Filed 12/8/14 In re T.T. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re T.T.,                                                          B252468

a Person Coming Under the Juvenile                                   (Los Angeles County
Court Law.                                                           Super. Ct. No. TJ20943)


THE PEOPLE,

         Plaintiff and Respondent,

         v.

T.T.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Catherine J.
Pratt, Juvenile Court Referee. Reversed.
         Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.


                                         ________________________
                                    INTRODUCTION


       The juvenile court found true allegations that T.T. had unlawfully possessed a
loaded firearm and live ammunition. T.T. argues that the police obtained the handgun
and ammunition from an unlawful pat search and that the trial court erred by denying his
motion to suppress. We reverse.


                  FACTUAL AND PROCEDURAL BACKGROUND


       The People filed a petition pursuant to Welfare and Institutions Code section 602
alleging that T.T. had committed the offenses of carrying a loaded and unregistered
handgun (Pen. Code, § 25850, subd. (a), a felony), possession of a firearm by a minor
(id., § 29610, a felony), and possession of live ammunition by a minor (id., § 29650, a
misdemeanor). T.T. denied the allegations and filed a motion to suppress.
       The trial court heard T.T.’s motion to suppress at the jurisdiction hearing. Los
Angeles Police Officer Richard Pacheco testified that on August 16, 2014 he and his
partner, Officer Wilhelm, were among additional officers assigned to patrol the
Nickerson Gardens and Jordon Downs housing developments because of a recent
increase in rival gang violence. The gang violence included a drive-by shooting the
previous week at Nickerson Gardens. One of the victims was injured in the shooting, and
the other died.
       At approximately 8:40 that morning, Officers Pacheco and Wilhelm saw T.T.,
then 17 years old, in the area of Nickerson Gardens riding his bicycle against traffic, in
violation of Vehicle Code section 21650.1. T.T. was wearing a long-sleeved shirt and
sweatpants. Officer Wilhelm drove the patrol car next to T.T. and told him to stop. T.T.
complied, straddling his bicycle as the officers got out of their patrol car. Officer
Pacheco called in their location while Officer Wilhelm told T.T. to put his hands behind
his back and conducted a pat search for weapons. Officer Wilhelm found a handgun
inside the front waistband of T.T.’s sweatpants. Officer Wilhelm handed the gun to

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Officer Pacheco and placed T.T. in handcuffs. Officer Wilhelm subsequently removed a
live round from the chamber of the gun and removed the magazine, which contained
ammunition. According to Officer Pacheco, Officer Wilhelm conducted the pat search
within 10 seconds, and handcuffed T.T. within a minute, of getting out of the patrol car.
       At the conclusion of the hearing, counsel for T.T. argued that the initial stop was
not justified because there was insufficient evidence T.T. had committed a traffic
violation and that the ensuing pat search was not supported by a reasonable belief T.T.
was armed and dangerous. The People argued that the officers had probable cause to
arrest T.T. at the time of the stop for a Vehicle Code violation and that the pat search was
a valid search incident to arrest.
       The trial court denied the motion to suppress without deciding whether the search
was a valid search incident to an arrest. The court concluded that the officers conducted
a valid stop for a possible traffic infraction and that their reasonable concern for public
safety justified the search.
       At the conclusion of the jurisdiction hearing, the juvenile court found true the
allegations T.T. had committed the offenses of possession of a firearm and possession of
ammunition by a minor, and declared the first offense a felony and the second offense a
misdemeanor. The court found not true and dismissed the allegation T.T. had committed
the offense of carrying a loaded and unregistered handgun. At the disposition hearing
immediately following the hearing, the court declared T.T. a ward of the court and
ordered him home on probation.


                                          DISCUSSION


       A.     Standard of Review
       “‘“The standard of appellate review of a trial court’s ruling on a motion to
suppress is well established. We defer to the trial court’s factual findings, express or
implied, where supported by substantial evidence. In determining whether, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise

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our independent judgment.”’ [Citations.]” (People v. Suff (2014) 58 Cal.4th 1013,
1053.) “We will affirm the trial court’s ruling if it is correct on any theory of law
applicable to the case, even if for reasons different than those given by the trial court.
[Citation.]” (People v. Evans (2011) 200 Cal.App.4th 735, 742.) The trial court has the
power to judge the credibility of witnesses, resolve conflicts in testimony, weigh
evidence, and draw factual inferences. (People v. Alexander (2010) 49 Cal.4th 846, 883;
see People v. Rodriguez (Nov. 6, 2014, H038588) ___ Cal.App.4th ___, ___ [2014 WL
5768751, p. 9].) We neither reweigh the evidence nor reevaluate witness credibility.
(People v. Brown (2014) 59 Cal.4th 86, 106.)


       B.      The Officers Did Not Conduct a Lawful Pat Search
       “Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
restraints on an individual’s liberty. [Citations.]” (In re Manuel G. (1997) 16 Cal.4th
805, 821; accord, Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819.) A
detention implicating the Fourth Amendment occurs “when an officer restrains a person’s
liberty by force or show of authority.” (People v. Mendoza (2011) 52 Cal.4th 1056,
1081; see In re J.G. (2014) 228 Cal.App.4th 402, 409 [detention occurs “‘“when [a
police] officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen”’”].)
       “The reasonableness of the officer’s suspicion is determined by what he or she
knows before any search occurs. [Citation.] And when a detention is constitutionally
justified, if the officer has a reasonable suspicion that the person is armed and dangerous,
the officer may pat search the detainee for weapons. [Citation.]” (People v. Turner
(2013) 219 Cal.App.4th 151, 160.) “‘When an officer is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others,’ the officer may ‘take necessary measures

                                              4
to determine whether the person is in fact carrying a weapon and to neutralize the threat
of physical harm.’” (People v. Rios (2011) 193 Cal.App.4th 584, 598-599, quoting Terry
v. Ohio (1968) 392 U.S. 1, 24 [88 S.Ct. 1868, 20 L.Ed.2d 889]; see Giovanni B. v.
Superior Court (2007) 152 Cal.App.4th 312, 320 [“[w]hen an officer detains a suspect,
the officer may pat down the suspect’s outer clothing if he or she has reason to believe
the suspect may be armed”].) “‘“The purpose of this limited search is not to discover
evidence of crime, but to allow the officer to pursue his investigation without fear of
violence . . . .” [Citation.]’ [Citation.]” (In re H.H. (2009) 174 Cal.App.4th 653, 658;
see In re H.M. (2008) 167 Cal.App.4th 136, 143 [“[t]he sole justification for the search is
the protection of the officer and others nearby, and the search must therefore be confined
in scope to an intrusion reasonably designed to discover weapons”].)
       In order to conduct a pat search for weapons, the officer must be able to “‘point to
specific and articulable facts which, considered in conjunction with rational inferences to
be drawn therefrom, give rise to a reasonable suspicion that the suspect is armed and
dangerous.’ [Citations.]” (In re H.M., supra, 167 Cal.App.4th at p. 143; see Terry v.
Ohio, supra, 392 U.S. at p. 21.) “‘A frisk following a detention for investigation “is an
additional intrusion, and can be justified only by specification and articulation of facts
supporting a reasonable suspicion that the individual is armed.”’ [Citation.]” (People v.
Suennen (1980) 114 Cal.App.3d 192, 199.)
       We agree with the trial court that Officers Pacheco and Wilhelm had reasonable
suspicion to detain T.T. when they observed him riding his bicycle against traffic on the
road, in violation of Vehicle Code section 21650.1. Vehicle Code section 21650.1
provides, “A bicycle operated on a roadway, or the shoulder of a highway, shall be
operated in the same direction as vehicles are required to be driven upon the roadway.”
Pursuant to Vehicle Code section 40000.1, a violation of Vehicle Code section 21650.1 is
an infraction.
       T.T. contends that the detention was unlawful because he was riding his bicycle on
the sidewalk, not the roadway. The record does not support T.T.’s contention. Officer
Pacheco testified that T.T. was riding his bicycle against traffic, and that when the

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officers stopped T.T. he was right next to the patrol car and between the officers and the
sidewalk. Although at one point during cross-examination Officer Pacheco testified he
could not recall whether T.T. was riding his bicycle on the street or the sidewalk, he later
described T.T. as riding in the opposite direction of the moving patrol car, and stated that
T.T. and the officers were passing each other. This testimony constituted substantial
evidence to support the trial court’s findings that T.T. was riding his bicycle against
traffic on the street, and not on the sidewalk, and that the officers had probable cause to
detain him for violating Vehicle Code section 21650.1.
       T.T. also contends that the pat search was unlawful because Officer Pacheco
“failed to articulate any specific activity engaged in by [T.T.] which raised a reasonable
suspicion that he was armed and dangerous.” The record supports this contention. The
People presented no evidence that Officers Pacheco and Wilhelm had any suspicion,
reasonable or otherwise, that T.T. was armed and dangerous. Nor did the officers point
to any “specific and articulable facts” that could give rise to an inference that T.T. was
armed and dangerous. Officer Pacheco testified only that, at approximately 8:40 a.m., he
and Officer Wilhelm stopped T.T. and Officer Wilhelm “conducted a cursory pat down
search for weapons” ten seconds after the officers stopped him. When asked if he had
observed “anything unusual about how or where [T.T.] was riding his bicycle,” Officer
Pacheco stated only that T.T. was riding against traffic in violation of the Vehicle Code.
There was no evidence of “nervous, evasive behavior.” (Illinois v. Wardlow (2000) 528
U.S. 119, 124 [120 S.Ct. 673, 145 L.Ed.2d 570].) There was no evidence T.T. was
“sweating profusely,” “appeared confused,” or was “frightened and fleeing from a
dangerous situation.” (In re H.M., supra, 167 Cal.App.4th at p. 144.) Nor was there
evidence that T.T. “suddenly put his hand into [a] bulging pocket.” (People v. Rosales
(1989) 211 Cal.App.3d 325, 330.) The only evidence was that T.T. complied with the
officers’ orders. In the absence of any specific and articulable facts or inferences that
T.T. was armed and dangerous, a pat search was not justified. (See People v. Garcia
(2006) 145 Cal.App.4th 782, 786 [“‘[w]here, as here, there are no such specific and
articulable facts presented, the patdown search cannot be upheld’”].)

                                              6
       The People argue that “[i]n light of the recent drive-by shooting murder and the
heightened tensions of ongoing violence between gang members in the two rival housing
projects, Officer Wilhelm acted reasonably when he conducted a protective patdown to
ensure [T.T.] did not possess any weapons before the officers went through their traffic
stop process.” It is true that the existence of gang violence in the area is relevant to the
propriety of a pat search. (See In re H.M., supra, 167 Cal.App.4th at p. 146 [“[o]fficers
in an area plagued by violent gang activity need not ignore the reality that persons who
commit crimes there are likely to be armed”].) But the fact that the detention occurred in
an area of high crime or gang activity, without more, does not justify a pat search:
“‘[T]he fact that an area involves increased gang activity may be considered if it is
relevant to an officer’s belief the detainee is armed and dangerous. While this factor
alone may not justify a weapon search, combined with additional factors it may.’
[Citations.]” (Ibid.; see also People v. Evans, supra, 200 Cal.App.4th at p. 754 [“[t]hat a
detention occurs in a high crime area may contribute to a finding of probable cause if it is
relevant to the officer’s belief that the suspect is involved in criminal activity [citations],
but that principle does not help the People here, given that there was no apparent
connection between the hour and area, on the one hand, and the officers’ suspicions, on
the other”].) There were no “additional factors” to combine with the fact that there had
been recent gang violence in the area.


       C.     The Search Was Not a Lawful Search Incident to an Arrest
       The People argue that because the officers observed T.T. violate Vehicle Code
section 21650.1 they had probable cause to arrest him, and that the search of T.T. was
valid as a search incident to an arrest. Citing Atwater v. City of Lago Vista (2001) 532
U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549], People v. McKay (2002) 27 Cal.4th 601,
and People v. Gomez (2004) 117 Cal.App.4th 531 (among other cases), the People argue
that Officers Pacheco and Wilhelm had probable cause to arrest T.T. for violation of
Vehicle Code section 21650.1, even though it is an infraction, and that had they done so,
they could have conducted a lawful search incident to an arrest. Conceding T.T. was not

                                               7
under arrest “when Officer Wilhelm conducted the patdown search,” the People assert
that “the search was valid as long as the officers had probable cause to arrest, even
though the officers had not yet affected [sic] an arrest.”
       That is not the law. “[A] police officer who makes a lawful arrest may conduct a
warrantless search of an arrestee’s person and the area within his or her immediate
control. [Citations.]” (People v. Evans, supra, 200 Cal.App.4th at p. 744.) The search
incident to arrest exception to the Fourth Amendment does not apply, however, if the
officer does not arrest the defendant. (Knowles v. Iowa (1998) 525 U.S. 113, 115-116
[119 S.Ct. 484, 142 L.Ed.2d 492]; see People v. McKay, supra, 27 Cal.4th at p. 613, fn. 6
[the Supreme Court in Knowles held “that the exception for a search incident to a
custodial arrest could not be applied where no custodial arrest had occurred”]; U.S. v.
Jackson (7th Cir. 2004) 377 F.3d 715, 717 [Knowles stands for “the principle that the
reasonableness of a search depends on what the officers actually do, not what they might
have done,” and “it is custody, and not a stop itself, that makes a full search
reasonable”].) “The mere fact that an officer has the authority to arrest an individual does
not, and never has, automatically permitted the officer to conduct a pat-down search
should he choose not to effectuate the arrest. [Citation.] For an officer to conduct a
search incident to arrest, there must be an actual arrest. Otherwise, unless the officer
points to specific facts that demonstrate reasonable suspicion that the individual is armed
and dangerous, the Fourth Amendment tolerates no frisk. [Citation.]” (Bennett v. City of
Eastpointe (6th Cir. 2005) 410 F.3d 810, 824, italics omitted, citing Knowles, supra, at
pp. 117-119; cf. Virginia v. Moore (2008) 553 U.S. 164, 166-167, 177 [128 S.Ct. 1598,
170 L.Ed.2d 559] [distinguishing Knowles because “[t]he state officers arrested” the
defendant in Moore for a non-arrestable offense].)
       It is true that the police can make a custodial arrest for an infraction or fine-only
offense without violating the Fourth Amendment. (See Atwater v. City of Lago Vista,
supra, 532 U.S. at pp. 323, 355; People v. Gomez, supra, 117 Cal.App.4th at pp. 538-
539.) It is also true that a search incident to such an arrest does not violate the Fourth
Amendment. (See People v. McKay, supra, 27 Cal.4th at p. 607; Gomez, supra, at

                                              8
pp. 539-549.) In Atwater, McKay, and Gomez the police searched the defendant after
making a custodial arrest for a traffic violation. (See Atwater, supra, at p. 324; McKay,
supra, at p. 606; Gomez, supra, at p. 536.)1 Officers Pacheco and Wilhelm, however, did
not arrest T.T. for the infraction of violating Vehicle Code section 21650.1. They
arrested T.T. for the firearm and ammunition violations, but that was only after they had
searched him. (See In re J.G. (2010) 188 Cal.App.4th 1501, 1506 [“‘a search is not . . .
made legal by what it turns up[; i]n law it is good or bad when it starts and does not
change character from its success’”].) The pat search here cannot be justified as a search
incident to an arrest.2




1      In Gomez the police subjected the defendant to a prolonged detention that became
a de facto arrest. (See People v. Gomez, supra, 117 Cal.App.4th at pp. 537-538.)
2      The People argue that, “[a]lthough the officers ultimately arrested [T.T.] for more
serious charges (possessing a firearm and live ammunition) and exercised their discretion
to forgo formal arrest for the lesser charge (the Vehicle Code violation), they had
probable cause to arrest [T.T.] at the time of the search, and nothing more was required.”
There is no evidence in the record, however, that the officers exercised any such
discretion, or that they ever considered arresting T.T. for the infraction of riding his
bicycle on the wrong side of the road.


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                                    DISPOSITION


      The order is reversed.



                                                SEGAL, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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