at that point in time.
"And you wanted the [deputy] to further investigate
the situation, it appears to me. But the
[deputy] couldn't further investigate the matter with the young man being in
the car. He said the sister was down the
way and all of that. The young man, he
didn't show, for example, the registration in the car, say this is my sister's
registration, if it was in the car. You
see what I'm saying? There was no attempt
to show that. So the [deputy] got the
young man out of the car.
"There was a lot in this information that was
presented to the Court, some of which, you know, really basically sounded like
profiling, but in the final analysis it came down to the [deputy] having a need
to be concerned about his safety as he did make the investigation. And I think the minor's damning conduct was
that he was -- he appeared to have been trying to evade detection by the
[deputy]. And the car running, the
engine running there, and the minor being in the passenger seat, and that gave,
from my point of view, the [deputy] probable cause to detain to attempt to
investigate without checking."
name="_ftnref1" title="">[1]
DISCUSSION
I
Robert
first contends Blumenthal did not have reasonable suspicion to believe criminal
activity was occurring and thus unlawfully detained Robert. We find the officer's observations of the
parked car, the location, Robert's furtive movements and the recent rash of
burglaries in that area gave the officer sufficient justification to detain
Robert in order to investigate further.
A. Burden of Proof and Standard of Review
When
evidence is seized without a warrant, the burden is on the prosecution to
provide justification for the warrantless seizure. (People
v. Williams (1999) 20 Cal.4th 119, 136.) Police may temporarily detain a person where
the officer has sufficient articulable facts, from which it is reasonable to
believe criminal activity may be taking place.
Where such detention is reasonable, it may last only so long as it is
reasonably necessary to resolve the officer's suspicion. (People
v. Souza (1994) 9 Cal.4th 224, 230; People v. Russell (2000) 81 Cal.App.4th 96, 101-102;
Appellate
courts review the trial court's decision as a mixed question of fact and
law. We accept the facts as found by the
trial court if they are supported by substantial evidence. We independently apply the law to the
facts. (People v. Glaser (1995) 11 Cal.4th 354, 362;
Cal.3d 1268, 1301.)
B. Analysis of the Detention.
Sergeant
Blumenthal's observations occurred in the early morning hours in a dark
location in which there had been a number of recent burglaries, of which he was
aware. Robert's furtive movements when
Blumenthal passed the car the first time and which were repeated when the
patrol car stopped behind Robert's car certainly did nothing to allay his
suspicions. Added to these factors, the
car was parked with the engine running and a scarf draped over the steering
column. It was entirely reasonable for
Blumenthal to be suspicious that criminal activity may be in progress and that
he needed to investigate further. On the
other hand, Blumenthal was alone in a dark area, with no backup and with the
reasonable belief that there was another person somewhere in the area.
The fact
there may have been a innocent explanation for the activity, does not mean the
officer's suspicions were unreasonable.
Much like the otherwise innocent behavior observed by the police officer
in Terry v. Ohio, supra, 392 U.S. 1,
the behavior observed here, in light of the officer's training and experience,
constituted sufficient justification for the officer to conduct a reasonable
investigation. Such investigation, under
the circumstances, could not take place until a backup deputy arrived so that
the investigation could be safely conducted.
Thus we conclude the juvenile court correctly concluded the initial
detention of Robert was lawful.
II
ARREST
Robert
contends that when Blumenthal placed him in handcuffs, the detention became an
arrest. If that were the case, there has
been no showing of probable cause to justify the arrest. If, on the other hand, handcuffs did not create
an arrest, Robert does not challenge the probable cause to arrest him after he
told Blumenthal that he had a knife concealed in his pocket. Under the circumstances of this case, we find
the decision to use handcuffs was reasonable in light of Blumenthal's concern
for his own safety pending backup and investigation of possible criminal
activities at one of the residences.
Thus while handcuffs can give rise to a finding of custody, their use
was not unreasonable under these facts.
A. Legal Principles.
In order
for a detention to be reasonable it must not last longer than reasonably
necessary to complete the investigation which was the purpose of the
(United States v.
reasonable diligence, using the least intrusive means available under the
circumstances. (In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.)
The use of
handcuffs, or the drawing of firearms during a detention raises a question of
whether the detention has become unreasonable in its nature or duration, thus
becoming a de facto arrest, without probable cause. The line between a detention and an arrest
can be difficult to draw. (
at pp. 384-385.)
The courts
have recognized, however, that under appropriate circumstances suspects can be
handcuffed and forced to sit on the ground while the investigation is
conducted. (People v. Soun (1995) 34 Cal.App.4th 1499, 1517
People v. Celis (2004) 33 Cal.4th 667, 674-676, the court approved a
detention of a suspect where he was handcuffed and required to sit during the
investigation which followed.
Determining the reasonableness of the use of restraints during a
detention requires examination of the facts known to the officer and whether
such restraints were appropriate under the circumstances. (Id. at
p. 675; People v. Stier (2008) 168
Cal.App.4th 21, 27-28.)
B. Analysis
As we have
noted, this detention occurred at night in a dark area, where the officer was
alone. It reasonably appeared to the officer
that there was another person somewhere in the area in which he believed a
burglary may have been in progress. The
officer testified he was concerned for his safety given the location, the
possible crimes at issue, the indication of a second person, and the suspect's
clothing, which was consistent with that worn by street gangs in the area. He was concerned that the suspect might have
a weapon concealed in the baggy clothing.
Sergeant
Blumenthal testified he handcuffed Robert before the backup deputy arrived and
that he did so for his personal safety.
The trial court credited Blumenthal's testimony about his suspicions
regarding possible crimes. And, although
the court was not greatly impressed with the significance of the suspect's
clothing, the court was convinced that Blumenthal used handcuffs under the
circumstances for legitimate safety concerns.
Finally, we
note from the record it appears the backup deputy arrived shortly after
handcuffs were applied, and that Blumenthal then asked Robert if he had any
weapons concealed on his person. Robert
said he had a knife in his left pocket.
At that point Blumenthal lawfully arrested Robert, thus the continued
use of handcuffs remained appropriate and the seizure of the knife, incident to
the lawful arrest was proper.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER,
J.
IRION,
J.
name="_ftn1" title="">[1] On appeal, Robert makes much of the court's use of the term
"fervent," which we believe the court intended to say
"furtive." Thus we have
inserted the term furtive in the trial court's findings.
