Filed 2/18/15 In re Noah R. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


In re NOAH R., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,
                                                                       G049514
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL044787)
         v.
                                                                       OPINION
NOAH R.,

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County,
Cheryl L. Leininger, Judge. Reversed.
                   Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                              I.
                                        Introduction
              A wardship petition alleged in count 1 that Noah R. (the Minor) violated
Penal Code section 452, subdivision (d) by unlawfully setting a fire at a Lamps Plus store
on April 21, 2013 and alleged in count 2 that the Minor violated the same Penal Code
section by unlawfully setting a fire at a Lamps Plus store on April 14, 2013. Pursuant to
Welfare and Institutions Code section 700.1, the Minor moved to suppress evidence
obtained from a search of his backpack and admissions he made to a police officer.
              After the juvenile court denied the motion to suppress evidence and
admissions, the Minor admitted both counts of the wardship petition. The court declared
the Minor to be a ward of the court and placed him on probation with various terms and
conditions. In this appeal from the dispositional order, the Minor challenges the juvenile
court’s order denying his motion to suppress evidence.
              We reverse the dispositional order. It is undisputed the police officer
searched the Minor’s backpack without a warrant, based on the Minor’s consent. But
when the Minor gave his consent to the search of the backpack and made admissions to
the police officer, the Minor had been unlawfully detained, and consent that is the
product of an unlawful detention is not effective. (People v. Zamudio (2008) 43 Cal.4th
327, 341-342 (Zamudio).) As we shall explain, no reasonable person in the Minor’s
situation, and certainly not a 13-year-old youth, would have believed he or she could
have denied the officer’s request to search the backpack and walked away. Nor were
there specific and articulable facts to justify an investigative stop or detention of the
Minor.
                                              II.
                                            Facts
              The only evidence presented at the suppression hearing was the testimony
of Brea Police Officer Glenn Eastman. He testified that on April 14, 2013, at about

                                               2
3:40 p.m., he and several other police officers were dispatched to the parking lot of a
Lamps Plus store to investigate a dumpster fire. The investigation yielded no
information. On that same day, another fire had been reported at a nearby church.
              On April 21, 2013, at about 3:40 p.m., Eastman and two other police
officers were dispatched to the parking lot of the same Lamps Plus store to investigate
another dumpster fire. Footage from a security camera behind an adjacent “99 Cent
store” did not provide any information. Eastman went to a gym at the far west end of the
parking lot because a door of the gym was open and he believed someone inside might
have seen who set the fire. He spoke with two people inside the gym, but they could
provide no information.
              Soon thereafter, Eastman encountered the Minor on the sidewalk at the far
west end of the Lamps Plus store’s parking lot. Eastman asked the Minor “where he was
coming from,” and the Minor responded he had just come from the 99 Cent store, where
he had bought ice cream. Eastman told the Minor, “we had a dumpster fire” and asked if
he had seen anybody in or around the area. The Minor said he had not. The conversation
ended. Eastman continued patrolling the area and the Minor walked southbound.
              Eastman joined another officer in an undercover police car at the church
where the fire had been set a week earlier. When that investigation was ended, Eastman
drove his patrol car down Brea Boulevard. While stopped at a traffic light, Eastman saw
the Minor standing on the sidewalk of Elm Street and facing northward. The Minor
turned to his left, saw Eastman, immediately turned to his right, and walked into the
driveway of the “Brea Complex.”
              Eastman drove into the same driveway, parked, got out of his patrol car,
and walked westbound through a breezeway leading back to Brea Boulevard. Eastman
saw the Minor again. The Minor was 150 to 200 yards from the church parking lot and
about one-half mile from the spot where Eastman had spoken to him earlier. Eastman
testified: “It was odd, in my opinion, that I had seen him prior at the scene of the fire and

                                              3
then in an area where we had fires in the past, which met the same criteria or
circumstances as the first fires the week prior as well as the one that week on the 21st.
As well as the eye contact immediately turning the opposite direction and then walking
into the parking lot.”
              Eastman followed the Minor through the breezeway and onto a sidewalk.
When the Minor was about 10 yards in front of Eastman, he asked the Minor if he was
the “gentleman” or “kid” with whom Eastman had spoken earlier at the 99 Cent store.
The Minor turned around, stopped, and said he was. Eastman, who did not have a
weapon drawn, told the Minor to walk back to where Eastman was standing. The Minor
complied, and Eastman then resumed questioning him about the fires. Eastman asked if
the Minor knew anything about the fires. He answered, “no.” Eastman asked if the
Minor had anything illegal, or any matches or lighters, and he answered, “no.” Eastman
asked if the Minor had anything in his backpack, and he again answered, “no.” The
Minor was cooperative and did not appear unusually nervous.
              Eastman asked the Minor to open his backpack. In response, the Minor
unzipped the backpack’s large wraparound zipper. Eastman looked inside and saw only a
blue, three-ring binder. He believed it was odd for the Minor to be carrying a backpack
and binder on a Sunday and asked him why he had those items. The Minor said he had
“just come from home from writing a paper.” Eastman again asked the Minor if he knew
anything about the fires or had seen anything, and the Minor again replied, “no.”
              At that point, Eastman asked the Minor to open the small front pocket of
the backpack. The Minor cooperated, and Eastman saw a large box of matches inside the
pocket. When he saw the matches, Eastman told the Minor he was being detained and
took the backpack from him on the ground he was in violation of Penal Code section 308,
subdivision (b).
              Brea Police Sergeant Dickinson arrived and talked to the Minor, who was
now sitting on the sidewalk, while Eastman searched the backpack. Eastman moved the

                                             4
binder and discovered a large inside pocket, in which he found a bottle of nail polish
remover and lighter fluid. Eastman again asked the Minor if he knew anything about the
fires and told him, “it was [a] little suspicious that we had seen him at both locations, that
he had those materials on him.” The Minor at first said he had no idea who started the
fires. After some “back and forth,” the Minor admitted starting the fire on April 21 but
denied having anything to do with the fires on April 14. After some more “back and
forth,” the Minor admitted starting the fire at the Lamps Plus store on April 14 but denied
having anything to do with the fire at the church. Eastman read the Minor his rights
pursuant to Miranda v. Arizona (1966) 384 U.S. 436.
               The Minor sought to suppress evidence obtained from the search of his
backpack, including the nail polish remover, matches, and lighter fluid, and to suppress
his admissions made to Eastman. The juvenile court denied the motion to suppress,
stating, “I do find it was a consensual encounter and consensual search.”


                                             III.

               The Minor’s Consent to the Search of the Backpack Was
                 Ineffective Because He Had Been Illegally Detained.
               The Minor argues the juvenile court erred by denying his motion to
suppress because the evidence established he had been unlawfully detained at the time
Eastman asked him to open the front pocket of his backpack, where the box of matches
was found. The Minor argues his consent to search his backpack was therefore
ineffective.
                                              A.
                                     Standard of Review
               Consent that is the product of an illegal detention is not voluntary and is
ineffective to justify a search or seizure unless subsequent events adequately dispel the
coercive taint. (Zamudio, supra, 43 Cal.4th at p. 341.) In determining whether a


                                              5
detention has occurred within the meaning of the Fourth Amendment to the United States
Constitution, we review the trial court’s findings of historical fact under the substantial
evidence standard and independently apply constitutional standards to those facts.
(Zamudio, supra, at p. 342.) We draw all factual inferences in favor of the trial court’s
ruling and accept the trial court’s resolution of disputed facts and evaluations of
credibility. (Ibid.)


                                              B.
                   The Minor Was Detained When He Gave His Consent.
               Police contact with members of the public can be placed into three broad
categories: (1) “consensual encounters that result in no restraint of liberty whatsoever”;
(2) “detentions, which are seizures of an individual that are strictly limited in duration,
scope, and purpose”; and (3) “formal arrests or comparable restraints on an individual’s
liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) “Consensual encounters do not
trigger Fourth Amendment scrutiny[,] . . . [and,] “[u]nlike detentions, they require no
articulable suspicion that the person has committed or is about to commit a crime.”
(Ibid., citation omitted.)
               The “threshold issue” is whether the Minor was detained or seized when he
gave his consent to Eastman to look in the front pocket of his backpack. (Zamudio,
supra, 43 Cal.4th at p. 341.) A detention or seizure occurs when the officer, by means of
physical force or show of authority, intentionally restrains a person’s freedom of
movement. (Ibid.) Although a number of circumstances have been identified to consider
                                                                        1
in making the determination whether a detention or seizure occurred, the ultimate

 1
    “Circumstances establishing a seizure might include any of the following: the
presence of several officers, an officer’s display of a weapon, some physical touching of
the person, or the use of language or of a tone of voice indicating that compliance with
the officer’s request might be compelled. [Citations.] The officer’s uncommunicated
state of mind and the individual citizen’s subjective belief are irrelevant in assessing

                                              6
question considering all of the circumstances surrounding the encounter, is whether a
reasonable person would believe he or she was free to disregard the officer’s requests or
to terminate the encounter and leave. (Zamudio, supra, at p. 341; In re Manuel G., supra,
16 Cal.4th at p. 821 [“As long as a reasonable person would feel free to disregard the
police and go about his or her business, the encounter is consensual and no reasonable
suspicion is required on the part of the officer.”].) The test is objective and looks to “‘the
intent of the police as objectively manifested’” to the person encountered. (Zamudio,
supra, at p. 341.)
              When the Minor gave Eastman consent to search the backpack, would a
reasonable person have believed he or she was free to decline Eastman’s request,
terminate the encounter, and leave? Under the facts established at the suppression
hearing, no reasonable person, and certainly not a 13-year-old youth, would have
believed he or she could have refused to let Eastman search the backpack.
              The Minor encountered Eastman twice. The first time was near the parking
lot of the Lamps Plus store. Eastman asked the Minor about the fire, and the Minor
denied any knowledge of it. The encounter ended, and the Minor went his way. This
first encounter was consensual.
              But what began as a consensual encounter was transformed into a detention
by the time of the second encounter. It is significant that the second encounter between
Eastman and the Minor was not by chance. When the Minor was standing on the
sidewalk of Elm Street, he glanced and saw Eastman in his patrol car. The Minor turned
and walked in a different direction but soon heard Eastman, who was on foot about 10
yards behind the Minor, ask him if he was the same person Eastman had spoken with
earlier at the 99 Cent store. It would have been clear to a reasonable person, based on
objective factors, that Eastman had been following the Minor and possibly suspected him

whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]”
(In re Manuel G., supra, 16 Cal.4th at p. 821.)

                                              7
of having committed a crime. The Minor turned around, stopped, and said he was.
Eastman told the Minor to walk back to where Eastman was standing. Asking the Minor
to approach Eastman did not in itself create a detention (In re J.G. (2014) 228
Cal.App.4th 402, 412), but the request came after Eastman had already once questioned
the Minor and after the objective circumstances established Eastman had been following
the Minor on foot. Although Eastman testified he did not raise his voice and did not have
a weapon drawn, no reasonable person in contemporary America would believe
Eastman’s request could be disobeyed without consequences. As our colleague has
asked, “how does one exercise one’s right to decline a conversation with a police officer
without assisting the officer in establishing reasonable suspicion?” (People v. Perrusquia
(2007) 150 Cal.App.4th 228, 236 (conc. opn. of O’Leary, J.) (Perrusquia).)
              After the Minor approached Eastman, he again questioned the Minor about
the fires. The Minor again denied any knowledge. Eastman did not terminate the
encounter, but continued to press the Minor for information. When the Minor opened his
backpack, Eastman questioned why he was carrying a backpack and a binder. The Minor
replied he had been doing homework. Eastman did not accept that response and again
asked the Minor if he knew anything about the fires, and the Minor again said no. The
questioning was not directly accusatory; however, the fact the questions were the same as
previously asked during the first encounter, Eastman’s persistent refusal to accept the
Minor’s “no” answers, and Eastman’s questioning why the Minor carried a backpack
containing a blue binder, would leave no doubt in a reasonable person’s mind that
Eastman was highly suspicious that the Minor had set the dumpster fires. “[Q]uestions of
a sufficiently accusatory nature may by themselves be cause to view an encounter as a
nonconsensual detention[,] . . . and the degree of suspicion expressed by the police is an
important factor in determining whether a consensual encounter has ripened into a
detention.” (People v. Lopez (1989) 212 Cal.App.3d 289, 292-293, citation omitted.)



                                             8
              At that point, Eastman requested to look inside the front zippered pocket of
the Minor’s backpack. A reasonable person would not believe he or she could deny the
request; indeed, had the Minor refused to comply and walked away, his conduct could
have been used to justify a detention on the ground he was being evasive. (See, e.g.,
People v. Souza (1994) 9 Cal.4th 224, 235-239, 241.)
              In particular, a 13 year old, undoubtedly taught in school to respect and
obey law enforcement officers, would not feel free to disregard a request made by a
uniformed and armed police officer. In J. D. B. v. North Carolina (2011) 564 U.S. __
[131 S.Ct. 2394] (J .D. B.), the United States Supreme Court held a child’s age “properly
informs” the custody analysis under Miranda v. Arizona, supra, 384 U.S. 436 (J .D. B.,
supra, at p. __ [131 S.Ct. at pp. 2398-2399]), “[s]o long as the child’s age was known to
the officer at the time of the interview, or would have been objectively apparent to any
reasonable officer” (id. at p. __ [131 S.Ct. at p. 2404]). In J .D. B., the Supreme Court
noted that “[i]n some circumstances, a child’s age ‘would have affected how a reasonable
person’ in the suspect’s position ‘would perceive his or her freedom to leave.’
[Citation.]” (Id. at p. __ [131 S.Ct. at pp. 2402-2403].) That is because, the court
explained, children are generally less mature and responsible than adults, often lack the
experience and judgment to recognize and avoid detrimental choices, and are more
susceptible to outside pressure than adults. (Id. at p. __ [131 S.Ct. at p. 2403].) The law
historically has assumed children lack the capacity to “exercise mature judgment” (id. at
p. __ [131 S.Ct. at p. 2403]), and, “even where a ‘reasonable person’ standard otherwise
applies, the common law has reflected the reality that children are not adults” (id. at p. __
[131 S.Ct. at p. 2404].)
              Although this is a Fourth Amendment case, and not a Fifth Amendment
case, the reasoning of J. D. B. applies just as forcefully to Fourth Amendment detention
analysis. In In re J.G., supra, 228 Cal.App.4th at page 410, the Court of Appeal
examined J. D. B. in the context of a Fourth Amendment detention and stated: “J. D. B.’s

                                              9
holding—that a juvenile’s age is a factor in the reasonable-person analysis of Fifth
Amendment custody—may implicate ‘other areas of criminal procedure—including
voluntariness of waivers of rights and seizure inquiries’ as well as areas of substantive
criminal law, such as ‘blameworthiness of [the subject’s] conduct and/or state of mind.’
[Citation.] The holding seems particularly fitting for search-and-seizure analyses since
the tests for custody under the Fifth Amendment and detentions under the Fourth
Amendment both focus on how reasonable persons would perceive their interaction with
the police.” The Court of Appeal “recognize[d] the strength of the argument that
J. D. B.’s holding should be extended to Fourth Amendment custody determinations,” but
did not resolve the issue because it concluded the juvenile defendant had been illegally
detained regardless of his age. (Id. at p. 411.)
              Here, the record shows that Eastman knew, at the time of the encounters,
the Minor was a youth, having referred to him as “kid.” We cannot “blind [our]selves to
a juvenile defendant’s age” (J. D. B., supra, 564 U.S. at p. __ [131 S.Ct. at p. 2406]) and
“[n]either officers nor courts can reasonably evaluate the effect of objective
circumstances that, by their nature, are specific to children without accounting for the age
of the child subjected to those circumstances” (id. at p. __ [131 S.Ct. at p. 2405]). We
conclude the Minor’s consent to search the backpack was the product of a warrantless
detention. We turn to the question whether the second encounter between Eastman and
the Minor was justified as an investigative stop or detention.


                                              C.
                            The Minor’s Detention Was Illegal.
              Eastman’s detention of the Minor and search of his backpack was lawful if,
under the circumstances, Eastman had a reasonable suspicion the Minor had committed,
or was about to commit, a crime. An investigative stop or detention is justified if the
circumstances known or apparent to the officer include “specific and articulable facts”

                                             10
causing the officer to suspect that “(1) some activity relating to crime has taken place or
is occurring or about to occur, and (2) the person [the officer] intends to stop or detain is
involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other
grounds in Cal. Const., art. I, § 28.) “The corollary to this rule, of course, is that an
investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful,
even though the officer may be acting in complete good faith.” (In re Tony C., supra, at
p. 893, citing Terry v. Ohio (1968) 392 U.S. 1, 22.)
              We consider “‘the totality of the circumstances’” of the case to determine
whether Eastman had a “‘particularized and objective basis’ for suspecting legal
wrongdoing.’” (United States v. Arvizu (2002) 534 U.S. 266, 273.) The Attorney
General argues Eastman was justified in detaining the Minor based on these three facts:
(1) the Minor was present “at the scene” of the Lamps Plus store fire when Eastman first
spoke with him; (2) an hour later, the Minor was near the scene of the church fire; and
(3) when the Minor saw Eastman in the patrol car, the Minor “deliberately tried to avoid
contact with Officer Eastman.”
              Considering those facts as a whole, we conclude there were not specific and
articulable facts to justify the Minor’s detention. When Eastman first encountered the
Minor, he was on a sidewalk at the far west end of the Lamps Plus store’s parking lot and
was walking from a 99 Cent store. Other than proximity to the dumpster, there was
nothing to link the Minor to the fire. The next time Eastman saw the Minor he was about
a half mile away, along Brea Boulevard, a busy street. The Minor was 150 to 200 yards
from the church, but so presumably were other people on a Sunday, and the church fire
had been reported a week earlier. The Minor had never been seen at the church.
Eastman and another officer had just completed an undercover surveillance of the church,
apparently with no results.
              The Minor, after seeing Eastman in the patrol car on Brea Boulevard,
turned and walked in the opposite direction. Eastman believed such behavior was “odd,”

                                              11
                                                  2
but a hunch is not a lawful basis for a detention. Flight or evasive action upon
encountering a uniformed police officer or a patrol car is a consideration, but only in
combination with other factors, and in itself cannot justify a detention. (People v. Souza,
supra, 9 Cal.4th at pp. 235-239, 241.) In People v. Souza, the defendant was seen at
3:00 a.m., in a high crime area, leaning toward a parked car as if talking to someone
inside. (Id. at p. 240.) When the police officer directed his patrol car’s spotlight into the
car’s interior, two people in the front seat bent down toward the floorboard and the
defendant took off running. (Ibid.) The court concluded, “[f]rom these circumstances—
the area’s reputation for criminal activity, the presence of two people near a parked car
very late at night and in total darkness, and evasive conduct not only by defendant but by
the two occupants of the parked car—[the police officer] reasonably suspected that
criminal activity was afoot.” (Ibid.)
              In contrast to People v. Souza, the circumstances in this case—the Minor’s
presence on a sidewalk near the Lamps Plus store and presence later on Brea Boulevard
not far from the church where a fire had occurred a week earlier—are not sufficient to
make the Minor’s evasive conduct meaningful in determining whether a lawful detention
occurred. Moreover, many reasonable people, guiltless of any offense, might have good
reason for not wanting to have contact with law enforcement. (People v. Souza, supra, 9
Cal.4th at p. 243 (conc. opn. of Mosk, J.) [“an individual may have quite innocent
motives for avoiding the police”].)
              The Minor argues Perrusquia, supra, 150 Cal.App.4th 228, is similar. In
that case, Police Officer Ryan Tisdale was on patrol in a high crime area of Anaheim in
which six convenient stores recently had been robbed. (Id. at pp. 230-231.) A suspect
had been described as a Black or Hispanic male in his late 20’s. (Ibid.) At about
11:26 p.m., as Tisdale drove into the parking lot of a convenience store, he noticed the
 2
   On cross-examination, Eastman testified the only reason he asked the Minor to come
speak with him was because Eastman recognized the Minor from the first encounter.

                                             12
defendant’s car parked next to the exit. (Id. at p. 231.) The car caught Tisdale’s attention
because other parking spots were closer to the store’s entrance, someone was inside the
car, and its engine was idling. (Ibid.) Tisdale stood behind the car and saw the
defendant, who was crouched low in the driver’s seat and leaning against the glass.
(Ibid.) Another officer arrived, and, after seeing that the defendant had not moved, the
two officers began to approach the car. (Ibid.) As they reached the rear of the car,
Tisdale heard what sounded like “‘a fumbling’” and what sounded like something
dropping to the floor with a “‘thud.’” (Ibid.) Tisdale saw the defendant look at him in
the car’s side mirror, at which point the defendant turned off the car’s engine, got out of
the car, and “‘aggressively, quickly’” tried to pass Tisdale. (Ibid.) The defendant was
wearing baggy jeans, and an untucked, long-sleeved baggy shirt. (Ibid.) At that moment,
Tisdale asked the defendant what was going on, to which the defendant replied that he
was going to the store. (Id. at pp. 231, 234.) At that moment, Tisdale asked the
defendant to “‘hang on a second.’” (Ibid.)
              The Court of Appeal concluded, based on those facts, the officers did not
have a reasonable suspicion to detain the defendant at that moment. (Perrusquia, supra,
150 Cal.App.4th at p. 234.) “[Tisdale] had a hunch that something was amiss with
defendant, and he turned out to be right. That he was right, however, cannot be used to
retroactively justify a detention.” (Ibid.)
              The facts supporting reasonable suspicion in this case are weaker than those
found to be insufficient in Perrusquia. Here, unlike Perrusquia, the Minor was seen in
broad daylight, no evidence was presented that he was in a high crime area, he was not
wearing suspicious clothing, and he did not run or try to get away quickly. The facts
known to Eastman amounted to a hunch that the Minor had set the dumpster fires.
Although that hunch turned out to be correct, it did not justify an investigative stop or
detention.



                                              13
                                         IV.
                                    Disposition
           The dispositional order is reversed.




                                               FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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