In re H.H.
Decision Date | 30 April 2009 |
Docket Number | No. A122799.,A122799. |
Citation | 174 Cal.App.4th 653,94 Cal. Rptr. 3d 450 |
Court | California Court of Appeals Court of Appeals |
Parties | In re H.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. H.H., Defendant and Appellant. |
Melanie Martin Del Campo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Albany Police Officer Ted Allen was patrolling Albany in the late evening when he saw H.H. (the minor) riding a bicycle without proper lighting equipment in violation of the Vehicle Code. Allen detained the minor and asked him to "step from the bicycle." Then he asked the minor to "take off the backpack that [the minor] had on." As the minor took off his backpack, he said, "`I'm not on probation.'" This caused Allen "to wonder why [the minor] would say that." Then the minor said he did not give consent to search. Allen felt the minor's comment regarding consent was "kind of a warning flag as to why someone would say something like that." At that point, Allen became concerned the minor may have had a weapon on his person. Allen patsearched the minor and found a loaded revolver in his jacket.
The juvenile court denied the minor's motion to suppress and he admitted misdemeanor possession of a deadly weapon (Pen. Code, § 12020).1 At the dispositional hearing, the court adjudged the minor a ward of the court and placed him on probation. On appeal, the minor contends the court erred in denying his motion to suppress because Allen did not have reasonable suspicion to believe he was armed and dangerous.
The question before us is whether the minor's refusal to consent to a search can, by itself, form the basis for reasonable suspicion to patsearch. The answer is no. Our holding is consistent with state and federal court decisions holding that refusal to consent does not create reasonable suspicion to patsearch or probable cause to search. Accordingly, we reverse the lower court's denial of the minor's motion to suppress and remand for further proceedings.
The facts are taken from the evidence presented at the hearing on the minor's motion to suppress.
At 11:20 p.m. on March 4, 2008, Allen was driving a patrol vehicle in Albany when he saw the minor riding a bicycle without proper lighting equipment in violation of Vehicle Code section 21201, subdivision (d).2 Allen pulled over, illuminated the minor with his spotlight, and "told him to stop." The minor complied.
Allen asked the minor to "step from the bicycle;" Allen wanted to identify the minor and issue a citation for riding a bicycle without the proper lighting equipment. The minor again complied. Then Allen asked the minor to "take off [his] backpack." The minor took off the backpack; as he did so, he said, "`I'm not on probation.'" This caused Allen "to wonder why [the minor] would say that." Then the minor said he did not give consent to search. According to Allen, the minor's comment regarding consent was "kind of a warning flag as to why someone would say something like that." At that point, Allen became concerned the minor may have had a weapon on his person.
Allen advised the minor that he was going to conduct a patsearch. In response, the minor stated, "`I do not give consent to search.'" The minor's statement did not dissuade Allen because he "felt fearful that [the minor] may have a weapon on him." During the patsearch, Allen felt what he thought was a revolver in the left front chest area of the minor's black, bulky jacket. Allen advised the minor not to "go for the firearm" and called for assistance. At that point, the minor "made a spontaneous statement" that he found the gun some time ago. When additional officers arrived, the minor was arrested and Allen removed the revolver from the minor's jacket.
In June 2008, the People filed a Welfare and Institutions Code section 602 petition alleging the minor possessed a concealed firearm (§ 12021, subd. (a)), carried a firearm without a license (§ 12025, subd. (a)(2)), and carried a loaded firearm while in a public place (§ 12031, subd. (a)(1)). The minor moved to suppress, contending Allen did not have reasonable suspicion to patsearch him. The juvenile court denied the motion. It concluded "the officer's specific articulated reasons for conducting the pat-down search under the circumstances were reasonable . . . ." The minor admitted the misdemeanor charge of possession of a deadly weapon (§ 12020). At the dispositional hearing, the court adjudged the minor a ward of the court and placed him on probation in his father's home.
In reviewing the juvenile court's denial of the minor's motion to suppress evidence, (People v. Jenkins (2000) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; see also In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236 [same standard of review applies to juvenile court proceedings].)
(1) Because the parties agree Allen lawfully detained the minor, the only issue before us is whether Allen had reasonable suspicion to patsearch the minor. The principles surrounding a patsearch are well settled. A limited, protective patsearch for weapons is permissible if the officer has (Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 88 S.Ct. 1868]; see People v. Avila (1997) 58 Cal.App.4th 1069, 1074 [] .) (Minnesota v. Dickerson (1993) 508 U.S. 366, 373 [124 L.Ed.2d 334, 113 S.Ct. 2130].)
(2) The minor contends the assertion of his Fourth Amendment rights, without more, did not create reasonable suspicion he was armed and dangerous. We agree. (United States v. Santos (10th Cir. 2005) 403 F.3d 1120, 1125-1126, quoting United States v. Wood (10th Cir. 1997) 106 F.3d 942, 946.)
People v. Dickey (1994) 21 Cal.App.4th 952, 954 , is instructive. There, the defendant appeared to make "`. . . furtive movements . . . in the driver's seat'" of a car stopped in the middle of the road. (Id. at p. 954.) A law enforcement officer stopped the defendant, who was unable to produce identification and refused to give the officer permission to search the car. (Ibid.) The defendant eventually gave the officer permission to search his backpack, which contained baking powder inside of a film canister. (Id. at pp. 955-956.) At that point, the officer ordered the defendant out of the car, patsearched him, and found cocaine and marijuana. (Ibid.)
The appellate court held that the patsearch "could not be justified based on the fact that [the defendant] (1) had no identification, (2) exercised his Fourth Amendment right and refused to allow the deputy to search the vehicle, (3) was nervous and sweating, (4) or because baking powder was found in a film canister. None of these considerations, considered singly or in combination would lead an officer to `". . . reasonably believe in the possibility that a weapon may be used against him . . . ."'" (Dickey, supra, 21 Cal.App.4th at p. 956, quoting People v. Lawler (1973) 9 Cal.3d 156, 161 [107 Cal.Rptr. 13, 507 P.2d 621], italics added.)3
A majority of federal courts have reached the same conclusion and have held that a defendant's refusal to consent to a search does not create reasonable suspicion to detain or probable cause to search. (United States v. Freeman (10th Cir. 2007) 479 F.3d 743, 749 [ ]; United States v. Boyce (11th Cir. 2003) 351 F.3d 1102, 1110 [ ]; United States v. Smith (6th Cir. 2001) 263 F.3d 571, 594 [ ]; United States v. Prescott (9th Cir. 1978) ...
To continue reading
Request your trial- State v. Schapp
- State v. Gomez
- People v. Nay
- People v. Bradley, C066837
-
Search and seizure
...(pat-down) of a bicyclist detained for improper lighting was not created by the subject’s refusal to consent to it. In re H.H. (2009) 174 Cal.App.4th 653. Under the totality of the circumstances, the appellate court determined there were no specific and articulable facts the minor was armed......
-
Table of cases
...Cal.App.3d 1149, §§5:112.1, 7:66.3(a), 7:66.5(b)(iv) In re Griffin (1967) 67 Cal.2d 343, 346-347, §10:54.9, 14:35 In re H.H. (2009) 174 Cal.App.4th 653, §7:61.1 In re Hampton (2020) 48 Cal.App.5th 463, §12:19.11 In re Harris (2021) ___Cal.App.5th, §3:22.3 In re Hayes (1969) 70 Cal.2d 604, 6......
-
Chapter 5 - §3. Exceptions to warrant requirement
...factors in roving-patrol stop). • When based solely on a person's refusal to consent to search. See In re H.H. (1st Dist.2009) 174 Cal. App.4th 653, 658-59. • When based on the presence of an individual of one race in an area primarily inhabited by people of another race. People v. Bower (1......
-
Table of Cases null
...§1; §4; §4.2.1 Herzog, Estate of, 33 Cal. App. 5th 894, 245 Cal. Rptr. 3d 498 (4th Dist. 2019)—Ch. 2, §2.1.2(2)(b)[2][b] H.H., In re, 174 Cal. App. 4th 653, 94 Cal. Rptr. 3d 450 (1st Dist. 2009)—Ch. 5-A, §3.2.1(2) Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177......