Opinion
B231852
10-25-2011
In re TYLER B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TYLER B., Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. MJ20448
APPEAL from an order of the Superior Court of Los Angeles County, Benny C. Osorio, Judge. Affirmed.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of a motion to suppress evidence, Tyler B. admitted he had possessed a firearm in violation of Penal Code section 12101, subdivision (a)(1), a felony, and was declared a ward of the juvenile court and placed in a short-term camp.On appeal Tyler contends his Fourth Amendment rights were violated by the detention and search that led to the discovery of a loaded handgun in his waistband concealed underneath his shirt. We affirm.
Penal Code section 12101, subdivision (a)(1), which may be charged as either a felony or misdemeanor, prohibits a minor from possessing a firearm capable of being concealed upon the person. The juvenile court dismissed a second count in the Welfare and Institutions Code section 602 petition charging Tyler B. with possession of live ammunition in violation of Penal Code section 12101, subdivision (b)(1).
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2011 the Los Angeles County District Attorney filed a two-count petition pursuant to Welfare and Institutions Code section 602 alleging Tyler had unlawfully possessed a concealable firearm and live ammunition. On February 25, 2011 Tyler moved pursuant to Welfare and Institutions Code section 700.1 to suppress the firearm recovered following his arrest by Los Angeles County Deputy Sheriff Kevin Sweetland, contending there was no lawful basis for his detention or the subsequent search that led to discovery of the loaded handgun.
Tyler also moved to suppress statements he made following his arrest. However, during the suppression hearing the People advised the court they did not intend to introduce any statements made by Tyler. Accordingly, the court ruled only on the admissibility of the loaded firearm found in Tyler's waistband.
The court held an evidentiary hearing on March 10, 2011. According to Deputy Sweetland, the People's only witness at the suppression hearing, he and his partner, Deputy Griffy, saw Tyler and another individual, later identified as Charles Haulman, walking on a dirt road near a liquor store about 11:15 a.m. on Friday, February 18, 2011. Both Tyler and Haulman looked young, and the two deputies believed they may be violating the City of Lancaster's daytime loitering ordinance, which prohibits minors subject to compulsory education from loitering, wandering or "be[ing] in or upon the public streets . . . or any unsupervised place during the hours of seven-thirty a.m. and two p.m. on days when school is in session," unless accompanied by a parent, legal guardian or responsible adult to whom custody of the minor has been given. Deputy Sweetland also noticed Tyler was wearing a shirt with the "Running Hatchet Man" insignia popular with of the Insane Clown Posse, a hardcore hip hop duo. Deputy Sweetland identified this as a "Juggalos T-shirt," which he recognized (based on training and personal contacts) as the attire of a gang that follows the singers.
Deputies Sweetland and Griffy approached Tyler and Haulman to learn their ages and determine if they were in violation of the ordinance. Deputy Griffy examined Haulman's identification and found he was 18 or 19 years old. Still concerned about Tyler's age and believing Haulman did not qualify as a "responsible adult," Deputy Griffy asked Tyler how old he was. He said 15. The deputies also learned Haulman had an outstanding $5,110 fare evasion warrant. Accordingly, he was detained in the deputies' police vehicle and cited.
As this was taking place, Tyler, who Haulman said was his little brother, walked away from the scene and toward the liquor store. Tyler then walked back toward the deputies. According to Deputy Sweetland, Tyler looked nervous and was unwilling to speak to them; he had a passively resistant demeanor. Uncertain about Tyler's intentions and aware that members of the gang whose attire he was wearing were prone to be violent, Deputy Sweetland was concerned Tyler could be armed. He directed Tyler to place his hands on the hood of the police car so he could be searched. Tyler initially appeared as if he was going to comply. However, when Deputy Sweetland asked if he had anything illegal on him, Tyler said no and then turned and took a step or two as if he was going to walk away once again. Deputy Sweetland grasped Tyler's wrist to pull his arms behind his back to allow the search. Tyler responded by saying the officer had no right to search him. At some point during the encounter with Tyler, Deputy Sweetland learned he attended Opportunities for Learning, a home-based school; and Tyler acknowledged he should be at home.
Asked why he would not consent to being searched, Tyler told Deputy Sweetland to look in his wallet. Inside the wallet Deputy Sweetland found what he described as a clipping from a magazine that explained what to do if contacted by the police.
Due to Tyler's evasiveness and unwillingness to be searched and concerned for his own safety, Deputy Sweetland arrested Tyler for truancy and loitering and placed him in handcuffs "instead of having to have a force incident or have him retreat or anything." Searching Tyler, Deputy Sweetland found a handgun in his waistband concealed underneath his T-shirt. The firearm was loaded with live ammunition and appeared to Deputy Sweetland to be in working condition.
Haulman testified as a defense witness at the suppression hearing. He said he and Tyler were walking toward the liquor store when stopped by the deputies. Haulman was asked for his name and whether he had any outstanding warrants. Asked if he knew Tyler, Haulman said, "he's like a little brother to me." The deputies then informed Haulman he had an outstanding warrant and asked him to step in front of the police car, where he was searched. After his own search was completed, he was able to see Tyler, who did not appear to Haulman to be nervous. Haulman did not see Tyler walk away from Deputy Sweetland during their encounter.
Haulman testified he heard Tyler ask Deputy Sweetland to look inside his wallet when the deputy initially attempted to search Tyler.
After hearing the evidence and argument of counsel, the court denied Tyler's motion to suppress. The court made no written findings. However, during the hearing the court stated it assumed the search had been conducted incident to Tyler's arrest and at its conclusion commented that the court had seen Haulman when he testified "and he did have a youthful appearance."
Tyler's motion to reduce the firearm possession charge to a misdemeanor was also denied, subject to reconsideration at the end of probation. Pursuant to a negotiated agreement Tyler then admitted that charge as a felony, was declared a ward of the juvenile court and ordered to a camp community placement program for three months.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court's factual findings, express or implied, when supported by substantial evidence. (People v. Hoyos (2007) 41 Cal.4th 872, 891; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) However, in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Hoyos, at p. 891; People v. Zamudio (2008) 43 Cal.4th 327, 342; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28, subd. (f)(2) [formerly subd. (d)]; People v. Lenart (2004) 32 Cal.4th 1107, 1118.)
2. Governing Law
a. The City of Lancaster's regulation of loitering by minors Title 9, Chapter 9.16 of the Lancaster Municipal Code regulates loitering by minors. Section 9.16.10 defines "loitering" as "being dilatory, standing idly, lingering, or delaying an activity with aimless idle stops and pauses." "Minor" is defined as "any person under the age of eighteen (18)." Section 9.16.020, subdivision (A), provides, "No minor shall loiter about the public streets, avenues, alleys, parks or other public places" between 10 p.m. and 6 a.m. the following day. Section 9.16.020, subdivision (B), the provision at issue in this case, provides, "No minor who is subject to compulsory education or to compulsory continuation education shall loiter, idle, wander or be in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places, public buildings, places of amusement, or eating places, vacant lots or any unsupervised place during the hours of seven-thirty a.m. and two p.m. on days when school is in session."
Section 9.160.030 specifies 10 exceptions to the prohibitions in section 9.16.020, subdivisions (A) and (B), including for a minor "accompanied by a parent, legal guardian or a responsible adult to which custody of the minor has been given by the parent or legal guardian." (Lancaster Mun. Code, § 9.16.030, subd. (A).) Section 9.16.040 authorizes law enforcement officers to "demand from any person, whom the officer has reasonable cause to believe is in violation of this chapter, that such person give his or her name, address, proof of age, the name of a parent, guardian or adult having care or custody of such person, and other information reasonably necessary to determine whether such violation exists." A violation of Lancaster Municipal Code section 9.16.020 is a misdemeanor, punishable by imprisonment not exceeding six months or a fine not exceeding $500 or both. (Lancaster Mun. Code, § 9.16.050.)
b. The law governing detentions and arrests
Police contacts with individuals fall into "three broad categories ranging from the least to the most intrusive: 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.)
A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains the individual's liberty. (People v. Zamudio, supra, 43 Cal.4th at p. 341; Wilson v. Superior Court (1983) 34 Cal.3d 777, 789-790; People v. Souza (1994) 9 Cal.4th 224, 231.) Although a police officer may approach an individual in a public place and ask questions if the person is willing to listen, the officer may detain the person only if the officer has a reasonable, articulable suspicion the detainee has been, currently is or is about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 20 L.Ed.2d 889]; see In re Tony C. (1978) 21 Cal.3d 888, 893.) To satisfy this requirement, the police officer must "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." (Souza, at p. 231; United States v. Sokolow (1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed.2d 1] ["the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause"].) In evaluating whether that standard has been satisfied, we examine the "totality of the circumstances" in each case to determine whether a "particularized and objective basis" supports the detention. (United States v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690, 66 L.Ed.2d 621].)
When the seizure of the person exceeds the permissible scope and duration of a temporary investigative detention and amounts to an arrest, it must be supported by probable cause. "Probable cause exits when the facts known to the arresting officer would persuade someone of 'reasonable caution that the person to be arrested has committed a crime. [Citation.] '[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts . . . .' [Citation.] It is incapable of precise definition. [Citation.] '"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,"' and that belief must be 'particularized with respect to the person to be seized.'" (People v. Celis (2004) 33 Cal.4th 667, 673.)
A suspect is no longer simply detained when the officers formally arrest the person or use "means that approach the conditions of arrest" (Florida v. Royer (1983) 460 U.S. 491, 499 [103 S.Ct. 1319, 75 L.Ed.2d 229] or are "comparable to an arrest." (Wilson v. Superior Court, supra, 34 Cal.3d at p. 784.) "The distinction between a detention and an arrest 'may in some instances create difficult line-drawing problems.'" (People v. Celis (2004) 33 Cal.4th 667, 674.)
3. Deputy Sweetland's Detention and Subsequent Arrest of Tyler Were Lawful
Tyler and the People agree Tyler was first detained when Deputy Sweetland directed him to place his hands on the hood of the police car. Prior to that time, the limited contact between Tyler and the deputies was consensual. At that point Deputy Sweetland knew Tyler was only 15 years old and was on a public street during a day and time that school was in session. Although he also knew Tyler was in the company of Haulman, an 18- or 19-year-old man, as they walked toward a liquor store, Deputy Sweetland had no information that would suggest Haulman was a responsible adult with custody of Tyler within the meaning of Lancaster Municipal Code section 9.16.030, subdivision (A). Quite apart from any safety concerns Deputy Sweetland may have had because of Tyler's partial gang attire and his movements away from and then back toward the location where Haulman had been detained by Deputy Griffy, these constituted specific articulable facts providing an objective manifestation Tyler was violating the Lancaster ordinance.
Tyler argues, even if he was lawfully detained, Deputy Sweetland had no reason to believe he was dealing with an armed and dangerous individual, justifying a protective pat search for weapons, simply because he was wearing a Running Hatchet Man/Juggalos T-shirt, appeared nervous and first walked away and then voluntarily returned to the location where his friend Haulman was detained. (See Terry v. Ohio, supra, 392 U.S. at p. 24 [during lawful temporary detention, police officer may conduct limited, protective pat search for weapons if the officer has "reason to believe that he is dealing with an armed and dangerous individual . . . . [T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."].) Although Deputy Sweetland intended to conduct a limited pat search, as events unfolded, he arrested and handcuffed Tyler before searching him and discovering the loaded firearm. Accordingly, we need not consider whether a pat search would have been justified prior to Tyler's arrest.
Once Tyler was detained, Deputy Sweetland learned Tyler was, in fact, subject to compulsory education, participated in home-based schooling and for that reason should have been at home at the time of the encounter. In addition, Deputy Sweetland also knew Haulman had an outstanding warrant and no other information indicating Tyler's presence near the liquor store with Haulman fell within one of the exceptions to the prohibitions in Lancaster Municipal Code section 9.16.020 set forth in section 9.16.030. These facts constituted probable cause to believe Tyler was violating section 9.16.020, subdivision (B), as well as being subject to a truancy arrest pursuant to Education Code section 48264, which authorizes a peace officer to "arrest or assume temporary custody, during school hours, of any minor subject to compulsory full-time education or to compulsory continuation education found away from his or her home and who is absent from school without valid excuse . . . ." (See In re James D. (1987) 43 Cal.3d 903, 915-916.)
Tyler attempts to challenge to these conclusions by misconstruing the language of the Lancaster ordinance and mistakenly questioning its constitutionality. First, purporting to rely on the Supreme Court's analysis in People v. Teresinski (1982) 30 Cal.3d 822, Tyler argues walking toward a liquor store at 11:00 a.m. cannot be described as loitering within the meaning of Lancaster Municipal Code section 9.16.020, subdivision (B). In Teresinski the Supreme Court held the defendant's detention was illegal and suppressed evidence seized as a result of it because the police officer lacked a reasonable suspicion the occupants of a car safely driving on a public street at 2:00 a.m. were violating a city curfew ordinance making it unlawful for a minor "to loiter, idle, wander, stroll, or play in or upon the public streets . . . or other unsupervised places" after 10 p.m. (Teresinski, at pp. 829-831 & fn. 3.) Central to the Court's holding was the fact, contrary to the detaining officer's statement, "the ordinance does not declare it a crime for minors to be found in public after 10 p.m." (Id. at p. 830.) The word "loiter," the Court explained, "bears a sinister connotation: it generally connotes lingering for the purpose of committing a crime. [Citations] . . . '[D]riving along city streets, even at 1:15 in the morning, is not "loitering."' [Citation.] Whether or not the terms 'idle, wander, stroll, or play,' when used in a curfew ordinance, also carry a sinister connotation, those terms are equally inapplicable to the present case. Conceivably one may 'idle, wander,' or 'play' in an automobile, but merely driving along a street in a lawful manner cannot be so described." (Ibid.; see also id. at p. 832 ["[t]he plain language of the ordinance clearly does not prohibit a minor from simply being present on the streets of Dixon after 10 p.m., but only prohibits such behavior as 'loitering' or 'idling' on the streets"].)
The Teresinski Court noted that "[c]urfew ordinances can be classified into two groups: those which prohibit 'presence' at the proscribed time and place . . . and those such as the present ordinance which prohibit 'loitering' or similar conduct." (People v. Teresinski, supra, 30 Cal.3d at p. 831, fn. 5.) The Court rejected the People's argument to uphold the detention by construing the ordinance to prohibit juveniles from being present on the streets after curfew: "[T]he language of the ordinance cannot be construed to ban conduct that does not fall within its specific terms." (Ibid.)
Tyler may be correct that the conduct observed by Deputy Sweetland, like the conduct in Teresinski, does not constitute loitering. But subdivision (B) of Lancaster Municipal Code section 9.16.020, unlike the ordinance in Teresinski or the language of the nighttime curfew in subdivision (A) of the Lancaster ordinance, expressly prohibits minors subject to compulsory education not only from loitering but also from "be[ing] in or upon the public streets, highways, roads . . . or any unsupervised place" during the daytime hours specified. Thus, Deputy Sweetland, unlike the officer in Teresinski, had a reasonable, objective basis for suspecting a violation of the relevant city ordinance.
Tyler's suggestion we construe the ordinance to exclude conduct that falls within its specific terms, no less than the People's argument in Teresinski that conduct not prohibited by an ordinance be included, is without merit. (See People v. Teresinski, supra, 30 Cal.3d at p. 831, fn. 5.)
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Tyler compounds his misreading of Teresinski by suggesting the Supreme Court indicated a "presence" curfew, unlike a loitering ordinance, was properly subject to constitutional challenge. No such language appears in the Teresinski opinion although, as Tyler asserts, in In re Nancy C. (1972) 28 Cal.App.3d 747, 756-757, a case cited in Teresinski, in the course of upholding a broad nighttime curfew applicable to minors, the Court of Appeal stated in dicta a "presence" curfew ordinance, if it was applicable to adults as well as minors or omitted appropriate exceptions permitting otherwise lawful activity during the specified hours, might be unconstitutional.
That said, any possible question as to the constitutionality of Lancaster Municipal Code section 9.16.020, subdivision (B)—an issue not raised by Tyler in the juvenile court—is irrelevant to the lawfulness of Deputy Sweetland's detention and subsequent arrest of Tyler. A police officer generally may presume the law he or she is enforcing is valid, and an arrest made with probable cause in good faith reliance on an ordinance subsequently declared unconstitutional is valid. (Michigan v. DeFillippo (1979) 443 U.S. 31, 37 [99 S.Ct. 2627, 61 L.Ed.2d 343].) "Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement." (Id. at p. 38; see People v. Ramirez (1983) 34 Cal.3d 541, 546 [distinguishing for purpose of applying exclusionary rule an arrest for violating an ordinance later found unconstitutional from an arrest made in reliance on erroneous police communications that a warrant was outstanding; in the former situation there is "no police misconduct to deter" because the officer had a duty to enforce the ordinance until it is stricken]; People v. Willis (2002) 28 Cal.4th 22, 46-47 [reaffirming Ramirez analysis in holding suppression of evidence proper when police conducted warrantless search in mistaken belief defendant was on parole and subject to a warrantless search condition].)
4. The Loaded Firearm Was Discovered During a Search Incident to a Lawful Arrest
"One of the specifically established exceptions to the Fourth Amendment's warrant requirement is 'a search incident to a lawful arrest.' [Citation.] This exception 'has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. [Citation.]' [Citation.] . . . 'Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence.'" (People v. Diaz (2011) 51 Cal.4th 84, 90; accord, People v. Redd (2010) 48 Cal.4th 691, 719-720 [upon defendant's failure to provide a valid registration and his provision of false identification of himself, police officer had authority to place defendant under arrest and to search defendant incident to this arrest].)
Deputy Sweetland discovered the loaded firearm in Tyler's waistband when searching him after placing Tyler under arrest and securing him with handcuffs. Although challenging the lawfulness of the arrest itself, Tyler essentially concedes, as he must, if the arrest was lawful, the subsequent search of his person was lawful as well: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." (United States v. Robinson (1973) 414 U.S. 218, 235 [94 S.Ct. 467, 38 L.Ed.2d 427]; accord, In re Humberto O. (2000) 80 Cal.App.4th 237, 242-243 [upholding search incident to lawful arrest of minor for truancy]; In re Charles C. (1999) 76 Cal.App.4th 420, 424-425 [upholding search incident to lawful arrest of minor for curfew violation].)
DISPOSITION
The order of the juvenile court is affirmed.
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PERLUSS, P. J.
We concur:
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ZELON, J.
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JACKSON, J.