Summary
noting that appellant "appeared to grab an object in his waistband and pull it back and forth," which is "conduct consistent with carrying a concealed weapon"
Summary of this case from Maye v. United StatesOpinion
B228573
09-26-2011
In re ANTONIO A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANTONIO A., Defendant and Appellant.
Bruce G. Finebaum, 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, Kenneth C. Byrne and David C. Cook, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FJ7993)
APPEAL from a judgment of the Superior Court of Los Angeles County. Robin Miller Sloan, Judge. Affirmed.
Bruce G. Finebaum, 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, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
A petition was filed against appellant under Welfare and Institutions Code section 602 alleging one felony count of possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)). Appellant's motion to suppress evidence was denied. Appellant thereafter admitted the truth of the allegation. The court found the allegation true and sustained the petition, declaring the offense a felony and ordering appellant placed in a Camp Community Placement program, with physical confinement not to exceed three years.
Appellant filed a timely notice of appeal, contending that his motion to suppress should have been granted. We find that denial of the motion was proper, and accordingly affirm.
FACTUAL SUMMARY
Appellant was arrested on October 8, 2010. His motion to suppress evidence, brought pursuant to Welfare and Institutions Code section 700.1, was heard on October 28, 2010. The evidence pertinent to this appeal comes from the testimony of the arresting officer, Deputy Sheriff Jesse Espinoza, at that hearing.
Espinoza testified that at approximately 11:30 p.m. on October 8, he and a partner were patrolling the area of the 800 block of South Bonnie Brae Place in East Los Angeles. The area is known to have substantial gang activity and is claimed by the "Little Valley" criminal street gang. The area had recently experienced gang-related shootings.
While Espinoza was sitting in the passenger seat of the patrol vehicle, he observed appellant riding a Razor scooter next to a female, who was walking with him. When appellant saw the vehicle, he stopped and got off the scooter. Appellant appeared to grab an object in his waistband and pull it back and forth with his right hand. He did not appear to be pulling up his pants, and based on Espinoza's experience carrying firearms in his own waistband, Espinoza thought that appellant could be carrying a gun.
Espinoza and his partner exited the vehicle and told appellant to stop and place his hands behind his back. Espinoza proceeded to do a patdown of appellant. He felt a hard object about six inches in length in appellant's right, front pocket. Espinoza searched the pocket and recovered a folding knife. Espinoza then placed appellant in handcuffs and continued searching him, ultimately recovering a .40-caliber handgun from appellant's front waistband.
DISCUSSION
In the motion to suppress evidence, appellant argued that Espinoza lacked sufficient grounds to stop appellant and conduct the patdown search. The juvenile court denied the motion without stating reasons. Appellant now renews his argument on appeal. "The denial of a motion to suppress evidence brought in juvenile proceedings is reviewable on appeal from the final judgment, even if the judgment is predicated upon the minor's admission of the allegations of the petition." (In re Cody S. (2004) 121 Cal.App.4th 86, 90.)
The standard employed in reviewing a ruling on a motion to suppress evidence is well established. We review the trial court's factual findings, whether express or implied, under a deferential substantial evidence standard. (People v. Glaser (1995) 11 Cal.4th 354, 362.) We exercise our independent judgment in determining whether the detention and search was reasonable under the Fourth Amendment. (Glaser, at p. 362.) Since the facts here are undisputed, we must independently measure whether the detention and search of appellant were reasonable in light of the facts presented.
The Fourth Amendment prohibits unreasonable searches and seizures. "A detention is reasonable under the Fourth Amendment when the detaining officer can 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." (People v. Souza (1994) 9 Cal.4th 224, 231.) The circumstances apparent to the officer must cause him to suspect that (1) a crime has occurred, is occurring, or is about to occur, and (2) the person he intends to detain is involved in criminal activity. (In re Tony C. (1978) 21 Cal.3d 888, 893.) A detention may not be based "on mere curiosity, rumor, or hunch." (Ibid.)
We find that the detention of appellant was proper in light of the circumstances apparent to Espinoza. Appellant was riding his scooter late at night in an area known for gang activity. He immediately stopped and got off his scooter when he saw the patrol vehicle. He then appeared to grab an object in his waistband and pull it back and forth, conduct consistent with carrying a concealed weapon. These facts were similar to those illustrated in People v. Miles (1987) 196 Cal.App.3d 612, 618, wherein the defendant turned away from the officer when he approached and had "'an exaggerated bulge'" in his jacket pocket that appeared to be "'some type of heavy object, possibly a gun.'" That court found that the police officer reasonably suspected the defendant of engaging in the crime of concealment of a weapon. (Ibid.) Appellant's actions here were at least as likely to give rise to the reasonable suspicion that he was carrying a gun. Furthermore, the high crime area in which appellant exhibited his suspicious behavior further supported the reasonableness of the detention. (See People v. Limon (1993) 17 Cal.App.4th 524, 534-535 [prevalence of drugs and weapons in the area was a factor in reasonableness of detention].) "The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . ." (In re Tony C., supra, 21 Cal.3d at p. 894.)
We also find that the patdown search of appellant was justified. When a person is properly detained, an officer may conduct a patdown search for weapons if there is reason to believe the search is necessary for the protection of the officer and others. (Terry v. Ohio (1968) 392 U.S. 1, 30.) To justify the search, "[t]he officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.]" (People v. Dickey (1994) 21 Cal.App.4th 952, 956.) The same facts that supported the initial detention of appellant also supported the patdown search. (See People v. Miles, supra, 196 Cal.App.3d at p. 618.) Having detained appellant for suspicion of carrying a concealed firearm, Espinoza was justified in conducting a patdown for weapons. After feeling what felt like a knife in appellant's pocket, Espinoza properly removed the knife. He then properly recovered the .40-caliber pistol from appellant's waistband. This conduct was justified by Espinoza's reasonable suspicion that appellant was armed and posed a threat.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.