In re W.B. CA2/8 ( 2014 )

Filed 4/3/14 In re W.B. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re W.B., a Person Coming Under the B249718
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. YJ37053)
THE PEOPLE,
Plaintiff and Respondent,
v.
W.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Irma J.
Brown, Judge. Affirmed.
Esther R. Sorkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Jessica B.
Owen, Deputy Attorneys General, for Plaintiff and Respondent.
*********
While on juvenile probation for theft, W.B. (sometimes referred to herein as “the
minor”), acting with an accomplice, robbed two people of a wallet and a cell phone. The
victims described the two robbers to the police. Less than an hour later, within a few
blocks of the place where the robberies were committed, the police officer who took the
robbery report spotted W.B. exactly matching the description of one robber, standing
near another male who loosely matched the description of the second robber. The officer
told W.B. to stop and immediately handcuffed him, then searched him twice. In the first
search, the officer was looking for weapons for safety reasons. No weapon was found.
In the second search, the officer found in the pocket of the minor’s sweatpants the cell
phone taken from one of the robbery victims.
The trial court found W.B. had committed two felony counts of robbery. The only
issue on appeal is the minor’s argument the search was unlawful, so the trial court should
have excluded evidence that one of the victim’s cell phone was found in the minor’s
pocket. We affirm on the basis there was probable cause to arrest the minor because he
matched the victims’ detailed description of one of the robbers, was accompanied by a
second male who partly matched the description of the second robber, and was in the
same area where the crimes were committed less than an hour before, so the search was
conducted pursuant to a lawful arrest.
FACTS
In 2012, W.B. was 14 years old, living with his older brother and their grandfather
and attending school, when he committed his first crime. On October 24, at about
8:30 p.m., W.B., together with another minor and an adult, approached a woman on the
street and demanded her cell phone. The woman refused to hand over her cell phone, so
the other minor reached for her purse. Again, she resisted, at which point W.B. pulled a
small handgun from his sweatshirt pocket and pointed it at the woman. In fear, the
woman gave them her purse. Several surveillance videos from various stores in the area
showed W.B. and his companions using the victim’s credit cards to buy gas, food and
other items that day and the next day. After he was arrested, W.B. admitted being
affiliated with members of the “46 Crips” street gang and that he used marijuana.
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In court, W.B. made a plea agreement, which the court accepted, to strike the first
and second counts of the juvenile delinquency petition alleging robbery and receiving
stolen property in exchange for W.B. admitting the truth of the third count of theft of the
victim’s credit cards. He was declared a ward of the court and permitted to remain at
home on probation. But three months after committing his first crime, shortly after his
15th birthday, and only seven weeks after he was placed on probation, W.B. committed
the robberies described below.
On April 11, 2013, a Welfare and Institutions Code section 602 petition was filed
charging W.B. with two counts of second degree robbery (Pen. Code, § 211). The
juvenile court held an evidentiary hearing at which the two robbery victims and the
arresting police officer testified. One of the victims, Miguel Ayon testified that on
January 23, 2013, around 4:30 p.m., he and his girlfriend, Graciela Lopez, were walking
on Gramercy Place toward Vernon Avenue, when the minor and another black male
approached them. The minor asked Mr. Ayon where he was from and followed closely
behind him, while the other male walked alongside Mr. Ayon. The two followed
Mr. Ayon and Ms. Lopez, practically sandwiching the two victims in between them, as
they continued walking the entire block until they reached Vernon.
Mr. Ayon heard the minor say he had a gun and should just kill Mr. Ayon because
he was sure Mr. Ayon was someone he knew. Mr. Ayon and Ms. Lopez kept walking,
holding hands, pretending to ignore the minor and his accomplice, though Mr. Ayon
looked back at the minor about three times as they walked. The minor approached to
within three or four feet of Mr. Ayon and told him to take his stuff out of his pockets.
Mr. Ayon said he did not have anything. The minor demanded Mr. Ayon give him the
wallet in his back pocket. Mr. Ayon gave his wallet to the minor because he believed he
had a gun in his hand. The minor’s accomplice took Ms. Lopez’s cell phone which she
had in her hand. After robbing the victims, the minor said what gang he was from, that
he knew where Mr. Ayon lived, and that if Mr. Ayon told anyone about the robbery, he
would kill him.
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Mr. Ayon identified the minor in court as the person who took his wallet and
testified that, although the minor was behind him during most of the encounter, it was not
possible he could have mistaken the minor because when he identified the minor to the
police shortly after the robbery, he was wearing exactly the same clothes that he was
wearing at the time of the robbery.
Ms. Lopez also identified the minor in court and corroborated the testimony of
Mr. Ayon. After the robbery, Ms. Lopez went to the police station, where she was told to
call in a report of the crime. As she was walking back home from the police station,
Ms. Lopez saw the minor and his accomplice standing at Western and Vernon. She
called 911 and gave a description of the minor and his accomplice, then returned home.
She reported to police that the minor was wearing red sweat pants, and his accomplice
was wearing a green hoodie. The officer called her back to tell her she needed to identify
a suspect, and she identified W.B. in the field after his arrest. The officer returned her
cell phone to her.
Los Angeles Police Officer Patrick Lane testified he was the first officer to contact
the minor at about 5:25 p.m. that day, less than an hour after the robbery. Officer Lane
had taken a robbery report directly from the victims, who described the robbers and told
him a wallet was taken from Mr. Ayon and a cell phone was taken from Ms. Lopez.
They described one of the robbers as a black male, about five feet nine inches tall, with a
thin build, dark complexion, wearing a dark baseball hat or beanie, a black T-shirt, and
red sweat pants. Officer Lane saw the minor matching this description, standing on the
sidewalk in front of a house at 46th and Western, less than a mile from Gramercy Place
and Vernon Avenue, where the robbery took place. The minor was standing with another
male who loosely matched the description the victims had given (same height and weight
but wearing different clothes), but he walked off and Officer Lane was unable to detain
him.
Officer Lane told W.B. to stop, turn around and not to leave, and immediately put
him in handcuffs. He told the minor something to the effect that he was conducting an
investigation. He conducted a brief patdown search, which he described as a “loose”
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search, to be sure the minor did not have a weapon, and then, because he was alone,
Officer Lane called for backup. A sergeant and other officers arrived within 30 seconds,
at which point Officer Lane did a more thorough patdown search and felt a hard object
that he believed to be a cell phone in the minor’s pocket. He put his hand in the minor’s
pocket and removed the cell phone. Officer Lane left the minor with the sergeant and
went to pick up Mr. Ayon and Ms. Lopez and bring them to the scene for a field showup
to see if they could identify the minor as one of the robbers. Officer Lane showed
Ms. Lopez the phone, and she said it was hers. She unlocked it and showed him a picture
of Mr. Ayon.
After hearing this evidence and the arguments of counsel, the trial court denied the
minor’s motion to suppress the evidence obtained in the search. The trial court found the
evidence was admissible because Officer Lane had probable cause to arrest and search
the minor. The court explained the minor was apprehended shortly after the victims
reported the robbery, less than a mile from where the robbery took place, and he matched
the detailed description the victims reported to police. In addition, the minor was
standing near another male who loosely met the description of the accomplice (same
height and weight as reported, but wearing different clothing). The court distinguished
the only case cited by the minor in support of the suppression motion, People v. Curtis
(1969) 70 Cal. 2d 347 (Curtis), disapproved on other grounds in People v. Gonzalez
(1990) 51 Cal. 3d 1179, 1222, where an officer’s arrest and search were found to be
unlawful because they were based on a cursory, general description of a suspect in the
general area of a reported crime. The trial court found that in contrast, here the two
victims gave the arresting officer a detailed description of the minor and his accomplice,
who had flanked the victims at close proximity, and the minor matched the description
exactly.
The court declared W.B. a ward of the court and ordered him on probation for
six months with placement for three months in the Camp Community Placement
Program. This appeal followed, challenging only the ruling on the minor’s suppression
motion.
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DISCUSSION
On appeal, the minor relies on Curtis, supra, and People v. Craig (1978) 86
Cal. App. 3d 905 (Craig), as support for the proposition that the victims’ description of the
minor and his accomplice was insufficient to establish probable cause to arrest and search
him. He acknowledges the description given to police would justify an investigatory
detention but contends it was not sufficient to justify a search incident to arrest. The
minor also acknowledges that in this case, the standard for probable cause to search is the
same as that for probable cause to arrest. Respondent argues the stop was only a
detention incident to an investigation and the cell phone was discovered, or would have
been discovered, pursuant to a search lawfully conducted for officer safety; or in the
alternative, that it was a valid search pursuant to a lawful arrest.
The trial court did not find, and Officer Lane’s testimony does not provide,
substantial evidence to support a finding that he only detained the minor to conduct an
investigation. Officer Lane testified he immediately handcuffed the minor, and the first,
“loose” search was to see if the minor had a weapon. But he did not testify that the
second patdown search which led to the discovery of Ms. Lopez’s cell phone was for
purposes of officer safety. We understand the gist of Officer Lane’s testimony about the
second search, conducted after other officers arrived some 30 seconds after his call for
backup, was that he wanted to see if the minor had Ms. Lopez’s cell phone in his pocket;
in other words, he was looking for evidence that the minor committed the robberies.
The trial court found Officer Lane had probable cause to arrest W.B. when he
encountered him on the street less than a mile from the scene of the robbery, matching
the detailed description the victims had given him, in the company of another male who
loosely matched the description of the accomplice, and therefore the officer was entitled
to search the minor for evidence of the crimes. There is no dispute as to the facts; thus,
we use independent judgment to determine whether, on the facts described above, the
arrest was lawful and, consequently, the search of the minor’s pocket and seizure of the
cell phone were lawful. (People v. Glaser (1995) 11 Cal. 4th 354, 362.)
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The Fourth Amendment to the United States Constitution protects people against
unreasonable searches and seizures conducted without a warrant. The Fourth
Amendment is part of the Bill of Rights and reflects a long struggle between our
country’s founding fathers and Great Britain against governmental assertion of nearly
unlimited powers to search and seize. (1 LaFave, Search and Seizure (5th ed. 2012)
§ 1.1(a), pp. 3-5.) All evidence obtained by searches and seizures in violation of the
Fourth Amendment is inadmissible in a criminal trial in state courts. (Mapp v. Ohio
(1961) 367 U.S. 643.) This is the “exclusionary rule,” and a motion to exclude illegally
obtained evidence, like the motion made in this case, is a motion to suppress.
A search conducted without a warrant, as in this case, is presumed illegal unless it
comes within an exception to the general rule that warrantless searches are per se
unreasonable. (People v. Fay (1986) 184 Cal. App. 3d 882, 891 (Fay).) The prosecution
has the burden of justifying a warrantless search or seizure by proving that it falls within
a recognized exception to the warrant requirement. (People v. Williams (1999) 20
Cal. 4th 119, 130; People v. James (1977) 19 Cal. 3d 99, 106.)
A search incident to a lawful arrest is one of those exceptions, permitting the
seizure of weapons and evidence on the arrestee’s person or within his immediate reach;
such a search is justified by the need to prevent the disappearance or destruction of
evidence of a crime. (Gustafson v. Florida (1973) 414 U.S. 260, 263-266; U.S. v.
Robinson (1973) 414 U.S. 218, 225-236.) A search incident to an arrest may precede the
arrest. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111 [“Where the formal arrest
followed quickly on the heels of the challenged search of petitioner’s person, we do not
believe it particularly important that the search preceded the arrest rather than vice
versa.”]; People v. Ingle (1960) 53 Cal. 2d 407, 413 (Ingle) [“Where an arrest is lawful
the search incident thereto is not unlawful merely because it precedes rather than follows
the arrest.”].)
The California Penal Code embodies these principles and provides in pertinent
part: “A peace officer may arrest a person . . . without a warrant . . . whenever . . .
[¶] . . . [¶] . . . [t]he officer has probable cause to believe that the person to be arrested
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has committed a felony, whether or not a felony, in fact, has been committed.” (§ 836,
subd. (a)(3).) “The crucial point is whether probable cause to arrest existed prior to the
search . . . .” (Fay, supra, 184 Cal.App.3d at p. 892.) Probable cause has been generally
defined as a state of facts that “would lead a man of ordinary care and prudence to
believe and conscientiously entertain an honest and strong suspicion that the person is
guilty of a crime.” (Ingle, supra, 53 Cal.2d at p. 412.) Probable cause is a “fluid
concept--turning on the assessment of probabilities in particular factual contexts . . . .”
(Illinois v. Gates (1983) 462 U.S. 213, 232.)
We agree with the trial court that Officer Lane had probable cause to arrest the
minor when he encountered him on the street less than a mile from the scene of the
robbery, less than an hour after the robberies had been committed, and just after Officer
Lane obtained a detailed description of the minor and his accomplice from the victims.
Ms. Lopez reported she saw the minor with his accomplice again on the street when she
was on her way home from the police station, wearing the same attire that he wore at the
time of the robberies. Since the minor and his accomplice were on foot when they
committed the robberies, and they were still a short time later on foot when Ms. Lopez
saw them on a nearby street, Officer Lane had every reason to look for the minor on foot
in the same neighborhood. When he spotted W.B., he exactly matched the description
the victims had conveyed directly to Officer Lane: a black male about five feet nine
inches tall, with a thin build and dark complexion, wearing distinctive clothing, including
a dark baseball hat or beanie, a black T-shirt, and red sweat pants. He was in the
company of another black male whose height and weight matched the description the
victims gave, although he was wearing different clothes than they described. Under these
circumstances, Officer Lane had probable cause to believe the minor had committed a
robbery, and therefore, probable cause to arrest the minor without a warrant and to
conduct a search for weapons and evidence.
We are not persuaded the two cases on which the minor relies support his
argument there was no probable cause to arrest and search him. The first case, Curtis,
supra, primarily dealt with the question whether the defendant had lawfully used violence
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against a police officer to resist an unlawful arrest. In that case, an officer on patrol
received a report of a prowler and, seeing defendant on the street, ordered him to stop.
The officer got out of his vehicle in full uniform, told defendant he was under arrest and
reached for his arm, but defendant backed away and a violent struggle followed. Most of
the opinion is devoted to an analysis of whether it is legal to use force against a police
officer to resist an unlawful arrest. (Curtis, supra, 70 Cal.2d at pp. 350-357.)
In a brief discussion, the court found there was no probable cause to arrest the
defendant because the only information the officer possessed was a general description of
the suspect and the general area of a burglary. The officer “had received a cursory
description of the suspect as a male [black], about six feet tall, wearing a white shirt and
tan trousers. While cruising the neighborhood in his patrol car, the officer observed
defendant, who matched the foregoing general description, walking along the street.”
(Curtis, supra, 70 Cal.2d at pp. 350, 358.) The opinion does not make clear who reported
seeing a prowler, when and where he was seen, what exactly he was reported to have
done, how much time had passed between the report of a prowler and the officer spotting
defendant on the street, nor how far away defendant was from the scene of a burglary
when police received a report of a prowler and the officer subsequently encountered him.
We agree with the Curtis court that the cursory, general description of a black man about
six feet tall wearing a white shirt and tan pants, without more, did not establish probable
cause to arrest the defendant just because he was walking in the general area of a reported
burglary. But, as explained above, this case is markedly different, because the victims
gave Officer Lane a more detailed description of the minor dressed in distinctive attire,
who was seen shortly after, near the scene of the robberies.
The second case on which the minor relies is Craig, supra, 86 Cal. App. 3d 905. In
that case, the court held the “general” description given by a victim of three robbery
suspects was sufficient to justify the officers detaining the three to investigate, and that
after the victim identified two of the men in the field while they were seated in the lighted
squad car, the officers were also entitled to arrest all three and search the car in which
they had been driving for evidence. (Id. at pp. 911-913.) The minor argues this case
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supports his claim that Officer Lane was only entitled to detain him for investigation but
not to search his pocket for evidence. We disagree, finding that Craig is also
distinguishable from the facts in this case.
The three suspects in Craig were all generally described in substantially the same
way, as three black males. The victim described the first suspect as a black male with a
small Afro, five feet nine inches tall, medium build, wearing blue levis. He described the
second as a black male with a medium Afro, wearing a yellow beanie-type hat with
“Cheerios” on the back, and a torn shirt. He described the third as a black male with a
small Afro. (Craig, supra, 86 Cal.App.3d at p. 912, fn. 1.) But when the suspects were
stopped, one was wearing pink curlers in his hair, a distinctive detail that the victim
would be expected to have noticed and included in the description he gave police. None
of the suspects was wearing a “Cheerios” beanie or a torn shirt. (Ibid.) The Craig court
concluded, and we agree, that the suspects matched the descriptions given to police
closely enough to justify the officers detaining them to conduct a field showup but not to
arrest them until after the victim had identified two of them. Craig therefore does not
support W.B.’s position, because unlike the suspects in the Craig case, the minor in this
case matched exactly the victims’ description of him, including race, gender, height,
complexion, and his distinctive clothing.
We conclude Officer Lane had probable cause to arrest W.B. for the robberies of
Mr. Ayon and Ms. Lopez, and to conduct a search for evidence of the crimes, and
therefore, it was proper to admit the evidence of Ms. Lopez’s cell phone that was
discovered in the minor’s pocket.
DISPOSITION
The order is affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J. RUBIN, J.
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