In re Omar M.
Filed 7/25/13 In re Omar M. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re OMAR M., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
OMAR M.,
Defendant and Appellant.
D058034
(Super. Ct.
No. J225961)
APPEAL from
an order of the Superior Court
of
County, Carlos O. Armour, Judge. Affirmed.
Elisabeth
A. Bowman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor,
Deputy Attorneys General, for Plaintiff and Respondent.
Respondent
filed a two-count petition against Omar M. pursuant to Welfare and Institutions
Code, section 602. Following the
denial of Omar's motion to suppress evidence (Welf. & Inst. Code,
§ 701.1), he entered a negotiated admission to one of the counts, carrying
a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4)), a
misdemeanor (Pen. Code, § 17, subd. (b)(4)). The court dismissed the remaining count,
sustained the petition, adjudged Omar a ward, placed him on probation and
detained him in his brother's home. Omar
appeals, contending he was unlawfully detained and the court erred in denying
his suppression motion. (Welf. & Inst. Code, § 800, subd.
(a).) We agree.
BACKGROUND
Viewing the
evidence in a light favorable to the juvenile court's ruling (
90), the following occurred:
At about 8:00 p.m. on April 23, 2010, as it was just getting dark, uniformed San
Diego County Deputy Sheriff Todd Baker was driving his patrol car eastbound
near West Mission Road in San
Marcos. He saw
four young men walking westbound, in front of him and on the same side of the
road. Baker was familiar with only one
of the individuals, Javier H., who associated with Varrio San Marcos gang
members and had previously told Baker that he was affiliated with that
gang. The remaining members of the group
were 16-year-old Omar, Jose M. and Pedro A.
The four youths were wearing baggy clothing, and Jose was wearing a
Chargers shirt, an item of clothing worn by Varrio San Marcos gang members. A gang injunction forbade members of that gang
from wearing Chargers clothing and associating with other gang members. Baker had no information that any of the four
had been involved in a crime, were Varrio San Marcos gang members or were
covered by the gang injunction, but he thought they "could be"
members of that gang and associating with each other in violation of the
injunction. None of the four were
threatening in any way.
Baker
quickly pulled over to the side of the road, right next to the young men, and
parked in front of them. He got out of
his patrol car and, being "just curious," asked them where they were
going (or where they had been). The
youths immediately stopped and all said they were going home.
Baker then
asked, "Hey, can I talk to you?"
The young men said, "Yes."
Since there were four of them, Baker asked if they would sit on the
curb. Baker talked to the youths for one
or two minutes, while they sat on the curb and while he waited for cover units
to arrive. Baker testified that during
that time, he "was probably talking to Javier" and he "usually
[asked] people if they're on parole or probation, things of that
nature." Baker did not touch any of
the individuals. None of them indicated
they wanted to leave. They were all
cooperative. Throughout the encounter,
Baker spoke in a normal tone of voice.
For his own
safety, Baker believed he needed to pat down the four because, from his
training and experience, he knew gang members carried weapons and he thought
there might be weapons under their baggy clothing. An additional factor was Javier's previous
statement of affiliation with the Varrio San Marcos gang. Omar's presence with Javier led Baker to
believe that Omar might be armed.
Before
starting a pat down, Baker stood with "half [his]
body . . . behind and to the side" of the subject and
placed one hand on the subject, whose hands were behind his back. At that
point, Baker always asked, "Is there anything illegal on you? Anything going to stick me or poke me?"
When two
more deputies and a police officer arrived, Baker asked Javier to step off the
curb so Baker could pat him down for weapons.
The pat down revealed no weapons, and Baker asked Javier to resume his
seat on the curb. Baker patted down Jose
and Pedro according to the same procedure.
The record does not disclose whether Baker found any weapons on their
persons.
Omar stood
up. Baker stood by him as described
above and asked him if he had anything illegal, anything that would stick or
poke Baker or any weapons. Omar said he
had a knife in his right front pocket.
Baker patted that pocket and "felt an approximately five-inch hard
object, which could have been the knife."
Baker reached in Omar's pocket and removed the object which was, in
fact, a knife.
Neither
Baker nor the other officers ever told the four they were not free to
leave.
DISCUSSION
In
reviewing the denial of a suppression motion, " 'we defer to the superior
court's express and implied factual findings if they are supported by
substantial evidence, [but] we exercise our independent
judgment in determining the legality of a search on the facts so
found. [Citations.]' [Citation.]" (People
v. Lomax (2010) 49 Cal.4th 530, 563.)
"[C]onsensual
encounters . . . result in no restraint of liberty
whatsoever . . . ."
(In re Manuel G. (1997) 16
Cal.4th 805, 821.) "[L]aw
enforcement officers do not violate the Fourth Amendment by merely approaching
an individual on the street or in another public place, by asking him if he is
willing to answer some questions, [and] by putting questions to him if the
person is willing to listen . . . ." (Florida
v. Royer (1983) 460 U.S. 491, 497.)
" '[A] person has been "seized" within the meaning of the
Fourth Amendment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to
leave.' " (California v. Hodari D. (1991) 499 U.S. 621, 627-628, quoting
U.S. 544, 554.) "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."
(In re Manuel G., at p.
821.)
Before the
cover units arrived, the encounter between Baker and Omar was consensual. Baker's remarks were questions, not
commands. He did not raise his
voice. He did not touch Omar. Baker did not tell Omar he was not free to
leave. There is no evidence Baker
displayed a weapon or blocked Omar's way.
Omar voluntarily answered Baker's questions. There is no evidence Omar acted involuntarily
in sitting on the curb.
Once the
cover units arrived and the pat downs began, a reasonable person would not have
felt free to leave. (
439.) Omar was detained, and the
detention was justified. " '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.' [Citation.]" (People
v. Hester (2004) 119 Cal.App.4th 376, 386.)
Although the mere possibility of gang membership does not justify a
detention (id. at p. 392), here there
was more. Jose was wearing the Chargers
apparel favored by the Varrio San Marcos gang.
Baker reasonably believed Javier was affiliated with that gang. An injunction prohibited members from wearing
Chargers clothing and associating with other gang members. Baker knew gang members carried weapons. Omar and his companions were wearing baggy
clothing that could have concealed weapons.
These facts entitled Baker to ensure his safety by patting down the four
youths. In preparation for the pat down,
Baker acted reasonably in asking Omar if he had any weapons. When Omar said yes, Baker was justified in
removing the knife from Omar's pocket.
The court
properly denied the suppression motion.
DISPOSITION
The order
denying the suppression motion is affirmed.
O'ROURKE, J.
I CONCUR:
IRION, J.
McINTYRE, J.
I
dissent.
The
majority concludes Omar was not detained until cover units arrived at the scene
because "[t]here is no evidence Omar acted involuntarily in sitting on the
curb." However, the test is not if
there was evidence of whether Omar acted involuntarily, but rather whether a
reasonable person would have felt free to leave under the circumstances. (Florida
v. Royer (1983) 460 U.S. 491, 497.)
Under that test, I conclude Omar was detained as soon as Officer Baker
asked him and the others to sit on the curb.
Officer Baker, who was in uniform, had quickly pulled over his patrol
car, right next to the young men, and parked in front of them. While Omar consented to talk to the officer,
he did not consent to sit on the curb to await the arrival of backup
units. No reasonable person in this
circumstance would have felt free to get up and leave the area or otherwise
terminate the encounter. Omar's
detention continued when other officers arrived and Officer Baker patted down
all four young men. Omar did not consent
to the pat down, which included Officer Baker placing his hand on Omar, whose
hands were behind his back.
" '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.'
[Citation.]" (
376, 386.) Here, the detention was not
reasonable. The majority concludes there
were more facts here, i.e., that one of the other young men was associated with
a gang, another wore Charger colors associated with that gang and all four
young men were wearing baggy clothing.
In my view, it is a stretch for the majority to use these facts to
justify the detention because none of the facts, individually or collectively,
suggest that the young men were involved in a crime that had occurred or was
occurring. I submit the facts in this
case were insufficient to meet the standard of " '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.' [Citation.]" (Ibid.) Thus, the search was the result of an
improper detention. I would reverse
and direct the trial court to grant the suppression motion.
McINTYRE, Acting P. J.
