Opinion
B226968
08-26-2011
In re ANTHONY G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTHONY G., Defendant and Appellant.
Marta I. Stanton, 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, Assistant Attorney General, Lance E. Winters and Theresa A. Patterson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MJ19268)
APPEAL from an order of wardship of the Superior Court of Los Angeles County, Benny C. Osorio, Judge. Reversed and remanded with directions.
Marta I. Stanton, 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, Assistant Attorney General, Lance E. Winters and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Anthony G., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following a determination he possessed marijuana for sale (Health & Saf. Code, § 11359) following the denial of a Welfare and Institutions Code section 700.1 suppression motion. The court ordered appellant placed home on probation. We will reverse the order of wardship and remand the matter with directions to the trial court to vacate its order denying the suppression motion, to enter an order granting that motion, and to conduct further proceedings consistent with this opinion.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Leyba (1981) 29 Cal.3d 591, 596-597), the evidence presented at the hearing on appellant's Welfare and Institutions Code section 700.1 suppression motion established that on January 15, 2010, Los Angeles County Sheriff's Deputy Jeremiah Fletcher was assigned to the Lancaster station and had been a deputy about three years. On the above date, Fletcher was at Trevor and Avenue I, which was a high crime area.
About 5:49 p.m., he saw two African-American males, one riding a bicycle and the other, appellant, sitting on its handlebars. The males' actions violated Vehicle Code section 21204, subdivision (b). Fletcher testified he "conducted a traffic stop to warn and cite them about the violation," i.e., the violation of Vehicle Code section 21204, subdivision (b). Fletcher denied he usually arrested a person committing a violation of that subdivision.
Vehicle Code section 21204, subdivision (b) states, in relevant part, "An operator shall not allow a person riding as a passenger, and a person shall not ride as a passenger, on a bicycle upon a highway other than upon or astride a separate seat attached thereto." A violation of this subdivision is an infraction punishable by a fine not exceeding $100. (Veh. Code, §§ 40000.1, 42001, subd. (a)(1).)
The males provided their names and ages. Fletcher testified that "Given the late hour and the high crime area and the fact that [the males] were wearing big bulky jackets," Fletcher and his partner conducted a patdown search of the males for weapons.
Fletcher patted down the outside of appellant's jacket. Fletcher felt a large, hard bulge, did not know what it was, but believed it might be a club, a gun butt, or a weapon. Fletcher reached in appellant's left jacket pocket and found a plastic baggy containing nine individually packaged baggies of marijuana. Fletcher testified he also found about "$35 of U.S. currency in coin" in that pocket. Appellant was arrested after Fletcher found the marijuana. The parties stipulated there was no search warrant. Appellant presented no defense evidence at the suppression hearing.
ISSUES
Appellant claims (1) the trial court erroneously denied his Welfare and Institutions Code section 700.1 suppression motion and (2) there was insufficient evidence appellant possessed marijuana for sale.
DISCUSSION
The Trial Court Reversibly Erred by Denying Appellant's Suppression Motion.
Appellant brought a Welfare and Institutions Code section 700.1 suppression motion seeking to suppress the fruits, including the above marijuana and money, of Fletcher's patdown of the outside of appellant's jacket. Appellant sought suppression on the ground, inter alia, said patdown violated the Fourth Amendment because Fletcher did not reasonably believe appellant might be armed and dangerous. The prosecutor argued that even though Fletcher conducted a patdown search, the proper analysis was the search was incident to appellant's arrest. The court denied appellant's suppression motion without comment.
Appellant claims the trial court erroneously denied his suppression motion. We agree. Appellant concedes his initial detention was lawful, and there is no dispute it was lawful because, when Fletcher stopped appellant, Fletcher had probable cause to believe appellant was violating Vehicle Code section 21204, subdivision (b) by riding on the handlebars of a bicycle. There is also no dispute Fletcher's subsequent search of appellant accomplished by patting down the outside of appellant's jacket violated the Fourth Amendment unless that action was justified as (1) based on a reasonable belief entertained by Fletcher that appellant was armed and dangerous, and/or (2) a lawful search incident to appellant's arrest.
1. The Search of Appellant Was Not Justified As a Lawful Patdown Search.
For the reasons discussed below, we agree with appellant that the patdown of the outside of appellant's jacket cannot be justified as a lawful patdown search. Indeed, we believe it is telling that respondent does not address appellant's argument on this issue or seek to justify the search of appellant as a lawful patdown search.
On review, we defer to the trial court's factual findings where supported by substantial evidence and independently determine whether, on the facts found, the patdown was reasonable under Fourth Amendment standards (People v. Collier (2008) 166 Cal.App.4th 1374, 1377 (Collier).) "In the context of an ordinary traffic stop, an officer may not pat down a driver . . . absent a reasonable suspicion [the driver] . . . may be armed and dangerous. (Knowles v. Iowa (1998) 525 U.S. 113, 118 (Knowles).)" (Collier, supra, 166 Cal.App.4th at p. 1377; People v. Miranda (1993) 17 Cal.App.4th 917, 927 (Miranda)[accord].) Although appellant was not a motorist, the above rule applies with equal force here.
Regarding the armed and dangerous standard, the officer need not be absolutely certain that the defendant is armed; the crux of the issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his or her safety was in danger. (People v. Avila (1997) 58 Cal.App.4th 1069, 1074.) In the present case, the only facts upon which Fletcher relied to justify the patdown were "the late hour and the high crime area and the fact that [the males] were wearing big bulky jackets."
People v. Medina (2003) 110 Cal.App.4th 171 (Medina)is instructive. In Medina, an officer stopped a driver for an equipment infraction and conducted a patdown search of the driver for no other reason than that the stop occurred in a high crime area at night. (Id. at p. 174.) During the patdown, the officer found cocaine in one of the defendant's pockets. (Id. at p. 175.) The trial court denied the defendant's Penal Code section 1538.5 suppression motion. (Ibid.)
Medina concluded the patdown search was unlawful, in part because the officer failed to demonstrate a reasonable suspicion the driver was armed and dangerous. Medina noted the only reason for the search was the time and location of the stop. (Medina, supra, 110 Cal.App.4th at p. 176.)
Medina observed that minor traffic offenses do not reasonably suggest the presence of weapons; therefore, an officer may not search the driver unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon. (Medina, supra, 110 Cal.App.4th at p. 171; Miranda, supra, 17 Cal.App.4th at p. 927 [same].)
Medina noted our Supreme Court has indicated the time and location of an encounter are insufficient by themselves to cast reasonable suspicion on an individual. In particular, Medina observed People v. Bower (1979) 24 Cal.3d 638 (Bower),had indicated that the factors of nighttime and a high crime area should be appraised with caution, neither factor involves activity of an individual, the nighttime factor has minimal importance, and "The spectrum of legitimate human behavior occurs every day in so-called high crime areas." (Medina, supra, 110 Cal.App.4th at p. 177, quoting Bower, supra, 24 Cal.3d at p. 645.) Medina indicated the above considerations applied with equal force in determining the reasonableness of patdown searches. (Medina, supra, 110 Cal.App.4th at p. 177.) Because the patdown in Medina was based solely on the driver's presence in a high crime area at night, Medina concluded the search at issue in that case was unlawful. (Id. at p. 178.)
We believe Medina supports a conclusion the patdown in the present case was unlawful. The fact the males in the present case were wearing big, bulky jackets does not compel a different conclusion. We view such clothing as simply another factor to be appraised with caution. While factors such as bulky clothing may be used with other more probative factors to show a reasonable belief in the need for a patdown search, the big, bulky jackets in this case were insufficient, even in combination with the other circumstances, to demonstrate Fletcher had a reasonable belief that appellant, a minor committing a Vehicle Code infraction by riding on handlebars, might be armed and dangerous. (Cf. Medina, supra, 110 Cal.App.4th at p. 177.)
Moreover, in the decisions mentioning baggy or heavy clothing as a pertinent factor, there are other factors present that are more specific and probative of the conclusion that the person is armed and dangerous. For example, in Collier, officers asked the defendant and his passenger to step out of the car as they smelled marijuana, which provided a rational suspicion of possession or transportation of drugs. Persons possessing drugs are frequently armed. (Collier, supra, 166 Cal.App.4th at pp. 13771378.) In In re Frank V. (1991) 233 Cal.App.3d 1232, the defendant, during a detention, either put his hands in his pockets or began to do so after complying with an officer's earlier request to take them out. This conduct, along with the defendant's heavy coat, his presence in a gang area, and the officer's observation that the defendant, along with another person, were on a motorcycle leaving the curb of a known gang house, justified the patdown search. (Ibid.)
In the present case, Fletcher never testified it was dark or night. It was late afternoon. Moreover, this is not a case in which Fletcher testified that he had had prior contacts with the males in this case, they were gang members, they were coming from or going to a suspicious location, or they were engaged in furtive gestures or appeared nervous or agitated. Nor did Fletcher testify the males' clothing was unusual given their height and weight.
Further, Fletcher did not testify the males' clothing was unusual given the temperature during that winter afternoon. He did not testify that the males put their hands in their pockets, that the males' hands were already in their pockets, that there were bulges in their clothing or anything independently suggestive of a weapon, that their clothing appeared to be gang attire, or that they said anything suggesting they were armed or dangerous. Fletcher did not testify that he and his partner were outnumbered or that either of the males were bigger than Fletcher or his partner. We conclude Fletcher's patdown of the outside of appellant's jacket cannot be justified as a lawful patdown search. (Cf. Medina, supra, 110 Cal.App.4th at pp. 174-178.)
2. The Search of Appellant Was Not Justified As a Lawful Search Incident to His Arrest.
Respondent argues the search was lawful as incident to appellant's arrest. In particular, respondent appears to maintain the mere fact that, prior to Fletcher's search of appellant, Fletcher had probable cause to make a custodial arrest of appellant for his Vehicle Code violation justified the ensuing search as incident to his arrest for that violation, even though no custodial arrest for that violation in fact occurred. Respondent cites Atwater v. Lago Vista (2001) 532 U.S. 318 (Atwater), People v. McKay (2002) 27 Cal.4th 601 (McKay),and People v. Gomez (2004) 117 Cal.App.4th 531 (Gomez)in support of his argument. We reject it.
In Atwater, police made a custodial arrest of a driver for fine-only offenses (seatbelt violations), and the arrestee claimed such an arrest violated the Fourth Amendment. Atwater rejected the claim. (Atwater, supra, 532 U.S. at pp. 323-324, 354.) Atwater observed that if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in the officer's presence, the officer may, without violating the Fourth Amendment, arrest the offender. (Id. at p. 354.) Atwater did not involve the issue of the lawfulness of a search or the issue of a search incident to an arrest.
In McKay, police made a custodial arrest for a fine-only offense (riding a bicycle in the wrong direction on a street) and police subsequently discovered narcotics on the arrestee during a search incident to his arrest. (McKay, supra, 27 Cal.4th at p. 606.) McKay, following Atwater, concluded custodial arrests for fine-only offenses did not violate the Fourth Amendment. (Id. at p. 605.) McKay also concluded that a custodial arrest supported by probable cause to arrest was valid under the Fourth Amendment notwithstanding the fact, if true, that the custodial arrest violated state arrest procedures. (Id. at p. 605.) McKay stated, "so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest--even one effected in violation of state arrest procedures—does not violate the Fourth Amendment." (Id. at p. 618, italics added.)
In Gomez, police detained a driver for a seatbelt violation and, about an hour to an hour and a half later, opened a box in his vehicle and found narcotics inside. (Gomez, supra, 117 Cal.App.4th at p. 536.) Gomez concluded the detention was unduly prolonged and amounted to a de facto arrest, but Gomez also concluded the de facto arrest was, based on the facts in that case, supported by probable cause to arrest. (Id. at pp. 536-538.) Gomez relied on Atwater and McKay to conclude that the seatbelt violation provided a basis to conclude probable cause to arrest existed (Gomez, supra, 117 Cal.App.4th at pp. 538-539) and the fact the driver was not cited for the seatbelt violation and could not lawfully have been arrested for that violation under state law was irrelevant for purposes of the Fourth Amendment. (Id. at p. 539.)
Atwater, McKay, and Gomez are distinguishable from the present case because in Atwater and McKay, police made custodial arrests for what were essentially traffic violations and, in Gomez, police subjected the driver to the equivalent of a custodial arrest for a traffic violation. The searches in McKay and Gomez thus occurred only after a custodial arrest, or its equivalent, for a traffic violation. In the present case, Fletcher never made a custodial arrest of appellant for his traffic violation (i.e., the violation of riding on the bicycle's handlebars) before or after Fletcher searched appellant.
We find Knowles, supra, 525 U.S. 113, instructive. In Knowles, an Iowa police officer detained a driver for a traffic violation (speeding), the officer, in the exercise of his statutory discretion, issued the driver a citation instead of making a custodial arrest (id. at pp. 114-116), and police subsequently discovered narcotics during a search of the driver's car. (Id. at p. 114.) Police arrested the driver and charged him with violating Iowa controlled substances laws. (Ibid.)
Iowa law permitted police "to conduct a full-blown search of an automobile and driver in those cases where police elect not to make a custodial arrest and instead issue a citation -- that is, a search incident to citation." (Knowles, supra, 525 U.S. at p. 115, italics added.) The driver argued the search could not be justified under the search-incident-to-arrest exception because police had not arrested him. (Id. at p. 114.) Iowa's Supreme Court upheld the constitutionality of the search under a "search incident to citation" exception to the Fourth Amendment's warrant requirement, reasoning that as long as the arresting officer had probable cause to make a custodial arrest, an actual custodial arrest was unnecessary. (Id. at pp. 115-116.) In a unanimous decision, the high court reversed the judgment of the Iowa Supreme Court. (Id. at p. 116.)
Knowles, citing United States v. Robinson (1973) 414 U.S. 218 (Robinson), noted the two historical rationales for the search-incident-to-arrest exception: (1) the need to disarm the suspect in order to take the suspect into custody, and (2) the need to preserve evidence for later use at trial. (Knowles, supra, 525 U.S. at p. 116.) Knowles concluded that neither of the rationales was sufficient to justify the search that took place in Knowles. (Id. at p 117.)
As to the first rationale, Knowles observed that the threat to officer safety from issuing a traffic citation "is a good deal less than in the case of a custodial arrest." (Knowles, supra, 525 U.S. at p. 117) Knowles noted that Robinson stated a custodial arrest involves danger to an officer because of " 'the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.' " (Ibid., italics added, quoting Robinson, supra, 414 U.S. at pp. 234-235.) Knowles asserted a routine traffic stop, on the other hand, is a relatively brief encounter more analogous to a " ' "Terry stop" ' " than to a formal arrest (ibid.) and, even if the search in Knowles could not be justified as incident to an arrest, police could conduct a " 'Terry patdown' " of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon. (Knowles, supra, 525 U.S. at p. 118.)
As to the second rationale, i.e., the need to discover and preserve evidence, Knowles stated that once the driver in Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of his car. (Knowles, supra, 525 U.S. at pp. 118-119.) Iowa attempted to justify the search by arguing a suspect subject to a routine traffic stop might attempt to hide or destroy evidence related to the suspect's identity or destroy evidence of another, as yet undetected, crime. Knowles concluded, as to the destruction of evidence relating to identity, that if a police officer is not satisfied with the identification furnished by the driver, this could be a basis for arresting the driver rather than merely issuing a citation. Knowles concluded, as to the destruction of evidence of other crimes, that the possibility that an officer would stumble onto evidence wholly unrelated to the speeding offense seemed remote. (Id. at p. 118.)
Like the case in Knowles, if Fletcher had not been satisfied with the identification furnished by appellant for his violation of the Vehicle Code, this provided a basis for Fletcher to take him into custody rather than issuing a citation (Veh. Code, §§ 40302.5, 40303).
Knowles declined to extend the search-incident-to-arrest exception to apply to a situation such as that presented in Knowles, i.e., a situation in which the concern for officer safety was not present to the same extent and the concern for destruction or loss of evidence was nonexistent. (Knowles, supra, at 525 U.S. at pp. 118-119.) Knowles refused to justify the search in that case as lawful under the search-incident-to-arrest exception where police had not made a custodial arrest of the driver for the traffic offense and the police instead merely cited him for that offense.
Respondent's apparent position is that the mere fact that, prior to Fletcher's search of appellant, Fletcher had probable cause to make a custodial arrest of appellant for his Vehicle Code violation justified the ensuing search as incident to his arrest for that violation, even though no custodial arrest for that violation in fact occurred. If that position were correct, Knowles was wrong in its conclusion that the search-incident-to-arrest exception did not apply unless said arrest was a custodial arrest which in fact occurred. Moreover, if respondent's position were correct, Knowles was wrong in its implicit rejection of the reasoning of the Iowa Supreme Court that as long as the arresting officer had probable cause to make a custodial arrest, an actual custodial arrest was unnecessary. It was undisputed that, prior to the search in that case, the officer in Knowles, who merely cited the driver, had probable cause to make a custodial arrest of the driver for speeding. We note Knowles was approvingly cited in Virginia v. Moore (2008) 553 U.S. 164, 177 , a decision subsequent to Atwater, McKay, and Gomez.
In the present case, there was no evidence Fletcher ever made a custodial arrest of appellant for his traffic offense or took him into custody and transported him to the sheriff's station for that offense. We note Fletcher testified he "conducted a traffic stop to warn and cite them about the violation" (italics added), Fletcher denied he usually arrested a person committing a violation of Vehicle Code section 21204, subdivision (b), and Fletcher testified appellant was arrested after Fletcher found the marijuana.
Indeed, on this record, Fletcher could not lawfully have made a custodial arrest of appellant for a violation of Vehicle Code section 21204, subdivision (b). The Vehicle Code either prohibits an officer from taking into custody a person cited for a Vehicle Code violation (Veh. Code, § 40500, subd. (a)), permits an officer to take into custody such a person (Veh. Code, § 40303), or requires the officer to take into custody such a person (Veh. Code, § 40302), depending on circumstances specified in those sections. (People v. Superior Court (Simon) 7 Cal.3d 186, 199-200 (hereafter, Simon).The Vehicle Code prescribes the exclusive procedure to be followed after a warrantless arrest for a Vehicle Code violation. (Simon, supra, 7 Cal.3d at p. 199.) On this record, Vehicle Code section 40500, subdivision (a) prohibited Fletcher from taking appellant into custody and instead required Fletcher to issue a citation and release appellant forthwith once appellant provided his written promise to appear. (Simon, supra, 7 Cal.3d at p. 199.)
Moreover, even if Fletcher had cited appellant for his Vehicle Code violation, that fact, without more, would not have constituted a custodial arrest. Although each of Vehicle Code sections 40500, subdivision (a), 40302, and 40303, refers to a person "arrested" for a Vehicle Code violation, an arrest for a minor Vehicle Code violation is distinguishable from an arrest under other circumstances. Ordinarily, the word "arrest" implies a sequence of events that begins with physical custody and at least a minimal body search, and concludes with booking and incarceration or release on bail.
However, where a minor Vehicle Code violation is involved, the arrest is complete when, after an investigatory stop, the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court. This species of arrest does not inevitably result in physical custody and its concomitant, a search. (People v. Monroe (1993) 12 Cal.App.4th 1174, 1181.) On this record, we presume Fletcher knew the above Vehicle Code law (Evid. Code, § 664) and, therefore, never intended to make, and never in fact made, a custodial arrest of appellant for his Vehicle Code violation.
Knowles controls this case. Like the case in Knowles, to apply the search-incident-to-arrest exception to the present case would be to apply it to a situation in which Fletcher never made a custodial arrest, i.e., a situation in which the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is nonexistent. Moreover, the fact that, after the patdown of the outside of appellant's jacket, Fletcher discovered narcotics that supported a later custodial arrest for an offense other than appellant's Vehicle Code violation does not affect the analysis. The controlling fact in Knowles was that the officer in that case did not make a custodial arrest of the driver for his speeding violation. The fact that the officer, after merely citing the driver for that violation, searched the driver's car, found narcotics, and subsequently made a custodial arrest of the driver for the narcotics offense was irrelevant.
We note that, as mentioned, the rule is that in the context of an ordinary traffic stop, an officer may not patdown a driver absent a reasonable suspicion the driver may be armed and dangerous. (Collier, supra, 166 Cal.App.4th at 1377.) Respondent's position, if valid, would largely eviscerate that rule since the rule would not apply to the many cases in which a traffic stop for a Vehicle Code violation is valid. In such cases, the traffic stop is supported by probable cause to arrest for said violation and, if respondent were correct, such probable cause would justify a full-blown search incident to an arrest, whether or not the officer had a reasonable suspicion the driver might be armed and dangerous.
We realize that the search-incident-to-arrest exception does not require that the defendant's custodial arrest for an offense precede said search, i.e., the fact that police do not make a custodial arrest for an offense until after said search does not invalidate it if probable cause to arrest for that offense existed prior to the search and the search is substantially contemporaneous with the arrest. (People v. Adams (1985) 175 Cal.App.3d 855, 860-861.) However, that principle does not legitimize the search in this case because, as mentioned, there is no substantial evidence Fletcher ever made a custodial arrest of appellant for his Vehicle Code violation.
We hold the trial court in this case erred by implicitly concluding the search of appellant accomplished by Fletcher's patdown of the outside of appellant's jacket was lawful under the Fourth Amendment either as a patdown search and/or as a search incident to appellant's arrest. There is no dispute that if said search was unlawful, the Fourth Amendment required the trial court to suppress the fruits of that search, including the marijuana and money. The trial court reversibly erred by denying appellant's Welfare and Institutions Code section 700.1 suppression motion.
In light of our holding, there is no need to reach the issue of whether Fletcher's conduct after the patdown of the outside of appellant's jacket was lawful, and there is no need to reach appellant's claim there was insufficient evidence he committed a violation of Health and Safety Code section 11359.
DISPOSITION
The order of wardship is reversed and the matter is remanded to the trial court with directions to vacate its order denying appellant's Welfare and Institutions Code section 700.1 suppression motion, to enter an order granting that motion, and to conduct further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
CROSKEY, Acting P. J.
ALDRICH, J.