Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. JW115778-00, Jon E. Stuebbe, Judge.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
INTRODUCTION
On September 18, 2007, the prosecutor filed a petition pursuant to Welfare and Institutions Code section 602 alleging appellant, R.M., feloniously possessed a dirk or dagger (Pen. Code, § 12020, subd. (a)(1), count one) and possessed a switch blade longer than two inches in the driver’s area of a vehicle, a misdemeanor (Pen. Code, § 653k, count two). On November 14, 2007, R.M. filed a motion to suppress evidence. At the conclusion of the hearing on November 26, 2007, the juvenile court denied the motion.
On January 9, 2008, R.M. waived his constitutional rights and admitted count two. The court granted the prosecutor’s motion to dismiss count one. At the conclusion of the disposition hearing on January 23, 2008, the court placed R.M. on probation upon various terms and conditions. On appeal, R.M. contends, and respondent concedes, that the juvenile court erred in denying the suppression motion. We agree with the parties and will reverse the judgment.
R.M. also challenges a condition of probation that he not use drugs or intoxicants. Because we reverse the judgment, we do not reach this issue.
FACTS
In R.M.’s written suppression motion to the juvenile court, he argued that the Bakersfield Ordinance No. 9.44.010 proscribes loitering in the streets and that under the interpretation of loitering adopted in People v. Teresinski (1982) 30 Cal.3d 822 (Teresinski), a passenger in a vehicle stopped by officers could not be loitering. At the beginning of the suppression motion, the juvenile court took judicial notice of ordinance No. 9.44.010. Bakersfield Police Officer Chris Dalton was conducting a routine patrol in uniform in a marked patrol car on July 12, 2007, at 10:20 p.m. Dalton saw a blue Chevrolet Silverado traveling west on East California Avenue with a broken rear license plate light, a violation of the Vehicle Code.
Bakersfield Municipal Ordinance No. 9.44.010 provides:
Dalton and his partner stopped the vehicle which was driven by F.M., R.M.’s 19-year-old cousin. R.M. lived with F.M the prior two or three years. F.M. acknowledged that he was not R.M.’s legal guardian or his parent. Dalton asked for and received F.M.’s driver’s license. Dalton’s partner, Officer Ryan McWilliams, engaged R.M., who was a passenger, into conversation.
McWilliams asked R.M. to exit the vehicle. R.M. complied. The officers made a records check on R.M., but could not confirm his identity. R.M. was then taken into custody. R.M. admitted he was 16 years old. Because it was after 10 p.m., Dalton believed R.M. had violated the municipal curfew. R.M. told Dalton that he was a runaway from Lancaster.
McWilliams testified that after Dalton stopped F.M.’s vehicle for not having an illuminated license plate, McWilliams asked R.M. for identification. R.M. told McWilliams that he had no identification. McWilliams described R.M. as uncooperative. When R.M. told McWilliams his birth date, McWilliams found the date odd because R.M. seemed a lot older than 16. McWilliams interrogated R.M. about his name and date of birth to see if R.M. was lying.
McWilliams conducted a records check and was unable to locate any records for R.M. In McWilliams’s experience, this usually means someone is avoiding being arrested due to an outstanding warrant or something similar. After being detained outside the vehicle, R.M. said he was a runaway and that his parents lived in Lancaster. McWilliams concluded that no one at the scene had care, custody, or charge of R.M. McWilliams explained that his understanding of ordinance No. 9.44.010 is that “if you’re under the age of 18, you’re in public after 2200 hours without an adult or somebody – without an adult that’s your – that’s authorized to have care or custody of you, then you’re in violation of the ordinance.”
F.M. testified that R.M. had been living with his family for two to three years, because their grandmother, who is appellant’s legal guardian, could not care for R.M. F.M. gave the officers R.M.’s correct name and age during the traffic stop. F.M. and R.M. testified that R.M. did not tell the officers he was a runaway from Lancaster.
The juvenile court noted that the search itself was not based on R.M.’s detention but was “an arrest-based search.” The juvenile court found that the validity of the search of R.M. depended on what the officers knew at the time of arrest. If the officer’s believed R.M. was a runaway from Lancaster, the arrest was proper. The court found that R.M. mentioned Lancaster. The court further found that if R.M. was a runaway, his cousin could not be in control of him and was not the authorized adult to supervise R.M. The court denied the suppression motion.
DISCUSSION
R.M. contends that ordinance No. 9.44.010 was not applicable to him because he was not even colorably in violation of the ordinance. R.M. argues, and respondent concedes, that his suppression motion was based on whether officers could detain him because he was in violation of the curfew and that any search incident to such an arrest was invalid.
In Teresinski, the officer saw an unfamiliar car at about 2 a.m. with three occupants proceeding through the city business district. Although the car was proceeding at a legal speed without any suspicious behavior, the officer stopped it because he believed there were juveniles in the car. One occupant in the car reached down in a manner suggesting to the officer that he might be hiding alcohol or reaching for a weapon. (Teresinski, supra, 30 Cal.3d at p. 827.) The defendant exited the car and presented his driver’s license, verifying his adult status. Only one occupant in the car was a juvenile. (Id. at pp. 827-828.) The officer searched the car and found several beer containers and a baggie of marijuana. (Id. at p. 828.) The trial court granted the defendant’s suppression motion. (Id. at pp. 828-829.)
The California Supreme court found in Teresinski that the officer’s detention was based on his suspicion that the occupants of the car were violating the curfew ordinance. (Teresinski, supra, 30 Cal.3d at pp. 829-830.) Our high court found that the word “loiter” bears the sinister connotation of lingering for the purpose of committing a crime. Driving through city streets, even in the early morning, is not loitering. (Id. at p. 830.) Teresinski held the defendant and his passengers were not violating the prohibitory language of the ordinance and that the detention of the defendant was unlawful. (Id. at pp. 830-831.)
In relevant part, the curfew ordinance in Teresinski stated that “‘It shall be unlawful for any person under the age of eighteen years to loiter, idle, wander, stroll, or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public places and public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. ....’” (Teresinsky, supra, 30 Cal.3d at p. 830, fn. 3.)
Factually, this case is nearly identical with Teresinski. The one difference is that here, the officers had a valid basis to detain F.M. because of the broken license plate light. The officers, however, had no valid basis to extend their detention based on the suspicion that R.M. was a minor. Because R.M. was merely a passenger in a vehicle, he was not violating the curfew. According to Officer McWilliams, R.M. was questioned after his detention, a detention based on an unlawful interpretation and application of the curfew ordinance. Because the detention was illegal, the physical evidence found on R.M. was inadmissible. (Teresinski, supra, 30 Cal.3d at p. 832.)
Indeed, Officer McWilliams thought R.M. looked older than 16.
The finding by the juvenile court that F.M. was not authorized to have control or charge of R.M. has no bearing on the improper application of the curfew ordinance.
The parties further agree that the officers could not justify their detention of R.M. based on a reasonable mistake of law. This theory has been rejected by Teresinski and other cases. (Teresinski, supra, 30 Cal.3d at pp. 831-832; People v. Knight (2004) 121 Cal.App.4th 1568, 1576 fn. 4 [no good faith exception to exclusionary rule for officers who enforce a legal standard that does not exist]; In re Arthur J. (1987) 193 Cal.App.3d 781, 784, 788.)
We therefore find that the juvenile court erred in denying R.M.’s suppression motion.
DISPOSITION
The judgment of the juvenile court is reversed.
“It is unlawful for any person under the age of eighteen years to loiter upon the streets of the city, in places of amusement or entertainment, or in other public places within the city, between the hours of ten p.m. and five a.m., of any day unless such person is accompanied by a parent, guardian or other adult person having control or charge of such person under the age of eighteen years; or unless such person under the age of eighteen years has gone to a place of entertainment or amusement other than one at which liquor is sold or served, prior to eight p.m., where 1a regular program of entertainment has commenced or been arranged for the occasion to commence prior to eight p.m., and has held over or been continued beyond ten p.m., or such person has left such a place, a place of employment or social call after ten p.m., and such person is thereafter returning directly to his/her home or place of residence in a reasonable manner. (Ord. 3188 § 1, 1988: prior code § 10.12.010)”