Opinion
A161243
12-16-2021
In re E.S., a Person Coming Under the Juvenile Court Law. v. E.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Order Filed Date 1/12/22
Solano County Super. Ct. No. J44261
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
THE COURT[*]:
The petition for rehearing filed by appellant E.S. is denied, subject to the following modification of the opinion filed in this appeal on December 16, 2021:
On page 4, delete the first sentence of the first paragraph which reads:
Based on his observations-and specifically, that the vehicle's 18-year-old occupants admitted to smoking marijuana without a medical marijuana card-Officer Barker requested police backup to search the vehicle for marijuana.
And insert in its place the following sentence:
Based on his observations-and specifically, that the driver of the vehicle admitted to smoking marijuana without a medical marijuana card, that there was residue from "a couple blunts" in the driver's ashtray, and that none of the occupants in the car had a medical marijuana card-Officer Barker requested police backup to search the vehicle for marijuana.
The modification effects no change in the judgment. Dated: January 12, 2022 STREETER, J.
STREETER, J.
While on juvenile probation, E.S. was detained in a traffic stop, which led to the discovery of a loaded gun on his person during a patdown search. This appeal is from a dispositional order finding that E.S. violated an "obey all laws" condition of his probation. He presents two arguments. First, E.S. contends the juvenile court erred in denying a motion to suppress the gun. Second, E.S. attacks a curfew condition of his probation as unconstitutionally vague. We reject the first argument on the merits and decline to address the second argument, as it has been forfeited. Accordingly, we affirm.
I. BACKGROUND
A. Initiation of Wardship Proceedings and Imposition of Probation
On September 17, 2018, the Solano County district attorney filed a two-count juvenile wardship petition (Welf. & Inst. Code, § 602 ) charging E.S. with: (1) felony second degree commercial burglary (Pen. Code, § 459); and (2) felony grand theft of personal property (Pen. Code, § 487, subd. (a)). Following a contested jurisdictional hearing, the juvenile court sustained the commercial burglary count only.
All undesignated statutory references are to the Welfare and Institutions Code.
At a February 19, 2019 dispositional hearing, the juvenile court adjudged E.S. a ward, placed him on probation in the home of his parents, and imposed various terms and conditions of probation. His probation conditions included directives that he not "knowingly possess any dangerous or deadly weapons [or] ammunition" and that he observe a nightly curfew starting at 10:00 p.m.
B. Events Leading to Probation Violation Proceedings
Around 2:38 a.m. on September 4, 2020, Fairfield Police Officer Auldon Barker, while sitting alone in his patrol vehicle, observed a blue Audi vehicle driving past without its front license plate. Officer Barker drove behind the Audi and observed it "drift[ing] in and out" between road lanes, accelerating and decelerating rapidly. Based on his training and expertise, Officer Barker concluded the vehicle's driving patterns were consistent with intoxicated driving, so he initiated a traffic stop. As the officer approached on foot in the dark, he noted the car's windows had sunshades, blocking his view of who was inside and the interior cabin more generally.
The Audi pulled over at a gas station, and at that point Officer Barker went to the driver's window. The driver informed the officer he did not have a driver's license. Because the stopped car was blocking a business, Officer Barker determined it would be necessary to move the vehicle. To avoid having to tow the vehicle, Officer Barker asked whether the front passenger had a driver's license, but neither the driver nor the front passenger had a license or any other form of identification.
While speaking with the two individuals in the front seat, Officer Barker smelled burnt marijuana emanating from the vehicle and inquired whether anyone inside the vehicle possessed marijuana. The driver denied having marijuana but admitted to smoking it earlier and lifted his ashtray, which contained the ends of a "couple of blunts" of marijuana. The occupants did not have a medical marijuana card, however, and Officer Barker knew it was illegal to possess marijuana under the age of 21 and illegal to smoke it in a public place. Officer Barker walked toward his patrol vehicle to run a "records check" on the driver and front passenger when he noticed movement coming from the back seat, alerting him to E.S.'s presence in the back seat. It turned out that E.S. did not have any identification either. He gave his birthdate to Officer Barker, told the officer his correct first name, but falsely provided the surname of "Smith."
Officer Barker ascertained that all of the vehicle's occupants were 18 years old, and all denied being on probation. The officer attempted a records check on all three occupants but was only able to verify the driver's identity. To ensure he had the correct identifying information, Officer Barker returned to verify E.S.'s name and birthdate. E.S. reiterated his correct first name and false surname.
Based on his observations-and specifically, that the vehicle's 18-year-old occupants admitted to smoking marijuana without a medical marijuana card-Officer Barker requested police backup to search the vehicle for marijuana. While Officer Barker was filling out a traffic citation for the driver, Fairfield Police Officer Dennis Chapman and his partner responded to the call for backup, arriving on scene within a "couple of minutes." Officer Barker then removed the driver from the vehicle and "conducted a patsearch for weapons" on him.
To search the vehicle, Officer Chapman removed E.S. from the backseat, detained him, and patted down E.S.'s outer clothing. During that patsearch, Officer Chapman felt a hard object similar to a firearm. Officer Chapman proceeded to detain E.S. in handcuffs, identified the object as indeed being a firearm, and removed it from E.S.'s front jacket pocket. The firearm was loaded and ready to fire, and its magazine contained ammunition. After finding the firearm, the officers used the police sergeant's fingerprint scanner to determine E.S.'s identity and in doing so learned of his juvenile probation status.
Officer Barker testified as to the "various reasons" why the officers felt "it was necessary to patsearch the occupants" of the vehicle. First, Officer Barker noted that "[f]irearms are commonly associated with drugs" and that the marijuana in this particular case was illegal. Second, the gas station at which the detention occurred was "frequented by a lot of people whether on bicycles, foot or in vehicles." Third, Officer Barker perceived that only three officers were involved in the detention even though normal safety protocols advise having more officers on scene than suspects. Fourth, "not having the occupants identified after they told [the officers] they had IDs [was] suspicious in nature" because "it's not common for people to lie about their names."
C. Probation Violation Proceedings
The probation department filed a notice of violation of probation (§ 777) on September 8, 2020, alleging that E.S. violated the terms of his probation by his failure to obey all laws. E.S. moved to suppress evidence. He did not contest the legality of the traffic stop but did contest the legality of the length of the ensuing detention and the patdown search. What is primarily at issue here on appeal is the legality of the patdown. On that issue, counsel argued that E.S. had made "no sudden movements" or done anything that would "give any cause [for] concern . . . for officer safety." Counsel further asserted that a fourth officer was inside a police car-thus outnumbering the three vehicle occupants-and she suggested that the officers patsearched E.S. because he was "a young man of color," which would "offend society's sense of justice."
The prosecutor responded that the facts of the case did not meet the shock-the-conscience standard. Specifically, the prosecutor pointed to the same indicia of suspicion that Officer Barker relied upon in his testimony: the presence of illegal drugs by a group of 18 year olds, the refusal to give correct identification, the "high-traffic" area, and the presence of only three officers at the actual detention and searches. The prosecutor observed that the "bulk of defense counsel's motion of what ma[de] it shocking [was] that . . . the occupants of the vehicle were racially profiled," but there was "absolutely no evidence in the record that that occurred."
At the close of argument, the juvenile court noted that it had "to be convinced that the conduct of the officers would shock the conscience such that the exclusionary rule would apply in this case." Because the court did not "find [a] Fourth Amendment violation" and there were "no racial issues here that [the court could] see at all from the evidence," the court declined to find that the conduct of the officers "shock[ed] the conscience." The court thus denied the suppression motion, found a violation of probation, remanded E.S. to custody in county jail (continuing his custody there where he was being held on an adult charge), and effective December 1, 2020, terminated his juvenile probation as unsuccessful.
II. DISCUSSION
A. Denial of Motion To Suppress
On review of the denial of any motion to suppress evidence, we defer to the trial court's factual findings, express or implied, if supported by substantial evidence, while conducting independent review on the ultimate legal question of reasonableness. (Ornelas v. United States (1996) 517 U.S. 690, 695-700; People v. Simon (2016) 1 Cal.5th 98, 120.) The trial court has the power to "weigh the evidence and draw factual inferences," and on appeal "all presumptions favor the exercise of that power." (People v. Lawler (1973) 9 Cal.3d 156, 160, superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) These principles of review require that we look at the record" 'in the manner most favorable to the [superior] court's disposition'" on a suppression motion. (People v. Woods (1999) 21 Cal.4th 668, 673.)
Here, the trial court correctly recognized that"' "[f]ederal constitutional standards govern[ing] review of issues related to the suppression of evidence" '" in a probation violation proceeding are not coextensive with Fourth Amendment standards. (People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069.) "[T]he United States Supreme Court has 'repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials, '" including "parole revocations proceedings." (Id. at p. 1070, quoting Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357, 363-364.) And "California courts have specifically held that the exclusionary rule does not apply in probation revocation hearings[] unless the police conduct at issue shocks the conscience." (Lazlo, at p. 1070, citing People v. Harrison (1988) 199 Cal.App.3d 803, 811 ["federal law does not require application of the exclusionary rule to probation revocation hearings"] (Harrison); see Jones v. Superior Court (2004) 115 Cal.App.4th 48, 61.)
Cases applying the shocks-the-conscience standard have applied it in two circumstances. First, where the officers conducting the search "had no objective factors upon which to base any suspicions" of illegal conduct (People v. Washington (1987) 192 Cal.App.3d 1120, 1128), that satisfies the standard. Second, where the officers' motivation is affirmatively shown to arise from racial animus (Harrison, supra, 199 Cal.App.3d at p. 814), that too satisfies the standard.
In Washington, for example, two officers chased down and detained the appellant, a Black male, after seeing him "huddl[ing]" with others in an area where many drug arrests had been made. (People v. Washington, supra, 192 Cal.App.3d at p. 1122.) The target of the appellant's suppression motion in ensuing probation revocation proceedings was a bag of cocaine bindles that he discarded while he ran from the officers. (Id. at p. 1123.) One of the officers testified that, in his experience, Black males in that area who ran from him "usually had something to hide." (Ibid.) Because the officers had no objective indicators of illegal activity when they detained the appellant and "offered no explanation why they singled out [the] defendant to follow" other than his race (id. at p. 1128), the court reversed the denial of appellant's motion to suppress.
The court in Harrison, by contrast, affirmed the denial of a suppression motion in a probation revocation hearing where the officers "did have objective reasons for stopping" the defendant other than his race. (Harrison, supra, 199 Cal.App.3d at p. 814.) The court explained that the appellant "had been in a group which appeared to be dealing drugs. The group's activity was suspicious because it matched a pattern of activity that had led to other narcotics arrests. The activity took place after midnight. Appellant fled from the spot where a cohort was taken into custody with a loaded gun and a large quantity of cocaine on his person." (Id. at pp. 814-815.) "Flight from the police plus other circumstances can be grounds for detention," the court pointed out. (Id. at p. 815.)
This case is more like Harrison than Washington. Nothing about the patdown at issue in this case shocks the conscience or offends our sense of justice.
The bulk of E.S.'s argument for suppression is that the patdown search did not comport with Fourth Amendment standards. That argument incorrectly treats a violation of the Fourth Amendment, by itself, as sufficient to meet the shocks-the-conscience standard. (See People v. Lazlo, supra, 206 Cal.App.4th at p. 1069 ["Under federal constitutional principles, the search of Lazlo's purse may have violated the Fourth Amendment, but the evidence obtained is nonetheless admissible to establish a probation violation"].) Even if E.S. were correct that a Fourth Amendment violation, by itself, could be sufficient to meet the shocks-the-conscience standard, under standard search and seizure principles the legality of a patdown search is always based on the totality of the circumstances. (People v. Fews (2018) 27 Cal.App.5th 553, 560-561 (Fews).) And here, we see no Fourth Amendment violation.
First, the presence of marijuana in the car" 'furnished a rational suspicion that [E.S.] may have been in the possession and transportation of drugs.'" (Fews, supra, 27 Cal.App.5th at p. 560, quoting People v. Collier (2008) 166 Cal.App.4th 1374, 1377 (Collier).) Not only do" 'guns often accompany drugs'" as a general matter, but the officers here knew that E.S. and his companions were not old enough to legally possess the marijuana in the vehicle. (Collier, at p. 1378.)" 'In connection with a lawful traffic stop of an automobile' "-which the stop in this case undisputedly was-" 'when the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle and pat them down briefly for weapons to ensure the officer's safety and the safety of others.'" (Ibid.)
Second, Officer Barker's testimony that the search took place in a high-traffic area was relevant because officers can conduct patdown searches "for the protection of [themselves] and others in the area." (Terry v. Ohio (1968) 392 U.S. 1, 30-31; see People v. Osborne (2009) 175 Cal.App.4th 1052, 1059 (Osborne); People v. Samples (1996) 48 Cal.App.4th 1197, 1208; see also In re H.M. (2008) 167 Cal.App.4th 136, 143 [officer "may perform a patsearch for weapons" on reasonable suspicion that an individual "is armed and dangerous to the officer or others" (citing Terry, at pp. 24, 30)].) Third, the officers reasonably considered that they did not have superior numbers relative to the occupants of the vehicle. (See Samples, at p. 1210 & fn. 4 [fact that four officers were detaining five occupants of vehicle supported need for patdown search].)
Finally, and perhaps most importantly in the totality of the circumstances calculus, E.S. fails to account for his refusal to properly identify himself, which was significant because it was evasive conduct rather than a crime in itself. (In re H.M., supra, 167 Cal.App.4th at p. 144, citing Illinois v. Wardlow (2000) 528 U.S. 119, 124; see People v. Moore (2021) 64 Cal.App.5th 291, 302; Fews, supra, 27 Cal.App.5th at p. 560; Osborne, supra, 175 Cal.App.4th at p. 1058, fn. 5.)
All of these articulated bases for the patdown augmented the baseline danger to the officers presented by the nighttime investigation of a vehicle containing numerous individuals. (People v. Samples, supra, 48 Cal.App.4th at p. 1210.) "The fact that [E.S.] was among [three] adults exiting from a car at police request underlines the reasonableness of the patdown search." (Ibid.) "The courts have long recognized that an automobile is an inherently dangerous place for the police to approach and at which to question individuals, containing as it does numerous possibilities for hidden weapons." (Id. at pp. 1210-1211.) "That is why both the United States Supreme Court and the courts of this state have permitted the police to ask those they wish to question to exit automobiles." (Id. at p. 1211, citing Pennsylvania v. Mimms (1977) 434 U.S. 106, 110.)
Collier and Fews are particularly instructive. Collier upheld a patdown search based largely on the searching officer's suspicion of the defendant's "possession and transportation of drugs," which the officer developed after "smelling the strong odor of marijuana" in the defendant's vehicle. (Collier, supra, 166 Cal.App.4th at pp. 1377-1378.) Following Collier, Fews, in turn, upheld a patdown search in which the officers "smelled and observed marijuana in and around" the defendant's vehicle while the defendant engaged in evasive conduct. (Fews, supra, 27 Cal.App.5th at pp. 560-561.) Even though marijuana was legal by the time the Court of Appeal decided Fews, the officer's ability to smell the marijuana provided reasonable suspicion that the defendants were not only transporting but using the marijuana illegally by smoking while driving or having an open container. (Id. at p. 561.)
E.S. tries to distinguish Fews and Collier by pointing to ancillary indicia of dangerousness in those cases that accompanied the presence of marijuana. (E.g., Fews, supra, 27 Cal.App.5th at p. 561 [incident took place "in a high-crime area"]; Collier, supra, 166 Cal.App.4th at p. 1378 [officer was "concerned about . . . appellant's size" and "baggy clothing"].) Those distinctions are unavailing here, however, because each of these cases lacked indicia of dangerousness that were present in this case. (E.g., Fews, at p. 556 [search took place during daytime]; Collier, at pp. 1376-1378 [search took place during "afternoon," two deputies searched one individual, individual's behavior was not evasive, and no indication that area was characterized by high crime rate].) In conducting a Fourth Amendment analysis of a patdown search, we must take all relevant circumstances into account, without placing dispositive weight on any one of them. (Fews, at pp. 560-561 [citing United States v. Arvizu (2002) 534 U.S. 266, 274, for the proposition that "Terry precludes 'divide-and-conquer' analysis"].)
In any event, E.S.'s attempt to attack Officer Barker's articulated reasons one by one fails even on its own terms. E.S. contends, for example, that the legalization of marijuana through Proposition 64 (Gen. Elec. (Nov. 8, 2016)) undermines Collier's and Fews's reliance on possession of marijuana. For this proposition, he cites People v. Hall (2020) 57 Cal.App.5th 946, 954-958, People v. McGee (2020) 53 Cal.App.5th 796, 803, People v. Johnson (2020) 50 Cal.App.5th 620, 632, People v. Lee (2019) 40 Cal.App.5th 853, 866, and People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 7-8. These cases stand only "for the proposition [that] the mere presence of a legal amount of marijuana, without more, cannot establish probable cause to search." (McGee, at p. 803, citing Lee, at p. 866; see People v. Moore, supra, 64 Cal.App.5th at pp. 299-300; Hall, at p. 948 ["the lawful possession of marijuana in a vehicle does not provide probable cause to search"]; Johnson, at p. 629; Shumake, at p. 7.) They are all "careful to distinguish [their] facts from those found in Fews," in which the officers reasonably suspected that the defendant's marijuana use was illegal. (McGee, at pp. 803-804, citing Lee, at p. 866; see Hall, at pp. 954-956; Johnson, at pp. 630-631; Shumake, at pp. 7-8.)
We must also bear in mind that the challenge here is not to the vehicle search. The scope of the Fourth Amendment intrusion is more limited when we are evaluating a patdown, and its justification-officer safety-is more specific as well. (Osborne, supra, 175 Cal.App.4th at pp. 1059-1060.) Courts have recognized that weapons often accompany drug trafficking offenses. (Id. at p. 1060.) Thus, the case before us is distinguishable from Hall, McGee, Johnson, Lee, and Shumake not only because here, there were legitimate officer safety-related justifications for the patdown beyond marijuana possession, but more fundamentally because all of those cases address probable cause for a full search, which "is a more demanding standard than mere reasonable suspicion" as required for a patdown search. (People v. Lee, supra, 40 Cal.App.5th at pp. 861-862.) Similarly distinguishable is the only case cited by E.S. involving illegal possession of marijuana-In re D.W. (2017) 13 Cal.App.5th 1249-because D.W. "concerned a search incident to arrest, which requires independent probable cause to arrest." (People v. McGee, supra, 53 Cal.App.5th at pp. 804-805, citing D.W., at p. 1253; see Fews, supra, 27 Cal.App.5th at pp. 563-564.)
In an attempt to play down officer safety concerns on this record, E.S. contends that the presence of a fourth officer in a nearby car obviated any concern that the officers were outnumbered, but no evidence indicates that the fourth officer was in a position to respond quickly to any developing safety threat. (See In re H.M., supra, 167 Cal.App.4th at p. 144 ["Whether a search is reasonable must be determined based upon the circumstances known to the officer when the search was conducted" (citing In re Jaime P. (2006) 40 Cal.4th 128, 133)].) Finally, E.S. invites this Court to simply disbelieve Officer Barker's characterization of the scene of the stop, but" 'it is not a proper appellate function to reassess the credibility of the witnesses'" (People v. Friend (2009) 47 Cal.4th 1, 41).
Accordingly, for all of the above reasons, we reject E.S.'s contention that the court erred in denying his motion to suppress.
B. Vagueness Challenge
In addition to finding that E.S. violated probation by carrying a firearm, the juvenile court found that E.S. violated the probation condition imposing "a curfew of 10:00 p.m." E.S. argues that this curfew condition is unconstitutionally vague for lack of an ending time. In response, the Attorney General contends that any error in the probation conditions imposed upon him should have been raised in an appeal of the February 19, 2019 dispositional order. (§ 800, subd. (a); In re G.C. (2020) 8 Cal.5th 1119, 1126; see People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 ["a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation"].) We agree with the Attorney General on this point. The attempt to appeal a probation condition imposed nearly three years ago is untimely. No timely appeal having been filed, this issue has been forfeited and we therefore decline to reach it.
III. DISPOSITION
The dispositional order is affirmed.
WE CONCUR: POLLAK, P.J., ROSS, J. [*]
[*] Streeter, J., Pollak, P. J., Ross, J. (Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution).
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.