Christopher B., In re

• Decision Date: 20 March 1990
• Docket Number: No. D008581,D008581
• Citation: 268 Cal.Rptr. 8,219 Cal.App.3d 455
• Court: California Court of Appeals Court of Appeals
• Parties: In re CHRISTOPHER B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER B., a Minor, Defendant and Appellant.

Page 8

268 Cal.Rptr. 8

219 Cal.App.3d 455

In re CHRISTOPHER B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER B., a Minor, Defendant and Appellant.

No. D008581.

Court of Appeal, Fourth District, Division 1, California.

March 20, 1990.

As Modified on Denial of Rehearing

April 16, 1990.

Review Denied June 26, 1990.

[219 Cal.App.3d 457] Veronica A. Roeser, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

HUFFMAN, Associate Justice.

Christopher B., a minor, appeals from an order of the juvenile court entered under Welfare and Institution Code section 602 finding he possessed rock cocaine for sale (HEALTH & SAF.CODE, § 11351.5)¹. Christopher contends the court erred (1) in denying his Penal Code section 1538.5 motion to suppress the cocaine he discarded as the fruit of an illegal police detention, and (2) in finding he possessed cocaine for sale without finding he had the specific intent to sell. We conclude the court properly denied the suppression motion, but committed error in finding Christopher possessed the cocaine for sale. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

At about 5:45 p.m. on June 4, 1988, San Diego Police Officer Charles Roger Barrett, along with other officers in uniform assigned to the Street Gang Task Force, drove to Martin Luther King, Jr., Park in the vicinity of 6300 Skyline Drive to monitor gang activity. There he saw a group of 20-25 males in the center of the park, in a grassy area at the bottom of a hill. Each While Barrett did not see any members of the group using drugs, Officer James Hergenroether, Barrett's partner and cover officer, saw some minors holding cigarettes in their hands. Barrett then parked the patrol car approximately 10-15 feet from a group of about 10-15 males. Hergenroether got out of the passenger's side, carrying a nine-millimeter semi-automatic rifle in low ready position. Barrett got out from the driver's side. Two or three other marked police units with about six armed, uniformed officers parked by a nearby clubhouse and by the grass area of the park. The other officers were 15-20 feet from Hergenroether, who was 10-15 feet from Christopher. Barrett, as contact officer, approached the group intending to talk to them about wearing their colors in the public park. He did not single out any individual.

male was wearing at least one item of red clothing which signified to Barrett membership in the East Side Piru Gang.

As the officers approached, the group as a whole began walking away. While Christopher was walking away with the group, he lagged slightly behind, looked both ways, reached into his waistband, and pulled out a clear plastic bag and tossed it to the ground. Barrett looked at his partner and pointed to where the bag fell. Hergenroether, who also saw Christopher drop the bag, called out to Barrett, pointed at Christopher, and picked up the bag. Barrett then apprehended and arrested Christopher. The two-inch by two-inch bag contained fourteen "rocks" later identified by a criminalist as cocaine base.

Christopher was charged with violating the terms of his probation and with one count of possessing rock cocaine for sale. At the jurisdictional hearing on June 29, 1988, Barrett and Hergenroether testified consistently with the above stated facts. Concerning whether they had singled out Christopher or anyone else, both officers specifically testified they were merely watching the entire group.

Over hearsay and foundation objections, Barrett opined the quantity of cocaine in the bag dropped by Christopher was far too much for personal use. He thus concluded Christopher was possessing it for "sales" to other park goers.

After the officers' testimony, Christopher moved to have evidence of the drugs suppressed under section 1538.5 as the fruit of an illegal detention. The court denied the motion and, at the close of the defense case, found true the allegations of the petition.

At the dispositional hearing on July 6, 1988, the court ordered Christopher continued as a ward of the court and continued him on probation conditioned upon his commitment to the San Diego County Ranch Facility for not more than 240 days. Christopher filed a timely notice of appeal.

DISCUSSION

I Suppression of Evidence

Christopher contends the trial court erred in denying his section 1538.5 motion, arguing the cocaine he discarded should have been suppressed as the fruit of an illegal detention. We disagree.

In reviewing a motion to suppress, we defer to the trial court's factual findings which are supported by substantial evidence and independently determine whether the facts of the challenged search and seizure conform to the constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.) In this case, the facts are undisputed. We thus independently review the decision, applying federal law, as well as state law where it does not conflict with the federal law, to evaluate the issues involved. (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)

Generally, a person contacted by a police officer has been "seized" or detained within the meaning of the Fourth Amendment only if, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed he [or she] was not free to leave." (United States v. Mendenhall (1980) 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497; Terry v. Ohio In determining whether an encounter between the police and a citizen is protected under the Fourth Amendment, the court should not only consider all the circumstances involved, but should also consider (1) the public interest served by the seizure, (2) the nature and scope of the intrusion, and (3) the objective facts upon which the law enforcement officer relied in light of the officer's knowledge and expertise. (Terry v. Ohio, supra, 392 U.S. at pp. 20-25, 88 S.Ct. at pp. 1879-1882.) Neither the officer's uncommunicated state of mind nor the subjective belief of the individual citizen is relevant to the determination of whether a police contact is a detention, ² unless, in the case of the officer, his or her overt action would communicate that state of mind. (People v. Franklin (1987) 192 Cal.App.3d 935, 940, 237 Cal.Rptr. 840; People v. Bailey (1985) 176 Cal.App.3d 402, 406, 222 Cal.Rptr. 235.)

                (1968) 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889.)   Not all encounters between police and citizens, however, are protected by the Fourth Amendment.  Police may properly approach citizens for the purpose of crime prevention, i.e. investigatory stops, without any "objective justification".  (United States v. Mendenhall, supra, 446 U.S. at p. 553, 100 S.Ct. at p. 1876, citing Sibron v. New York (1968) 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.)
                

Examples of conditions which might indicate a "detention" or "seizure" under a reasonable person standard include a threatening police presence, the display of a weapon by an officer, the physical touching of the citizen approached, or the officer's language or voice indicating compliance with police demands might be compelled. (United States v. Mendenhall, supra, 446 U.S. at p. 554, 100 S.Ct. at p. 1877; Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16, 88 S.Ct. at p. 1879, fn. 16.) There is no bright line rule indicating the point at which police conduct becomes a seizure. The degree of intrusion will vary with each set of facts involving police conduct and the actions of the suspect. (Michigan v. Chesternut (1988) 486 U.S. 567, 572, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565.)

In cases where an individual flees an approaching police officer, the United States Supreme Court has rejected the notion that any "investigatory pursuit" amounts to a seizure under the Fourth Amendment and has held mere police surveillance or approach does not constitute a detention. (Michigan v. Chesternut, supra, 486 U.S. 567, 575-576, 108 S.Ct. 1975, 1980-1981.)

Relying on People v. Washington (1987) 192 Cal.App.3d 1120, 1126, 236 Cal.Rptr. 840, which held "[g]iving chase after an individual in a manner designed to overtake and detain or encourage the individual to give up his flight is a detention ...," Christopher argues he was unlawfully detained when the police officers focused on and began closing in on the group of people he was with in the park. While acknowledging Washington had been "singled out" by the police before a two-minute chase ensued in that case, and he had not been so singled out before the police here began surrounding the group in the park, Christopher asserts there should be no difference in a court's determination here from that made in Washington concerning whether a detention occurred. He cites to the trial court's comments for support of this position:

"The attention of the officers was focused on a group that they were going to contact, and for purposes of attempting to, I guess, control gang activity in this particular park.... They ... obviously were converging upon this, what they perceived to be a gathering of a gang....

"...

"They were sweeping the area of all the people within their net, so to speak, looking for people with weapons, people that As a member of the targeted group of the armed police net gang operation, he claims it was objectively reasonable to believe he was not free to leave the park.

might pose a danger to them, and anyone conducting any type of illegal activity.

Further arguing his discarding of the "rocks" was in response to the officers' "attempt to detain the group" without reasonable suspicion of any criminal activity, Christopher contends the evidence was the fruit of that illegal detention and...