In re Charles G.

2008 | Cited 0 times | California Court of Appeal | February 29, 2008


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Charles G. appeals his adjudication of wardship and the finding that he possessed a firearm as a minor. He argues the trial court erred in denying his motion under the Fourth Amendment to the United States Constitution to suppress evidence of the firearm as the fruit of an illegal search. We conclude that the search was constitutional because the officers who searched him had probable cause to do so, and affirm.


At 6:30 p.m. on November 28, 2006, two deputy probation officers and a sheriff's deputy were patrolling in Compton. They were in a marked police car. One of the probation officers noticed appellant, who appeared to be less than 18 years old, walking along the street smoking a cigarette and talking on a cellular phone. The officers stopped, exited the vehicle and approached him. He appeared nervous and smelled of marijuana.

One of the probation officers asked appellant his age, and he said he was 17. The same officer asked appellant why he was nervous, and appellant said he had just finished smoking marijuana. Another officer then searched appellant for marijuana and tobacco. As he did, a loaded handgun fell from appellant's pants.

A petition to declare appellant a ward of the court under Welfare and Institutions Code section 602 was filed on November 30, 2006. Count 1 alleged possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)), count 2 alleged carrying a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1)), and count 3 alleged possession of tobacco by a minor. (Pen. Code, § 308, subd. (b).)

Appellant filed a motion to suppress evidence of the handgun pursuant to Welfare and Institutions Code section 700.1. After hearing, the trial court sustained the petition as to count 1 and dismissed counts 2 and 3 on its own motion. Appellant was declared a ward of the court and committed to 90 days in a camp-community placement program. He filed a timely appeal from the judgment.


The sole issue on appeal is whether the trial court erred in denying appellant's motion to suppress evidence of the handgun. "When reviewing a ruling on a motion to suppress evidence, we first determine whether the trial court's factual findings, express or implied, are supported by substantial evidence. [Citation.] We then exercise our independent judgment to determine whether, on the facts found by the court, the search was reasonable under the Fourth Amendment. [Citation.]" (In re Lisa G. (2004) 125 Cal.App.4th 801, 805.)

"'[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.' [Citation.]" (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.) "'"A detention is reasonable under the Fourth Amendment when the detaining 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."' [Citation.]" (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1396.) The length of the detention must be reasonably related to the circumstances justifying the detention. (People v. Brown (1998) 62 Cal.App.4th 493, 499.)

Here, the officers noticed that appellant appeared to be a minor in possession of tobacco, which is a violation of Penal Code section 308, subdivision (b). This justified their initial stop to confirm his age.

Appellant argues the officers had no objective evidence to believe that he was involved in criminal activity. But his youthful appearance and possession of a lit cigarette are such evidence. The officers could not determine whether appellant actually was underage without questioning him. When they approached, they noticed that he smelled of marijuana, justifying further questioning.

Appellant argues his initial detention was unreasonably prolonged. The detention lasted 30 seconds before appellant was searched. During that time, the officers asked appellant to state his age and explain why he appeared nervous. This half-minute detention was reasonably related to the circumstances prompting the detention.

Relying on Knowles v. Iowa (1998) 525 U.S. 113, 118-119, appellant argues that his possession of tobacco was merely a citable offense that did not justify the search. The Knowles court held that a search incident to citation violated the Fourth Amendment because the circumstances did not justify concerns for officer safety or preservation of evidence. (Ibid.) But, as we shall explain, the officers who searched appellant had probable cause to do so, a fact absent in Knowles. (Id. at pp. 114-115.)

Probable cause to search exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found . . . [citations]." (Ornelas v. United States (1996) 517 U.S. 690, 696.) The existence of probable cause must be determined in context of the facts and circumstances of an individual case. (Ibid.)

Here, the officers smelled marijuana when they approached appellant, and he told them he had just smoked marijuana. These facts support the reasonable belief that he was in possession of marijuana. Thus, the officers had probable cause to search him for that substance. (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059 [probable cause to search for marijuana when officers smelled marijuana, defendant said he had just smoked marijuana and officers saw a bag of marijuana in defendant's vehicle].) Because the officers had probable cause to search appellant, the Fourth Amendment did not require exclusion of the handgun they discovered during that search.


The judgment is affirmed.

We concur: WILLHITE, J., MANELLA, J.

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