In re D.G., A124605 (Cal. App. 1/14/2010)

• Decision Date: 14 January 2010
• Docket Number: A124605.
• Court: California Court of Appeals Court of Appeals
• Parties: In re D.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.G., Defendant and Appellant.

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In re D.G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. D.G., Defendant and Appellant.

A124605.

Court of Appeals of California, First Appellate District, Division One.

January 14, 2010.

Appeal from the Alameda County, Super. Ct. No. SJ-08-009620-02.

Not to be Published in Official Reports

DONDERO, J.

After denial of his motion to suppress evidence, defendant admitted that he was an accessory after the fact to possession of an assault weapon (Pen. Code, § 32), as charged in a juvenile petition filed pursuant to Welfare and Institutions Code section 602.¹ In this appeal he challenges the juvenile court's denial of the motion to suppress. We conclude that the evidence and statements seized from defendant were the product of an unlawful arrest, and reverse the judgment.

STATEMENT OF FACTS²

On the afternoon of March 14, 2009, Union City Police Officers Yousuf Shansab and Joshua Clubb were working as a "special enforcement" robbery suppression unit in the Marketplace shopping center in Union City, where several robberies had been committed in the past few months. The officers were in an unmarked vehicle, but were wearing navy blue Union City Police Department "raid jackets," with police identification patches and badges on the front, back and shoulders.

From their vehicle the officers observed defendant and his juvenile companion D.M. "lingering" in front of the Safeway, "walking one way or another" and nervously "looking around" for between one and four minutes. The two boys looked at the officers, then walked over to a water fountain in front of a Starbucks and a Round Table Pizza.³ The officers were "suspicious" of the behavior of defendant and D.M., and continued to watch them. Defendant sat down on a bench around the water fountain, while D.M. stood near him. They spoke intermittently, but did not engage in any further suspicious or illegal activities. After seven or eight minutes the officers "wanted to see what they were up to."

The two officers approached defendant and D.M. to "talk to them" and request consent to conduct a search. Defendant "stayed seated where he was," and said nothing. D.M. immediately "yelled out, `I'm not on probation,' and walked away." The officers observed that D.M. walked as if he "was definitely carrying something" on his left waistband: his right hand was swinging loose, but his left hand was pinned against his side to "hold something from falling"; his gait was awkward, and he favored one leg. Officer Shansab testified that he had previously seen "people with possession of handguns" walk in the same manner. He also observed a bulge under D.M.'s sweater. The officer called D.M. back to him, and directed him to keep his hands in the open and pull up his sweater. D.M. resisted momentarily, but "finally pulled up his sweater," whereupon Officer Shansab "definitely saw the outlining of a stock" of a gun. He then asked D.M. several times to pull up his shirt and put his hands behind his back. When D.M. "started arguing," the officer grabbed his hands and discovered that the object in his waistband was an "older-model Mossberg shotgun" with the barrel and stock sawed off. D.M. was immediately arrested.

As Officer Shansab followed D.M., Officer Clubb asked defendant "if he was on probation." Defendant replied that he was "on probation for a 211 robbery." Officer Clubb acknowledged that he had no grounds based on defendant's behavior to effectuate a detention, but concluded from defendant's admitted status as a probationer that he had "the right to detain him and investigate the matter further."

Once D.M. was apprehended, the officers noticed "there were several bystanders" at the scene, approximately 20 in number, who "were fairly hostile." They were cursing and yelling "police brutality." The officers decided that due to the antagonism expressed by the "crowd of onlookers" and the "danger with a firearm involved," they would transport both suspects to the Union City police station. Defendant was handcuffed and taken from the scene involuntarily, but the officers did not consider him under arrest because they "didn't find a weapon on him at the time."

At the station, Officer Clubb learned from defendant that he "had a search clause" attached to his probation. The officer also seized defendant's cell phone and examined "photos" on the phone. Defendant subsequently made statements to Officer Clubb in which he admitted the shotgun taken from D.M. "was his and that he had been storing it, in violation of his probation, at his residence for approximately two weeks."

The defense offered testimony from defendant's mother, A.G., who appeared at the Union City police station after she received a call that her son had been arrested and was in custody. Officer Clubb advised her that defendant had been detained because "he was on probation." The officer later told her that he found photos of defendant "holding the firearm," and defendant admitted the shotgun belonged to him. Defendant testified that after the shotgun was found in D.M.'s possession he was arrested. Officer Clubb then "put the handcuffs" on defendant, and he and D.M. were both placed "on the ground," on their stomachs. When "backup" officers arrived, defendant and D.M. were put in the patrol vehicle and transported to the police station. An officer looked at defendant's cell phone about an hour later, then told defendant he "was free to go." Defendant thereafter made statements to the officer.

DISCUSSION

Defendant argues that he was unlawfully detained and arrested without probable cause. He also maintains the seizure was not justified by his "probationary status," as the officers were not aware that he was subject to a "search clause" before he was detained. He thus claims that the statements he subsequently made at the police station were the product of an unlawful arrest and must be suppressed. The Attorney General responds that the seizure of defendant was based on adequate cause, and even if an unlawful detention or arrest occurred, the subsequent discovery of the probation "search condition attenuated any illegality that may have attached to his seizure," so the statements taken from defendant need not be suppressed.

I. The Seizure of Defendant.

To determine whether defendant was lawfully seized when the statements were taken from him we must evaluate the nature and timing of defendant's contacts with the police. "`[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.' [Citation.]" (Wilson v. Superior Court (1983) 34 Cal.3d 777, 790, fn. omitted; see also People v. Daugherty (1996) 50 Cal.App.4th 275, 283.) "Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

No detention of defendant and D.M. occurred when the officers approached them by the water fountain of the shopping center to ask questions. The established rule is "`that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] 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. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.]' [Citation.] The reasonable person test is objective and presupposes an innocent person." (People v. Colt (2004) 118 Cal.App.4th 1404, 1411, italics omitted.) Contacting a person "in a public place and asking" questions are "not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave." (In re Manuel G., supra, 16 Cal.4th 805, 822.) "An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . Until the officer asserts some restraint on the contact's freedom to move, no detention occurs." (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954-955.) "As the United States Supreme Court explained in Florida v. Royer (1983) 460 U.S. 491 [497]: `[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, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . .' [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 328; see also People v. Souza (1994) 9 Cal.4th 224, 234; People v. Daugherty, supra, 50 Cal.App.4th 275, 283.) The interaction at the water fountain was a consensual encounter that did not result in an unlawful detention, and required no cause. (People v. Hughes, supra, at p. 328.) Defendant's statement to the officers that he was on probation for robbery was therefore lawfully obtained.

Thereafter, the encounter escalated quickly and appreciably. The officers detained and pat-searched D.M., which resulted in discovery of the firearm in his possession. Defendant continued to remain seated, and cooperated with the officers. He made no further statements nor engaged in any suspicious behavior before he was handcuffed, placed on his stomach, and involuntarily transported to the police station. Defendant was of...