In re H.R.

Filed 12/26/07 In re H.R. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Donna L. Crandall , Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.

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H. R. (minor) appeals from a judgment declaring him a ward of the juvenile court based on his admission that he committed an act of vandalism. The minor admitted the petitions vandalism allegation after the court denied his motion to suppress evidence. (Welf. & Inst. Code,  700.1.) He contends the court erred in denying the motion because the police detained him without reasonable cause. Since his argument lacks merit, we affirm the judgment.

FACTS

Police officers Luis Garcia and Sean Whitely, along with probation officer Arturo Lopez, were on duty and in uniform, sitting in a marked police vehicle stopped at a red light. The officers saw the minor and another juvenile next to a newspaper stand at a corner of the intersection.

Whitley described the location as a heavily graffitied area where the police make a lot of contacts. He testified the minor appeared to be flipping through . . . a magazine resting on top of the newspaper stand and thought the two juveniles might have been engaged in some sort of activity, possibly tagging.

Garcia testified the minor had his right hand over the newspaper stand and it appeared he was holding a writing utensil. In addition, the minors left hand was on some papers, and it appeared that he was concealing whatever he was doing at the time. Garcia described the second juvenile as acting as a lookout.

According to Whitley, when the two juveniles saw the police officers

they . . . had a panicked look on their face[s] and began to leave the area. Garcia claimed they moved rapidly, as if they were [t]rying to get away from whatever was at the newspaper stand. Lopez described their departure as brisk.

Garcia, the police vehicles driver, pulled over to the curb. Whitley got out and contacted the minor while Garcia contacted the other juvenile. Lopez went to the newspaper stand. As Whitley spoke with the minor, Garcia apprised him that the backpack the minor was carrying had the word clown written in graffiti or tagging style on it. Whitley asked if he could search the backpack and the minor handed it to him. Inside Whitley found a notebook containing several pages that had the name clown written on them in tagger style. Meanwhile, Lopez found a marking pen and fresh graffiti that included the word clown underneath a magazine sitting on top of the newspaper stand.

The juvenile court denied the minors motion to suppress. It agreed the juveniles had been detained, but found it happened very quickly and, citing both Whitelys observations and Officer Garcia[s] descri[ption] of the minors behavior, concluded the police had sufficient cause to do so.

DISCUSSION

The minor challenges the suppression ruling. He argues [t]he evidence shows . . . Whitely relied on a hunch, and although the juvenile court also cited Garcias testimony, Whitely did not make the same observation[s] and [t]here is no indication Garcia communicated his observation[s] to Whitely. This analysis lacks merit.

While the Fourth Amendments proscription against unreasonable searches and seizures applies to temporary investigative detentions, the balance between the public interest and the individuals right to personal security, [citation], tilts in favor of a standard less than probable cause in such cases . . . . [Citations.] (United States v. Arvizu (2002) 534 U.S. 266, 273 [122 S.Ct. 744, 151 L.Ed.2d 740].) Thus, [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; see also People v. Wells (2006) 38 Cal.4th 1078, 1083.)

The evidence reflects the officers saw the minor in a heavily graffitied area camouflaging his apparent attempt to write something atop a newspaper stand while a second nearby juvenile appeared to be acting as a lookout. When the juveniles saw the police, their facial expressions turned to panic or concern and they immediately began to depart the area. This evidence supported the police officers decision to detain the juveniles.

The minor disputes this analysis by focusing solely on Whitelys relatively innocuous observations of his behavior. His approach is unavailing because it incorrectly assumes only Whitley conducted the detention. Contrary to this argument, the three police officers jointly participated in detaining both juveniles. After making his observations, Garcia, as vehicles driver, parked it, and then stopped and questioned the second juvenile while Whitely confronted the minor. Garcia informed Whitely of the graffiti on the minors backpack, and Lopez found both fresh graffiti and the marker apparently used to draw it on the newspaper stand. Thus, the mere fact Whitely was the first officer to confront the minor does not preclude consideration of the police officers collective knowledge in determining whether the initial detention was lawful.

The minor also relies on the Harvey/Madden rule. To ensure a source is not merely the imagination of a nontestifying officer, when the police arrest or detain a person solely because of information received through official channels, the state must present evidence the officer who originally furnished the information possessed facts justifying the suspects seizure. (People v. Madden (1970) 2 Cal.3d 1017, 1021; People v. Harvey (1958) 156 Cal.App.2d 516, 523.) But Harvey/Madden [is] . . . an evidentiary rule . . . that govern[s] the manner in which the prosecution may prove the underlying grounds for arrest when the authority to arrest has been transmitted to the arresting officer through police channels. [Citation.] [Citation.] (People v. Gomez (2004) 117 Cal.App.4th 531, 540.) The minors detention resulted from observations by the police officers who stopped him. Thus, contrary to those cases, the witnesses who testified here had personally observed the conduct that justified [the minors] detention and arrest . . . . (People v. Coston (1990) 221 Cal.App.3d 898, 907.)

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

OLEARY, J.

FYBEL, J.

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