Opinion
NOT TO BE PUBLISHED
San Francisco Super. Ct. No. JW066631.
Jones, P.J.
D.P. appeals from a disposition entered after the juvenile court found true allegations that he carried a loaded firearm (Pen. Code, § 12031, subd. (a)(1)), and possessed a concealable firearm (§ 12101, subd. (a)(1).) He contends the trial court erred when it denied his motion to suppress. We disagree and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 31, 2006, a young man named Edward Parker approached a 12-year-old girl who was at school and tried to speak with her. When the girl rebuffed Parker’s advances, he lifted up his shirt and displayed a gun that was tucked into his pants. The girl told school officials who notified the police.
The next day, San Francisco Police Officers Choy, Oshita and Pak were on patrol when they heard an informational broadcast that Parker was a suspect with a firearm. The officers knew what had happened at the school the previous day because they had read the police report. The officers also knew Parker from prior contacts. By coincidence, the officers saw Parker and appellant walking near the Inner-City Youth Center. They decided to contact them.
The officers stopped their car and ordered Parker and appellant to stop just as they were about to enter the youth center. They complied. Another officer dealt with Parker while Officer Choy addressed appellant. Choy told appellant to remove his hands from his pockets. Appellant refused. He appeared nervous, his “eyes were open really wide” and he was constantly eyeing the door to the youth center. Because appellant refused to comply with the order that he remove his hands from his pockets, Choy decided to “close up the gap” between them. Choy advanced toward appellant. Appellant retreated toward the door. Choy reached toward appellant’s waist. Appellant dodged back and lunged for the door. Choy seized appellant’s arm as he reached for the door. He could see a large bulge in the pocket of appellant’s pants. Choy reached down and felt what appeared to be a gun. He told the other officers that appellant was armed. Officer Oshita helped Choy wrestle appellant to the ground. As they did, they heard the “very distinct sound” of a gun hitting the ground. The officers placed appellant into handcuffs, and searched him. They found a loaded firearm in appellant’s right front pocket.
Based on these facts, a petition was filed alleging appellant came within the jurisdiction of the juvenile court because, inter alia, he had committed the offenses we have set forth above.
A second petition also was filed alleging appellant came within the jurisdiction of the juvenile court based on a different incident. Because appellant has not challenged any aspect of that petition or the resulting disposition, we need not discuss it.
Appellant filed a motion to suppress arguing that his initial detention by Officer Choy was illegal. The trial court conducted a hearing on appellant’s motion and denied it.
Subsequently, the court found the allegations of the petition to be true. In March 2007, the court found appellant to be a ward of the court and placed him on probation.
II. DISCUSSION
Appellant contends the trial court erred when it denied his motion to suppress.
The standard of review we must apply is settled. “On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court’s ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court which are supported by substantial evidence and independently determine whether the facts support the court’s legal conclusions. [Citation.]” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739.)
Here, appellant contends the trial court erred when it ruled his initial detention by Officer Choy was justified. Noting that generally, a detention is justified only when the facts apparent to the detaining officer include “specific and articulable facts causing him 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 . . .” (In re Tony C. (1978) 21 Cal.3d 888, 893), appellant maintains that prior to his detention, there were no facts that suggested he had committed any crime.
While an articulable suspicion that a person has committed or is about to commit a crime is one basis upon which a seizure may be deemed reasonable, it is not the only basis. The federal courts have recognized that a seizure may also be justified on the grounds of officer safety. For example, in Maryland v. Wilson (1997) 519 U.S. 408, 413-415, the court ruled that the police could validly order the passenger in a car that has been stopped for a traffic violation to exit the vehicle. The court stated that the minimal physical intrusion of the passenger was justified by officer safety. (Ibid.)
In United States v. Berryhill (9th Cir.1971) 445 F.2d 1189, 1193, the court ruled that the companions of one who is being arrested may be frisked for weapons. According to Berryhill “common sense dictates that the legality of such a limited intrusion into a citizen’s personal privacy extends to a criminal’s companions at the time of arrest . . . . All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” (Ibid.)
Courts in California have applied a similar rule. For example in People v. Hannah (1996) 51 Cal.App.4th 1335, the court found the police could validly detain a person who was visiting a residence where a different person was being arrested. The court noted: “The reasonableness of the police officers’ belief that detaining defendant, even briefly, was necessary to protect their safety must be evaluated from the perspective of the police officers who entered the apartment. They were entering a residence, the exact floor plan of which they were unaware, to arrest a juvenile they had been told may be present, when they encountered individuals whose identity and relationship to the juvenile they were seeking was unknown. Faced with these circumstances, any reasonable person would find an initial detention of the individuals encountered was necessary to ensure the safety of the police officers.” (Id. at p. 1346.)
In People v. Thurman (1989) 209 Cal.App.3d 817, police officers executing a search warrant entered a house and found the defendant sitting silently and passively on a sofa. Even though the defendant did not appear to be a threat, the officers ordered him to stand and patted him down for weapons. The Thurman court found that action to be justified: “That [the defendant’s] posture, at that moment, was nonthreatening does not in any measure diminish the potential for sudden armed violence that his presence within the residence suggested. To require an officer to await an overt act of hostility . . . before attempting to neutralize the threat of physical harm which accompanies an occupant’s presence in a probable drug trafficking residential locale, would be utter folly.” (Id. at p. 823.) (See also People v. Samples (1996) 48 Cal.App.4th 1197, 1209.)
Applying those principles here we conclude the trial court correctly denied appellant’s motion to suppress. Officer Choy saw appellant walking with another person, Parker, who had brandished a weapon toward a 12-year-old girl who was at school the previous day. Choy knew about the incident because he had read the police report and he had just heard an informational report that Parker was armed. Appellant and Parker were about to enter a youth center, and the record indicates the officers understandably wanted to intercept Parker before he entered the facility. Having decided to contact Parker, it was reasonable for Officer Choy to order his companion, appellant, to stop and to remove his hands from his pockets. As the prosecutor stated when opposing appellant’s motion to suppress: “Clearly, this court cannot expect the officers to ignore [appellant’s] presence while attempting to make contact with . . . Parker in the vestibule area. In fact, [appellant] could have posed a potential threat to officer and third-party safety if he elected to come to Parker’s assistance in some fashion. For instance, [appellant] was clearly in a position to assist Parker by allowing him to enter the Youth Center and escape apprehension by the police. Furthermore, given his close proximity to Parker in the vestibule area, [appellant] was also capable of physically interfering with the officers’ attempt to detain Parker. The end result could have been a scuffle involving multiple parties, some definitely armed with guns (the police) and others potentially armed as well (Parker).”
We conclude the trial court correctly denied appellant’s motion to suppress.
III. DISPOSITION
The disposition is affirmed.
We concur: Simons, J. Needham, J.