In re Jose G.

Filed 10/10/07 In re Jose G. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County, John H. Ing, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

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The juvenile court denied appellant Jose G.s motion to suppress evidence and found him to be a ward of the court, for possession of a firearm near a school and possession of live ammunition by a minor. He was committed to a short-term camp program. He contends that the suppression motion should have been granted, as the officers had no objectively reasonable suspicion that he had committed a crime, before they detained him and frisked him. The contention lacks merit, because the police were acting on information from a school bus driver, whose observations of appellant justified a reasonable suspicion that appellant had a gun hidden under his shirt.

The motion to suppress was heard concurrently with the adjudication hearing.

FACTS

Appellant was born in October 1990.

At 2:00 p.m. on September 23, 2005, a school bus driver named Earl Gohegan was sitting in his bus, just outside of John Muir Middle School. He had been a bus driver for 11 years. Across the street, about 25 feet away, he saw appellant and another student, walking in front of a group of nine or 10 students. The group gathered around appellant. He made a motion, reaching to and gripping his waistband area with his right hand. He then lifted his shirt with his left hand, while making an up and down motion with his right hand. Gohegan heard the group make a wooo! expression as appellant made that motion. Appellant and the group continued walking, and passed out of Gohegans view.

Ten to 15 minutes later, Gohegan saw a male Hispanic student, running. Eight or nine students climbed over a fence and ran to the corner, saying, Lets go! Lets go! Appellant and another student returned. Another group was also arriving. From about 3 feet away, Gohegan heard appellants companion ask appellant, Did you bust the cap? Gohegan had heard gang members use that expression before. He knew it referred to firing a weapon.

After appellant left, Gohegan saw two police officers in a patrol car. He flagged them down, as he thought that gang activity was in progress, and was concerned about student safety. He told the officers about his observations, which caused him to believe that appellant had a weapon. He described appellants appearance and clothing. He also told the officers that appellant and the group headed toward Vermont on 59th.

The officers drove away from Gohegan in the specified direction. About one block away, they saw appellant, who matched the description Gohegan had provided. They detained him and patted him down. A loaded automatic pistol was concealed in his waistband.

The officers transported Gohegan to the site of the detention. Gohegan identified appellant. About 10 minutes had passed since he spoke to the officers, and 30 minutes since he first saw appellant, across the street with the group of students.

DISCUSSION

Appellant contends that the detention and patdown search were illegal because, prior to the detention, neither Gohegan nor the police officers saw either criminal behavior or a weapon.

In reviewing the ruling on the suppression motion, we defer to the lower courts factual findings, if supported by substantial evidence, and exercise independent judgment on whether the search or seizure met the requirements of the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. (Illinois v. Wardlow (2000) 528 U.S. 119, 123, citing Terry v. Ohio (1968) 392 U.S. 1, 30; see United States v. Arvizu (2002) 534 U.S. 266, 273.)

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.)

[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. (Illinois v.Wardlow, supra, 528 U.S. at p. 125.)

The information that Gohegan provided to the officers constituted specific articulable facts that provided a reasonable suspicion that appellant might be involved in criminal activity.

Gohegan was a known person with a responsible position (in contrast to an anonymous informant). He told the police that he saw appellant display something he had hidden in his waistband under his shirt, which caused the group of students to exclaim, wooo! A commonsense interpretation of appellants behavior was that he was showing off something he was not supposed to have, which might be a gun in his waistband. Later, a single male Hispanic ran off, and a group of students climbed over a fence and ran to the corner, yelling, Lets go! Lets go! Gohegan then heard appellants companion ask appellant if he had fired a weapon. From the totality of those facts, a reasonable person would suspect that appellant had a gun hidden under his shirt, which was in use for some form of criminal activity.

We therefore find that the motion to suppress was correctly denied.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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