In re J.P.
Filed 1/30/07 In re J.P. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re J.P., a Person Coming Under the Juvenile Court Law. | B189984 (Los Angeles County Super. Ct. No. JJ13587) |
THE PEOPLE, Plaintiff and Respondent, v. J.P., Defendant and Appellant. |
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Marc A. Kohm and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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Minor J.P. appeals from an order declaring him a ward of the court under Welfare and Institutions Code section 602[1]after the juvenile court sustained a petition alleging that he was unlawfully in possession of a switchblade knife in violation of Penal Code section 653k, a misdemeanor. J. was ordered home on probation with a maximum term of physical confinement of six months.
J. contends the juvenile court erred in denying his motion to suppress evidence of the switchblade knife because the police had no reasonable belief a pat-down search for weapons was required and the search was not incident to an arrest. We hold that the search was lawful incident to his arrest for violation of the local truancy ordinance found in Huntington Park Municipal Code section 5-10.02.
FACTUAL AND PROCEDURAL BACKGROUND
At 10:30 a.m. on October 7, 2005, Huntington Park Police Patrol Officer Jose Macias saw J. and several other minors sitting in an alley near Huntington Park High School. Since the minors appeared to be of school age, Officer Macias approached them to investigate whether they should be in school. J. told Officer Macias he was a Huntington Park High School student and should be in school. Officer Macias concluded J. was in violation of Huntington Park Municipal Code section 5-10.02[2]and prepared to take J. to school. Before putting J. in the patrol car to transport him, Officer Macias patted J. down for weapons and found a switchblade knife in one of J.s pockets.
A hearing was held on J.s motion pursuant to section 700.1 to suppress the knife seized by Officer Macias during the patdown search. J. argued he was not subject to arrest for truancy, and he was not arrested by Officer Macias.[3]Under Terry v. Ohio (1968) 392 U.S. 1 (Terry), the pat-down search was illegal because Officer Macias did not have a reasonable suspicion J. was involved in criminal activity other than truancy or was presently armed or dangerous. The deputy district attorney argued a police officer is authorized to conduct a search pursuant to a detention for truancy, a citable offense, and to transport the truant back to school. This type of detention is a de facto arrest, as a police officer is authorized to arrest for truancy. The juvenile court denied the motion to suppress the knife, heard additional testimony at the adjudication, and found the allegations of the petition true.
DISCUSSION
When reviewing a ruling on an unsuccessful motion to exclude evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. (People v. Memro [1995] 11 Cal.4th [786,] 846.) (People v. Panah (2005) 35 Cal.4th 395, 465.) The power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court, and its findings of fact, express or implied, must be upheld if supported by substantial evidence. (In re Carpenter (1995) 9 Cal.4th 634, 646.)
J. contends the warrantless pat-down search violated the Fourth Amendment. First, he contends it was illegal under Terry because there were no specific and articulable facts from which Officer Macias could reasonably believe J. was armed and dangerous. Second, he contends the search was not justified as a search incident to an arrest,[4]because Officer Macias did not arrest J.
Terry provides no support for J.s argument. Terry 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 and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. (Terry, supra, 392 U.S. at p. 30.) Unlike Terry, this case did not involve a self-protective frisk during the course of an investigation of suspicious activity. Officer Macias did not frisk J. until after he determined J. was in violation of the local truancy ordinance and took J. into custody to return him to school. (Compare In re Marcellus L. (1991) 229 Cal.App.3d 134, 138 [the pat search conducted for officer safety reasons at the outset of the investigation into why the minor was not in school was invalid under Terry because there was no reason to believe the minor was armed and dangerous and no probable cause to believe the minor was truant].) The search in this case did not require justification under Terry.
The search was incident to Officer Maciass taking J. into custody in order to return him to school. J. does not deny that there was probable cause to arrest him for violation of the local truancy law. He does not challenge Officer Maciass authority to return him to school. This was an arrest[5]even though Officer Macias did not intend to take J. to jail. (See In re Humberto O. (2000) 80 Cal.App.4th 237, 242 [taking a truant into custody to return him to school is an arrest], In re James D. (1987) 43 Cal.3d 903, 915-916 [same].) An arrest is defined as taking of a person into custody. (Pen. Code, 834.) An arrest is made by an actual restraint of the person, or by submission to the custody of an officer. The person arrested may be subjected to such restraint as is reasonable for his arrest and detention. (Pen. Code, 835.) This search was valid under the Fourth Amendment as a search incident to J.s truancy arrest. (See In re Humberto O, supra, 80 Cal.App.4th at pp. 241-244 [the Fourth Amendment permits a police officer, who takes a truant into custody to return him to school, to pat the minor down prior to transporting him to school].)
In In re Humberto O., supra, 80 Cal.App.4th at page 240, police officers determined that Humberto, whom they found on the street during school hours, was truant from school. They intended to cite him for being a truant pursuant to Education Code section 48264 and transport him to school pursuant to Education Code section 48265. Education Code sections 48264 and 48265 authorize the police to take a truant into custody to deliver him to school. (Ed. Code, 48264, 48265; In re Humberto O., supra, 80 Cal.App.4th at pp. 240-242.) The police searched Humbertos person and backpack prior to returning him to school and recovered a dagger from the backpack. (In re Humberto O., supra, 80 Cal.App.4th at p. 240.) The trial court granted Humbertos motion to suppress the dagger as the fruit of an unlawful search on the ground he was not arrested or detained at the time of the search and the search was not consensual. (Ibid.) The Court of Appeal reversed the order granting suppression, holding that officers taking a truant into custody in order to return him to school may search the truants person and the area within his control without violating the Fourth Amendment, as a search incident to the truancy arrest. (In re Humberto O., supra, 80 Cal.App.4th at pp. 241-244.)
For Fourth Amendment purposes, it matters not that the law under which J. was arrested did not specifically authorize Officer Macias to return J. to his school, as did the law under which Humberto was arrested. (Compare Huntington Park Mun. Code, 5-10.02 and Ed. Code, 48265.) Fourth Amendment jurisprudence does not require the search be authorized under state statutes. (See People v. McKay (2002) 27 Cal.4th 601, 605 [compliance with state arrest procedures is not a component of the Fourth Amendment inquiry].) J. does not assert that Officer Macias had no right to return him to school. Just as Humbertos search did not violate the Fourth Amendment, J.s search was valid under the Fourth Amendment, because it was incident to his custodial arrest for truancy. (In re Humberto O., supra, 80 Cal.App.4th at pp. 243-244.)
J.s argument that it was unnecessary to search him because Officer Macias could have walked him to school instead of driving him in the patrol car raises no constitutional issue. Whether Officer Macias walked J. to school or drove him in the police car, the right to search existed under the Fourth Amendment. There was probable cause to search J., which afforded Officer Macias the right to conduct a search incident to arrest. Whether Officer Macias intended to take J. on foot or in the patrol car is of no constitutional consequence.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.
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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Under section 5-10.02, subdivisions (b), (e), and (f) of the Huntington Park Municipal Code, it is unlawful for a minor subject to compulsory education to be absent from school and found in a public place without valid excuse during daytime curfew hours; violation of this section is an infraction punishable by a fine; and a police officer may issue a citation or make an arrest for violation of this section.
[3] J. was referring to the following testimony by Officer Macias on cross-examination: Q. Did you see [J.] do anything illegal? [] A. No. [] Q. And then you placed him under arrest? [] A. After I determined he was truant from school. [] Q. Did you detain him or arrest him? [] A. I detained him. [] Q. So you werent going to take him to jail? [] A. That was not my intent.
[4] It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. (United States v. Robinson (1973) 414 U.S. 218, 224.)
[5] Taking a person into custody for a fine-only offense does not offend the Fourth Amendment. (Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [a custodial arrest for even a very minor criminal offense, such as violation of a fine-only seatbelt law does not offend the Fourth Amendment]; accord, People v. McKay (2002) 27 Cal.4th 601, 606-607 [a custodial arrest for violation of a fine-only infraction (riding a bicycle in the wrong direction)].)
