In Re Frank

233 Cal. App. 3d 1232, 285 Cal. Rptr. 16
CourtCalifornia Court of Appeal
DecidedAugust 30, 1991
DocketG009810
StatusPublished
Cited by23 cases

This text of 233 Cal. App. 3d 1232 (In Re Frank) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Frank, 233 Cal. App. 3d 1232, 285 Cal. Rptr. 16 (Cal. Ct. App. 1991).

Opinion

233 Cal.App.3d 1232 (1991)
285 Cal. Rptr. 16

In re FRANK V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
FRANK V., Defendant and Appellant.

Docket No. G009810.

Court of Appeals of California, Fourth District, Division Three.

August 30, 1991.

*1236 COUNSEL

Edward K. Alexander, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Janelle B. Davis and Yvonne H. Behart, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WALLIN, J.

Frank V. appeals the judgment declaring him a ward of the court, contending the trial court improperly denied his motion to suppress *1237 evidence and restricted his right to association by imposing an overbroad condition of probation. We affirm.

About 9:45 p.m., Officers Michael Luke and Gary Kirby were dispatched to investigate a report of reckless motorcycle driving on a street in an active gang area. There was no traffic when the officers arrived, but Officer Luke noticed a motorcycle pulling away from the curb in front of a house known for gang activity. The officers made a U-turn, intending to make a traffic stop. (1) (See fn. 1.) As soon as they turned the motorcycle pulled to the curb, even though the officers did not use their overhead lights or siren or signal in any other fashion.[1]

As the officers approached the motorcycle, the driver held out what appeared to be a driver's license in his left hand. Frank, the passenger, was looking straight ahead with both hands in the front pockets of a bulky leather jacket. On Officer Luke's order, Frank took his hands out of his pockets. When he tried to put them back in, Luke told him to keep them out. Officer Luke did a patdown search of Frank for weapons and discovered a gun in Frank's right front jacket pocket.

Frank was adjudged a ward of the court and granted probation. The terms included orders that he obey all gang terms and conditions of probation and not associate with anyone disapproved of by his probation officer.

I

(2a) Frank claims the trial court improperly denied his motion to suppress evidence because he was unlawfully detained. Although he was certainly detained at the moment of the patdown, we must first determine if he was unlawfully detained when the officers made their initial contact. (3) "The United States Supreme Court has identified three categories of police contact with persons. The first is referred to as a `consensual encounter' in which there is no restraint on the person's liberty. There need be no objective justification for such an encounter. The second type, called `detention,' involves a seizure of the individual for a limited duration and for limited purposes. A constitutionally acceptable detention can occur `if there is an articulable suspicion that a person has committed or is about to commit a crime.' The third type involves seizures in the nature of an arrest, which may occur only if the police have probable cause to arrest the person for a crime. [Citations.]" (People v. Bailey (1985) 176 Cal. App.3d 402, 405 [222 Cal. Rptr. 235].)

(2b) Here, the motorcycle was not detained. Since it had already voluntarily pulled over to the curb before the officers completed the U-turn or *1238 displayed any gesture of authority, such as using overhead lights or a siren, there was no restraint of liberty by the police. (People v. Bailey, supra, 176 Cal. App.3d 402, 405.) Because the motorcycle was not detained, neither was Frank.[2] Although Frank may have believed he was under official scrutiny, the objective indicia of a detention were absent. (Ibid.; see also People v. Franklin (1987) 192 Cal. App.3d 935, 940 [237 Cal. Rptr. 840].)

Officer Luke's order to Frank to remove his hands from his pockets did not transform the consensual encounter into a detention. We are sensitive to the delicate balance between Fourth Amendment rights and a police officer's safety. "`Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.' [Citation.] ... Indeed, it appears `that a significant percentage of murders of police officers occurs when the officers are making traffic stops.' ... [¶] What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 [54 L.Ed.2d 331, 336-337, 98 S.Ct. 330].)

(4) Mimms left open the question whether the same rule applies equally to passengers but California cases had previously allowed officers conducting an investigation to request a suspect to step out of the vehicle or to keep his hands in sight for officer safety. (People v. Superior Court (1972) 7 Cal.3d 186, 206, fn. 13 [101 Cal. Rptr. 837, 496 P.2d 1205]; see also People v. Padilla (1982) 132 Cal. App.3d 555, 558 [183 Cal. Rptr. 97]; People v. Maxwell (1988) 206 Cal. App.3d 1004, 1008 [254 Cal. Rptr. 124].) To justify ordering a passenger out of a vehicle, "even an inchoate and unparticularized suspicion that it would be better for the officer's safety for the passenger to alight is sufficient to justify such a request, because merely stepping out of the vehicle is a minimal intrusion upon privacy, far less than involved in a bodily search, a frisk, or a search of the vehicle. [Citations.]" (People v. Beal (1974) 44 Cal. App.3d 216, 221 [118 Cal. Rptr. 272].) (2c) Requesting Frank to keep his hands in sight was even less intrusive.

This is so even though Frank was not the original focus of the officers' attention. In People v. Stafford (1972) 28 Cal. App.3d 405 [104 Cal. Rptr. 754], two officers on patrol stopped to assist another officer holding a prisoner. The defendant happened to be standing next to a woman who appeared drunk and was yelling abusively. One of the officers stopped the woman and his partner ordered the defendant to remove his hands from his *1239 pockets. In upholding that order the court found the "defendant presented a potential danger to his partner's safety and [the officer] chose a means of neutralizing that danger which involved a minimum intrusion. [Citations.]" (Id. at p. 410.)

Frank relies on People v. Franklin (1987) 192 Cal. App.3d 935 [237 Cal. Rptr. 840]. There the court reasoned: "It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not. [¶] Therefore, the nature of the officer's request here — asking that appellant remove his hands from his pockets — does not convert the encounter into a detention. However, if the manner in which the request was made constituted a show of authority such that appellant reasonably might believe he had to comply, then the encounter was transformed into a detention." (Id. at p. 941.) The court in Franklin was concerned with the manner of the communication. It distinguished asking from ordering to determine if the request to remove hands from pockets transformed a consensual encounter into a detention. (Ibid.)

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Cite This Page — Counsel Stack

Bluebook (online)
233 Cal. App. 3d 1232, 285 Cal. Rptr. 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-frank-calctapp-1991.