In re James T.

Filed 3/22/07 In re James T. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Appellant James T., 15 years of age at the time of the offenses in question, appeals from jurisdictional and dispositional orders of the San Francisco County Juvenile Court. In April 2006, in San Mateo County Juvenile Court, James admitted a misdemeanor offense and the court transferred the cause to San Francisco for disposition. In June 2006, a second petition was filed in San Francisco and the court sustained an allegation that he was a minor in possession of a firearm, declared him to be a ward of the court and placed him on in-home probation. He challenges solely the denial of a motion to suppress evidence in the San Francisco proceedings. We conclude that his contention has merit, and therefore shall vacate the jurisdictional finding in that matter and remand for a new dispositional hearing on the matter that was transferred from San Mateo County.

Background

We limit our discussion of the background facts to those relating to the petition filed on June 8, 2006, in San Francisco County Juvenile Court, alleging that James comes within the provisions of Welfare and Institutions Code section 602 in that he was a minor in possession of a firearm (Pen. Code,  12101, subd. (a)(1)), possessed a concealed firearm (Pen. Code,  12025, subd. (a)(2)), and carried a loaded firearm (Pen. Code,  12031, subd. (a)(1)). He moved to suppress evidence pursuant to Welfare and Institutions Code section 700.1 and the court denied the motion. The court sustained the petition as to the first count and dismissed the other two counts in the interest of justice. Thereafter, the court declared James a ward of the court and ordered him to reside in the home of his grandmother under the supervision of the probation officer. James filed a timely notice of appeal.

We adopt the statement of facts in the Attorney Generals brief as a fair summary of the evidence presented in connection with the motion to suppress.

On the afternoon of June 7, 2006, San Francisco Police Sergeant Timothy Plyer and Officer Edward Perregoy, assigned to the violence reduction unit, drove their unmarked car through the intersection of Garrison and Rey Streets, where they saw a group of young African-American men standing on the sides of a driveway. Sergeant Plyer estimated that there were 15 to 20 individuals, who were not talking and appeared nervous. They wore similar clothing: black jackets, pants, and knit caps, almost a uniform for people in that area with a gang affiliation. The intersection is located in Visitation Valley, which has a high homicide rate. The previous evening two homicides had occurred within a few blocks of the intersection. A street gang called the Tower Street Boys controls this area. The gang is involved in violent crimes, drug sales, lot of shootings and lot of murders.

Sergeant Plyer and Officer Perregoy drove to the parking lot of the Cow Palace, where they met with other police officers. These officers gave warrants and mug shots of the homicide suspects to Sergeant Plyer and Officer Perregoy. After the meeting Sergeant Plyer and Officer Perregoy returned to Garrison and Rey to i.d. [the group] and see whats going on.

The officers parked their vehicle nearby on Kellogg and Schwerin Streets and walked between buildings toward Rey and Garrison. As they walked up a driveway on Rey toward Garrison, they saw officers Yin and Dong talking to eight young men. The youths were dressed in the style of the day[, which] is large and oversized and bagg[y]. One of the youths was appellant James T., who wore a large black coat that covered his waistline.

Sergeant Plyer announced that he would search the young men. Although appellant was not on the list of wanted suspects, the sergeant decided to search him for the following reasons. It was a violent crime area in which two homicides had been committed the previous evening. Such violence often precipitates retaliatory violence by gang members, who carry guns for that purpose. Additionally, at the time of the search (12:41 p.m.), youths who were appellants apparent age were in school. Finally, appellant wore bulky clothing which could have concealed a dangerous weapon.

Patting appellants left coat pocket, Sergeant Plyer kind of felt the outside of a gun. My fingers kind of went on the trigger strap. I did a double-take on it, kind of re-grabbed it to make sure what is was. Sergeant Plyer alerted the other officers, handcuffed appellants hands behind his back, and removed a .357 magnum handgun from the coat pocket.

Officer Perregoy found a .25 caliber semiautomatic firearm on a second minor standing nearby.

Discussion

James quite properly relies on Ybarra v. Illinois (1979) 444 U.S. 85 (Ybarra) to establish that the patdown of his person that revealed the weapon he was carrying violated his Fourth Amendment rights, and may not be justified under Terry v. Ohio (1968) 392 U.S. 1. In Ybarra,police officers entered a tavern with a search warrant authorizing the search of the tavern and its bartender for the possession of drugs. Upon entering the officers announced that they were going to conduct a cursory search for weapons of all patrons who were present. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale. (Ybarra, supra, at pp. 90-91.) In holding that the Fourth Amendment required the suppression of drugs found on Ybarra as a result of the patdown, the Supreme Court held that a persons mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation.] Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places. (Ybarra, supra, at p. 91.) Still further, The narrow scope of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place. (Ybarra, supra, at p. 94.)

Thus, although a police officer making a traffic stop who reasonably believes the driver is armed and presently dangerous to the officer or to others . . . is entitled to conduct a Terry frisk for weapons . . . , a frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and dangerous. (People v. Medina(2003) 110 Cal.App.4th 171, 176.) Moreover,  [t]he high crime area factor is not an activity of an individual. . . . [T]his court has appraised this factor with caution and has been reluctant to conclude that a locations crime rate transforms otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual.  (Id. at p. 177.) [W]hile [a]n areas reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment, and [t]he time of night is another pertinent factor in assessing the validity of a detention, mere presence in a high crime area is not, standing alone, sufficient to justify interference with an otherwise innocent-appearing citizen . . . .   (Ibid.)

In the present case, the testimony of the officers at the hearing on the motion to suppress makes unmistakably clear that the patdown search of James was not justified by any specific and articulable facts that related to him. Sergeant Plyer decided to search James and the others that were in the group when he returned to the intersection based on the location, based on the circumstances the night before. Visitation, these young men hanging on the corner with large bulky clothing, I couldnt determine any weapons to be concealed or hidden, those were the reasons. Plyer and Perregoy had warrants and mug shots for several suspects in the homicide the night before, but none related to James. Neither officer had any prior contact with or knowledge about James. Although he was part of the group speaking with the two other officers when Plyer and Perregoy returned from the Cow Palace parking lot, neither officer indicated that James was part of the larger group that they had observed at the intersection when they originally drove by. Although one of the officers thought that James appeared nervous when confronted by the officers, James was acting normally and did nothing that caused the officers concern. The officers were concerned that the over-sized and baggy clothing that James was wearing could conceal objects such as a gun, but the clothes that he and the other youths were wearing was, in one officers words, the style of the day, the same kind of clothing his son wore. While the officers were understandably concerned over the possibility that gang members might be preparing to retaliate for the killing the day before, it is clear that there was no particularized concern that James had done, was doing, or was about to do anything illegal. Indeed, the decision to search the group of youths was made before the officers returned to the intersection and first encountered James. As in Ybarra, the agents knew nothing in particular about [James], except that he was present, along with several others. (Ybarra, supra, 444 U.S. at p. 91.) The search that led to discovery of the handgun therefore violated Jamess Fourth Amendment rights and the motion to suppress should have been granted. (Ybarra, supra, 444 U.S. 1049; People v. Medina, supra, 110 Cal.App.4th 171.) Without the gun, there was no basis for the juvenile prosecution.

Disposition

The July 28, 2006 order sustaining jurisdiction under the June 8, 2006 petition is reversed, and the dispositional order is vacated. The matter is remanded to the juvenile court for a new dispositional hearing with respect to the April 2006 petition.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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