Frank v., In re

• Decision Date: 30 August 1991
• Docket Number: No. G009810,G009810
• Citation: 285 Cal.Rptr. 16,233 Cal.App.3d 1232
• Court: California Court of Appeals Court of Appeals
• Parties: In re FRANK V., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. FRANK V., Defendant and Appellant.

Page 16

285 Cal.Rptr. 16

233 Cal.App.3d 1232

In re FRANK V., A Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. FRANK V., Defendant and Appellant.

No. G009810.

Court of Appeal, Fourth District, Division 3, California.

Aug. 30, 1991.

Review Denied Nov. 14, 1991.

[233 Cal.App.3d 1236] Edward K. Alexander, Jr., Universal City, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

WALLIN, Associate Justice.

Frank V. appeals the judgment declaring him a ward of the court, contending the trial court improperly denied his motion to suppress evidence and restricted his right to association by imposing an overbroad condition of probation. We affirm.

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At about 9:45 p.m., Officers Michael Luke and Gary Kirby were dispatched to investigate a report of reckless motorcycle driving on a street in an active gang area. There was no traffic when the officers arrived, but Officer Luke noticed a motorcycle pulling away from the curb in front of a house known for gang activity. The officers made a u-turn, intending to make a traffic stop. As soon as they turned the motorcycle pulled to the curb, even though the officers did not use their overhead lights or siren or signal in any other fashion. ¹

As the officers approached the motorcycle, the driver held out what appeared to be a driver's license in his left hand. Frank, the passenger, was looking straight ahead with both hands in the front pockets of a bulky leather jacket. On Officer Luke's order, Frank took his hands out of his pockets. When he tried to put them back in, Luke told him to keep them out. Officer Luke did a patdown search of Frank for weapons and discovered a gun in Frank's right front jacket pocket.

Frank was adjudged a ward of the court and granted probation. The terms included orders that he obey all gang terms and conditions of probation and not associate with anyone disapproved of by his probation officer.

I

Frank claims the trial court improperly denied his motion to suppress evidence because he was unlawfully detained. Although he was certainly detained at the moment of the patdown, we must first determine if he was unlawfully detained when the officers made their initial contact. "The United States Supreme Court has identified three categories of police contact with persons. The first is referred to as a 'consensual encounter' in which there is no restraint on the person's liberty. There need be no objective justification for such an encounter. The second type, called 'detention,' involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur 'if there is an articulable suspicion that a person has committed or is about to commit a crime.' The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. [Citations.]" (People v. Bailey (1985) 176 Cal.App.3d 402, 405, 222 Cal.Rptr. 235.)

Here, the motorcycle was not detained. Since it had already voluntarily pulled over to the curb before the officers completed the u-turn or displayed any gesture of authority, such as using overhead lights or a siren,there was no restraint of liberty by the police. (People v. Bailey, supra, 176 Cal.App.3d 402, 405, 222 Cal.Rptr. 235.) Because the motorcycle was not detained, neither was Frank. ² Although Frank may have believed he was under official scrutiny, the objective indicia of a detention were absent. (Ibid.; see also People v. Franklin (1987) 192 Cal.App.3d 935, 940, 237 Cal.Rptr. 840.)

Officer Luke's order to Frank to remove his hands from his pockets did not transform the consensual encounter into a detention. We are sensitive to the delicate balance between Fourth Amendment rights and a police officer's safety. " 'Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.' [Citation.] ... Indeed, it appears 'that a significant percentage of murders of police officers occurs when the officers are making traffic stops.' ... What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110, 98 S.Ct. 330, 333, 54 L.Ed.2d 331.)

Mimms left open the question whether the same rule applies equally to passengers but California cases had previously allowed officers conducting an investigation to request a suspect to step out of the vehicle or to keep his hands in sight for officer safety. (People v. Superior Court (1972) 7 Cal.3d 186, 206, fn. 13., 101 Cal.Rptr. 837, 496 P.2d 1205; see also People v. Padilla (1982) 132 Cal.App.3d 555, 558, 183 Cal.Rptr. 97; People v. Maxwell (1988) 206 Cal.App.3d 1004, 1008, 254 Cal.Rptr. 124.) To justify ordering a passenger out of a vehicle, "even an inchoate and unparticularized suspicion that it would be better for the officer's safety for the passenger to alight is sufficient to justify such a request, because merely stepping out of the vehicle is a minimal intrusion upon privacy, far less than involved in a bodily search, a frisk, or a search of the vehicle. [Citations.]" (People v. Beal (1974) 44 Cal.App.3d 216, 221, 118 Cal.Rptr. 272.) Requesting Frank to keep his hands in sight was even less intrusive.

This is so even though Frank was not the original focus of the officers' attention. In People v. Stafford (1972) 28 Cal.App.3d 405, 104 Cal.Rptr. 754, two officers on patrol stopped to assist another officer holding a prisoner. The defendant happened to be standing next to a woman who appeared drunk and was yelling abusively. One of the officers stopped the woman and his partner ordered the defendant to remove his hands from his pockets. In upholding that order the court found the "defendant presented a potential danger to his partner's safety and [the officer] chose a means of neutralizing that danger which involved a minimum intrusion. [Citations.]" (Id. at p. 410, 104 Cal.Rptr. 754.)

Frank relies on People v. Franklin (1987) 192 Cal.App.3d 935, 237 Cal.Rptr. 840. There the court reasoned: "It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not. [p] Therefore, the nature of the officer's request here--asking that appellant remove his hands from his pockets--does not convert the encounter into a detention. However, if the manner in which the request was made constituted a show of authority such that appellant reasonably might believe he had to comply, then the encounter was transformed into a detention." (Id. at p. 941, 237 Cal.Rptr. 840.) The court in Franklin was concerned with the manner of the communication. It distinguished asking from ordering to determine if the request to remove hands from pockets transformed a consensual encounter into a detention. (Ibid.)

We agree with Franklin's holding that merely asking a suspect to take his hands out of his pockets is not a detention. However, we do not agree with its suggestion that an order to do so automatically transforms a consensual encounter into a detention. A mere request that a citizen remove his hands from his pockets is not the same as a command to stop or stay. The very nature of the latter is more likely to involve a detention. Conversely, the manner of the communication intended to get an individual to remove his hands from his pockets might cause a reasonable person to believe there is no freedom to leave. Both the nature and the manner must be examined.

Officers often detain suspects in circumstances that attract bystanders. A police order for bystanders to keep their hands in sight would not cause them to reasonably believe they were not free to leave. An officer's concern for personal safety would be satisfied if the bystanders walked away as long as they kept their hands in sight. Telling persons to keep their hands in sight is not the same as telling them to stay.

Here, Officer Luke testified his request was "more a direction, more of an order than asking." But Frank was not initially detained, he was not the subject of any inquiry, and he was told no more than to remove his hands from his pockets. The order did not turn the encounter into a detention.

Frank also contends the patdown was unreasonable. ³ The United States Supreme Court has held a police officer may only conduct a patdown if "criminal activity may be afoot and ... the person with whom he is dealing may be armed and presently dangerous." (Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.) "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] ... [D]ue weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific and reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation.]" (See also People v. Superior Court, supra, 7 Cal.3d at p. 203, 101 Cal.Rptr. 837, 496 P.2d 1205.)

We must determine whether Frank's conduct in placing his hands back in his pockets, after being told to take them out, constituted reasonable grounds for the patdown. It is well settled that "the law requires more than a mere 'furtive gesture' to constitute probable cause to search or to arrest.... [Citations.]" (People v. Superior Court (1970) 3 Cal.3d 807, 818, 91 Cal.Rptr. 729, 478 P.2d 449; see also People v. Superior Court, supra, 7 Cal.3d at p. 206, 101 Cal.Rptr. 837, 496...