IN RE: T.V.

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Court of Appeal, Second District, California.

IN RE: T.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.V., Defendant and Appellant.

B215299

Decided: January 26, 2010

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Following the denial of his motion to suppress evidence, appellant T.V. admitted the truth of the allegation that he possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a).   The juvenile court found the allegation true, sustained the petition containing that allegation, declared the offense a felony, found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and placed appellant on home probation with a maximum period of confinement of three years.

Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the trial court erred in denying his motion to suppress evidence.   We affirm the juvenile court's orders.

Facts 1

On November 8, 2008, about 8:00 p.m., Los Angeles Police Officer Jesse Murphy was on patrol in the area of 1430 West 35th Place.   It was dark and the area was not well lit.   Jerome Brown, a Rolling 30's gang member, lived at that address and allowed it to be used as a hangout for the Rolling 30's gang.   Brown was on parole for weapons violations.   Officer Murphy was assigned to the gang enforcement detail and it was his job to monitor and suppress the gang's criminal activities.   In the past, Officer Murphy had made arrests at that address for narcotics, gun, probation and parole violations.   It was a very violent area, and a person had been shot across the street from that address while selling cocaine.   There were constant complaints to police about narcotics activity at the location, but Officer Murphy was not there in response to a specific complaint.

As he drove by 1430, Officer Murphy saw a group of three men standing outside.   He recognized two of the men, Grady Montgomery and Brandon Anderson, and knew them to be Rolling 30's gang members.   The men did not live at the location.   Officer Murphy had previously arrested Montgomery on a gun charge;  Montgomery was on probation for that charge.   The third male was appellant, who was 15 years old at the time.   Officer Murphy had never seen appellant before.

Officer Murphy's focus was on Montgomery, but his suspicion was aroused by the presence of appellant.   The officer knew from his training and experience that older gang members use younger individuals to hold narcotics and guns.   Officer Murphy believed that appellant could be holding a weapon.   Accordingly, for officer safety, he first conducted a pat-down search of appellant for weapons.   It was during that search that he discovered the cocaine in appellant's pocket.   Specifically, he felt a small circular item about the size of a rock of cocaine in appellant's right front coin pocket.   Based on his training and experience, Officer Murphy believed the item to be narcotics.   He retrieved it and observed that it was tightly packaged in plastic.   Upon unwrapping the plastic, Officer Murphy recognized the contents as powder cocaine.

Discussion

Appellant contends that the juvenile court erred in denying his motion to suppress the cocaine found in the pat-down search.   We see no error.

Evidence seized as a result of an unreasonable search or seizure is inadmissible in a criminal trial.  (Mapp v. Ohio (1961) 367 U.S. 643.)   A defendant may make a motion to suppress such evidence under Penal Code section 1538.5.

The standard of review of a trial court's ruling on a motion to suppress is well established.   We defer to the trial court'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.  (People v. Glaser (1995) 11 Cal.4th 354, 362.)

A temporary detention for the purpose of investigating possible criminal activity is permissible based on an officer's reasonable suspicion, provided the officer can point to specific articulable facts “that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.”  (People v. Souza (1994) 9 Cal.4th 224, 230-231.)   The reasonable suspicion necessary for an investigative detention is less than that required for probable cause, and can be established by “considerably less than proof of wrongdoing by a preponderance of the evidence.”  (Id. at p. 230.)

Appellant contends, as he did in the trial court, that “mere membership” in a criminal gang or mere presence in a high crime area is insufficient to justify a detention.   The trial court found that there was more than mere presence in this case.

Specifically, the trial court found that:  “The officer patrols the area because, number one, he has knowledge of that area.   Number two, there are numerous citizen complaints.   He drives by at 8 p.m. and sees a young male with two older males.   Both of [the older males] are known to be Rolling 30s gang members in front of a Rolling 30s stronghold on parole, at least one of them, for weapons violations, and the area is known to the officer ․ that Rolling 30s gang members use young minors to carry guns and drugs.   And that's what aroused his suspicion.   He detained him.”   The court concluded that the officer “had the right to do a pat-down search to see if there are weapons on them.”   The court's factual findings are supported by substantial evidence, and we defer to those findings.

We find the search to be reasonable under the Fourth Amendment.   Officer Murphy's suspicion of criminal activity was reasonable under the totality of the circumstances.   The officer saw two gang members in front of a gang hangout used for criminal activity, specifically narcotics transactions.   It was dark and the area was not well lit.   The gang members did not live at the location.   The area was a high crime area, and there were constant complaints about narcotics activities at the location.   The gang members were accompanied by a younger male, who was not known to Officer Murphy.   It was gang practice to use younger individuals to hold narcotics and weapons.  (See People v. Mims (1992) 9 Cal.App.4th 1244, 1247-1248 [fact that area was high crime are properly considered in assessing probable cause, as was officer's knowledge and experience with particular type of criminal activity];  People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742 and cases cited therein.)   It was reasonable to suspect that this particular combination of individuals, at this particular location, at this particular time, were engaged in narcotics or weapons violations and to detain them briefly to confirm or dispel this suspicion.   The area was a very violent one, and one of the two gang members was on probation (or parole) for a gun-related violation.   Thus, it was more than reasonable to conduct a pat-down search for weapons for officer safety.  (See In re H.M. (2008) 167 Cal.App.4th 136, 145-147.)   It was reasonable to start the search with appellant, since Officer Murphy's training and experience led him to believe that a younger individual would hold weapons for older gang members.

Appellant's reliance on People v. Sandoval (2008) 163 Cal.App.4th 205 is misplaced.   In that case, the defendant was sitting alone on the steps of a house known for drug activity, and was himself known to the police officer from prior drug arrests.   Police came to the house to conduct a probation search of the residence of another individual, but detained and searched the defendant as well.   The Court of Appeal found the search unlawful, noting that the officer conducting the pat-down search did not testify that he thought the defendant was armed and dangerous.  “To the contrary, the officer testified he did not suspect defendant was engaged in criminal activity and the officer had no reason to believe defendant was armed.”   The Court also noted that the officer's prior contact with defendant did not cause the officer, a 20-year veteran of the force, to believe or suspect that defendant was armed or dangerous.  (Id. at p. 212.)

The facts of Sandoval are completely different from the facts in this case.   As we discuss, supra, Officer Murphy was concerned for his own safety, based on his prior contact with Montgomery on a weapons charge, his knowledge of gang behavior involving weapons, and the presence of the three males in a “very violent” area.

Since the detention and pat-down search of appellant was proper, the cocaine found during the search was properly seized.  (See People v. Lee (1987) 194 Cal.App.3d 975, 984 [where officer conduct proper pat-down search formed definite belief, based upon experience and training, that he was feeling heroin-filled balloons in defendant's jacket, officer had probable cause to immediately arrest defendant, conduct more thorough search of suspected contraband and seize it].)

Disposition

The juvenile court's orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. The facts are taken from the hearing on the motion to suppress..  FN1. The facts are taken from the hearing on the motion to suppress.

TURNER, P. J. MOSK, J.