In re Jose S. 11/10/05 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G034984

Case Date: 02/22/2006

Preview:Filed 11/10/05 In re Jose S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE In re JOSE S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, G034984 Plaintiff and Respondent, (Super. Ct. No. DL018504) v. OPINION JOSE S., Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Richard Behn, Judge. Reversed. Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Chris Beesley, Deputy Attorney General for Plaintiff and Respondent.

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Defendant Jose S., appeals from a final judgment declaring him a ward of the court, which was entered after he admitted to possessing methamphetamine and marijuana. Before Jose admitted the allegations, the court denied his motion to suppress the drugs. Jose contends the court wrongly denied his motion because the police found the drugs during an illegal stop of the car in which Jose was a passenger. We conclude the traffic stop was an illegal detention, because no articulable facts reasonably suggested the driver violated the Vehicle Code or any other law. We further conclude the illegal traffic stop was not justified by the fact Jose happened to be a juvenile on probation. Thus, the drugs should have been suppressed. We reverse.

FACTS

Two Orange Police Department officers patrolling a shopping mall parking lot at 11:30 p.m., on a Saturday night, saw a blue Honda Civic make a right turn into the parking lot without signaling. The car then turned right again without signaling. The officers turned on their cruiser's emergency lights, and the car pulled over quickly. Officer John Mancini walked to the driver's window, while Officer Gary Nelson walked to the passenger's window. They may have had their weapons drawn as they approached the car. Officer Nelson stood close enough to the passenger's door that Jose would not have been able to open it without hitting the officer. Officer Mancini questioned the driver. He asked whether anything illegal was in the car; the driver answered, No. He then asked the driver for permission to search the car, and the driver consented. He next asked the driver to get out of the car, and obtained permission to search him, but found nothing illegal. Jose was fidgeting, sweating, and acting nervous. About 30 seconds after the driver was searched, Officer Mancini asked Jose to step out of the car. As Jose got out, Officer Nelson placed his hand on Jose's arm, and handcuffed him. He escorted Jose 2

back between the Civic and the police cruiser. Officer Nelson patted down Jose's clothing, finding nothing suspicious. Next, Officer Mancini asked Jose whether anything illegal was in the car, and Jose told him there was speed in the center console. Officer Mancini searched the car, finding methamphetamine, marijuana, and a glass pipe stashed in the center console. Jose admitted the drugs belonged to him. The officers placed Jose in the back of their cruiser, read him his Miranda rights, and drove him to the mall's police substation. They let the driver leave without citing him for any traffic violation. The District Attorney filed a petition to declare Jose a ward of the court pursuant to Welfare and Institutions Code section 602, charging him with one count each of possessing a controlled substance (methamphetamine), possessing 28.5 grams or less of marijuana, and possessing drug paraphernalia. (Health & Saf. Code,

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