IN RE: JAMES D.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: JAMES D., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Appellant, v. JAMES D., a minor, Defendant and Respondent.

G000443.

Decided: December 27, 1984

Cecil Hicks, Dist. Atty., County of Orange, Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and J. Phillip Ashey, Deputy Dist. Attys., for plaintiff and appellant. Ronald Y. Butler, Public Defender, County of Orange, Frank Scanlon, Asst. Public Defender, James Dean Allen and Donald J. Ayoob, Deputy Public Defenders, for defendant and respondent.

OPINION

A sidewalk detention for suspicion of truancy led to a search of James Edward D.   He was found in possession of LSD, and a juvenile court proceeding was brought (Welf. & Inst.Code, § 602;  Health & Saf.Code, § 11377).   The district attorney appeals from the dismissal of the petition (Welf. & Inst.Code, § 800) after the minor's motion to suppress the contraband was granted (Welf. & Inst.Code, § 700.1).   We find no legal basis for truancy detentions on probable cause, much less on mere suspicion, and consequently affirm (Ed.Code, § 48200, et seq.).

I

Newport Beach police officers Jacobs and Natale observed a young man walking on a sidewalk at 10:30 a.m. on February 28, 1983, a school day.   The closest school was three to four miles away.   They believed the youth, who was carrying a book bag, to be fifteen to sixteen years of age, and drove up to him in order to determine whether he was truant.

The officers alighted from their patrol car and approached the minor.   They asked his name, whether he had any identification, where he was coming from, and where he was going.   He was cooperative in answering their questions, but had no identification.   He said he was coming from a friend's house, but could not remember his last name.   He said he was walking to a bus stop and on his way home to Fullerton.

He appeared extremely nervous and agitated and, according to the officers, suddenly moved his right hand into the left side of his jacket.   After they told him to slowly remove his hand, they patted down his outer clothing and felt a hard object about four to six inches long in the upper left chest area.   Jacobs tried to retrieve it, but James D. grabbed the officer's wrist.   Jacobs and Natale then restrained the minor and removed the object, which turned out to be a brush.   It fell to the ground along with cigarettes, some papers, and an envelope.   The envelope's flap was open, exposing a piece of paper coated with little green dots.   Both officers recognized the dots as LSD in blotter form.

James D. denied being nervous or making any sudden movement.   He testified the officers asked him about a bulge in his coat pocket and simply handcuffed and searched him when he told them what it was.   He also denied the flap on the envelope was open.

II

Our concurring colleague suggests this detention was impermissibly prolonged under the rules governing detentions for suspected criminal behavior.   This may be true, but James was not detained on suspicion of criminal activity.   (Cf., In re Tony C. (1978) 21 Cal.3d 888, 897, 148 Cal.Rptr. 366, 582 P.2d 957 and In re Jorge S. (1977) 74 Cal.App.3d 852, 857, 141 Cal.Rptr. 722, where those rules were held applicable to investigations of juveniles for criminal activity who were also, incidently, apparent truants.)   According to the officers here, they acted only to investigate garden variety truancy, misbehavior which has been—for want of a more apt description—decriminalized in this state.  (Welf. & Inst.Code, § 601.1;  Ed.Code, §§ 48262–48264;  In re Gerald B. (1980) 105 Cal.App.3d 119, 124, 164 Cal.Rptr. 193;  In re Ronald S. (1977) 69 Cal.App.3d 866, 871, 138 Cal.Rptr. 387.)   For this reason, recent federal cases which appear to expand police powers to detain for suspected criminal activity are simply inapplicable.  (See, e.g., Florida v. Royer (1983) 460 U.S. 491, 498–499, 103 S.Ct. 1319, 1324–1325, 75 L.Ed.2d 229.)

 Fourth Amendment analysis must be employed to examine detentions where “the officer suspects [the detainee] may be personally involved in some criminal activity ․  But similar safeguards are not required if the officer acts for other proper reasons.   Such reasons are obviously too many and varied to recite, but they may be grouped in at least two general categories:  (1) the officer may wish to question the person not as a suspect but merely as a witness to a crime, or (2) the officer may be engaged in one of ‘those innumerable miscellaneous tasks which society calls upon police to do which have nothing to do with the detection of crime’ (Batts v. Superior Court (1972)[ ] 23 Cal.App.3d 435, 438, 100 Cal.Rptr. 181), such as giving aid to persons in distress, mediating domestic quarrels, assisting the elderly or the disabled, furnishing traffic advice or directions, and generally preserving the peace and protecting persons from harm or annoyance.  [Citation.]”  (In re Tony C., supra, 21 Cal.3d 888, 895–896, 148 Cal.Rptr. 366, 582 P.2d 957 fn. omitted, emphasis added.)   The descriptive examples in Tony C. and Batts which permit officers to approach persons not suspected of crime share similar characteristics:  They are benign interventions designed to assist those contacted and are motivated by no overriding law enforcement purpose.

Thus, the questions we must examine are whether truancy stops based on mere suspicion or even probable cause permissibly fit into the mixed bag of “proper reasons” or “innumerable miscellaneous tasks” police officers are authorized and expected to perform recognized in Tony C. and Batts and, if not, whether they can be justified on some statutory ground perhaps.   Since the answer to each is, “No,” the detention was unlawful and the judgment must be affirmed for that reason, not because it was impermissibly prolonged under rules applicable in criminal cases.

This detention was admittedly rooted in a law enforcement objective:  the truancy statute.   The minor was not a witness to a crime, in distress, involved in a domestic quarrel, elderly, disabled, a traffic problem, or in need of protection.   And to the extent he sought to have his peace “preserved,” the officers accomplished the opposite.   It is one thing to stop an unattended child of tender years for the benefit of his or her welfare and safety, but quite another to execute an otherwise unwarranted intrusion into the life of a person of youthful appearance simply because school happens to be in session.

This minor was not a wandering toddler, but a seventeen-year-old college student.   Detention of him on mere suspicion of truancy can hardly be viewed as a benign intrusion for his benefit, as opposed to a law enforcing activity.   Society may have a strong interest in universal education, which, we suppose, an individual juvenile shares in the abstract.   But as a practical matter, Newport Beach police do not routinely offer taxi service to children desiring a lift to school.   Direct intervention of police power for the purpose of returning truants to the classroom serves public purposes—not the convenience of the minors affected.  (Cf., People v. Bellomo (1984) 157 Cal.App.3d 193, 203 Cal.Rptr. 610 [approving car stop of motorist who appeared to have physical or mental problem] and State v. Morris (1982) 56 Or.App. 97 [641 P.2d 77] [suspected curfew violation, although not criminal, justified stop for best interest of juvenile].)

 Consequently, we believe there is no place on the Tony C.-Batts shopping list detentions based on suspicion of truancy.   This conclusion is strongly suggested in Tony C. itself.   There, the detaining officer testified he stopped the minors because they were of school age and “ ‘juveniles do commit crimes when they're supposed to be in school and they're not.’ ”  (In re Tony C., supra, 21 Cal.3d at p. 896, 148 Cal.Rptr. 366, 582 P.2d 957.)   The Supreme Court was unimpressed:  “There is nothing suspicious in the sight of two school children walking along the sidewalk during the noon hour:  they may be going home for lunch, or on their way to a store, a playground, or a friend's house.   Even if the encounter had taken place during the variety of present-day school hours, that fact would have had no sinister significance:  it is not reasonable to suspect, as did Officer Joy, that any minor who is proceeding along a public street during school hours is ipso facto bent on committing crimes.   Such speculation ignores the many circumstances in which a student may properly be away from school premises during classroom hours—e.g., on an errand for a school official, going to a doctor's or dentist's appointment, in transit to an athletic event, or returning home because of injury or illness.”  (Id., at p. 897, 148 Cal.Rptr. 366, 582 P.2d 957.)   Applying the Supreme Court's Tony C. dictum to our facts, the officers obviously lacked any reasonable cause for initiating this detention.

Moreover, our review of the law discloses no statutory basis for truancy detentions even with probable cause.  Section 48264 of the Education Code provides:  “The attendance supervisor, a peace officer, or any school administrator or his designee, may arrest or assume temporary custody, during school hours, of any minor subject to compulsory full-time education or to compulsory continuation education found away from his home and who is absent from school without valid excuse within the county, city, or city and county, or school district.”   Nothing in this statute authorizes arrests on probable cause or detentions on rational suspicion.   The phrase “temporary custody” cannot be so read because it is obviously synonymous with “arrest” in the statute;  either requires transportation of the minor to a school, parent, or nonsecure youth service or community center—far greater movement of the individual than is permissible in an ordinary criminal detention.  (See, e.g., People v. Harris (1975) 15 Cal.3d 384, 124 Cal.Rptr. 536, 540 P.2d 632, cert. den., sub nom., California v. Harris (1976) 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175.)

The omission of a grant of authority to arrest truants on probable cause in the Education Code is of great significance because the power to arrest on probable cause is a creature of statute.  Section 836 of the Penal Code permits police to arrest for criminal activity on probable cause;  but, by contrast, the power to arrest on probable cause is only given to citizens in cases where a felony has actually been committed (Pen.Code, § 837, subd. 3).   All other private arrests are at the peril of the arresting party;  for none is authorized unless the accused has actually committed a public offense.  (Pen.Code, § 837, subds. 1 and 2.)

We are aware of but one area where the Legislature has conferred the power to detain or arrest on probable cause for noncriminal activity:  When there is reasonable cause to believe a person is a danger to him or herself or others as the result of a mental disorder, Welfare and Institutions Code section 5150 authorizes a police officer to take custody of and deliver the individual to a mental hospital for a period of observation not to exceed 72 hours.  (People v. Triplett (1983) 144 Cal.App.3d 283, 192 Cal.Rptr. 537;  Whaley v. Jansen (1962) 208 Cal.App.2d 222, 25 Cal.Rptr. 184.)

California has long recognized the difference between detentions on suspicion and arrests on probable cause for purposes of Fourth Amendment analysis (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658), but they are not different animals.   The former are the judicially created offspring of the latter.   Case law has expanded the probable cause concept to permit police detentions on reasonable suspicion that a “crime has taken place or is occurring or about to occur.”  (In re Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   Authorized private citizen detentions, on the other hand, are far rarer creatures in the case law.  (See, e.g., In re Donaldson (1969) 269 Cal.App.2d 509, 511–512, 75 Cal.Rptr. 220;  cf., Gordon J., Jr. v. Santa Ana Unified School District (1984) 162 Cal.App.3d 530, 208 Cal.Rptr. 657.)   They are no more common in the statutes.  (But see, e.g., Pen.Code, § 490.5, subd. (f)(1), which permits detentions of suspected shoplifters on probable cause by merchants and librarians.)

 The pointed omission to authorize arrests for truancy on probable cause in the Education Code and the decriminalization of truancy in the Welfare and Institutions Code leave little justification for judicial recognition of a concomitant power to detain a person of youthful appearance during school hours on mere suspicion.   In other words, there is no longer any lawful basis for a police detention for truancy on other than actual knowledge of a student's truant status before the encounter—if ever there was.   We are aware that In re Miguel G. (1980) 111 Cal.App.3d 345, 168 Cal.Rptr. 688 approved a school hours detention where other juveniles riding in a police car informed the officers Miguel G. attended their school, although the officers did not know whether he might possess a lawful excuse, on the theory “that the failure to ask the minor if he has a ‘valid excuse’ for not being in school does not defeat probable cause to ‘arrest’ as that term is used in section 48264.   Instead it is akin to an affirmative defense which the minor must assert to the officer ․”  (Id., at p. 349, 168 Cal.Rptr. 688.)

However, we respectfully disagree with the implication of Miguel G. that mere knowledge of a student's status as such empowers an officer to arrest unless a valid excuse is produced.   We perceive no legal basis to stop a minor at all under those circumstances.   To the contrary, In re Tony C., supra, rehearses a number of lawful reasons a high school student might have for being away from campus during school hours and finds no basis to detain simply because a person who appears to be a student is not in school.  (21 Cal.3d at p. 897, 148 Cal.Rptr. 366, 582 P.2d 957, quoted ante, p. 247.)

Our concurring colleague is alarmed that in larger cities officers will not know who are truants and who are not.   We do not share her concern.   If a school desires police help in locating truants, it may report the names and descriptions of students absent without excuse;  and officers can pursue them as they would any other fugitive from justice with whom they are not personally acquainted.   If a school or district does not seek police assistance and is content to deal with ordinary truancy on campus, police simply have no legitimate role to play.   The appropriate role of law enforcement is to protect persons of youthful appearance on the streets, as all other persons, not to drive them off under a pseudo concern for their educational progress.

Moreover, given the current statutory scheme, police interference in the daily lives of nonstudents of youthful appearance in order that a few truants may be chauffeured back to campus can hardly be justified.   Indeed, the Legislature may well wish to consider deleting peace officers from Education Code section 48264 entirely, in order to more clearly conform the section to this state's current approach to enforcement of the compulsory education law.

Judgment affirmed.

I agree the contraband should be suppressed and concur in that result.   However, I do not agree in the reasoning of the majority.

The People challenge the trial court's finding the officers were unjustified in detaining respondent.1  However, the People fail to distinguish between the initial temporary detention and respondent's continued detention.   By so doing, they fail to recognize important distinctions between a detention for investigation of criminal activity and a detention for truancy.

The People are correct when they argue the police “had more than an articulable suspicion to justify an investigative detention.”   The court in In re Miguel G. (1980) 111 Cal.App.3d 345, 168 Cal.Rptr. 688 found temporary detention for truancy 2 appropriate when the “officers saw appellant, who was one day shy of being 17 years of age, walking down an alley about 10 blocks from school at a time when school was in session.”  (Id., at p. 350, 168 Cal.Rptr. 688.)   Respondent argues In re Miguel G. is distinguishable because “[o]ther minors were in the police car and when one of them saw appellant he stated, ‘He goes to Jefferson High School also.’ ”  (Id., at p. 347, 168 Cal.Rptr. 688.)   I fail to find any compelling difference here when the officers observed respondent on a school day, during school hours, three to four miles from a school.   He appeared to be of compulsory school age.   A detention to investigate for truancy was proper.

I am not convinced as is the majority that there is “no statutory basis for truancy detentions even with probable cause.”  The Legislature has formulated a whole statutory scheme dedicated to compulsory education.   It is simply absurd to read any part of the code to eliminate any meaningful enforcement.  “A practical construction is preferred to one that is technical and is required when the other would lead to mischief or absurdity.  [Citation.]”  Cory v. Poway Unified School Dist. (1983) 147 Cal.App.3d 1158, 1168, 195 Cal.Rptr. 586.)

The majority, by holding “there is no longer any lawful basis for a police detention for truancy on other than actual knowledge of a student's truant status before the encounter” is really saying the officer must know the student and know he or she is truant.3  And absent that knowledge, no detention is permissible.   Given the size of most school and police districts, those requirements equate to an impossibility of ever effectively enforcing compulsory education.4

Therefore, I find the detention lawful.   But, as in People v. McGaughran (1979) 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207, “it will be helpful to narrow the scope of the problem by noting what is not involved in this case.   First, in contrast to such cases as Delaware v. Prouse (1979) 440 U.S. 648 [99 S.Ct. 1391, 59 L.Ed.2d 660], and In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], the issue here is not whether [the officer] ․ lawfully stopped defendant for the purpose of investigating criminal activity․  The question, instead, is whether the period of time during which [the officers] thereafter ․” concluded the investigation was a lawful detention.  (Id., 25 Cal.3d at p. 582, 159 Cal.Rptr. 191, 601 P.2d 207.)

“The ‘arrest’ that takes place under section 48264 is a severely limited type of arrest and may not be used as a pretext for investigating criminal matters.  (In re Jorge S. (1977) 74 Cal.App.3d 852 [141 Cal.Rptr. 722].) 5  The arrest is for one purpose only:  to place the minors in a school setting as quickly as possible.”  (In re Miguel G., supra, 111 Cal.App.3d 345, 349, 168 Cal.Rptr. 688.)   Here the officers failed to pursue that goal.

Both officers testified they could not remember asking respondent where he went to school and the police report does not include any questions (or answers) regarding James D.'s age or school.   Further, Officer Natale did not recall respondent ever being told he was being detained for truancy.   James D. testified the officers did not ask his age or school, nor did they advise him of the reason for stopping him.   Under the mandate of People v. McGaughran, supra, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207, I find the continued detention impermissible because the “investigatory detention exceed[ed] constitutional bounds when [it] extended beyond what [was] reasonably necessary under the circumstances which made its initiation permissible.”  (Willett v. Superior Court (1969) 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22.)

Once the police stopped James D., all that was reasonably necessary was to ask enough relevant questions to determine if he was a truant.6  The officers cannot detain a possible truant and then fail to ask questions relevant to determine truancy.   As in McGaughran, the officers were justified in the initial detention but the continuing detention exceeded constitutional limitations.7  Put another way, it is consistent with the purposes of the compulsory education law, and its truancy provisions, to give peace officers latitude in detaining suspected truants to determine if they belong in school.   But, in order to prevent the compulsory education law from giving peace officers carte blanche to detain juveniles during school hours, any detention based upon truancy must be closely circumscribed to serve only the purpose of the law which creates the power to detain in the first place.   The officers in the present case failed to pursue that purpose expeditiously.

As a result, James D. was unlawfully detained when the LSD was discovered.   I am not unmindful “a significant number of assassinations of officers occur when they are engaged in making routine traffic stops and investigations [citation].”  (People v. Hill (1974) 12 Cal.3d 731, 745, 117 Cal.Rptr. 393, 528 P.2d 1 overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872 and DeLancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142;  see Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110.)   Had James D. suddenly reached inside his jacket at the onset of the detention, before the officers had an opportunity to determine if he was truant, they could have legitimately taken measures to protect themselves.   Under either version of the events, the contraband was removed from James as a result of purportedly protective actions by the police officers during the unduly prolonged detention.   Thus the evidence which was suppressed was “come at by exploitation of [the] illegality,” to wit, the illegal detention.   (See People v. Leib (1976) 16 Cal.3d 869, 877, 129 Cal.Rptr. 433, 548 P.2d 1105.)   The juvenile court properly suppressed the contraband and dismissed the petition.

FOOTNOTES

1.   Because I find the initial detention legal I do not address the People's other contention.   They also argue the encounter with the officers was consensual because respondent was approached in a public place and was never accosted nor ordered to answer their questions.   They argue because his liberty was not restrained he was under no compulsion to interact with the officers and therefore the discussion was consensual.I note, however, the trial court found the officers' testimony “in essence” amounted to an admission they “stopped” him and then “he agreed to cooperate, or kind of conceded to or acceded to that detention.”   In any event, I would defer to the trial court's conclusion a detention occurred.  (See People v. King (1977) 72 Cal.App.3d 346, 139 Cal.Rptr. 926.)   Under the same circumstances presented to James D., a reasonable person would have believed he or she was not free to leave.  (See People v. Spicer (1984) 157 Cal.App.3d 213, 203 Cal.Rptr. 599.)Further, the People's reliance on Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 and Wilson v. Superior Court (1983) 34 Cal.3d 777, 195 Cal.Rptr. 671, 670 P.2d 325 appears misplaced.   Those cases deal with consents to search, and the courts in both cases suppressed the evidence because of unconstitutional detentions.

2.   Section 48264 of the Education Code provides a peace officer may arrest or assume temporary custody of a minor subject to full time education who is absent from school without a valid excuse.

3.   The majority does hint a stop may be appropriate if the minor is sufficiently youthful, but fails to suggest a practical line of demarcation.

4.   The days of “Aunt Bee” and “Mayberry RFD” are long gone and have been replaced with Cagney & Lacey and Charlie's Angels.Captain Furillo may know the gang leaders in his precinct, but the average cop on patrol is not familiar with the local students.

5.   The limited arrest power at issue here is analogous to the power bestowed upon a peace officer when a vehicle stop is effected to issue a citation for a traffic infraction.  “Vehicle Code section 40504, subdivision (a), commands that when a traffic offender such as defendant herein gives his written promise to appear by signing two copies of the citation, ‘Thereupon the arresting officer shall forthwith release the person arrested from custody.’  (Italics added.)   The statute leaves no room for interpretation:  it plainly and unequivocally provides that when the officer has completed his duties flowing from the violation, no further detention—whether for a warrant check or otherwise—is permissible:  the motorist must then be released ‘forthwith.’ ”  (People v. McGaughran, supra, 25 Cal.3d 577, 586, 159 Cal.Rptr. 191, 601 P.2d 207.)   But an arrest, limited or not, is a deprivation of liberty which invokes Fourth Amendment principles, whatever the purpose of the arrest power which is bestowed.   Thus McGaughran discusses the permissible length of a detention to issue a traffic citation.   And the fact the arrest here is related to the enforcement of the truancy law rather than a criminal law does not mean Fourth Amendment considerations are not implicated.  (See Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.)

6.   Had that been done, they would have found respondent was a college student and in fact not a truant.

7.   People v. Harness (1983) 139 Cal.App.3d 226, 188 Cal.Rptr. 776, which upheld a detention prolonged to complete a field identification card, is distinguishable.   The court affirmed the ruling of the trial court that it was appropriate to complete a so-called “F.I.” card during an investigation shortly after an attempted kidnapping.   In Harness the purpose for the detention was proper and it was pursued expeditiously.   Here, by contrast, a very limited noncriminal detention was initiated but its legitimate purpose not pursued.

CROSBY, Associate Justice.

TROTTER, P.J., concurs.