People v. J.G. , 175 Cal. Rptr. 3d 183 ( 2014 )

Filed 7/25/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re J.G., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.G., A139869
Defendant and Appellant. (San Francisco County
Super. Ct. No. JW 11-6377)
J.G. challenges juvenile court orders finding that he committed felony possession
of a concealed firearm and sentencing him to an unlocked facility for boys. He claims
that the court improperly denied his motion to suppress the firearm from being introduced
into evidence. We agree and therefore reverse the judgment.1
1
J.G. also asks us to review the transcript of an in camera hearing held under Pitchess v.
Superior Court (1974) 11 Cal. 3d 531, at which the juvenile court determined no law-
enforcement personnel records should be disclosed to J.G. Such a review is unnecessary
in light of our reversal of the judgment.
1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The relevant facts are undisputed. On January 7, 2012, at around 8:45 p.m.,
Officer Steven Woelkers was driving his patrol car in Daly City when he saw 15-year-old
J.G. walking across a parking lot toward D.G., who is J.G.’s brother. J.G. was carrying a
backpack. Officer Woelkers parked his patrol vehicle, without turning on its lights or
siren, and “casually” approached the brothers. He had decided to initiate “a consensual
encounter” with them because he “stop[ped] and talk[ed] to people all the time” on his
beat. He was wearing his uniform.
Officer Woelkers asked the brothers if he could speak to them, and J.G.
responded, “[Y]eah.” Officer Woelkers “made casual conversation . . . [and] asked [the
brothers] what they were up to.” J.G. said they were going to a party. Less than a minute
after Officer Woelkers started the conversation, Officer Edward Klier arrived in his patrol
vehicle to “assist . . . [¶] . . . [¶] . . . by monitoring the subjects as [Officer Woelkers] was
contacting them.” Officer Klier was standing about five to seven feet away from Officer
Woelkers. He could not remember most of the details of Officer Woelkers’s interaction
with them or whether he spoke to the brothers.
Officer Woelkers asked D.G. for identification, and D.G. gave him a Honduran
identification card. Officer Woelkers ran a records check that revealed that no California
driver’s license or identification card had been issued to D.G. He then asked J.G. if he
had any identification, and J.G. responded, “[N]o.” He asked J.G. for his name, and J.G.
gave him a false one. J.G. also provided a date of birth that, although inaccurate by a few
months, still indicated he was 15 years old. Officer Woelkers ran a records check and
learned that no California driver’s license or identification card had been issued to
anyone with the name and birthdate J.G. had provided. Officer Woelkers testified that it
was “not uncommon” for someone of J.G.’s approximate age not to have a California
driver’s license or identification card.
2
Officer Woelkers “asked [D.G.] if he had anything illegal on his person,” and D.G.
responded, “[N]o.” Officer Woelkers then “asked [D.G.] if [he] could go ahead and
search his person,” and D.G. responded, “[Y]es.” Officer Woelkers searched D.G. and
“found nothing illegal on his person.” He then asked J.G. “if he had anything illegal on
his person,” and J.G. said, “[N]ope.” Officer Woelkers “asked [J.G.] if [he] could search
his person,” and J.G. responded, “[Y]es.” Officer Woelkers then conducted the search,
which he testified normally consisted of his asking a subject “to place [the subject’s]
hands behind [the subject’s] back” and then “hold[ing the subject’s] hands with [his] left
hand” while patting the subject’s clothes and feeling inside the subject’s pockets. Officer
Woelkers found nothing illegal while searching J.G.
Meanwhile, two more officers, Officer Korey Sprader and Officer Sheldon,2
arrived to return a rifle to Officer Klier.3 Officer Klier retrieved the rifle and began
talking to Officers Sprader and Sheldon while Officer Woelkers continued to speak to
D.G. and J.G. At this point, four uniformed officers and three marked patrol cars were at
hand.
Officer Woelkers asked the brothers “if they would be willing to have a seat on the
curb.” They responded, “[Y]es,” and they sat down. Officer Woelkers then asked J.G.
“if that was his backpack that [Officer Woelkers] had seen him place down behind [a]
pole,” and J.G. said it was. Officer Woelkers inquired “if there was anything illegal in
it,” and J.G. stated, “[N]o.” Then, Officer Woelkers “asked J.G. if [he] could search it,”
and J.G. said, “[Y]eah.” When Officer Woelkers picked up the backpack, he noticed that
it felt heavy. He unzipped it and located a Smith & Wesson semiautomatic pistol inside.
Officer Woelkers put J.G. in handcuffs and asked Officer Sprader to place D.G. in
handcuffs “for officer safety purposes.” J.G. said, “That ain’t mine. I don’t know how it
got in there.”
2
Officer Sheldon’s full name does not appear in the record.
3
Officer Woelkers originally testified that he “believed” these officers arrived
immediately after he had searched J.G., but on cross-examination he said he could not
recall when they arrived.
3
About ten or fifteen minutes passed between Officer Woelkers’s first contact with
the brothers and his arrest of J.G. Officer Woelkers testified that throughout the
encounter, his demeanor was “[v]ery calm, casual.” Officer Klier similarly testified that
his own demeanor throughout the encounter was “[v]ery mellow” and that Officer
Woelkers’s was “[p]robably the same, casual.”
Three days after J.G. was arrested, the San Mateo County District Attorney filed a
petition under Welfare and Institutions Code section 602, subdivision (a) alleging that the
juvenile court had jurisdiction over him based on various allegations related to the
January 7 encounter, including one allegation of felony possession of a concealed firearm
by a minor.4 After J.G. admitted that allegation in June 2012, the remaining allegations
were dismissed and the case was transferred to San Francisco County for disposition.
J.G. then successfully moved to withdraw his plea, and an amended petition was
filed by the San Francisco County District Attorney. The amended petition alleged J.G.
had committed three felonies—possessing a concealed firearm as a minor, carrying a
concealed firearm, and carrying a loaded firearm in public—and one misdemeanor,
giving false identification information to a police officer.5
J.G. moved under Welfare and Institutions Code section 700.1 to suppress the
pistol from being introduced into evidence. The juvenile court denied the motion after a
contested hearing at which Officers Woelkers and Klier testified. The court found “both
officers’ testimony to be credible, that in fact this was a consensual stop, and that [J.G.]
consented to the search of his backpack leading to the discovery of the firearm.”
The following month, the contested jurisdictional hearing was held, and the
juvenile court sustained the amended petition’s allegation that J.G. had possessed a
concealed weapon and found the remaining allegations untrue. At the subsequent
4
This allegation was brought under Penal Code section 29610. All further statutory
references are to the Penal Code unless otherwise noted.
5
The felony allegations were brought under section 29610 (possessing a concealed
firearm as a minor); section 25400, subdivision (a)(2) (carrying a concealed firearm); and
section 25850, subdivision (a) (carrying a loaded firearm in public). The misdemeanor
allegation was brought under section 148.9, subdivision (a).
4
dispositional hearing, the court denied J.G.’s motion to reduce the charge to a
misdemeanor and committed J.G. to an unlocked facility for boys for not more than five
years and eight months.6
II.
DISCUSSION
J.G. argues that the juvenile court improperly denied his motion to suppress
because his consent to the search of his backpack was not voluntary. He contends that
his consent was not voluntary because he was detained when he gave it. We agree.
A. The Applicable Legal Standards.
The People bear the burden of justifying a warrantless search or seizure.
(People v. Suff (2014) 58 Cal. 4th 1013, 1053.) In particular, “[w]here, as here, the
prosecution relies on consent to justify a warrantless search or seizure, it bears the
‘burden of proving that the defendant’s manifestation of consent was the product of his
free will and not a mere submission to an express or implied assertion of authority.
[Citation.]’ [Citation.] Consent that is the product of an illegal detention is not voluntary
and is ineffective to justify a search or seizure.” (People v. Zamudio (2008) 43 Cal. 4th
327, 341.)
The only issue we need resolve under this framework is whether J.G. was detained
at any point before he consented to the search of his backpack. The parties do not dispute
that if we conclude J.G. was detained we must conclude that the detention was illegal
because there was no “reasonable [and] objective” “articulable suspicion that [he] ha[d]
committed or [was] about to commit a crime” until the pistol was discovered.7
(Florida v. Royer (1983) 460 U.S. 491, 498; People v. Stier (2008) 168 Cal. App. 4th 21,
6
The month before, J.G. had been committed to the same facility for a period not to
exceed five years in connection with his guilty plea to allegations in two previous
petitions filed in San Francisco County.
7
Although J.G. provided a false name and birthdate to Officer Woelkers, which is a
crime (§ 148.9, subd. (a)), Officer Woelkers did not become aware the information might
be false until after he arrested J.G. Accordingly, this false information could not have
been a basis for Officer Woelkers to have had, at the time of any detention, a reasonable
and objective suspicion that J.G. had committed or was about to commit a crime.
5
28.) The parties also do not dispute that if there was an illegal detention, J.G.’s consent
to the search of his backpack was not voluntary because it was the fruit of that detention.
(See People v. Zamudio, supra, 43 Cal.4th at p. 341.) And finally, the parties do not
dispute that if the motion to suppress was improperly denied, the error was prejudicial
under Chapman v. California (1967) 386 U.S. 18. (See People v. Neal (2003) 31 Cal. 4th
63, 86.)
The standards we use to review whether there was a detention are clear. “Whether
a seizure occurred within the meaning of the Fourth Amendment is a mixed question of
law and fact” subject to de novo review. (People v. Zamudio, supra, 43 Cal.4th at
p. 342.) “ ‘[W]e review the [lower] court’s findings of historical fact under the
deferential substantial evidence standard, but decide the ultimate constitutional question
independently.” (Ibid.) Here, as J.G. acknowledges, we “must defer to the juvenile
court’s findings that the two officers gave credible testimony and that [he] agreed to
allow Officer Woelkers to search his backpack.” And there are no contentions that these
findings were unsupported by substantial evidence. Accordingly, we must determine
whether a detention occurred as a matter of law based on the facts as established by the
officers’ testimony.
B. J.G. Was Detained Before He Consented to the Search of His
Backpack.
A seizure of a person implicating the Fourth Amendment occurs “ ‘when [a
police] officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.’ ” (Florida v. Bostick (1991) 501 U.S. 429, 434.) An
officer must either “intentionally appl[y] hands-on, physical restraint” or “initiate a show
of authority, to which the objectively reasonable innocent person would feel compelled to
submit, and to which the suspect actually does submit for reasons solely attributable to
the police show of authority.” (People v. Cartwright (1999) 72 Cal. App. 4th 1362, 1367,
italics omitted.) “Unlike a detention, a consensual encounter between a police officer and
an individual does not implicate the Fourth Amendment. It is well established that law
enforcement officers may approach someone on the street or in another public place and
6
converse if the person is willing to do so” without having any “articulable suspicion of
criminal activity.” (People v. Rivera (2007) 41 Cal. 4th 304, 309.) “[T]he crucial test is
whether . . . the police conduct would ‘have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about his business.’ ” (Florida v.
Bostick, at p. 437.) This test “is an objective one: not whether the citizen perceived that
he was being ordered to restrict his movement, but whether the officer’s words and
actions would have conveyed that to a reasonable person.” (California v. Hodari D.
(1991) 499 U.S. 621, 628.)
In determining whether a reasonable person would have believed he or she was
free to ignore the police presence and go about his business, a court “ ‘must consider all
the circumstances surrounding the encounter’ . . . [and] assess[] the coercive effect of
police conduct as a whole, rather than emphasizing particular details of that conduct in
isolation.” (In re Manuel G. (1997) 16 Cal. 4th 805, 821.) Relevant factors include “the
presence of several officers, an officer’s display of a weapon, some physical touching of
the person, or the use of language or of a tone of voice indicating that compliance with
the officer’s request might be compelled.” (Ibid.) The officer’s and the suspect’s
subjective states of mind, however, are “irrelevant in assessing whether a seizure
triggering Fourth Amendment scrutiny has occurred.” (Ibid.)
J.G. argues that we should account for his age in considering whether a reasonable
person would have felt free to end the encounter. He relies on J.D.B. v. North Carolina
(2011) 131 S. Ct. 2394 (J.D.B.), in which the United States Supreme Court held that “the
age of a child subjected to police questioning is relevant” to determining whether a
defendant has been taken into custody for purposes of Miranda v. Arizona (1966)
384 U.S. 436, “so long as the child’s age was known to the officer at the time of police
questioning[] or would have been objectively apparent to a reasonable officer.” (J.D.B.,
at pp. 2398-2399, 2406.) Like the analysis whether a person has been detained under the
Fourth Amendment, the analysis “whether a suspect is ‘in custody’ ” under the Fifth
Amendment “is an objective inquiry,” focusing on whether under the circumstances “ ‘a
reasonable person [would] have felt he or she was at liberty to terminate the interrogation
7
and leave.’ ” (Id. at p. 2402.) In J.D.B., the Supreme Court determined that “a child’s
age ‘[could] affect[] how a reasonable person’ in the suspect’s position ‘would perceive
his or her freedom to leave’ ” and that “a reasonable child subjected to police questioning
will sometimes feel pressured to submit when a reasonable adult would feel free to go.”
(Id. at pp. 2402-2403.)
J.D.B.’s holding—that a juvenile’s age is a factor in the reasonable-person
analysis of Fifth Amendment custody—may implicate “other areas of criminal
procedure—including voluntariness of waivers of rights and seizure inquiries” as well as
areas of substantive criminal law, such as “blameworthiness of [the subject’s] conduct
and/or state of mind.” (Levick & Tierney, The United States Supreme Court Adopts a
Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the Miranda
Custody Analysis: Can a More Reasoned Justice System for Juveniles Be Far Behind?
(2012) 47 Harv.C.R.-C.L. L.Rev. 501, 517, fn. 121.) The holding seems particularly
fitting for search-and-seizure analyses since the tests for custody under the Fifth
Amendment and detentions under the Fourth Amendment both focus on how reasonable
persons would perceive their interaction with the police. (See People v. Pilster (2006)
138 Cal. App. 4th 1395, 1403, fn. 2.) And extending the holding to search-and-seizure
cases would not be much of a stretch because the United States Supreme Court suggested
long before it announced J.D.B. that a minor’s age matters in evaluating whether the
minor was seized. (See Kaupp v. Texas (2003) 538 U.S. 626, 630-631 [“A 17-year-old
boy was awakened in his bedroom at three in the morning by at least three police
officers . . . . [¶] . . . [A] group of police officers rousing an adolescent out of bed in the
middle of the night with the words ‘we need to go and talk’ presents no option but ‘to
go’ ”].) As J.D.B. pointed out, “ ‘[o]ur history is replete with laws and judicial
8
recognition’ that children cannot be viewed simply as miniature adults.” (See J.D.B., at
pp. 2403-2404.)8
Although we recognize the strength of the argument that J.D.B.’s holding should
be extended to Fourth Amendment custody determinations, we need not resolve the issue
here because we conclude that a reasonable person in J.G.’s position would not have felt
free to go regardless of his or her age. We begin by accepting that Officer Woelkers’s
interaction with J.G. began as a consensual encounter. “Approaching a person,
requesting to speak with him [and] asking for permission to search him . . . do not
transform an otherwise consensual encounter into a detention.” (People v. Coulombe
(2000) 86 Cal. App. 4th 52, 57, fn. 3.) Nor did Officer Woelkers’s request for J.G.’s
identification, name, and birthdate transform the encounter into a detention. (See
Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County (2004) 542 U.S. 177,
185 [“[i]n the ordinary course a police officer is free to ask a person for identification
without implicating the Fourth Amendment”].) But the consensual encounter turned into
a detention as Officer Woelkers’s suspicions persisted without apparent reason, as the
encounter became increasingly intrusive, as the minutes passed, and as the police
presence and show of force grew. We conclude that by the time Officer Woelkers asked
8
The Attorney General argues that accounting for age would create uncertainty and a
slippery slope because the same principle “could be applied to other identifiable groups
based on age, gender, and ethnicity” and “would require a police officer to adjust the test
to each person that [the] officer encounters.” But J.D.B. rejected the argument that
accounting for a child’s age would undermine the “clarity” provided by “the objective
custody test.” (J.D.B., supra, 131 S.Ct. at p. 2407.) The Supreme Court pointed out that
certain “ ‘commonsense conclusions about behavior and perception’ ”—including that
“children ‘generally are less mature and responsible than adults,’ [citation]; that they
‘often lack the experience, perspective, and judgment to recognize and avoid choices that
could be detrimental to them,’ [citation]; and they ‘are more vulnerable or susceptible
to . . . outside pressures’ than adults”—“apply broadly to children as a class,”
distinguishing a child’s age “from other personal characteristics that, even when known
to police, have no objectively discernible relationship to a reasonable person’s
understanding of his freedom of action.” (J.D.B., supra, 131 S.Ct. at pp. 2403-2404.) As
J.D.B. makes clear, children are a special demographic whose characteristics may be
considered without undermining the purposes of an objective evaluation from a
reasonable person’s standpoint.
9
J.G. to sit on the curb, a reasonable person in J.G.’s circumstances would not have felt
free to end the encounter.
The Attorney General argues that asking, as opposed to directing, a person to sit
on the curb does not normally constitute a detention. She relies on People v. Cartwright,
supra, 72 Cal. App. 4th 1362, which held that “a mere request, as opposed to a command
directing the person’s movements, does not constitute a Fourth Amendment restraint.”
(Id. at p. 1370; cf. People v. Mendoza (2011) 52 Cal. 4th 1056, 1081-1082 [defendant was
detained where officer ordered him to sit on the curb].) We accept that an officer’s
asking a person to sit on the curb, without more, does not generally constitute a detention.
But Cartwright does not support the broad proposition that phrasing a statement as a
request rather than a command necessarily prevents a detention from occurring. As
Cartwright recognizes, if “the content or form of the question impart[s] any compulsion
to comply,” there may be a “basis for finding [the suspect] was under the kind of restraint
associated with a Fourth Amendment detention.” (Cartwright, at p. 1370; see also In re
Manuel G., supra, 16 Cal.4th at p. 821 [indicators that “compliance with the officer’s
request might be compelled” relevant to Fourth Amendment analysis].)
Here, the totality of the circumstances would have conveyed to a reasonable
person—juvenile or adult—that he or she was not free to refuse the request. (See In re
Manuel G., supra, 16 Cal.4th at p. 821.) Most significantly, the request was made after
Officer Woelkers had clearly conveyed to the brothers that he suspected them of unlawful
activity. “[Q]uestions of a sufficiently accusatory nature may by themselves be cause to
view an encounter as a nonconsensual detention[,] . . . and the degree of suspicion
expressed by the police is an important factor in determining whether a consensual
encounter has ripened into a detention.” (People v. Lopez (1989) 212 Cal. App. 3d 289,
292-293; see also Wilson v. Superior Court (1983) 34 Cal. 3d 777, 790 [detention
occurred where officer informed defendant that he believed defendant was “ ‘carrying a
lot of drugs,’ ” italics omitted].) Officer Woelkers asked both J.G. and D.G. whether they
had anything “illegal,” conducted a records check, and searched them, including their
pockets, while physically restraining them.
10
Furthermore, as the encounter continued and became increasingly intrusive, the
police presence and show of force grew. Ultimately, four uniformed officers and three
patrol cars were on hand, and a weapon had been displayed. Together, these factors
indicate an unusually strong police presence for a supposedly casual interaction. (See
United States v. Mendenhall (1980) 446 U.S. 544, 555; In re Manuel G., at p. 821.)
Under these circumstances, we conclude that Officer Woelkers’s request that J.G.
sit on the curb resulted in a detention.9 As a result, the ensuing search of the backpack
violated the Fourth Amendment, and the juvenile court’s denial of J.G.’s motion to
suppress was therefore improper.
III.
DISPOSITION
The judgment is reversed with directions to grant the motion to suppress.
9
An officer is not required to inform a suspect of his or her freedom to decline
cooperation or to leave. (See United States v. Drayton (2002) 536 U.S. 194, 202-204;
United States v. Mendenhall, supra, 446 U.S. at p. 555.) But if Officer Woelkers had told
J.G. that he was free to decline to sit on the curb, any subsequent acquiescence on J.G.’s
part would have strongly suggested that that he had not been detained. (Cf. People v.
Profit (1986) 183 Cal. App. 3d 849, 879-800 [fact that federal agent “affirmatively advised
the defendants on four occasions that they did not have to speak to him and were free to
leave” supported conclusion that no detention occurred].)
11
_________________________
Humes, J.*
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
* Presiding Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. J.G. (A139869)
12
Trial Court: San Francisco County Superior Court
Trial Judge: Honorable Suzanne Ramos Bolanos
Counsel for Appellant: Michael Allen, under appointment by the First District
Appellate Project
Counsel for Respondent Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Gerald A. Engler,
Senior Assistant Attorney General, Rene A. Chacon,
Supervising Deputy Attorney General, Ronald E.
Niver, Deputy Attorney General, Masha A. Dabiza,
Deputy Attorney General, Noel Walton, Certified Law
Student
13