People v. Jeremiah S. (In re Jeremiah S.)

41 Cal.App.5th 299

254 Cal.Rptr.3d 88

IN RE JEREMIAH S., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.Jeremiah S., Defendant and Appellant.

A155856

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

Filed October 18, 2019

Elizabeth H. Eng, under appointment by the First District Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Ronald E. Niver, Deputy Attorney General, for Plaintiff and Respondent.

Fujisaki, J. Jeremiah S., a minor, appeals from jurisdiction and disposition orders entered by the juvenile court ( Welf. & Inst. Code, § 800 ).¹ A San Francisco juvenile court had denied Jeremiah’s motion to suppress evidence obtained from a patdown search for weapons ("patsearch") and found true the allegation that Jeremiah had committed second-degree robbery. The matter was transferred to Alameda County, where a wardship proceeding was already pending, and the juvenile court declared wardship and placed Jeremiah on probation on various terms.

On appeal, Jeremiah contends his suppression motion was erroneously denied. We agree. Based on our independent review of the undisputed facts, we conclude the officer who conducted the patsearch did not present specific and articulable facts to support a reasonable suspicion that Jeremiah was armed and dangerous. In so concluding, we decline to recognize a rule that would essentially validate any patsearch of a suspected robber who is lawfully detained following a report of a fresh robbery, regardless of the particular circumstances. Accordingly, we reverse the jurisdiction and disposition orders and remand the matter to the juvenile court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

At around 11:20 p.m. on July 2, 2018, Ornin Gosuwin was carrying a crossbody bag and holding an iPhone as she walked on Spear Street toward Market Street in San Francisco. She saw two "young black men" coming from around the corner. Both were wearing hoodies, one of which had a blue hue. As Gosuwin stopped to let the young men pass, one of them pushed her left shoulder and caused her to fall to the ground. As the two young men stood over her and began pulling her bag and phone away, one of them demanded, "Give me your phone, bitch." Gosuwin resisted, but the assailants eventually obtained her phone and purse and continued on Market Street in the direction of the Embarcadero. Gosuwin suffered scratches and bruises around her neck from the strap of her bag.

After the attack, Gosuwin went to a nearby building, where a security guard called the police. San Francisco Police Officer Kristoffer Stoffel arrived and obtained Gosuwin’s description of the two individuals and the stolen items. Gosuwin did not see any weapons on her assailants, and she did not report that any weapons were used.

An officer used the "Find My iPhone app" to try to locate Gosuwin’s phone. The map indicated that Gosuwin’s phone was "pinging" on the Embarcadero near either Pier 19 or Pier 17 before being turned off. Officers later found Gosuwin’s purse on the ground on the Embarcadero near the Ferry Building.

At approximately 11:29 p.m., Officers Bryan Neuerburg and Anthony Halligan were on patrol when they received "a dispatch call for service for a robbery in the area of 51 Market Street." Neuerburg and Halligan were dispatched to the area around Pier 19 to look for the two "robbery suspects." They had been told that a purse and phone had been stolen and that the phone had been tracked to the area near Pier 19. There was no radio broadcast that a weapon had been used in the incident, and Neuerburg was not otherwise told that a weapon was used. The suspects were initially described as "two black male juveniles," but the description was updated to "young black males approximately in their 20s," with one suspect wearing a light blue or gray hoodie. As the officers drove along the Embarcadero, they noticed Jeremiah and J.A., both juveniles, walking northbound, and one was wearing what appeared to be a light gray hoodie. The officers followed them for several blocks, driving slowly while they confirmed the description of the suspects.

Officer Ryan Champlin and his partner were also dispatched to the area around Piers 19 through 33. They stopped Jeremiah and J.A. and instructed them to get close to the buildings on the sidewalk. Officers Neuerburg and Halligan arrived on the scene as Jeremiah and J.A. were being detained.

According to the police report, Jeremiah stood 5 feet, 5 inches tall and weighed 130 pounds. A police officer instructed Jeremiah to face a wall with his legs spread and his arms above his head. He did as instructed and made no sudden movements or attempts to run away. Officer Neuerburg did not notice any weapon-like bulges in Jeremiah’s clothing, and there was nothing about Jeremiah’s appearance, behavior, or actions to make him believe that Jeremiah was armed and dangerous. Nevertheless, Neuerburg believed Jeremiah was armed and dangerous because "a robbery occurred" and he knew that "most robberies involve a weapon or most robbers tend to have weapons on their persons."

As Officer Neuerburg began his patsearch, he immediately felt two phones in Jeremiah’s pocket. Believing the phones were evidence of the reported robbery, Neuerburg asked if he could take them out of the pocket, and Jeremiah consented. One phone’s background picture and password matched those of the victim’s phone.

The San Francisco District Attorney’s Office filed an amended wardship petition pursuant to section 602, alleging that Jeremiah, 14 years of age, committed felony violations of second-degree robbery ( Pen. Code, § 211 ; count 1) and receiving stolen property ( Pen. Code, § 496, subd. (a) ; count 2).

Jeremiah moved to suppress the evidence obtained from the patsearch. The motion was heard on July 30, 2018, at the same time as the contested jurisdiction hearing. After hearing testimony from Gosuwin and Officers Neuerburg, Halligan, Stoeffel, and Champlin, the juvenile court denied the motion to suppress. The court then found the count 1 allegation of second-degree robbery to be true and dismissed count 2. At the close of the jurisdiction hearing, the court ordered Jeremiah transferred to Alameda County where a previous wardship petition alleging that Jeremiah committed second degree robbery in Alameda County on June 13, 2018, was pending. Thereafter, Jeremiah admitted to a stipulated lesser offense of felony accessory ( Pen. Code, § 32 ) for the June 13, 2018 offense. The juvenile court held a disposition hearing and declared wardship, deemed the San Francisco offense to be a felony, and placed Jeremiah on probation in his stepmother’s home on various terms.

Jeremiah appealed from the disposition and jurisdiction orders.

DISCUSSION

Jeremiah contends the juvenile court erred in denying his suppression motion because the officer who patsearched him had no specific and articulable facts to support a reasonable suspicion that he was armed and dangerous. Conversely, the People contend the patsearch was valid because Jeremiah was a suspect in a robbery, and all forms of robbery are likely to involve a weapon. For the reasons below, we conclude the patsearch cannot be upheld.

The Fourth Amendment of the United States Constitution guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. ( Terry v. Ohio (1968) 392 U.S. 1, 8–9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Terry ).) If an officer has a reasonable suspicion, supported by specific and articulable facts, that criminal activity is afoot, the officer may conduct a brief, investigative stop. ( Id . at pp. 21–22, 88 S.Ct. 1868.) Additionally, if the officer conducting the so-called Terry stop believes the suspect is armed and dangerous, the officer may perform a limited search of a person’s outer clothing for weapons, i.e., a patsearch, whether or not the officer has probable cause to arrest. ( Id. at pp. 27, 30, 88 S.Ct. 1868.)

The principles governing patsearches are settled. ( Minnesota v. Dickerson (1993) 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (Dickerson ).) Because a patsearch "is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," it is subject to Fourth Amendment restrictions and "not to be undertaken lightly." ( Terry , supra , 392 U.S. at p. 17, 88 S.Ct. 1868.) The "sole justification" of the patsearch "is the protection of the police officer and others nearby." ( Id . at p. 29, 88 S.Ct. 1868.) Its purpose "is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence." ( Dickerson, at p. 373, 113 S.Ct. 2130.) Such a search—which is "permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ " (Ibid ., quoting Terry , at p. 26, 88 S.Ct. 1868.)

The validity of a patsearch depends on the totality of the circumstances and turns on whether "a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger." ( Terry , supra , 392 U.S. at p. 27, 88 S.Ct. 1868 ; see People v. Avila (1997) 58 Cal.App.4th 1069, 1074, 68 Cal.Rptr.2d 432.) This requires that the officer provide "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." ( Terry , at p. 21, 88 S.Ct. 1868.) In this regard, "due weight" is given to the specific reasonable inferences that the officer "is entitled to draw from the facts in light of his [or her] experience." ( ...