Filed 2/13/15 In re A lbert V. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

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

THE PEOPLE, Plaintiff and Respondent,

v. ALBERT V., Defendant and Appellant. F068956 (Super. Ct. No. 513483)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Stanislaus County

. Valli K.
Israels , Judge.
Kristen Owen , under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan , Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Cornell, Ac ting P.J., Poochigian, J., and Detjen, J.2

The court adj udged appellant, Albert V., a ward of the court after it sustained a petition charging Albert with possession of a concealable handgun (Pen. Code, § 29610)

. On appeal, Albert contends the court erred when it denied his motion to suppress.
We affirm.
FA CTS On November 26, 2013, Albert was a passenger in a n SUV that was stopped by Modesto police officers. During the stop the officers found a handgun in Albert ’s pants ’ pocket and arrested him. On December 2, 2013, the district attorney filed a petitio n charging Albert with possession of a concealable handgun. On December 24, 2013, Albert filed a motion to suppress. On February 3, 2014, the court heard the motion at a combined jurisdiction and disposition hearing. During the hearing , Modesto Poli ce Officer Dwight Miller testified
that on November 26, 2013, while working i n the street gang unit , he and Officer John
Carrico were parked in a patrol car near Avalon and S utter, a high gang crime area , watching traffic. At approximately 12:26 p.m. Offi cer Miller noticed an SUV travelling
north on Sutter driv en by Jaime Chavez, a N orteño gang member who se driving privilege had been suspended and who was on searchable probation. Officer Miller initiated a stop
and he and Officer Carrico approached the SU V with guns drawn. A second Norteño gang member , Subhe Qarqat, was sitting in th e front passenger seat and Albert was sitting in the back seat. Albert was wearing a black and red hat and a red sweatshirt. The clothing gave Officer Miller the impression that Albert was a N orteño gang member
because r ed is the primary color of identification for th at gang. Additionally Albert’s
clothes were baggy and he had a bulge in one of his pants ’ pocket s

. After verifying that C h avez’s driving privilege was suspen ded the officers
intended to cite him, conduct a probation search of his vehicle , and possibly tow it after3

conducting an inventory search. In order to search the SUV the officers had to get everyone out

. Additionally, so that he did not have to have his back towards Albert while he spoke to the driver, Officer Miller took Albert out of the car first. B ased on the totality of the circumstances Officer Miller placed Albert in handcuffs.
Officer Miller asked Albert if he could search him for a n ything il legal an d Albert responded that he coul d not. Nevertheless , for officer safety M iller did a pat search of Albert and in Albert’s right pants ’ pocket he touched an object that felt like the handle of
a gun. The other side of the object felt like the muzzle of a gun. Officer Miller asked
Albert if it was a gun and he replied that it was. Officer M iller re m oved the gun and
discovered that the object was a

. 22

- caliber Derringer

- type handgun that could carry two
bullets , but was empty. After hearing argume nt the court denied the suppression motion and sustained the petition allegations. The court then set Albert’s maximum term of confinement at 36 months, committe d him to juvenile hall for 45 d a y s with credit for 45 days served and place d him on pr o bation in the custody of his mother.
DISCUSSION
Albert contends it was not objectively reasonable for the officers to detain him. He further contends that handcuffing him was unnecessary and that it converted his
detention into a de facto arrest without proba ble cause

. Thus, according to Albert , the court erred when it denied his motion to suppress. We reject these contentions. “The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial cou rt’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” ( Peop le v. Glaser (1995) 11 Cal.4th 354, 362.) The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const.,4

4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8

- 9 ( Terry ); People v. Hernandez (2008) 45 Cal.4th 295, 299 ( Hernandez ).)
In Pennsylvania v. Mimms (1977) 434 U.S. 106 ( Mimms ) , the United States Supreme Court held that once a motor vehicle has been lawfully detained for a traffic violation, officers may order the driver to get out of the vehicle without violating the
Fourth Amend ment. ( Mimms , at p. 111.) The government’s legitimate interest in officer safety outweighs any minimal intrusion of requiring a driver lawfully stopped to exit a vehicle. ( Id . at pp. 110

- 111.) In Maryland v. Wilson (1997) 519 U.S. 408 , 413 ( Wilson ),
th e United States Supreme Court held that officers lawfully may ask passengers to exit the vehicle during a traffic stop without violating the Fourth Amendment. Traffic stops are “especially fraught with danger to police officers.” ( Michigan v. Long (1983 ) 463 U.S. 1032, 1047.) Once a passenger has been asked to exit a vehicle during a traffic stop, an officer may lawfully conduct a patdown for weapons to protect officer safety if the officer reasonably concludes the person might be ar med and presently
da ngerous. ( Wilson , supra , 519 U.S. at pp. 414

- 415.)
In Brendlin v. California (2007) 551 U.S. 249, the United States Supreme Court held that for the duration of a traffic stop, the police officer effectively seizes everyone in
the vehicle ; the driver and all passengers. ( Id . at p. 255.) In a traffic stop setting, an officer lawfully detains the driver and all passengers pending inquiry i nto the vehicular violation. ( Id . at p. 263.) Even if officers have no basis for suspecting an individual of a
crime , they may generally ask questions, ask for identification, and ask for consent to search. ( People v. Brown (1998) 62 Cal.App.4th 493, 499.) Here, the officer lawfully stopped the car in which Albert was a passenger because Chavez, the driver , was drivi ng while his driving privilege was suspended and in order to perform a probation search of the car because Chavez was on probation. S ince Albert was a passenger in a car tha t was lawfully detained, he too was lawfully detained.5

Further, approaching the c ar with guns drawn and placing Albert in handcuffs did

not automatically convert Albert’s detention into an arrest. ( People v. Celis (2004) 33 Cal.4th 667, 675.) “[H] andcuffing a suspect for a short period does not necessarily transform a
detention int o an arrest. [Citation.] This does not mean, however, that handcuffing a suspect will never transform a detention into an arrest. The issue is whether the use of handcuffs during a detention was reasonably necessary under all of the circumstances of
the detention

. [Citation s .] We look to ‘ the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity. ’ [ Citation.] ” ( In re Antonio B . (200 8) 166 Cal.App.4th 435, 441 ( Antonio B .), third italics added.)

“ In the cases cited by the Supreme Court as examples in which handcuffing a suspect did not convert a detention into an arrest, the police officers conducte d the stops based upon reports of violent felonies by persons matching the descriptions of the detained suspects and/or their vehicles [citations] , or reports indicating that the suspect
was armed [citation s ] or that the suspect was seen leaving the scene of an attempted burglary [citation]

. The suspects were handcuffed when there was a concern that they
would flee and/

or the suspects outnumbered the police officers conducting the detention [citations] , when the suspects were going to be transported to ano ther location for possible identification by the victims [citations] , when the officers discovered the suspect
was armed [citation] , or when the susp ect refused to obey the officer’ s commands [citation]

. In other words, at the time of the detention, the o fficer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee

. ( See, e.g., People v. Pilster (2 006) 138 Cal.App.4th 1395, 1405

- 1406 [“‘where an officer has a reasonable basis to think that the person stoppe d poses a present physical threat to the officer or others, the Fourth Amendment permits the officer to take ‘ necessary measures6

... to neutralize the thre at’ without converting a reasonable stop into a de facto arrest’”].)” ( Antonio B ., supra , 166 Cal.Ap p.4th at pp. 441

- 442 , italics added .) Here, the car in which Albert was a passenger was stopped in an area of high gang activity and high crime and it was occupied by two known Norteño gang members. Further, Albert appeared to be a gang member from the w ay he was dressed , he had a bulge in one of his pants ’ pockets , and the officers were outnumbered. In view of these circumstances, Officer Miller acted reasonably in removing Albert from the SUV and handcuffing him while he pat searched him to make sure th e bulge in his pants ’ pocket was not a weapon or that he was not carrying any other weapons. (Cf. People v.
Osbourne (2009) 175 Cal.App.4th 1052, 1062 [officer acted reasonably in handcuffing

nervous defendant who tensed up as if attempting to remove hand from officer’s grasp
which caused offi cer to fear defendant, who was larger than officer, might be able to break free and assault officer].)
Albert contends that the instant case “compares favorably” with Antonio B.
because , as in that case, there “was n o evidence to suggest that Officer Miller had a basis to believe that [Albert] posed a threat or that handcuffing him was necessary to the purpose of the stop [,] ” i.e., to search the vehicle. We disagree.
In Antonio B. Detective Hugo Cepeida and two othe r officers s aw the appellant on the street walking side

- by

- side with a minor who was smoking a hand

- rolled cigarette. After the officers stopped and approached the minors, the second minor threw the cigarette on the ground. One officer picked up the ciga rette and identified it as marijuana. The officers immediately arrested the second minor and they detained the appellant because, in Detective Cepeida’s experience, “marijuana tends to be a communal drug ; when one person is smoking it , his companions usua lly join in smoking it .” ( Antonio B ., supra , 166 Cal.App.4th at p p . 438

- 439. )7

In Antonio B ., a fter handcuffing the appellant , Detective Cepeida asked i f he could
search him. The a ppellant consented and during the ensuing search Cepeida found four baggie s containing a powder resembling cocaine and six baggies containing a leafy substance resembling marijuana. Additionally, during the suppression hearing Detective Cepeida testified that it was the officers’ policy to handcuff people if they were going to detain them. (

Antonio B ., supra , 166 Cal.App.4th at p. 439.) In finding th at the handcuffing of the appel lant converted his detention in to an unlawful arrest, the Antonio B

. court noted that the facts of that case were not similar to the facts of publish ed cases in which the handcuffing of a defendant had not been found
to convert the detention into an arrest. ( Antonio B ., supra , 166 Cal.App.4th at pp. 441

- 442.) T hus the court stated,

“No s uch circumstances are present in the instant case. Here, the
o fficers detained appellant because he was walking with another teenager who was smoking marijuana, and they believed appellant might also have been smoking marijuana. Unauthorized possession of marijuana is a misdemeanor, punishable by a fine. (Health & Saf. Code, § 11357.) The officers outnumbered the suspects, one of whom was in handcuffs incident to his valid arrest, there was no one else in the vicinity, and appellant did not attempt to flee. In short, there is no evidence to suggest that the office rs had any basis to believe that appellant posed a danger to them or that handcuffing him was necessary to effectuate the purpose of the stop, i.e., to determine whether appellant had been smoking marijuana

.

“ Detective Cepeida ’ s ‘ policy ’ of handcuffing an y suspect he detains for further investigation regardless of the circumstances of the stop ignores the constitutional directive that a detention based upon reasonable suspicion of criminal activity must be conducted using the least intrusive means reasonab ly available under the circumstances of that particular detention. [Citation.] Because the use of handcuffs on appellant during the stop was not warranted under the circumstances, the seizure constituted an arrest rather than a detention

. As there was n o probable cause to arrest appellant at the time he was handcuffed, the arrest was illegal, and the consent to be searched, which on this record flowed directly from the illegal arrest, was not voluntary. Therefore, the evidence discovered must be suppres sed. [Citations.]” (

Antonio B. , supra , 166 Cal.App. 4th at p. 442 , italics added.)8

Antonio B. is easily distinguishable because here there were numerous circumstances that justified Officer Miller handcuffing Albert in order to search him for
weapons . A s noted earlier, Albert was in the company of two gang members, he appeared to be a gang member, he was wearing baggy clothing and had a bulge in one of his pants ’ pocket s , the stop occurred in an area of high crime and high gang activity , and
the officers here were outnumbered by Albert and the other SUV occupants.
Albert also cites several circumstances to contend it was unreasonable to handcuff
him

. However, in doing so Albert ignores the circumstances cited above that justified th e officers in handcuf

fing him

. Nevertheless one circumstance he cites merits additional

comment. Albert co ntends that Officer Miller could not have seen the bulge in his pants ’ pocket prior to handcuffing him. He is wrong.
Albert was seated in the back seat of the SUV and prior to having Albert exit the
vehicle Offi c er Miller w as located behind where Albert was seated in the vehicle so that
the officer would not have his back towards Albert. Further, given the location where the stop occurred, that the two other SUV occupa nts were gang members , that Albert
appeare d to also be a gang member, and Officer Mill er ’s concern for officer safety , the court could reasonably have found that while addressing Albert , Officer Miller focused
on Albert ’s appearance and whether anything ab out him indicated that he posed a threat. It could also reasonably have found that Officer Miller w as able to view the bulge in Albert’s pants ’ pocket and focused on it while Albert sat on the back seat listening to the officer’s directives t o get out of the SUV or as Albert ph ysically got out of the vehicle presumably with his fr ont side facing the officer. Thus , we conclude that t he court did not err when it denied Albert’s motion to suppress.
DISPOSITION The judgment is affirmed.