In re D.B. CA1/3 filed
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Filed 3/9/11 In re D.B. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE In re D.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, A128529 v. (Sonoma County Super. Ct. No. 36219J) D.B., Defendant and Appellant. INTRODUCTION D.B. appeals from an order sustaining a wardship petition pursuant to Welfare and Institutions Code section 602, based on the finding that he committed the misdemeanor offense of possessing a switchblade knife in a public place (Pen. Code, § 653k). He challenges the juvenile court s denial of his motion to suppress the evidence pursuant to Penal Code section 1538.5. We agree that the motion to suppress should have been granted and therefore shall reverse. STATEMENT OF FACTS On September 4, 2009, at approximately 6:00 p.m., California Highway Patrol Officer William Harm was patrolling the Santa Rosa Transit Mall as he often did due to the frequent presence there of members of the Norteños street gang, recognizable by their red attire. Harm observed a group of between 12 and 15 people, mostly juveniles, dressed 1 in various shades of red. Harm specifically recognized defendant and three other youths from previous contacts in that vicinity. Based solely on his observation of the congregation of gang members, Harm parked his patrol car and approached the juveniles on foot. Harm first addressed the crowd generally, asking what they were doing, to which several replied nothing more than hanging out. Harm then made contact with one of the youths, A.R., who told him to fuck off. Harm asked A.R. whether he had any weapons on him, to which A.R. responded, Go ahead, fuck it. You can search if you like. Harm searched A.R. and found nothing, but A.R. continued verbally to chip away at the officer and Harm placed him in the patrol car, telling A.R. that he was not under arrest. With words and in a tone that is disputed, Harm either requested or directed the remaining three youths to sit on the curb, and they did so. Defendant testified that he was drinking a soda with his back turned when the first words he heard from Harm were Get the fuck on the ground or Sit the fuck down. Defendant also testified that Harm s tone indicated that this was an order. One of the other youths testified that Harm drove up very quickly and loudly told all four of us to get on the ground. The language used was not a question but an order. Defendant s girlfriend who was standing a few feet behind defendant also testified that Harm ordered the juveniles to sit on the curb. She heard him direct the juveniles to sit your ass down! Harm s version of the conversation after getting [A.R.] under control was very different. He testified as follows: Q[uestion]: Okay. And so what were the first words you said to [D.B.]? A[nswer]: I don t have the exact words in my report, but I wrote I asked all three of them to also sit on the curb and they obliged. Q: And when you say asked, can you please have a seat, have a seat, please or was it phrased in a way that they could say no and leave? A: He could have said no and left. But he sat down. Q: And you re certain now as you re sitting there that it was phrased as a question and not as an order? A: No, I didn t order him to sit on the curb. 2 Q; And the words that you said directing or asking the individuals to sit down, were they directed at [D.B] and the other two individuals who were standing nearby? A: Yes. It appeared to me they were with [A.R.], so yes. Asked whether D.B. was doing anything that in particular attracted your attention that caused you to ask him to have a seat, Harm answered, He was with a group of other gang members that I ve known, so I had him have a seat. Harm and defendant both testified that when seated on the curb, Harm asked defendant and the two others whether they had any weapons, and defendant responded that he had a knife on him. Harm patted down defendant and found the knife, at which point he placed defendant under arrest. Defendant testified that Harm placed him in handcuffs prior to questioning or searching him, but this was not confirmed by any of the other defense witnesses and is inconsistent with Harm s testimony. The court denied the motion to suppress, implicitly agreeing with the prosecutor that there was no detention and that defendant voluntarily responded to Harm s question acknowledging that he was carrying a weapon. Following the testimony received in connection with the motion, the court asked defense counsel, Do you not agree that peace officers can walk up to anyone and ask what their names are and what they re about? When counsel responded that would be a consensual encounter, the court asked, Isn t that what we just heard? Counsel replied, I don t believe that what we heard about was consensual and voluntary. When you re told to sit on the sidewalk, I don t believe that s a consensual encounter. The court responded, That s not the way it started. So I m denying the motion. Based on the testimony received in connection with the suppression motion, the court sustained the petition, made defendant a ward of the court, and placed him on probation in the custody of his mother, with the requirement that he complete 40 hours of community service and a pay a restitution fine of $50. Defendant timely appealed. 3 DISCUSSION In reviewing the denial of a motion to suppress, the standard of review is well established. It is the court s duty to review the explicit and implicit factual findings to determine if they are supported by substantial evidence. (People v. Hester (2004) 119 Cal.App.4th 376, 385; People v. Soun (1995) 34 Cal.App.4th 1499, 1507.) The court then exercises its independent judgment to determine whether the facts found by the trial court give rise to a violation of the individual s rights under the Fourth Amendment. (Hester, at p. 385.) Defendant contends that he was unlawfully detained by Harm, which required the court to suppress the evidence that was obtained as the result of that unlawful seizure. We must and do assume that the trial court accepted the testimony of Harm insofar as it differed from defendant s description of events. Nonetheless, we do not believe that even under the officer s version of his interaction with the group of youths, defendant can be considered to have voluntarily chosen to remain on the curb and answer the officer s questions. The California Supreme Court has categorized police encounters into three types, consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual s liberty. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Consensual encounters do not trigger Fourth Amendment scrutiny. (Ibid.) In the landmark case of Terry v. Ohio (1968) 392 U.S. 1, the United States Supreme Court stated, Obviously, not all personal intercourse between policemen and citizens involves seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred. (Id. at p. 20, fn. 16.) In United States v. Mendenhall (1980) 446 U.S. 544, the court elaborated an objective test to determine whether an interaction between police officers and civilians is a seizure or detention for Fourth Amendment purposes. We conclude that a person has been seized within the meaning of the Fourth Amendment only if, in view of all the 4 circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer s request might be compelled. (Id. at p. 554, fn. omitted.) Only when the officer, by means of physical force or show of authority, in some manner restrains the individual s liberty, does a seizure occur. (In re Manuel G., supra, 16 Cal.4th at p. 821.) As the United States Supreme Court recognized in Mendenhall, verbal commands may give rise to a detention. In People v. Bower (1979) 24 Cal.3d 638, 643, the California Supreme Court concluded, since the officer's call to [defendant] to stop and to turn around clearly [restrained] his freedom to walk away, the test of Terry v. Ohio was met. In another case, the defendant testified that a police officer approached him in a telephone booth as he completed a telephone call and asked him to come out of the booth and get into a police car, and that after he did so officers drove about 25 yards behind a taco stand and began questioning him. Although recognizing the right of officers to stop and question individuals, the court held, It is clear that the officer detained defendant for questioning . . . . (People v. Moore (1968) 69 Cal.2d 674, 678, 683, overruled on different grounds in People v. Thomas (1977) 19 Cal.3d 630, 641, fn. 8; see also, e.g., People v. Saunders (2006) 38 Cal.4th 1129, 1134 [ defendant was unquestionably seized when the officer ordered him to step out of the truck ].) Even assuming that Harm s words to the juveniles were as mild as he testified, it cannot be said that a reasonable youth in D.B. s situation would have believed that he was free to leave the scene rather than to sit on the curb as the officer directed. As the officer himself expressed it, he considered defendant to be with a group of other gang members and he therefore had him have a seat. Harm arrived in a police car, was 5 armed and in full uniform,1 and defendant had just observed him place another youth in the rear of the patrol car. Harm testified that he told A.R., who was placed in the police car, that he was not under arrest, but there is no indication that this was apparent to anyone else. Indeed, defendant testified that A.R. was placed in handcuffs, and there is no testimony to the contrary. Had the officer done no more than approach the boys and ask what they were doing and whether anyone had a weapon, D.B. s response might well be considered voluntary. But however it was put, a reasonable youth told or asked by the officer to sit down at the curb would not have felt that he was free to leave. It was far more reasonable to assume that if he chose to ignore the request of the officer, compliance with the officer s request might be compelled. (United States v. Mendenhall, supra, 446 U.S. at p. 554.) When D.B. was invited to sit on the curb, the encounter became a detention. The detention was constitutionally permissible only if articulatable circumstances known at the time of the detention lead the officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. (People v. Rodriguez (1993) 21 Cal.App.4th 232, 239; In re Tony C. (1978) 21 Cal.3d 888, 893.) Plainly there were no such circumstances here. Harm s entire basis for approaching the group of juveniles was that he recognized some members and colors of the Norteños street gang. Harm testified explicitly that defendant had not created a disturbance. As Harm put it, I didn t see it as a disturbance. I just saw it as a group of possible gang members hanging out, which can lead to disturbances. There was no testimony from Harm or any other witness indicating that D.B. or any of the other youths was acting suspiciously when approached by the officer. Although Harm testified that the presence of the large number of juveniles and the disrespectful language of some of them caused him to be concerned for his safety, there was no suggestion that D.B. made any threatening motion or disrespectful 1 In addition, although the record is not entirely clear on this point, it appears that two other officers had arrived on the scene and were present when Harm questioned the three youths sitting on the curb. 6 comments. The record is clear that defendant was detained only because he was present with a group of alleged gang members. However, [m]ere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention. (People v. Hester, supra, 119 Cal.App.4th at p. 392.) [A] police officer may not detain and question a person when there are no circumstances which would indicate to a reasonable man in a like position that such a course was necessary to the proper discharge of the officer's duties. (People v. Moore, supra, 69 Cal.2d at pp. 682-683.) There is no doubt that defendant s possession of the knife in his pocket came to light solely as the result of the unlawful detention. Therefore, the motion to suppress evidence of the knife and of D.B. s acknowledgement of the knife in his pocket should have been suppressed. (Wong Sun v. United States (1963) 371 U.S. 471; People v. Caratti (1980) 103 Cal.App.3d 847, 851.) DISPOSITION The judgment is reversed. _________________________ Pollak, J. We concur: _________________________ McGuiness, P. J. _________________________ Jenkins, J. 7
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