Filed 9/24/15 In re Kevin L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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 KEVIN L., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN L.,

Defendant and Appellant.

F069310

(Super. Ct. No. 14CEJ600111)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Kimberly 

Nystrom-Geist, Judge.

Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory 

B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P. J., Detjen, J. and Franson, J.
2

INTRODUCTION

The juvenile court adjudged appellant a ward of the court (Welf. & Inst. Code, 

§ 602) after appellant admitted the People’s allegation that he had possessed 

methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On appeal, appellant argues 

the juvenile court erred by denying his motion to suppress the methamphetamine, as the 

search that yielded that evidence was unlawful. We affirm.

FACTS

On February 19, 2014, Officer Michael Aguilar observed a group of four minors, 

including appellant, run across a street and impede traffic. Aguilar detained the group for 

jaywalking and, because appellant was wearing a baggy sweatshirt that covered his 

waistband, informed the minors that they would be subject to a patdown search for 

weapons. As Aguilar placed appellant’s hands behind his head, he observed a pack of 

cigarettes sticking out of appellant’s pocket. Aguilar placed appellant under arrest for 

possession of tobacco, and a search incident to that arrest yielded a small bag of 

methamphetamine.

As a result of the search, a petition was filed against appellant alleging the 

possession of methamphetamine. Prior to the jurisdictional hearing, appellant filed a 

motion to suppress the evidence against him, arguing the patdown search was unlawful 

and the cigarettes and methamphetamine were products of that unlawful search. The 

People opposed the motion, arguing the search was justified as a search incident to arrest 

or, in the alternative, the search was based on a reasonable suspicion that appellant was 

armed and dangerous.

Following a hearing on the matter, the juvenile court denied appellant’s motion to 

suppress, finding the search was based on a reasonable suspicion that appellant was 

armed and dangerous. Appellant then admitted the allegation in the petition, and was 

adjudged a ward of the court. This appeal followed.
3

DISCUSSION

Appellant argues the patdown initiated by Officer Aguilar was unlawful, as it was 

neither incident to an arrest nor based on a reasonable suspicion that appellant was armed 

and dangerous. We disagree.

While warrantless searches are generally presumed to be unreasonable, a search 

incident to a lawful arrest is a settled exception to the warrant requirement. (Chimel v. 

California (1969) 395 U.S. 752, 762-763.) A search incident to arrest may precede the 

actual arrest, however, so long as (1) the probable cause to arrest existed prior to the 

search, and (2) the arrest followed shortly after the search. (Rawlings v. Kentucky (1980) 

448 U.S. 98, 111; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240.)

Here, it is undisputed that Officer Aguilar had probable cause to believe appellant 

had committed a jaywalking violation. While jaywalking is a minor offense, an officer 

who “has probable cause to believe that an individual has committed even a very minor 

criminal offense in his presence ... may, without violating the Fourth Amendment, arrest 

the offender.” (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354; see People v. 

McKay (2002) 27 Cal.4th 601, 607.) Accordingly, Aguilar had probable cause to arrest 

appellant prior to initiating the patdown search that yielded the cigarettes and 

methamphetamine.

In addition to having probable cause to arrest appellant prior to the search, it is also 

undisputed that Aguilar arrested appellant immediately following the search. It is of no 

consequence that the arrest was for a different offense than the one Aguilar had probable 

cause to arrest appellant for prior to the search, as probable cause to arrest does not 

“evaporate” because a suspect is ultimately arrested for a different offense. (People v. 

Gomez (2004) 117 Cal.App.4th 531, 539 (Gomez).)

In an attempt to rebut the validity of Aguilar’s patdown search, appellant cites 

People v. Scott (1976) 16 Cal.3d 242 (Scott), Knowles v. Iowa (1998) 525 U.S. 113 
4

(Knowles), and Rodriguez v. United States (2015) ____U.S. ____ [135 S.Ct 1609] 

(Rodriguez). All of these cases are readily distinguished. In Scott, police offered to 

provide a ride to an individual, but conducted a patdown search prior to allowing him 

inside the patrol car. (Scott, supra, 16 Cal.3d at p. 245.) Though the search yielded 

illegal narcotics, our Supreme Court held the search to be unlawful, as the individual was 

being given a voluntary ride and was not under arrest. (Id. at pp. 246, 249.) In the instant 

case, however, the interaction was not voluntary, and while appellant had not yet been 

placed under arrest, Officer Aguilar had probable cause to do so.

Knowles is similarly distinguishable. There, an officer stopped a motorist for 

speeding and, instead of arresting the driver, issued a traffic citation. (Knowles, supra, 

525 U.S. at p. 114.) After issuing the citation, the officer conducted a search of the 

vehicle, and recovered narcotics and narcotics paraphernalia. (Ibid.) The United States 

Supreme Court found the search unlawful, however, as the driver had not been placed 

under arrest, but had instead been issued a citation. (Id. at p. 117.) By contrast, in the 

instant case, Officer Aguilar had not opted to issue a citation to appellant before initiating 

the patdown search.

Rodriguez is also distinguishable. In that case, an officer delayed the conclusion 

of an otherwise completed traffic stop for approximately seven to eight minutes in order 

to procure backup for the purposes of having a drug-sniffing dog inspect the suspect’s 

car. (Rodriguez, supra, 135 S.Ct at pp. 1612-1613.) Though the dog located 

methamphetamine, the United States Supreme Court invalidated the search on the 

grounds that it unduly prolonged the detention beyond the time required to complete the 

“tasks tied to the traffic infraction.” (Id. at p. 1614.) The Rodriguez court differentiated, 

however, between impermissible delays caused by extraneous investigations into separate 

criminal acts, such as dog sniffs in the absence of reasonable suspicion, and permissible 

delays caused by officer safety measures, such as ordering a suspect out of his or her 

vehicle. (Id. at p. 1616.) 
5

In the instant case, however, there is no evidence showing that Officer Aguilar 

initiated the patsearch of appellant for any reason other than officer safety. Further, a 

patsearch conducted at the scene of a police detention, as occurred in this case, prolongs a 

detention far less than a call for backup followed by a dog sniff, as occurred in 

Rodriguez. In sum, while Rodriguez focused on the validity of searches concerning 

extraneous criminal acts that unduly prolong a detention, the instant case involves an 

officer safety search that, had it not yielded evidence of additional criminal acts, would 

have resulted in only a token increase in appellant’s detainment time. As such, Rodriguez

is not applicable.

More applicable is the principle of law annunciated in Gomez, supra, 

117 Cal.App.4th 531, and discussed above. There, police detained a motorist for a 

seatbelt infraction and initiated a search of the vehicle that resulted in the discovery of 

narcotics, for which the driver was subsequently arrested. (Id. at p. 536.) In upholding 

the validity of the detainment and search, the Fourth Appellate District held there was 

probable cause to arrest the driver for a seatbelt infraction, detainment with probable 

cause to arrest is a lawful de facto arrest, and “[a]bsent a Fourth Amendment violation, 

the evidence obtained as a result of the de facto arrest may not be suppressed.” (Id. at 

p. 539.)

Here, because Officer Aguilar had probable cause to arrest appellant prior to the 

search, and the arrest followed shortly after the search, we find the search lawfully 

incident to arrest. As we find the search was justified on that ground, we need not 

address the question of whether or not it was based on a reasonable suspicion that 

appellant was armed and dangerous.

DISPOSITION

The judgment is affirmed.