In re Roberto R., A115998 (Cal. App. 12/10/2007)

Decision Date10 December 2007
Docket NumberA115998
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re ROBERTO R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROBERTO R., Defendant and Appellant.

RUVOLO, P. J.

Appellant was adjudged a ward of the juvenile court based on his commission of misdemeanor possession of a deadly weapon. On appeal, he challenges the denial of his motion to suppress, and the validity of certain probation conditions. We reject most of his contentions, but modify the gang-related probation conditions, as suggested by respondent, to address appellant's constitutional concerns. As so modified, we affirm the trial court's dispositional order.

FACTS AND PROCEDURAL BACKGROUND

On April 13, 2006,1 at 3:08 p.m., a Pittsburg Police officer received a radio dispatch advising him of a report from an anonymous caller who had seen two males, either Asian or Hispanic, possibly smoking marijuana in a car parked on Suzanne Drive at Goldenhill Drive, near a park.2 The dispatcher told the officer that the caller described the car as a dark-colored Honda with a license plate containing the characters 4KE.

At about 3:15 p.m., the officer arrived at the location where the car had been reported. Upon arriving, he saw a brown Ford Taurus, with the license plate number 4KDC857, parked on Goldenhill facing west, near Suzanne. As the officer turned onto Goldenhill from Suzanne, he was headed toward the rear of the Taurus. After the officer drove toward the Taurus for one or two seconds, it pulled away from the curb and made a U-turn, heading toward and past the officer's patrol car. As the Taurus headed toward him, the officer saw two Hispanic males in the car, one in the driver's seat and the other in the front passenger seat. The officer did not see the occupants of the Taurus doing anything of note, such as making any sharp movements. The officer next made a U-turn himself, stopped the Taurus at the corner of Suzanne and Goldenhill, got out of his own car, and walked toward the Taurus from the rear.

When the officer reached the trunk of the Taurus, he detected the odor of marijuana. The officer was on the driver's side of the car, and the driver's window was entirely open. The officer walked to the driver's door, asked for the driver's identification, and inquired about the smell of marijuana. The driver denied any recent marijuana use in the car. The officer directed the driver to get out of the Taurus, patted him down, and locked him in the back seat of the patrol car.

The officer then approached the passenger, whom he had told to stay in the car, and whom he later identified in court as appellant Roberto R. The officer asked appellant if he had been smoking marijuana in the car, and appellant said he had. While speaking with appellant, the officer looked in the car for weapons, and saw a red-colored object that he believed was a "billy club or altered bat" on the passenger side floorboard. The officer characterized the object as a billy club because it had tape wrapped around it about five inches below the handle "for easy gripping"; it had been sawed off so it was shorter than its original size; and it was "light weight for maximum swinging ability."

The officer asked appellant if the object was his, and appellant admitted that it was. The officer then arrested him. After the officer read appellant his Miranda rights, appellant said that he had found the object a few weeks earlier, and had kept it since then for self-defense "in case he had problems with anybody." After appellant was arrested, the officer searched the car, and found a small bag of marijuana under the driver's seat.

A petition was filed in Contra Costa County Juvenile Court on July 3, alleging that appellant came within the provisions of Welfare and Institutions Code section 602, in that he possessed a deadly weapon, specifically a billy club, in violation of Penal Code section 12020, subdivision (a)(1). On August 17, appellant denied the allegation.

On October 20, appellant moved to suppress evidence pursuant to Welfare and Institutions Code section 700.1. On November 6, at a combined motion to suppress and jurisdictional hearing, the court denied the motion to suppress and sustained the petition, finding that the object seized from appellant on April 13 was in fact a billy club.

On November 22, appellant filed a timely notice of appeal from the conviction entered on November 6. On November 27, the court adjudged appellant a ward of the court and placed him on probation.

DISCUSSION
A. Denial of Motion to Suppress

Appellant contends that his motion to suppress the bat should have been granted, because the officer did not have a proper legal basis to stop the car in which appellant was riding, and the officer's discovery of the bat was therefore the fruit of an improper detention. In the trial court, respondent disputed whether appellant was detained for Fourth Amendment purposes by the officer's act of stopping the car. On appeal, respondent expressly concedes that under Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400], this issue must be resolved in appellant's favor. Thus, the issue before us on appeal is whether the anonymous tip received by the police in this case, together with the other factual circumstances, justified the officer's decision to stop the car.

The standard of review of a trial court's ruling on a motion to suppress is well established, and is the same in juvenile proceedings as in adult criminal cases. " ` "On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court's ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court that are supported by substantial evidence and independently determine whether the facts support the court's legal conclusions." [Citation.]' " (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)

Appellant does not dispute that an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (People v. Saunders (2006) 38 Cal.4th 1129, 1135; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200, abrogated on other grounds by constitutional amendment as stated in People v. Monroe (1993) 12 Cal.App.4th 1174, 1195.) The issue he raises on appeal is whether it was reasonable for the officer to stop the car in this case, particularly in light of the officer's reliance on an anonymous tip.

"A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.) For this purpose, both the "quantity and quality" of the information indicating criminal activity must be assessed in evaluating whether the officer's suspicion was reasonable. (Alabama v. White (1990) 496 U.S. 325, 330.) The level of information required to justify a detention is less than that required to establish probable cause for a full-fledged arrest or search. (United States v. Sokolow (1989) 490 U.S. 1, 7; People v. Souza, supra, 9 Cal.4th at p. 230.) The observed conduct need not be obviously criminal; "wholly lawful conduct might justify the suspicion that criminal activity was afoot." (Reid v. Georgia (1980) 448 U.S. 438, 441.) Moreover, the level of suspicion needed to make a vehicle stop is less than that required to search a person standing on a public street. (People v. Wells, supra, 38 Cal.4th at p. 1087.)

When a detention is predicated in part on information derived from an anonymous tip, as occurred in this case, the tip must be "suitably corroborated" (Florida v. J. L. (2000) 529 U.S. 266, 270), because "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity." (Alabama v. White, supra, 496 U.S. at p. 329; see People v. Saldana (2002) 101 Cal.App.4th 170, 174.) As our Supreme Court recently noted, however, a tip's reliability can be shown even without "its ability to predict the suspect's future behavior [citation] or the officer's ability to corroborate present illegal activity [citation]. Rather, the tip's reliability depends upon an assessment of `the totality of the circumstances in a given case.' [Citation.]" (People v. Dolly (2007) 40 Cal.4th 458, 464.) A suspect or vehicle that conforms to a description given in an uncorroborated anonymous tip of a crime in progress may be detained when encountered close in time and place to the reported criminal activity, even if the description is very general, or the detainee does not correspond to it perfectly. (See People v. Flores (1974) 12 Cal.3d 85, 91-92, superseded by statute on other grounds as stated in People v. Preciado (1991) 233 Cal.App.3d 1244, 1249, fn. 6; People v. Schader (1965) 62 Cal.2d 716, 722-725, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510-511, fn. 17; People v. Conway (1994) 25 Cal.App.4th 385, 390; People v. McCluskey (1981) 125 Cal.App.3d 220, 226-227.)

In this case, the tip was corroborated by the behavior observed by the officer. When the officer turned onto Goldenhill, the Taurus almost immediately pulled away from the curb, and then made a U-turn as the officer drew closer.3 The sudden departure of the car, right after the arrival of the officer's patrol car, was reasonably viewed as suspicious behavior. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124.)

In addition, our Supreme Court has held that an anonymous and uncorroborated tip can justify a temporary vehicle stop for the purpose of further investigation, at least under exigent circumstances such as an indication of potential...

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