Filed 9/24/15 In re Kevin L. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re KEVIN L., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F069310

         Plaintiff and Respondent,                                          (Super. Ct. No. 14CEJ600111)

                   v.
                                                                                         OPINION
KEVIN L.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Kimberly
Nystrom-Geist, Judge.
         Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory
B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Gomes, Acting P. J., Detjen, J. and Franson, J.
                                    INTRODUCTION
       The juvenile court adjudged appellant a ward of the court (Welf. & Inst. Code,
§ 602) after appellant admitted the People’s allegation that he had possessed
methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On appeal, appellant argues
the juvenile court erred by denying his motion to suppress the methamphetamine, as the
search that yielded that evidence was unlawful. We affirm.
                                          FACTS
       On February 19, 2014, Officer Michael Aguilar observed a group of four minors,
including appellant, run across a street and impede traffic. Aguilar detained the group for
jaywalking and, because appellant was wearing a baggy sweatshirt that covered his
waistband, informed the minors that they would be subject to a patdown search for
weapons. As Aguilar placed appellant’s hands behind his head, he observed a pack of
cigarettes sticking out of appellant’s pocket. Aguilar placed appellant under arrest for
possession of tobacco, and a search incident to that arrest yielded a small bag of
methamphetamine.
       As a result of the search, a petition was filed against appellant alleging the
possession of methamphetamine. Prior to the jurisdictional hearing, appellant filed a
motion to suppress the evidence against him, arguing the patdown search was unlawful
and the cigarettes and methamphetamine were products of that unlawful search. The
People opposed the motion, arguing the search was justified as a search incident to arrest
or, in the alternative, the search was based on a reasonable suspicion that appellant was
armed and dangerous.
       Following a hearing on the matter, the juvenile court denied appellant’s motion to
suppress, finding the search was based on a reasonable suspicion that appellant was
armed and dangerous. Appellant then admitted the allegation in the petition, and was
adjudged a ward of the court. This appeal followed.


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                                       DISCUSSION
       Appellant argues the patdown initiated by Officer Aguilar was unlawful, as it was
neither incident to an arrest nor based on a reasonable suspicion that appellant was armed
and dangerous. We disagree.
       While warrantless searches are generally presumed to be unreasonable, a search
incident to a lawful arrest is a settled exception to the warrant requirement. (Chimel v.
California (1969) 395 U.S. 752, 762-763.) A search incident to arrest may precede the
actual arrest, however, so long as (1) the probable cause to arrest existed prior to the
search, and (2) the arrest followed shortly after the search. (Rawlings v. Kentucky (1980)
448 U.S. 98, 111; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240.)
       Here, it is undisputed that Officer Aguilar had probable cause to believe appellant
had committed a jaywalking violation. While jaywalking is a minor offense, an officer
who “has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence ... may, without violating the Fourth Amendment, arrest
the offender.” (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354; see People v.
McKay (2002) 27 Cal.4th 601, 607.) Accordingly, Aguilar had probable cause to arrest
appellant prior to initiating the patdown search that yielded the cigarettes and
methamphetamine.
       In addition to having probable cause to arrest appellant prior to the search, it is also
undisputed that Aguilar arrested appellant immediately following the search. It is of no
consequence that the arrest was for a different offense than the one Aguilar had probable
cause to arrest appellant for prior to the search, as probable cause to arrest does not
“evaporate” because a suspect is ultimately arrested for a different offense. (People v.
Gomez (2004) 117 Cal.App.4th 531, 539 (Gomez).)
       In an attempt to rebut the validity of Aguilar’s patdown search, appellant cites
People v. Scott (1976) 16 Cal.3d 242 (Scott), Knowles v. Iowa (1998) 525 U.S. 113

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(Knowles), and Rodriguez v. United States (2015) ____U.S. ____ [135 S.Ct 1609]
(Rodriguez). All of these cases are readily distinguished. In Scott, police offered to
provide a ride to an individual, but conducted a patdown search prior to allowing him
inside the patrol car. (Scott, supra, 16 Cal.3d at p. 245.) Though the search yielded
illegal narcotics, our Supreme Court held the search to be unlawful, as the individual was
being given a voluntary ride and was not under arrest. (Id. at pp. 246, 249.) In the instant
case, however, the interaction was not voluntary, and while appellant had not yet been
placed under arrest, Officer Aguilar had probable cause to do so.
       Knowles is similarly distinguishable. There, an officer stopped a motorist for
speeding and, instead of arresting the driver, issued a traffic citation. (Knowles, supra,
525 U.S. at p. 114.) After issuing the citation, the officer conducted a search of the
vehicle, and recovered narcotics and narcotics paraphernalia. (Ibid.) The United States
Supreme Court found the search unlawful, however, as the driver had not been placed
under arrest, but had instead been issued a citation. (Id. at p. 117.) By contrast, in the
instant case, Officer Aguilar had not opted to issue a citation to appellant before initiating
the patdown search.
       Rodriguez is also distinguishable. In that case, an officer delayed the conclusion
of an otherwise completed traffic stop for approximately seven to eight minutes in order
to procure backup for the purposes of having a drug-sniffing dog inspect the suspect’s
car. (Rodriguez, supra, 135 S.Ct at pp. 1612-1613.) Though the dog located
methamphetamine, the United States Supreme Court invalidated the search on the
grounds that it unduly prolonged the detention beyond the time required to complete the
“tasks tied to the traffic infraction.” (Id. at p. 1614.) The Rodriguez court differentiated,
however, between impermissible delays caused by extraneous investigations into separate
criminal acts, such as dog sniffs in the absence of reasonable suspicion, and permissible
delays caused by officer safety measures, such as ordering a suspect out of his or her
vehicle. (Id. at p. 1616.)

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       In the instant case, however, there is no evidence showing that Officer Aguilar
initiated the patsearch of appellant for any reason other than officer safety. Further, a
patsearch conducted at the scene of a police detention, as occurred in this case, prolongs a
detention far less than a call for backup followed by a dog sniff, as occurred in
Rodriguez. In sum, while Rodriguez focused on the validity of searches concerning
extraneous criminal acts that unduly prolong a detention, the instant case involves an
officer safety search that, had it not yielded evidence of additional criminal acts, would
have resulted in only a token increase in appellant’s detainment time. As such, Rodriguez
is not applicable.
       More applicable is the principle of law annunciated in Gomez, supra,
117 Cal.App.4th 531, and discussed above. There, police detained a motorist for a
seatbelt infraction and initiated a search of the vehicle that resulted in the discovery of
narcotics, for which the driver was subsequently arrested. (Id. at p. 536.) In upholding
the validity of the detainment and search, the Fourth Appellate District held there was
probable cause to arrest the driver for a seatbelt infraction, detainment with probable
cause to arrest is a lawful de facto arrest, and “[a]bsent a Fourth Amendment violation,
the evidence obtained as a result of the de facto arrest may not be suppressed.” (Id. at
p. 539.)
       Here, because Officer Aguilar had probable cause to arrest appellant prior to the
search, and the arrest followed shortly after the search, we find the search lawfully
incident to arrest. As we find the search was justified on that ground, we need not
address the question of whether or not it was based on a reasonable suspicion that
appellant was armed and dangerous.
                                      DISPOSITION
       The judgment is affirmed.




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