In re Luiz M.
Filed 2/4/09 In re Luiz M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LUIZ M., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. LUIZ M., Defendant and Appellant. | D052761 (Super. Ct. No. J214714) |
APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza and Carolyn M. Caietti, Judges. Affirmed.
After his motion to suppress evidence was denied, Luiz M. entered a negotiated admission that he committed felony vandalism (Pen. Code, 594, subds. (a) & (b)(1)). The juvenile court continued Luiz as a ward of the court (Welf. & Inst. Code, 602) and placed him on probation, conditioned on, among other things, he attend school daily, complete 40 hours of community service, participate in a youth mentoring program, participate in Turning the Hearts Center G.A.M.E. program (a gang prevention program) and delete his
Luiz appeals, contending the court erred by denying his motion to suppress evidence.
FACTS
On August 8, 2007, an officer-involved shooting took place at the intersection of Del Sol Boulevard and Del Sur Boulevard; one local gang member was killed by a police detective. Afterward, graffitiincluding the moniker of the killed gang member and anti-police sloganswas applied to walls at the intersection, which is known for gang activity.
The following morning, officers supervised workers painting over the graffiti at the intersection. At about 9:30 a.m., Officer Jesus Sanchez responded to a radio call that two male minors were taking photographs of officers and graffiti at the intersection. Luiz and a friend were standing 100 feet away from the graffiti when Sanchez arrived on the scene. Luiz was walking toward Sanchez and when they were a few feet apart, the officer asked Luiz his age. Luiz responded he was 15 years old. Sanchez then asked Luiz if he had anything illegal in his possession. Luiz said he had a can of spray paint in his pants. At that point, Sanchez handcuffed Luiz. Luiz consented to a search; Sanchez found a spray can, spray can tips and a camera. Sanchez arrested Luis for violating the law prohibiting persons under the age of 18 from possessing aerosol cans.
DISCUSSION
Luiz contends the juvenile court erred by denying his suppression motion because Officer Sanchez illegally detained him without any reasonable suspicion of Luiz committing a crime. The contention is without merit.
In evaluating a challenge to the trial court's ruling on a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its factual findings, whether express or implied, if they are supported by substantial evidence. We then exercise our independent judgment to decide what legal principles are relevant, independently apply them to the facts, and determine as a matter of law whether there has been an unreasonable search and/or seizure. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
There are three categories of police contacts with individuals: consensual encounters; detentions; and arrests. (In re Manuel G. (1997) 16 Cal.4th 805, 821.) The first question is whether the contact between Luiz and Sanchez was a consensual encounter or a detention. Consensual encounters do not trigger Fourth Amendment scrutiny, detentions do. (Ibid.)
A consensual encounter occurs if "a reasonable person would [have felt] free to disregard the police and go about his or her business . . . ." (In re Manuel G., supra, 16 Cal.4th at p. 821.) Unlike a detention, a consensual encounter requires "no articulable suspicion [on the part of the officer] that the person has committed or is about to commit a crime." (Ibid.) A consensual encounter "may properly be initiated by police officers even if they lack any 'objective justification.' " (People v. Hughes (2002) 27 Cal.4th 287, 327.)
An individual is detained when " 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) A detention occurs when an officer restrains a person's liberty to walk away by force or show of authority. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16; People v. Souza (1994) 9 Cal.4th 224, 229.) A police officer may temporarily detain a suspect "based only on a 'reasonable suspicion' that the suspect has committed or is about to commit a crime." (People v. Bennett (1998) 17 Cal.4th 373, 386-387.) "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." (Souza, at p. 231.)
Factors to consider in determining whether the police contact is a consensual encounter or a detention include: the number of officers present; whether the officer(s) displayed a weapon; whether there was physical touching; and whether the officer(s) used "language or . . . a tone of voice indicating that compliance with the officer's request might be compelled." (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Under the circumstances presented here, we conclude that Luiz and Sanchez initially had a consensual encounter, and Luiz was not detained until he told the officer he had a spray can of paint in his pants and was handcuffed. After Sanchez arrived at the intersection, he and Luiz walked toward each other. When they were a few feet away, the officer asked Luiz how old he was. Luiz said he was 15 years old. Then Sanchez asked Luiz if he had anything illegal in his possession and Luiz replied he had a spray can of paint in his pants. Up to this point, Sanchez's contact with Luiz was a consensual encounter; it was not a detention. Although another officer also responded to the radio call, the record does not indicate the other officer was involved in the conversation between Sanchez and Luiz. Sanchez had not (1) displayed his service weapon, (2) physically touched Luiz, (3) blocked Luiz's passage or restrained him in any manner, and (4) had not accused Luiz of any criminal activity. Further, the record indicates that Sanchez used a conversational tone of voice. In short, up until Luiz's admission that he possessed a spray can, there was no show of authority restraining his libertyeither expressed or implied. Sanchez's words and actions would not have conveyed to a reasonable person that he or she was not free to decline the officers' requests or otherwise terminate the encounter. Luiz's age does not change our conclusion.
As our Supreme Court noted in In re Manual G., supra, 16 Cal.4th at page 821:
"The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur."
When Luiz admitted he possessed a can of spray paint and Sanchez handcuffed him, the initial consensual encounter turned into a detention. By virtue of the spray can admission, Sanchez had specific articulable facts that Luiz may be involved in criminal activity and could legally detain him. It is a misdemeanor for a person under 18 years of age to possess an aerosol container for purposes of defacing property. (Pen. Code, 594.1, subds. (e)(1) & (f).) Thus, the detention was more than warranted, and Sanchez was authorized by law to arrest Luiz for possessing the spray can of paint. (Pen. Code, 836, subd. (a)(1).) Likewise, during the search to which Luiz consented, Sanchez found spray can tips and a camera. This provided the officer with additional reasonable suspicion that Luiz was engaged in criminal activity to justify a detention. Sanchez testified it is well known that taggers frequently take photographs of their graffiti. Given Luiz's admission, the recent graffiti at the intersection, Luiz's possession of a camera and spray can tips in addition to the aerosol can of paint, the record demonstrates the detention was legal. Police officers may temporarily detain a person based on a reasonable suspicion that the person has committed or is about to commit a crime. (Alabama v. White (1990) 496 U.S. 325, 327-328; People v. Bennett, supra, 17 Cal.4th at pp. 386-387.) A detention is reasonable under the Fourth Amendment when the detaining officer can articulate facts that "provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza, supra, 9 Cal.4th at p. 231.)
Contrary to Luiz's argument, Sanchez's mindset"I wasn't going to let him go"was not determinative. There is nothing in this record to establish that Sanchez conveyed this thought to Luiz. Rather, the record, as indicated above, showed that Sanchez did not limit Luiz's movement, verbally abuse him, make a showing of authority beyond wearing a police uniform, or manifest any intention to restrain his liberty. An " 'officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.' " (People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.)
We also note certain characterizations made by Luiz are not borne out by the record. Luiz was not surrounded by police. There were one or two officers supervising the workers removing the graffiti, and the other officer who responded to the radio call. The record does not indicate what role, if any, the other responding officer had in the initial contact between Sanchez and Luiz. Moreover, Luiz's claim there was an emotionally charged atmosphere at the intersection is speculative at best.
DISPOSITION
Judgment affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
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