Filed 4/29/13 In re D.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E055888 Plaintiff and Respondent, (Super.Ct.Nos. KJ34361 & v. J241984)
D.G., OPINION
Defendant and Appellant.
APPEAL from the Superior Courts of San Bernardino and Los Angeles Counties.
Thomas S. Garza and Charles W. McCoy, Jr., Judges. Affirmed.
Thomas S. Garza, Judge of the Superior Court of San Bernardino County, accepted the transfer of the matter from Los Angeles County to San Bernardino County and proceeded with disposition. (Case No. J2411984.) Minor does not appeal the dispositional orders, but from orders made by Charles W. McCoy, Jr., Judge of the Superior Court of Los Angeles County. (Case No. KJ34361.) A notice of appeal was filed in the Superior Court of San Bernardino County and subsequently in the Superior Court of Los Angeles County. The matter pending before the Second Appellate District was eventually transferred to this court.
1 Eric Cioffi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
After the Los Angeles County Juvenile Court denied defendant and appellant
D.G.‟s (minor) motion to suppress, minor admitted that he had possessed
methamphetamine for sale. (Health & Saf. Code, § 11378.) The San Bernardino County
Juvenile Court thereafter declared minor a ward of the court and placed him on probation
in the custody of his mother on various terms and conditions. Minor‟s sole contention on
appeal is that the Los Angeles County Juvenile Court erred in denying his suppression
motion. We reject this contention and affirm the judgment.
I
FACTUAL BACKGROUND1
On January 13, 2012, at approximately 7:00 p.m., Los Angeles County Sheriff
Deputy Yvette Salazar was on patrol in a marked police vehicle when she noticed minor
walking on the sidewalk wearing oversized “really baggy, dark-colored shorts and dark-
colored hoodie and shirt.” Deputy Salazar explained that minor drew her attention
because, based on her experience, minor appeared to be dressed in gang attire. Deputy
1 The factual background is taken from the February 10, 2012 hearing on the motion to suppress.
2 Salazar was aware of about three to four recent gang-related shootings in the area, one
within a week, and decided to contact minor.
When Deputy Salazar approached minor in her patrol vehicle, the patrol vehicle‟s
red and blue lights were not on, but she may have shined a spotlight on minor to see him
better since it was dark outside. After Deputy Salazar parked her patrol car and exited
the vehicle, she walked toward minor and asked him to come over to her. Minor
cooperated with the deputy‟s request. Deputy Salazar did not have her weapon drawn
when she approached minor.
When Deputy Salazar first began speaking with minor, she noticed that minor‟s
pupils were dilated.2 She asked minor if he was on probation or parole and if he had
recently used any drugs. Minor replied that he was on probation and that he had smoked
“crystal meth” earlier that day. Based on minor‟s responses, minor was thereafter
detained. Deputy Salazar then conducted a search of minor‟s person for weapons and
drugs. Deputy Salazar found a bag of methamphetamine, a note indicating drug sales,
and a piece of paper containing an estimated profit margin for narcotics sales.
Minor moved to suppress the evidence pursuant to Welfare and Institutions Code
section 700.1. The parties had stipulated that the search and seizure was conducted
without a warrant.
Following the evidentiary hearing, the trial court in a written statement of decision
denied minor‟s suppression motion. The court found the initial encounter to be
2 Deputy Salazar testified that during her six and a half years as a deputy sheriff she had extensive experience conducting narcotics investigations.
3 consensual in nature; the deputy had reasonable suspicion to search and seize minor after
the deputy was informed of minor‟s status as a probationer, observed minor‟s dilated
pupils, and noted minor‟s response of recent illegal drug consumption.
II
DISCUSSION
Minor contends that the trial court erred in denying his suppression motion
because the juvenile court failed to consider the age of minor and the initial contact was
an unlawful detention. Specifically, he claims that in considering his age, 17 years old,
and the circumstances surrounding the encounter, no reasonable person would believe the
encounter was consensual in nature.
In reviewing the denial of a suppression motion, we evaluate the trial court‟s
express or implied factual findings to determine whether they are supported by
substantial evidence, but we exercise our independent judgment to determine whether, on
the facts found, minor‟s Fourth Amendment rights have been violated. (People v. Glaser
(1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.) There are
essentially three categories or levels of police “contacts” or “interactions” for purposes of
Fourth Amendment analysis: consensual encounters, detentions, and seizures, which
include formal arrests and restraints on an individual‟s liberty, comparable to an arrest.
(Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)
Our present inquiry concerns the distinction between consensual encounters and
detentions. Not every encounter an individual has with law enforcement triggers Fourth
Amendment scrutiny. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) Consensual
4 encounters do not trigger such scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434
(Bostick).) Unlike detentions, consensual encounters require no articulable suspicion that
the person has committed or is about to commit a crime. (Wilson, supra, 34 Cal.3d at
p. 784.) The United States Supreme Court has made it clear that a detention does not
occur simply because a police officer asks an individual a few questions. (Bostick, at
p. 434.) 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. (California v. Hodari D. (1991) 499 U.S. 621, 628.)
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; thus, Fourth Amendment scrutiny
will not be triggered unless the encounter loses its consensual nature. (Bostick, at p. 434.)
There is no bright-line rule to determine if an encounter is consensual. (Ohio v.
Robinette (1996) 519 U.S. 33, 39.) “[I]n order to determine whether a particular
encounter constitutes a seizure, a court must consider all the circumstances surrounding
the encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers‟ requests or
otherwise terminate the encounter.” (Bostick, supra, 501 U.S. at p. 439.) Whether or not
a person would have believed that he or she was free to leave is to be evaluated in light of
the totality of the circumstances, rather than emphasizing particular details of that
conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Factors that
might indicate an unlawful detention has taken place include: (1) the presence of several
police officers; (2) an officer‟s display of a weapon; (3) some physical touching of the
5 person; or (4) the use of language or a tone of voice indicating that compliance with the
officer‟s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544,
554 (Mendenhall); In re Manuel G. (1997) 16 Cal.4th 805, 821.) “The officer‟s
uncommunicated state of mind and the individual citizen‟s subjective belief are irrelevant
in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.
[Citation.]” (In re Manuel G., at p. 821; see also Mendenhall, at p. 554.)
Relying on J.D.B. v. North Carolina (2011) 564 U.S. ___ [131 S.Ct. 2394, 180
L.Ed.2d 310] (J.D.B.) and Kaupp v. Texas (2003) 538 U.S. 626 (Kaupp), minor initially
contends that the lower court was required to consider his age in the Fourth Amendment
context when a juvenile is subject to an unlawful detention. He therefore claims the
juvenile court erred, as a matter of law, and the matter must be reversed and remanded.
In J.D.B., supra, 131 S.Ct. 2394, the high court addressed the question whether the
age of a child subjected to police questioning is relevant for purposes of a Miranda
analysis. That case involved “a 13-year-old, seventh-grade student attending class” at a
middle school who was removed from class and then questioned by a uniformed police
officer in a closed conference room with another officer and two school administrators
present for 30 to 45 minutes. (Id. at pp. 2399-2400.) The minor confessed to a theft after
the police investigator “warned” that he could be put in juvenile detention. (Id. at
p. 2400.) The Supreme Court held that the age of the subject is relevant to the custody
analysis of Miranda, and remanded the case for the state court to consider the minor‟s
age as one of the relevant factors in determining whether he was in custody when police
interrogated him. (Id. at pp. 2398-2399, 2408.) However, while the court was certainly
6 concerned with coerced, false confessions from an innocent juvenile, it did not extend its
discussion to Fourth Amendment consensual encounters. The court did, however, note
that “even where a „reasonable person‟ standard otherwise applies, the common law has
reflected the reality that children are not adults.” (Id. at p. 2404.)
In Kaupp, supra, 538 U.S. 626, the court essentially focused on the distinction
between detentions and arrests, rather than between consensual encounters and
detentions. (Id. at pp. 630-631.) The court explained: “A 17-year-old boy was
awakened in his bedroom at three in the morning by at least three police officers, one of
whom stated „we need to go and talk.‟ He was taken out in handcuffs, without shoes,
dressed only in his underwear in January, placed in a patrol car, driven to the scene of a
crime and then to the sheriff‟s offices, where he was taken into an interrogation room and
questioned. This evidence points to arrest even more starkly than the facts in Dunaway v.
New York [(1979)] 442 U.S. 200, 212 . . . where the petitioner „was taken from a
neighbor‟s home to a police car, transported to a police station, and placed in an
interrogation room.‟ There we held it clear that the detention was „in important respects
indistinguishable from a traditional arrest‟ and therefore required probable cause or
judicial authorization to be legal. [Citation.]” (Kaupp, at p. 631.) However, in
addressing the issue of consensual encounters, the court explicitly applied the “reasonable
person” standard. (Id. at pp. 629-630.)
We find that neither Kaupp nor J.D.B. support minor‟s position that the matter
must be reversed and remanded, because the juvenile court, as a matter of law, was
“obligated to consider minor‟s age” and failed to do so. Those cases hold that age, along
7 with other factors such as previously noted, is a factor a lower court should consider
when determining the issue of detention or custodial interrogation. There is no indication
in the record to show that the juvenile court here failed to consider minor‟s age in
denying the suppression motion. Although the juvenile court did not explicitly note
minor‟s age in its statement of decision, the court was aware that minor was a “youth” or
a “minor,” and applied the appropriate objective test. Appealed judgments and orders are
presumed correct, and error must be affirmatively shown. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) “The general rule is that a trial court is presumed to have
been aware of and followed the applicable law. [Citations.]” (People v. Mosley (1997)
53 Cal.App.4th 489, 496-497.)
We now turn to the question of whether the encounter was consensual in nature or
a detention. Minor argues that under the totality of the circumstances, he was subjected
to an unlawful detention because a reasonable person in his position would not have felt
free to walk away.
We conclude the juvenile court properly denied minor‟s suppression motion
because the contact between the deputy and minor was consensual in nature. Here,
Deputy Salazar was on routine patrol in a marked unit when she saw minor walking on
the sidewalk wearing oversized “really baggy, dark-colored shorts and dark-colored
hoodie and shirt.” Deputy Salazar explained that minor drew her attention because,
based on her experience, minor appeared to be dressed in gang attire; she was aware of
three to four recent gang-related shootings in the area, one within a week, and decided to
contact minor. Because it was dark outside, the deputy shined the patrol vehicle‟s
8 spotlight on minor, parked and exited her vehicle, and asked minor to come over to her.
Minor cooperated with the deputy‟s request. As Deputy Salazar made contact with
minor, she noticed that minor‟s pupils were dilated and asked minor whether he was on
probation or parole and if he had recently used any drugs. Minor replied that he was on
probation and that he had used methamphetamine earlier in the day. This gave the deputy
reasonable suspicion to detain minor thereafter.
There is no indication in the record here that the deputy confronted minor in an
apprehensive manner, or that the initial encounter was anything more than consensual.
Minor was cooperative and voluntarily responded to the deputy‟s questions. The deputy
did not draw her gun or use force or threats. Minor was not directed to a different
location, and the encounter took place in a public setting. The tone of the encounter was
conversational, not accusatory. It appears that Deputy Salazar did not exhibit any
physical or verbal force that would cause a reasonable person to feel that he or she was
not free to leave. The encounter was not converted into a detention requiring Fourth
Amendment scrutiny merely because Deputy Salazar activated her patrol vehicle‟s
spotlight on minor and asked minor to come over to her. (See Bostick, supra, 501 U.S. at
p. 434; Florida v. Royer (1983) 460 U.S. 491, 497-498; People v. Hughes (2002) 27
Cal.4th 287, 328.)
People v. Lopez (1989) 212 Cal.App.3d 289 is illustrative. In Lopez, the court
found no detention when officers, who were concededly on the prowl for narcotics
dealers, recognized the defendant from a previous encounter. The officers “stood on
either side of him and launched into a short, albeit somewhat accusatory, interrogation.”
9 (Id. at p. 293.) The officers asked the defendant whether the car he was sitting on
belonged to him. (Id. at p. 291.) When he said no, the officers asked why he was sitting
on that car. The defendant responded that he was waiting for his friends to play pool.
When the officers asked where his pool stick was, the defendant did not reply. The
officers asked whether he had identification, and the defendant reached into his pocket.
The defendant handed the officer his wallet and, when it was opened, a bindle of cocaine
“ „pop[ped] up.‟ ” (Ibid.) Finding the questions were “brief, flip, and, most importantly,
did not concern criminal activity,” the reviewing court concluded the questions were not
so accusatory as to demonstrate that a reasonable person would believe he was not free to
leave. (Id. at p. 293.)
Similarly, in this case, minor voluntarily complied with the deputy‟s request to
come over to her once she walked toward minor. In addition, minor voluntarily
responded to the deputy‟s questions. Defendant could have simply walked away from the
deputy. Furthermore, the record shows that only Deputy Salazar was present at the
scene, she did not have her weapon drawn, she did not physically touch minor, she did
not use her patrol vehicle‟s siren, and she did not tell minor to sit or stand in a particular
location. Therefore, the initial nature of the contact between minor and Deputy Salazar
was consensual and did not constitute a detention requiring reasonable suspicion.
Minor contends that he was unlawfully detained when the deputy shined her patrol
vehicle‟s spotlight on him, parked and exited her vehicle, and asked minor to come over
to her. He relies on People v. Roth (1990) 219 Cal.App.3d 211 (Roth) and People v.
Garry (2007) 156 Cal.App.4th 1100 (Garry) to support his position.
10 In Roth, supra, 219 Cal.App.3d 211, one of two police officers in a patrol car
shone a spotlight on the defendant and stopped the patrol car. (Id. at p. 213.) Both
officers got out, and one stood behind the patrol car door and told the defendant to
approach in order to talk with him. (Ibid.) The trial court ruled that a detention had
occurred when a police officer shined a spotlight on the defendant, stopped his patrol
vehicle, got out of the vehicle along with a second officer, and “command[ed]” the
defendant to approach and speak with him. (Id. at p. 215.) The officer said either “ „I
would like to talk to you,‟ ” or “ „Come over here. I want to talk to you.‟ ” (Id. at
p. 213.) Significantly, the trial court expressly found that the officer had “command[ed]”
the defendant to approach him. (Id. at p. 215, fn. 3.) One of the two Court of Appeal
justices who found there was an unlawful detention expressed doubt about whether the
statement was a request or a command. However, the trial court had found it was a
command, and both justices concluded they were bound by that finding. (Id. at pp. 215,
fn. 3, 216 (conc. opn. of Todd, J.).) Here, by contrast, only one officer was present, and
the juvenile court did not make a finding that Deputy Salazar commanded minor to come
over to her. Rather, the juvenile court specifically made the factual determination that no
command was made.3
3 As previously noted, whether a seizure occurred within the meaning of the Fourth Amendment is a mixed question of law and fact qualifying for independent review. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We review the lower court‟s factual findings under the deferential substantial evidence standard, accepting factual inferences in favor of the lower court‟s ruling, and we independently decide the ultimate constitutional question. (Ibid.)
11 In Garry, supra, 156 Cal.App.4th 1100, an officer was patrolling a high-crime
neighborhood at 11:23 p.m. when he noticed the defendant standing on a street corner
next to a parked car. (Id. at pp. 1103-1104.) The officer parked his vehicle
approximately 35 feet away and observed the suspect for approximately five to eight
seconds. He then illuminated the defendant with the patrol car spotlight, exited his
vehicle, and walked “ „briskly‟ ” toward the defendant. (Id. at p. 1104.) By the officer‟s
own testimony, he reached the defendant “ „two and a half, three seconds‟ after leaving
his patrol car, during which time defendant referred to living „right there‟ and took three
or four steps back.” (Ibid.) The officer then asked if the defendant was on parole, and
the defendant affirmed that he was. At that point, the officer grabbed the defendant who
actively resisted. The officer then restrained and arrested the defendant. (Ibid.)
The Garry defendant unsuccessfully moved to suppress the evidence seized during
a search incident to the arrest. The trial court found that a consensual contact occurred
when the officer “ „simply approached‟ ” the defendant and started to speak with him,
and that the officer had a legal basis to detain the defendant once he admitted that he was
on parole. (Garry, supra, 156 Cal.App.4th at pp. 1104-1105.) On appeal, the appellate
court reversed, finding that the only conclusion to be drawn from the undisputed evidence
was that the officer‟s actions “constituted a show of authority so intimidating as to
communicate to any reasonable person that he or she was „ “not free to decline [his or
her] requests or otherwise terminate the encounter.” ‟ ” (Id. at p. 1112.)
The appellate court pointed out that the officer‟s own testimony established that
his conduct was both aggressive and intimidating. (Garry, supra, 156 Cal.App.4th at
12 p. 1111.) That conduct included: (1) bathing the defendant in a spotlight after observing
him for only five to eight seconds; (2) walking so “ „briskly‟ ” that he traveled 35 feet in
“ „two and a half, three seconds‟ ”; (3) disregarding the defendant‟s statement that he was
standing outside his own home; and (4) immediately questioning the defendant‟s legal
status. (Id. at pp. 1111-1112.) In light of the officer‟s own testimony, the appellate court
was compelled to reject the trial court‟s finding that the officer “ „simply approached‟ ”
the defendant and “ „started to speak,‟ ” because that finding was not supported by
substantial evidence. (Id. at p. 1112.) The officer‟s own testimony established that he
“all but ran directly at [the suspect], covering 35 feet in just two and one-half to three
seconds, asking defendant about his legal status as he did so.” (Ibid.)
Again, in Garry, unlike here, undisputed evidence of police intimidation overrode
the trial court‟s finding that a detention did not occur. Here, there is no evidence of
police intimidation, and nothing intimidating about the deputy‟s approach. Although the
deputy shined the patrol lights on minor because it was dark outside and the deputy‟s
statement for minor to come over to her may have been somewhat intimidating, the
deputy did not park in a manner that blocked or impeded minor, or confront him, or issue
a command, or intimidate him, or approach minor rapidly while questioning him. (See,
e.g., Michigan v. Chesternut (1988) 486 U.S. 567, 575 [“While the very presence of a
police car driving parallel to a running pedestrian could be somewhat intimidating, this
kind of police presence does not, standing alone, constitute a seizure”]; People v.
Franklin (1987) 192 Cal.App.3d 935, 940 [the court held that no detention had occurred
where a police officer in his patrol car shone a spotlight on a suspect, drove the car
13 directly behind the suspect, and stopped with the vehicle‟s headlights illuminating the
suspect].) Deputy Salazar‟s conduct did not constitute a detention.
In short, the evidence in this case is undisputed that Deputy Salazar‟s demeanor at
the time of the encounter was not of the demanding or threatening variety. Deputy
Salazar‟s statement to minor to come over to her was just that, a statement rather than a
command. Deputy Salazar did not physically or verbally restrain minor, and nothing she
said or did indicated that she wanted to do anything more than talk to minor. Thus, the
evidence does not demonstrate a show of authority other than what is implicit when a
uniformed police officer exits a patrol car to engage a citizen. It therefore fails to support
that Deputy Salazar coerced minor to submit to questioning by means of physical force or
a show of authority such that a reasonable person in minor‟s situation would not have felt
free to leave.
“[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. [Citations.] Nor would the fact that the officer identifies himself as a police
officer, without more, convert the encounter into a seizure requiring some level of
objective justification. [Citation.] The person approached, however, need not answer
any question put to him; indeed, he may decline to listen to the questions at all and may
go on his way. [Citation.] He may not be detained even momentarily without
reasonable, objective grounds for doing so; and his refusal to listen or answer does not,
14 without more, furnish those grounds. [Citation.]” (Florida v. Royer (1983) 460 U.S.
491, 497-498.)
The U.S. Supreme Court has stated: “Even when law enforcement officers have
no basis for suspecting a particular individual, they may pose questions, ask for
identification, and request consent to search luggage—provided they do not induce
cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194, 201.)
As previously noted, “it is well established that law enforcement officers may approach
someone on the street or in another public place and converse if the person is willing to
do so. There is no Fourth Amendment violation as long as circumstances are such that a
reasonable person would feel free to leave or end the encounter. [Citations.]” (People v.
Rivera (2007) 41 Cal.4th 304, 309.) Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty of a citizen may we conclude
that a seizure has occurred. (Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.)
Under the totality of the circumstances, a reasonable person in minor‟s position
would have believed that he was free to walk away when Deputy Salazar shined her
patrol light on minor and asked minor to come over to her. There was no detention under
the Fourth Amendment at that point.
Based on our independent review of the circumstances as a whole, we conclude
that minor‟s initial encounter with Deputy Salazar was consensual. The juvenile court
properly denied minor‟s motion to suppress.
15 III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
RICHLI J.