Michael v., In re

• Decision Date: 21 January 1974
• Docket Number: S.F. 22978
• Citation: 517 P.2d 1145,111 Cal.Rptr. 681,10 Cal.3d 676
• Court: California Supreme Court
• Parties: , 517 P.2d 1145 In re Michael V., a Person Coming Under the Juvenile Court Law. James D. CALLAHAN, as Chief Probation Officer, etc., Plaintiff and Respondent, v. Michael V., Defendant and Appellant.

Page 681

111 Cal.Rptr. 681

10 Cal.3d 676, 517 P.2d 1145

In re Michael V., a Person Coming Under the Juvenile Court Law.

James D. CALLAHAN, as Chief Probation Officer, etc., Plaintiff and Respondent, v. Michael V., Defendant and Appellant.

S.F. 22978.

Supreme Court of California,

In Bank.

Jan. 21, 1974.

Rehearing Denied Feb. 20, 1974.

John D. Spyromilios, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Eric Collins and William D. Stein, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Michael V., a 17-year-old minor, appeals from an order of the juvenile court finding that he is a person described in section 602 of the Welfare and Institutions Code ¹ and adjudging him a ward of the court (Welf. & Inst.Code, § 725, subd. (b)) by reason of his having violated section 11910 (now § 11377) of the Health and Safety Code (unlawful possession of restricted dangerous drugs). He challenges the above finding and his resultant commitment on the ground that the jurisdictional determination under section 602 was based on evidence obtained by an illegal search of his person. We conclude that this contention is without merit, and therefore affirm the order.

On an evening in June 1971, two patrolling Alameda County sheriff's officers heard what sounded like a small caliber gunshot coming from the vicinity of a nearby shopping center and, fearing a robbery, drove into the parking lot at one end of the center. After scanning the stores in the area and finding nothing unusual, they observed four male youths sitting near a fence that enclosed the lot. From their car the officers asked the boys if they had heard a loud noise. The boys replied affirmatively and indicated the sound had come from the direction of another group about 25 yards away in the same lot. That group, they said, had just left.

The officers, noting that the fence surrounding the parking lot would prevent such a quick exit, decided to investigate the possibility that the four boys had themselves set off fireworks in violation of a county ordinance. ² The officers stepped out of the patrol car and asked the boys to come over to the vehicle and empty their pockets. This communication took the following form: 'Okay, boys, why don't you empty your pockets on the car?' Three of the youths began to comply, but appellant took flight. The officers apprehended him, informed him he was under arrest for 'resisting' (Pen.Code, § 148), and searched him. They found a bottle of 28 secobarbital capsules, 9 Firecrackers, and 2 books of matches.

Juvenile authorities filed a supplemental petition charging that appellant was a person described by section 602 of the Welfare and Institutions Code in that he violated section 11911 of the Health and Safety Code (possession for sale of a restricted dangerous drug). At the hearing, the secobarbital tablets found on appellant's person were introduced in evidence. The court found that appellant violated the provisions of section 11910 of the Health and Safety Code, a lesser and included offense, and entered the order above referred to. This appeal followed.

Preliminarily we observe that the juvenile court was required initially to consider and determine whether appellant was a person described by section 602 so as to establish its jurisdiction to adjudge him a ward of the court. (Welf. & Inst.Code, §§ 602, 701, 702.) '(F)or this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, proof beyond a reasonable doubt supported by evidence, Legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602 . . ..' (Welf. & Inst.Code, § 701; italics added.) In the instant case such jurisdiction rested on proof that appellant had violated the law by unlawfully possessing a restricted dangerous drug. If the evidence adduced to support this violation was not legally admissible, then the requisite jurisdictional finding, absent other competent evidence, cannot be upheld and the order of commitment based upon it must also fall.

We turn first to the issue of the lawfulness of the search. The officers were entitled to detain and question appellant on circumstances constituting less than probable cause. (People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658.) Probable cause was, however, a necessary prerequisite to an arrest or search. Until appellant's flight the officers possessed insufficient facts to establish probable cause. The officers had heard a noise, but its origin was impossible to identify with any certainty. They possessed no knowledge that would have directly linked the sound with appellant. The youths' story that the sound had come from another group which had exited the parking lot over the fence was not so implausible as to provide the additional quantum of suspicion necessary for probable cause.

At the time the officers requested appellant to empty his pockets, therefore, they were not entitled to conduct a search. If that request constituted the initiation of a search, then appellant's attempt to flee would not have justified the subsequent arrest and search. First, it is no crime in this state to nonviolently resist the unlawful action of police officers. (Pen.Code, §§ 148 and 834; People v. Curtis (1969) 70 Cal.2d 347, 354--356, 74 Cal.Rptr. 713, 450 P.2d 33.) Second, although flight combined with other facts may sometimes provide probable cause for arrest, where it is a direct response to unlawful police action it becomes 'tainted' and cannot be so used. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 273, 294 P.2d 23.)

If, on the other hand, the officers' actions are viewed as something other than the beginning of a search, as for example a permissible solicitation of consent to a search, appellant's flight provided ample cause for his arrest and the resulting search. Flight under such circumstances would, in light of the other facts known to the officers, provide probable cause to believe appellant had violated the county fireworks ordinance.

We are, therefore, called upon to characterize the conduct of the officers in requesting to see the contents of appellant's pockets. In making this determination we are guided by People v. Stout (1967) 66 Cal.2d 184, 57 Cal.Rptr. 152, 424 P.2d 704. In that case a police officer investigated a report that the defendants had engaged in suspicious behavior involving a blue overnight bag. The officer approached the driver's side of the defendants' automobile and saw the bag on the back seat of the passenger's side. After asking the defendants for information concerning the contents of the bag and receiving a noncommittal answer, the officer said, 'Well, you wouldn't mind then if I take a look in the bag?' When the officer started to walk toward the passenger's side, the defendants drove off in a burst of speed. The officer gave chase and eventually apprehended them. His search of the bag revealed various items of contraband. We upheld the trial court's finding that the search was lawful, even though we found the officer lacked probable cause to search the bag at the time he requested to see its contents. We held that 'Whether there was a threat of an illegal search capable of being carried out was a question of fact to be determined by the court in light of all the circumstances.' (Id., at p. 192, 57 Cal.Rptr. at p. 157, 424 P.2d at p. 709.)

In Stout we distinguished Gascon v. Superior Court (1959) 169 Cal.App.2d 356, 337 P.2d 201, in which the detained person fled and attempted to throw away incriminating evidence after the officers announced they intended to conduct a search. We stated, 'unlike Gascon where the officers announced their intentions to search the defendant, (the officer) in the instant case merely voiced a request to look in the bag. There was no response from the suspects. At that point he started walking toward the passenger's side of the car. Conceivably his request could have been met with a refusal upon his reaching his destination. At no time did he inform defendants that he Was going to search the bag and we cannot say as a matter of law that what was outwardly only a request, even when conjoined with his conduct, amounted to an announced intention to search.' (66 Cal.2d at p. 192, 57 Cal.Rptr. at p. 157, 424 P.2d at p. 709.)

We are of the opinion that the reasoning in Stout applies equally to the present case. The question 'Okay, boys, why don't you empty your pockets on the car?' is no more indicative of an intent to pursue an unlawful search and is no more inherently coercive in impact than the question 'Well, you wouldn't mind then if I take a look in the bag?' Indeed, the threat of a search appears to have been more imminent in Stout than in the present case, inasmuch as the officer in Stout coupled his communication with a movement in the direction of the object mentioned.

Counsel for the state took the position in the juvenile court that the officers had merely asked the youths to consent to as search and had not announced or threatened an imminent nonconsensual search. The court did not expressly rule on this factual question, but its acceptance of the state's argument was implicit in its stated conclusion that the officers had not exceeded the permissible scope of detention. Its determination of the implicit factual question finds substantial support in the record, and we are therefore bound by it. The evidence supporting the jurisdictional finding was thus lawfully obtained.

Appellant's second contention is that the court erred in reading the proba tion report before making its jurisdictional determination. In In re Gladys R. (1970) ...