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Filed 1/28/21 In re K.D. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re K.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,

v. K.D., Defendant and Appellant. A159192
(Solano County Super. Ct. No. J44465)

This appeal arises out of the juvenile court’s denial of K.D.’s motion to suppress evidence at a probation revocation hearing. K.D. contends the court erred by denying his suppression motion , and by relying on illegally obtained evidence in finding he violated probation. We affirm

.

FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, the court adjudged K.D. a ward of the court and place d
him on probation

. A.

Suppression and P robation Revocation Hearing A few months later, the prosecution filed a petition alleging K.D.
violated his juvenile probation by possessing a firearm and failing to obey the2

law

. K.D. moved to suppress , argu ing he was detained without reasonable suspicion

. At the combined suppression and probation revocation hearing, the parties presented the following evidence: At 5:00 p.m. on September 3 , 2019, Fair field Police Officer Amanda Graham was driving a marked patrol car near a strip mall in downtown Fairfield. Graham

— who was assigned to the narcotics investigation
unit

— was in the area because the police department had received complaint s about drug trafficking , and about minors purchasing alcohol and tobacco , at the strip mall

. Graham had made arrests at the strip mall “ for drug trafficking, drug sales, drug use , ” and firearm possession. As Graham drove through the strip mall’s parking lot, she saw a late

model Honda pull out of a back alleyway

. It caught Graham’s attention
because the alleyway was “kind of

. . . hidden” and p eople did not “ drive through [it] very often

. ” There were three teenagers in the car

. Graham thought two t eenagers were “Hispanic or white,” and that the third teenager, K.D., might have been “Hispanic and African American.” She was “not sure

. ”
K.D. is Black. Graham made eye contact with t he teenagers . Their eyes widened, as “ if they were surprised to see [her].” The Honda parked hastily.
T he young men got out of the car , leaving the windows down , and walked through the parking lot, away from the businesses.
This behavior

— driving through an alley way, pulling into a parking
stall quickly , exiting the car and walking away

— was “significant” to Graham

. The fact that the teenagers left the windows down “rose [ her ] suspicion.”
Graham believed the car , like many other o lder model Hondas, might have
been stolen

. Graham was suspicious for an additional reason: she thought
the young men might be “trying to distance themselves ” from something in
the car to avoid get ting “ contacted or arrested with it

. ”3

The young men walked around the corner. Graham got out of her patrol car and inspected the Honda . She was looking for an indication the
car was stolen. Nothing seemed out of the ordinary, and a records check did
not indicate the car was stolen. So Graham got back in her car and drove out of the parking lot. As she drove, she saw the teenagers standing in front of a liquor store. She pulled into a nearby lot and waited for the teenagers to leave the store. The teenagers had not done anything illegal, but Graham
wanted to talk to them

. A few minutes later, the Honda emerged from the alleyway. The teenagers looked over in Graham’s direction. Then the Honda made a quick right turn out of the alleyway and acc elerated. The driver made eye contact with Graham, then immediately stopped
the Honda

. As the car came to a stop, Graham saw K.D.

— who was in the front passenger seat

— reach down toward the floorboard area. Based on her training and experience, Graham knew people commonly conceal ed “ weapons and/or firearms or drugs” in that area

. She did not know whether K.D. “was concealing something or retrieving something to harm [her].” Then K.D. got
out of the car, which made Graham concerned for her safety. The driver began to get out of the Honda , too. At that point, Graham ordered the teenagers to stay in the car

. She pulled her patrol car behind the Honda and
turned on her spot light

. She did not recall drawing her service weapon. Graham approached the car. When s he reached the passenger window,
she noticed the teenagers were nervous and fidgety , and that the car smelled of “processed marijuana.” After other officers arrived, Graham removed the occupants from the car, one by one , and handcuffed them. She did this because she thought the teenagers had something illegal

— drugs or a gun

— in
the car. Graham wanted the teenagers out of the car so they could not harm her or her partners.4

Graham started with the passenger in the back seat, B.M. She removed B.M. from the car, handcuffed and pat searched him, and had him
sit on the curb

. Then Graham removed K.D. from the car using a “control hold” : at Graham’s request, K.D. placed both hands on top of his head , t hen
stuck out the hand closest to Graham

. Graham place d that hand in a “twist lock” with “no pressure or force.” After K.D. was out of the car , Graham p ut K.D.’s hand s behind his back. Graham check ed K.D.’s waistband for weapons, handcuff

ed K.D., and had him sit on the curb

. Finally, Graham
took the driver out of the car

. P olice officer s searched the car

. An officer found a small “nugget of weed” in the passenger door and a loaded gun under the passenger seat. After Mirandizing K.D ., 1 Graham asked K.D. about the gun. K.D. said the gun did not belong to him but acknowledged knowing it was under the seat. He admitted his DNA would be found on t he gun

. B.M. told Graham the gun belonged to K.D. He also said K.D. asked him to hide it as Graham pulled up
behind the Honda

. K.D. tried to pass the gun back to B.M. H e p ushed the

gun away ; K.D. hid the gun under the front passenger seat

. 2
B. Supplemental Briefing and the Court’s Ruling
At the conclusion of the hearing, the court noted that the parties had not briefed whether Graham’s conduct shocked the conscience , the standard required to suppress evidence at a probation revocation hearing

. The court

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 At the hearing, B.M. testified he was waking up from a nap when Graham approached the Honda . She pulled him out of the car , “threw [him] right to the curb , ” and handcuffed him “for no reason.” B.M. testified that he told Graham he did not see a gun in the car . He also denied telling Graham t he gun belonged to K

. D.5

invit ed the parties t o discuss that issue . In response, t he prosecution stated
there was no evidence Graham’s conduct was shocking : it characterized the traffic stop as routine , and supported by reasonable suspicion

. Defense counsel disagreed , a rguing Graham’s conduct s hock ed the conscience because
she detained the Honda , and r emoved the teenagers from the car and handcuffed them , without seeing “ them do anything illegal.”
The court asked the parties to file supplemental briefs on whether Graham’s conduct shocked the conscience. K.D.’s supplemental brief argued Graham’s conduct shocked the conscience because she detained the car without reasonable suspicion. The prosecution countered that Graham had reasonable suspicion to detain the car , and noted there was no evidence Graham si ngled out the teenagers based on their race, n or any evidence she engaged in the type of racial discrimination necessary to shock the
conscience. After considering the supplemental briefing, the court denied the motion to suppress and determined K.D. violated probation

. It continued wardship and probation

. DISCU SSION K.D. contends the court erred by denying his suppression motion . He
claims the traffic stop was the result of racial profiling , not reasonable suspicion , and that Graham’s racial bias, along with her needlessly aggressive conduct in removing him from the car , shocks the conscience and

warrants exclusion of the e vidence obtained during the detention

. We assume that Graham lacked reasonable suspicion to detain the ca r , and that the gun and K.D.’s statements were the product of th at illegal
detention

. But a s we explain below, we conclude the evidence wa s nonetheless admissible to establish a probation violation because , under the6

governing standard, Graham’s conduct d oes not shock the conscience , n or offend our sense of justice.
I. General Principles

“ In reviewing a suppression motion, the trial court is vested with the power to assess witness credibility, resolve evidentiary conflicts, weigh the evidence, and draw factual inferences; its findings are upheld on appeal so long as they are supported by substantial evidence. [Citation.] However, we exercise our independent judgment in determining whether on these facts the challenged search or s eizure complied with the Fourth Amendment.” ( In re Edgerrin J. (2020) 57 Cal.App.5th 752, 759 .) A defendant may move to suppress evidence obtained through a warrantless search or seizure. ( Pen. Code, § 1538.5, subd. (a)(1)(A), (2).) Although Penal Code section 1538.5 is “the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates ‘state constitutional standards,’ a court may exclude the evidence on that basis only if exclusion is also manda ted by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.” ( In re Lance W. (1985) 37 Cal.3d 873, 896 ; People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069

– 1070.) In probation revocation proceedings , the Fourth Amendment typically does not compel exclusion of evidence , even if it was the fruit of an unlawful
search or seizure

. ( People v . Coleman (1975) 13 Cal.3d 867, 876

– 877, fn. 8 [ revocation of probation “ ‘is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply,’ ” including the Fourth Amendment exclusionary rule] ; People v. Harrison7

(1988) 199 Cal.App.3d 803, 811 [“federal l aw does not require application of the exclusionary rule to probation revocation hearings”]. ) At a probation revocation hearing, t o warrant suppression of evidence in violation of the federal Constitution, the police conduct must be

“ ‘so egregious as to offend “ the ‘ traditions and [collective] conscience of our people ’ ” . . . or to “shock the conscience.” ’ ” ( People v. Howard (1984)
162 Cal.App.3d 8, 21

– 22.) This standard exists, in part, bec ause the exclusionary rule is a “ ‘judicially created means of deterring illegal searches and seizures. [Citation.] As such, the rule

. . . applies only in contexts

“ where its remedial objectives are thought most efficaciously served , ” ’ ”
i.e. , “ ‘ only where its deterrence benefits outweigh its “ substantial social

costs , ” ’ ” a principle this court relied on in People v. Lazlo , supra, 206 Cal.App.4th at p age 1070

. Courts have held that any “minimal deterrent effect” of applying the exclusionary rule at a probation revocation hearing is “significantly outweighed by [the] potential damage to the probation system.” ( People v. Nixon (1982) 131 Cal.App.3d 687, 691

– 692 ( Nix on ) ; People v. Harrison, supra, 199 Cal.App.3d at p. 811

. ) As the Nixon court explained, “ [ t ] he purpose of probation conditions is to enhance the chance for rehabilitation while simultaneously affording society a measure of protection. Because violation of probation conditions may indicate the probationer is not ready or is incapable of rehabilitation by integration into society, it is extremely important that all reliable evidence shedding light on the probationer’s conduct be available during probation revocation pr oceedings.” ( Nix on , at

pp. 691

– 692, fn. omitted; Pennsylvania Bd. of Probation & Parole v. Scott (1998) 524 U.S. 357 , 363

– 364 (dis. opn. of J. White) [ minimal deterrence8

benefit s of applying exclusionary rule at parole revocation hearing were outweigh ed by high costs of excluding “rel iable , probative evidence”].)
II. The Officer’s Conduct D oes Not Shock the Conscience , N or Offend O ur Sense of Justice
A s discussed above, when a suppression motion is made at a probation
revocation hearing , the exclusionary rule does not apply unless the police
conduct shocks the conscience or offend s a sense of justice

. For example, in
Nixon , police officers stopped the defendant’s car, which was the same color as a car involved in a burglary. ( Nixon , supra , 131 Cal.App.3d at p. 690 .) The police searched the vehicle , found the defendant’s nunchakus , and
arrested him

. ( I

bid .) At the defendant’s probation revocation hearing, the prosecution c onceded the police conduct violated the Fourth Amendment , but the trial court admitted the evidence anyway

. ( Nixon , at pp. 690, 692. ) The appellate court affirmed , noting the trial court determined “ the police conduct was not so egregious as to shock the conscience ,” and that this conclusion was supported by the evidence. ( Id. at pp. 693

– 694.) Other courts have reached similar results, holding an illegal search
or seizure , without more, does not shock the conscience. ( People v. Fuller (1983) 148 Cal.App.3d 257, 262 [ search unsupported by probable cause “may

. . . have been illegal” but was “not conducted in so objectionable a manner as to render” the evidence seized inadmissible at probation revocation hearing]; People v. Harrison , supra, 199 Cal.App.3d at p. 812 [ speculation that officers fabricated probable cause to arrest did not warrant exclusion of evidence at probation revocation proceeding ] ; People v. Hayko (1970) 7 Cal.App.3d 604, 610 [ police officer s’ violation of knock

announce statute did not “ ‘shock the conscience’ ” ]. )9

B ut w hen an officer detains a suspect solely based on rac e , s uch an egregious Fourth Amendment violation offend s a collective “ ‘ “ sense of justice. ” ’ ” ( People v. Washington (1987) 192 Cal.App.3d 1120, 1128 ( Washington ). In Washington , officers saw several people

— including the defendant

— huddled together in an area where numerous drug arrests had
been made. ( Id. at pp. 1122

– 112 3.) When the officers approached, the group quickly dispersed ; the officers followed the defendant, a Black man, who began to run. ( Ibid. ) As he ran , the defendant dropped a bag of drugs. T he prosecution moved to revoke his probation. T he t rial court denied the defendant’s suppression motion and revoked probation. ( Ibid. )
This court reversed. We held the officers lacked reasonable suspicion

to detain the defendant , noting that th e only reason the testifying officer gave for pursu ing the defendant was that “ most

. . . Black men ” in that area “usually had something to hide if they r a n.” ( Washingto n, supra, 192 Cal.App.3d at p. 1123.) As we explained, “ the officers conceded they had no objective factors upon which to base any suspicions that the group was involved in illegal activity, and the officers offered no explanation why they singled out defendant to follow. Indeed, the only justification for engaging in

pur suit was that defendant was a Black male, and that it was the officer ’ s subjective belief that Black men run from police when they have something to
hide. Thus, a single factor

— the defendant ’ s race

— triggered the detention. This factor is unreasonable

. . . and, in our view, triggered the type of police misconduct which offends our ‘ “ sense of justice

. ” ’ ” ( Id. at p. 1128.) We held the egregious Fourth Amendment violation support ed “application of the exclusionary rule” at the probation revocation hearing . ( Washington, at

p. 1128

. )10

The rule articulated in Washington

— that detaining a citizen based solely on race offends our sense of justice and justifies the suppression of evidence at a probation revocation hearing

— remains good law. But this case
bears little resemblance to Washington , where the officer admitted his sole reason for detaining the defendant was that “most

. . . Black men” in that area “usually had something to hide if they r a n.” ( Washington, supra, 192 Cal.App.3d at p. 1123.) And Graham did not single K.D. out from his peers like the officer in Washington

. Graham testified the Honda drove through a hidden alle y way in a high

crime area and parked hastily after seeing her patrol vehicle . The teenagers left the car quickly, leaving the windows down

. At this point, Graham thought the car might be stolen, or that it c ontained something illegal. Graham found nothing out of the ordinary when she inspected the car, but
she d ecided to continue watch ing the teenagers. The teenagers returned to the car and drove away . Then, when they saw Graham, the car came to an abrupt sto p, and K.D. reached down to the floorboard, an area Graham knew was often used to conceal weapons and drugs.
While this evidence may not amount to reasonable suspicion, it does not compel a conclusion that the only reason Graham detained K.D. was, as he claims, based on his skin color. When the lower c ourt ruled on the suppression motion, i t was aware of the correct legal standard and the Washington case. In denying the motion, the court made an implied finding
th at Graham did not engage in racial profiling

. ( People v. Weaver (2001)
26 Cal.4th 876 , 924.) W e cannot disturb this finding on appeal , particularly in the absence of specific evidence of racial motivation or a credibility finding suggesting such a motivation

. We cannot , as K.D. requests, “presume” his detention was the result of racial bias in the first instance

. W here, as here,11

a “ trial court’s conclusions on a Fourth Amendment issue turn on issues of fact and credibility of witnesses, this court may not reweigh the evidence or draw inferences other than those reasonably drawn by the trial court, or substitute its own deductions for those of the trial court, if two or more inferences can reasonably be drawn from the facts .” ( People v. Lewis (1982) 133 Cal.App.3d 317, 323 .)
K.D. claim s Graham was “ brutal” and “aggressive” when she removed him from the car and suggests this “misconduct” shocks the conscience. L aw enforcement’s unnecessary use of physical force against a defendant during
a search or seizure may shock the conscience. ( Rochin v. California (1952) 342 U.S. 165, 172 [forcibly open ing defendant’s bedroom door, attempt ing to extract capsules from his mouth, and direc ting doctors to pump defendant’s stomach against his will shocked the conscience].) But here, t he court impliedly concluded Graham was not unnecessarily forceful, an d that find i ng is supported by substantial e vidence

. The record is devoid of evidence that Graham harassed or physically mistreated K.D. To the contrary, the
evidence introduced at the hearing established Graham removed and handcuffed K.D. using no un n e cessary “pressure or force” and that she “sat”
him on the curb. On this record, we cannot conclude Graham’s conduct
shock s the conscience or offend s our sense of justice. ( People v. Lewis, supra,
133 Cal.App.3d at p. 323.) Courts must be vi gil a nt on issues of racial profiling and excessive force. We would not hesitate to order the suppression of evidence obtained by either

means. We trust that our colleagues in the trial court are equally resolved.
But w here the evidence does not substantiate either and where the trial court12

judge , who observed the presentation of th at evidence , made no finding s of
either , we decline to do so in th e first instance. DISPOSITION The judgment is affirmed.13 _________________________ Reardon, J. *

WE CONCUR:

_________________________ Simons, Acting P.J.

_________________________ Needham, J.

A159192

* Judge of the Superior Court of Alameda County , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution

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