In re A.C.
Filed 2/24/12 In re
A.C. CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Yolo)
----
In re A.C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
C068528
(Super.
Ct. No. JD11197)
Following the
denial of his suppression motion, the
minor A.C. (minor) pled no contest to possession
of a loaded firearm by a prohibited person.
(a)(1)(2)(D)).
title="">[2] The juvenile court declared minor a ward of
the court and placed him on probation, subject to various conditions.
On appeal, minor
contends the juvenile court erred in denying his suppression motion. We disagree and shall affirm.
On May 5, 2011, at around 8:49 a.m., Woodland Police Officer Tim Keeney
was dispatched to investigate a group of juveniles, one of whom was reported to
be carrying a large knife. The dispatch
did not include a description of the juvenile with the knife.
Keeney arrived at
the location about six minutes later and saw minor standing by himself in a
parking lot. Minor was carrying a small
duffel bag in one hand.
Keeney pulled into
the parking lot in his marked patrol car without using his siren or emergency
lights. He was at least 10 feet
from minor, with whom he made eye contact.
Minor had a look of concern on his face as Keeney pulled in. He was wearing baggy clothing with a long
T-shirt below his waist.
Minor immediately
walked away, turned his back to Keeney, and thrust his hands towards his
waistband.
stop, then drew his gun and followed minor when minor did not stop.
Minor continued
walking quickly away from Keeney, still fumbling with his hands at his
waistband as though he were “moving something around” or “concealing a
weapon.” He turned his head and looked
at Keeney as he continued to walk away.
Keeney had to run before he caught up with minor and ordered him to put
his hands up.
Minor eventually
put his hands over his head and interlaced his fingers. Keeney holstered his gun and grabbed minor’s
hands, but minor moved and bent in a “folding over” manner that signaled to
Keeney concealment of something in his waistband. Minor did not stop moving until Keeney
threatened to use his Taser.
Keeney then lifted
up minor’s shirt and immediately saw the silver handle of a gun in minor’s
waistband. He removed the weapon, and
took minor into custody. The entire
encounter lasted only a matter of seconds.
The juvenile court
denied the suppression motion, finding that, while the case was a “close call,”
Keeney had reasonable suspicion to temporarily detain minor and perform a
limited search of minor’s person, which consisted of lifting up his shirt to
reveal the handle of the gun in his waistband.
I
The Stop
Minor contends the
juvenile court erred in denying the suppression motion because the “detention
was unreasonable.”
We disagree.
On appeal from
denial of a suppression motion, all presumptions are in favor of the trial
court’s factual findings, where supported by
novo the facts favorable to the People to determine whether the officer’s
conduct was reasonable under the Fourth Amendment. (People
v. Glaser (1995) 11 Cal.4th 354, 362; People
v. Ledesma (2003) 106 Cal.App.4th 857, 862.)
The Fourth
Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.;
L.Ed.2d 889, 905] (Terry).) “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.)
Minor’s argument
points out deficiencies in each of the facts articulated in support of the
detention. He correctly notes that an
anonymous tip by itself cannot support reasonable suspicion absent other
indicia of reliability. (
270 [146 L.Ed.2d 254, 260]; Alabama v.
White (1990) 496 U.S. 325, 328-329 [110 L.Ed.2d 301, 308].) He correctly observes that “[m]ere nervous,
furtive, or evasive conduct in the presence of police will not justify a
detention” (People v. Raybourn (1990)
218 Cal.App.3d 308, 312) absent the presence of additional suspicious
facts. (People v. McGaughran (1979) 25 Cal.3d 577, 590.)
Citing
alone are insufficient to justify detention and search. In Kiefer,
an officer pulled a car over for speeding.
Before the car stopped, the officer saw a woman’s head rise from the
passenger seat. (Kiefer, supra, 3 Cal.3d at p. 811.)
She turned and put her arm over the back of the seat, then faced forward
and bent to the floor, before returning to a sitting position. (Ibid.) The officer opened the passenger door and
looked inside. (Id. at pp. 811-812.) He saw
green stems and seeds, ordered the woman out, and searched the car, finding
marijuana. (Id. at p. 812.) The Supreme
Court held the act of opening the door and looking inside was an unreasonable
search. (Ibid.)
Acknowledging that
sudden movements suggesting concealment may be expressions of consciousness of
guilt, the Kiefer court was
nonetheless concerned with the “potential for misunderstanding” of ambiguous
gestures. (Kiefer, supra, 3 Cal.3d at pp. 817-818.) “It is because of this danger that the law
requires more than a mere ‘furtive gesture’ to constitute probable cause to
search or to arrest.” (
the officer to search the car for contraband.
(Id. at p. 828.)
Here, however,
unlike the situation in Kiefer, minor
did not make an isolated furtive motion.
Here, a plethora of additional suspicious facts was present. Minor had already noticed the uniformed
police officer, had shown concern at the officer’s presence, and had turned and
walked quickly away while acting as if concealing something in his waistband,
times to stop and the fact that Keeney had drawn his gun. Minor then continued to behave suspiciously as he walked quickly away from
Keeney--he looked back at Keeney and continued to fumble with his hands at his
waistband and bend over as if trying to hide something. After Keeney ran to catch minor, minor
refused to either stop walking or to put up his hands and stop moving until
threatened with a Taser. Minor was not
fully and formally detained until after
these events took place, when he finally complied with Keeney’s multiple
demands to put up his hands. (See
621, 626 [113 L.Ed.2d 690, 697] [seizure for Fourth Amendment purposes
“requires either physical force
. . . or, where that is
absent, submission to the assertion
of authority”], original italics.)
Further, the
anonymous tip, while in and of itself is not sufficient to justify detention,
does provide support for the reasonableness of Keeney’s suspicions in this
case. He was responding to a report of a
juvenile with a large knife amongst a group of juveniles. While only minor was present when Keeney
arrived at the scene, minor’s actions were completely consistent with someone
trying to hide a knife or some other weapon in his waistband. Thus the tip, while of limited value on its
own, still provided important context for Keeney’s suspicion.
Minor’s concern at
Keeney’s arrival, coupled with his refusal to stop and his rapid movement away
from Keeney, also support the validity of minor’s temporary detention. (See In
re H.M. (2008) 167 Cal.App.4th 136, 144 [flight through traffic from police
coupled with repeated glances behind minor pertinent factors in determining
reasonable suspicion]; People v.
[flight from the police is a factor supporting reasonable suspicion to detain];
Illinois v. Wardlow (2000)
574-575] [same]).
Clearly minor’s
actions in their totality, together with the information already known by
Keeney, supported Keeney’s reasonable suspicion that minor was trying to
conceal a weapon. We conclude the juvenile
court did not err when it determined the stop was supported by reasonable
suspicion.
II
Minor argues that
even if the stop were reasonable, the subsequent lifting of minor’s shirt
constituted a search and exceeded the scope of a lawful patdown. We are not persuaded.
Under
889], an officer may conduct a reasonable search of a nonarrestee for weapons
for the officer’s protection if the officer has reason to believe he is dealing
with an armed and dangerous individual. (Terry,
supra, at pp. 26-27 [20 L.Ed.2d at p. 909]; People v. Scott (1976) 16 Cal.3d 242, 249.)
A protective
search must be strictly “limited to that which is necessary for the discovery
of weapons which might be used to harm the officer or others nearby.” (Terry,
supra, 392 U.S. at p. 26 [20 L.Ed.2d at p. 908].) If the protective search goes beyond what is
necessary to determine if the person is armed, the search is no longer valid
and its fruits will be suppressed. (
65-66 [20 L.Ed.2d 917, 936].) Because
the sole justification for the search is the protection of the officer, the
search “must therefore be confined in scope to an intrusion reasonably designed
to discover guns, knives, clubs, or other hidden instruments for the assault of
the police officer.” (Terry, supra,
392 U.S. at p. 29 [20 L.Ed.2d at p. 911].)
specific limitations when an officer searches for weapons, noting “limitations
will have to be developed in the concrete factual circumstances of individual
cases.” (Id. at p. 29 [20 L.Ed.2d at p. 910].) Accordingly, Terry does not limit a weapons search to a patdown or frisk. (See People
v. Mendoza (2011) 52 Cal. 4th 1056, 1082 [“[B]ecause protection of the
officer and others nearby is the sole justification, the search must be
‘confined in scope to an intrusion reasonably designed to discover guns . . .
’”]; United States v. Thompson (9th
Cir. 1979) 597 F.2d 187, 191.) To the
contrary, any limited intrusion designed to discover weapons is
permissible. (United States v. Hill (9th Cir. 1976) 545 F.2d 1191, 1193.) Nonintrusive, reasonable means other than a
mere patdown are permissible where those other means are necessary under the
circumstances to ensure the person is not armed. (See, e.g., United States v. Thompson, supra, 597 F.2d at p. 191 [where person
was wearing bulky coat, reaching into coat pocket was permissible; patdown
would not have determined whether coat contained weapon].)
The United States
Supreme Court discussed the flexibility of Terry
searches in Adams v. Williams (1972)
407 U.S. 143 [32 L.Ed.2d 612] (Adams). In Adams,
a known informant told the officer that an individual seated in a nearby
vehicle was carrying narcotics and had a gun in his waist. (Adams,
supra, 407 U.S. at pp. 144-145 [32 L.Ed.2d at p. 616].) The officer went up to the car, tapped on the
window, and asked the suspect, Williams, to open the door. (Ibid.) When Williams rolled down the window, the
officer reached in and grabbed a gun out of his waistband. (Adams,
supra, at p. 145 [32 L.Ed.2d at p. 616.)
The gun was not visible to the officer from outside the car, but was in
precisely the place described by the informant.
(Ibid.) In upholding the Terry search, the Supreme Court concluded: “When Williams rolled down his window, rather
than complying with the policeman’s request to step out of the car so that his
movements could more easily be seen, the revolver allegedly at Williams’ waist
became an even greater threat. Under
these circumstances the policeman’s action in reaching to the spot where the
gun was thought to be hidden constituted a limited intrusion designed to insure
his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this
intrusion was therefore admissible at Williams’ trial. [Citation.]”
(Id. at p. 148 [32 L.Ed.2d at
p. 618].)
Here, the officer
clearly had reasonable suspicion to believe that minor was hiding a weapon in
his waistband. He conducted a limited
detention and search of minor’s waistband, in order to address his
well-developed concern that minor was armed and thus a threat to officer (as
well as public) safety. The officer’s
conduct here was not inconsistent with Terry
and its progeny.
name="_ftnref4" title="">[4]
DISPOSITION
The judgment is
affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
HULL , J.
name="_ftn1" title="">[1] Minor reserved the right to withdraw his plea
if the denial of the suppression motion was reversed on appeal.
name="_ftn2" title="">[2] Penal Code section 12031 has been repealed
and replaced in largely the same form with Penal Code section 25850.
