In re Omar M. CA4/1

California Court of Appeal · D058034 · 2013-07-25 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. J225961
Trial judge: Carlos O. Armour
Outcome: affirmed — Affirmed.
Area: delinquency
Panel: O'Rourke (author), McINTYRE, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:51Z · confidence high

The trial court denied Omar M.'s motion to suppress evidence of a knife found during a police encounter, finding the detention reasonable. The Court of Appeal affirmed the denial, holding that while the initial interaction was consensual, the subsequent detention for a pat-down was justified by specific articulable facts regarding gang affiliation and potential weapons.

Ruling reviewed	Standard	The court	The model
Denial of motion to suppress evidence “The court properly denied the suppression motion.”	mixed	correct	agree with court The court applied the correct mixed standard of review, deferring to factual findings supported by substantial evidence while independently determining the legality of the search. The majority correctly identified that the encounter transitioned from consensual to a detention when backup arrived and pat-downs began, and found that the officer had specific articulable facts (gang association, clothing, baggy clothes) justifying a Terry stop for officer safety.

Authorities

relied: In re Cody S. (2004) 121 Cal.App.4th 86 — Standard for viewing evidence in light favorable to juvenile court's ruling.
relied: People v. Lomax (2010) 49 Cal.4th 530 — Standard of review for suppression motions: defer to factual findings supported by substantial evidence, independent judgment on legality.
relied: In re Manuel G. (1997) 16 Cal.4th 805 — Consensual encounters result in no restraint of liberty; no reasonable suspicion required if person feels free to leave.
relied: Florida v. Royer (1983) 460 U.S. 491 — Police do not violate Fourth Amendment by approaching and asking questions if person is willing to listen.
relied: California v. Hodari D. (1991) 499 U.S. 621 — Seizure occurs only if a reasonable person would believe they are not free to leave.
relied: Florida v. Bostick (1991) 501 U.S. 429 — Reasonable person would not feel free to leave during pat-downs with backup present.
relied: People v. Hester (2004) 119 Cal.App.4th 376 — Detention is reasonable if officer points to specific articulable facts providing objective manifestation of criminal activity.

The appellate opinion: sound — The opinion is sound because it correctly applies the established legal standards for distinguishing consensual encounters from seizures and evaluates the totality of the circumstances to determine if the detention was reasonable. The majority's analysis of the specific articulable facts supporting the officer's safety concerns is consistent with controlling precedent.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The juvenile court denied Omar M.'s Welfare and Institutions Code section 701.1 motion to suppress a knife found during a pat down after a deputy stopped four youths walking at dusk, and Omar then admitted a misdemeanor concealed dirk or dagger count and was placed on probation. A divided Court of Appeal affirmed, the majority holding the encounter was consensual until cover units arrived and that the ensuing detention and pat down were supported by reasonable suspicion drawn from a companion's gang affiliation, another companion's Chargers shirt, a gang injunction, and baggy clothing; the dissent would have found an unjustified detention from the moment the youths were told to sit on the curb and would have reversed.

Ruling reviewed	Standard	The court	The model
Denial of suppression motion: the initial encounter (approach, questions, request to sit on the curb while awaiting cover units) was consensual and not a detention. “Before the cover units arrived, the encounter between Baker and Omar was consensual. Baker's remarks were questions, not commands.”	mixed	correct	unsure The majority correctly states the objective Mendenhall/Hodari D. free-to-leave test but then reasons that 'there is no evidence Omar acted involuntarily in sitting on the curb,' which inverts the inquiry and the prosecution's burden to justify a warrantless seizure. A uniformed deputy who abruptly pulled his patrol car to the curb in front of four youths, asked them to sit on the curb, questioned them about probation or parole, and held them there while awaiting cover units presents facts that courts such as People v. Garry have treated as a show of authority amounting to a detention. The dissent's view is at least as persuasive, but the controlling U.S. Supreme Court authority gives considerable room for finding such encounters consensual, so I cannot say with certainty the majority erred on this point.
Denial of suppression motion: once cover units arrived and pat downs began, Omar was detained, and the detention was supported by reasonable suspicion. “Omar was detained, and the detention was justified.”	mixed	correct (law misapplied)	disagree with court The majority acknowledges Hester's holding that the mere possibility of gang membership does not justify a detention, yet the 'more' it identifies is only that one companion was gang-affiliated, another wore a Chargers shirt, and the group wore baggy clothing. Baker admitted he had no information that any of the four were gang members, were subject to the injunction, or had committed any crime; an injunction violation can be suspected only of persons reasonably believed to be bound by it, and nothing tied Omar himself to the gang. Under In re Tony C. a detention of juveniles walking on a public street requires specific articulable facts that the detainee is involved in criminal activity; association with a gang affiliate and baggy clothing do not meet that standard. The majority therefore misapplied the reasonable suspicion standard it quoted from Hester.
Denial of suppression motion: the pat down of Omar and removal of the knife after Omar admitted having a knife were justified. “These facts entitled Baker to ensure his safety by patting down the four youths.”	mixed	correct (law misapplied)	disagree with court A protective frisk under Terry requires both a lawful detention and specific articulable facts that the particular person is armed and dangerous; the majority treats the facts justifying the detention as automatically justifying a frisk of all four youths without conducting the separate inquiry. Because Omar's admission that he had a knife was elicited while Baker had positioned himself behind Omar with a hand on him as the pat down began, the admission and the knife are fruits of the detention and frisk. If the detention was unsupported, as I conclude above, the knife should have been suppressed.

Authorities

relied: People v. Lomax (2010) 49 Cal.4th 530 — On review of a suppression ruling, the appellate court defers to supported factual findings but independently determines the legality of the search.
relied: In re Manuel G. (1997) 16 Cal.4th 805 — Consensual encounters involve no restraint of liberty; an encounter is consensual so long as a reasonable person would feel free to disregard the police and go about his business.
relied: Florida v. Royer (1983) 460 U.S. 491 — Officers do not violate the Fourth Amendment by approaching a person in public and asking questions if the person is willing to listen.
relied: California v. Hodari D. (1991) 499 U.S. 621 — A person is seized only if, under all the circumstances, a reasonable person would have believed he was not free to leave.
relied: United States v. Mendenhall (1980) 446 U.S. 544 — Source of the objective reasonable-person free-to-leave test for seizure.
relied: Florida v. Bostick (1991) 501 U.S. 429 — Whether a seizure occurred turns on whether a reasonable person would feel free to decline the officers' requests or terminate the encounter.
relied: In re Cody S. (2004) 121 Cal.App.4th 86 — Facts are viewed in the light most favorable to the juvenile court's suppression ruling.
misapplied: People v. Hester (2004) 119 Cal.App.4th 376 — A detention requires specific articulable facts providing an objective manifestation that the detainee may be involved in criminal activity, and the mere possibility of gang membership does not justify a detention; the majority quoted this rule but found reasonable suspicion on facts amounting to no more than possible gang affiliation of companions.
missed: In re Tony C. (1978) 21 Cal.3d 888 — A detention of juveniles walking in public is unlawful absent specific articulable facts that criminal activity has occurred, is occurring, or is about to occur and that the person detained is involved; generalized suspicion is insufficient.
missed: People v. Garry (2007) 156 Cal.App.4th 1100 — An officer's abrupt approach and immediate questioning about probation or parole status can constitute a show of authority that transforms an encounter into a detention under the reasonable-person test.
missed: People v. Williams (1999) 20 Cal.4th 119 — Once the defendant shows a warrantless search or seizure, the prosecution bears the burden of proving a justification; the majority's reliance on the absence of evidence that Omar acted involuntarily inverts this burden.

The appellate opinion: questionable — The majority correctly recites the governing seizure and reasonable-suspicion standards, but it applies them by asking whether there was evidence Omar acted involuntarily rather than whether a reasonable person would feel free to leave, and it finds reasonable suspicion from facts (companions' attire and one companion's gang affiliation, baggy clothing) that amount to the mere possibility of gang membership that Hester itself deems insufficient, while treating detention and frisk justifications as one. The opinion also states in its introduction that the court agrees with Omar's contention that he was unlawfully detained yet affirms, an internal inconsistency that, together with the dissent, undercuts confidence in the result.

How this analysis was made · dispute it

unusual disposition

Opinion

Filed 7/25/13 In re Omar M. CA4/1 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 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re OMAR M., a Person Coming Under the Juvenile Court Law. D058034 THE PEOPLE, Plaintiff and Respondent, (Super. Ct. No. J225961)

v. OMAR M., Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carlos O.

Armour, Judge. Affirmed.

Elisabeth A. Bowman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent. Respondent filed a two-count petition against Omar M. pursuant to Welfare and Institutions Code, section 602. Following the denial of Omar's motion to suppress evidence (Welf. & Inst. Code, § 701.1), he entered a negotiated admission to one of the counts, carrying a concealed dirk or dagger (Pen. Code, former § 12020, subd. (a)(4)), a misdemeanor (Pen. Code, § 17, subd. (b)(4)). The court dismissed the remaining count, sustained the petition, adjudged Omar a ward, placed him on probation and detained him in his brother's home. Omar appeals, contending he was unlawfully detained and the court erred in denying his suppression motion. (Welf. & Inst. Code, § 800, subd. (a).)

We agree.

BACKGROUND

Viewing the evidence in a light favorable to the juvenile court's ruling (In re Cody S. (2004) 121 Cal.App.4th 86, 90), the following occurred:

At about 8:00 p.m. on April 23, 2010, as it was just getting dark, uniformed San Diego County Deputy Sheriff Todd Baker was driving his patrol car eastbound near West Mission Road in San Marcos. He saw four young men walking westbound, in front of him and on the same side of the road. Baker was familiar with only one of the individuals, Javier H., who associated with Varrio San Marcos gang members and had previously told Baker that he was affiliated with that gang. The remaining members of the group were 16-year-old Omar, Jose M. and Pedro A. The four youths were wearing baggy clothing, and Jose was wearing a Chargers shirt, an item of clothing worn by Varrio San Marcos gang members. A gang injunction forbade members of that gang from wearing Chargers clothing and associating with other gang members. Baker had no 2 information that any of the four had been involved in a crime, were Varrio San Marcos gang members or were covered by the gang injunction, but he thought they "could be"

members of that gang and associating with each other in violation of the injunction.

None of the four were threatening in any way.

Baker quickly pulled over to the side of the road, right next to the young men, and parked in front of them. He got out of his patrol car and, being "just curious," asked them where they were going (or where they had been). The youths immediately stopped and all said they were going home.

Baker then asked, "Hey, can I talk to you?" The young men said, "Yes." Since there were four of them, Baker asked if they would sit on the curb. Baker talked to the youths for one or two minutes, while they sat on the curb and while he waited for cover units to arrive. Baker testified that during that time, he "was probably talking to Javier"

and he "usually [asked] people if they're on parole or probation, things of that nature."

Baker did not touch any of the individuals. None of them indicated they wanted to leave.

They were all cooperative. Throughout the encounter, Baker spoke in a normal tone of voice.

For his own safety, Baker believed he needed to pat down the four because, from his training and experience, he knew gang members carried weapons and he thought there might be weapons under their baggy clothing. An additional factor was Javier's previous statement of affiliation with the Varrio San Marcos gang. Omar's presence with Javier led Baker to believe that Omar might be armed.

3 Before starting a pat down, Baker stood with "half [his] body . . . behind and to the side" of the subject and placed one hand on the subject, whose hands were behind his back. At that point, Baker always asked, "Is there anything illegal on you? Anything going to stick me or poke me?"

When two more deputies and a police officer arrived, Baker asked Javier to step off the curb so Baker could pat him down for weapons. The pat down revealed no weapons, and Baker asked Javier to resume his seat on the curb. Baker patted down Jose and Pedro according to the same procedure. The record does not disclose whether Baker found any weapons on their persons.

Omar stood up. Baker stood by him as described above and asked him if he had anything illegal, anything that would stick or poke Baker or any weapons. Omar said he had a knife in his right front pocket. Baker patted that pocket and "felt an approximately five-inch hard object, which could have been the knife." Baker reached in Omar's pocket and removed the object which was, in fact, a knife.

Neither Baker nor the other officers ever told the four they were not free to leave.

DISCUSSION

In reviewing the denial of a suppression motion, " 'we defer to the superior court's express and implied factual findings if they are supported by substantial evidence, [but]

we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.]' [Citation.]" (People v. Lomax (2010) 49 Cal.4th 530, 563.)

"[C]onsensual encounters . . . result in no restraint of liberty whatsoever . . . ." (In re Manuel G. (1997) 16 Cal.4th 805, 821.) "[L]aw enforcement officers do not violate 4 the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [and] by putting questions to him if the person is willing to listen . . . ." (Florida v. Royer (1983) 460 U.S.

491, 497.) " '[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " (California v. Hodari D. (1991) 499 U.S. 621, 627-628, quoting United States v. Mendenhall (1980) 446 U.S. 544, 554.) "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." (In re Manuel G., at p. 821.)

Before the cover units arrived, the encounter between Baker and Omar was consensual. Baker's remarks were questions, not commands. He did not raise his voice.

He did not touch Omar. Baker did not tell Omar he was not free to leave. There is no evidence Baker displayed a weapon or blocked Omar's way. Omar voluntarily answered Baker's questions. There is no evidence Omar acted involuntarily in sitting on the curb.

Once the cover units arrived and the pat downs began, a reasonable person would not have felt free to leave. (Florida v. Bostick (1991) 501 U.S. 429, 439.) Omar was detained, and the detention was justified. " '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. Hester (2004) 119 Cal.App.4th 376, 386.) Although the mere possibility of 5 gang membership does not justify a detention (id. at p. 392), here there was more. Jose was wearing the Chargers apparel favored by the Varrio San Marcos gang. Baker reasonably believed Javier was affiliated with that gang. An injunction prohibited members from wearing Chargers clothing and associating with other gang members.

Baker knew gang members carried weapons. Omar and his companions were wearing baggy clothing that could have concealed weapons. These facts entitled Baker to ensure his safety by patting down the four youths. In preparation for the pat down, Baker acted reasonably in asking Omar if he had any weapons. When Omar said yes, Baker was justified in removing the knife from Omar's pocket.

The court properly denied the suppression motion.

DISPOSITION

The order denying the suppression motion is affirmed.

O'ROURKE, J.

I CONCUR:

IRION, J.

6 MCINTYRE, J.

I dissent.

The majority concludes Omar was not detained until cover units arrived at the scene because "[t]here is no evidence Omar acted involuntarily in sitting on the curb." However, the test is not if there was evidence of whether Omar acted involuntarily, but rather whether a reasonable person would have felt free to leave under the circumstances. (Florida v. Royer (1983) 460 U.S. 491, 497.) Under that test, I conclude Omar was detained as soon as Officer Baker asked him and the others to sit on the curb. Officer Baker, who was in uniform, had quickly pulled over his patrol car, right next to the young men, and parked in front of them. While Omar consented to talk to the officer, he did not consent to sit on the curb to await the arrival of backup units. No reasonable person in this circumstance would have felt free to get up and leave the area or otherwise terminate the encounter. Omar's detention continued when other officers arrived and Officer Baker patted down all four young men. Omar did not consent to the pat down, which included Officer Baker placing his hand on Omar, whose hands were behind his back.

" '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. Hester (2004) 119 Cal.App.4th 376, 386.) Here, the detention was not reasonable. The majority concludes there were more facts here, i.e., that one of the other young men was associated with a gang, another wore Charger colors associated with that gang and all four young men were wearing baggy clothing. In my view, it is a stretch for the majority to use these facts to justify the detention because none of the facts, individually or collectively, suggest that the young men were involved in a crime that had occurred or was occurring. I submit the facts in this case were insufficient to meet the standard of " '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.]" (Ibid.) Thus, the search was the result of an improper detention. I would reverse and direct the trial court to grant the suppression motion.

MCINTYRE, Acting P. J.

Cites, in this corpus

People v. Lomax S057321 · 2010-07-01
People v. Cody S. E034514 · 2004-07-29
People v. Hester F034897 · 2004-06-10
People v. Manuel G. No. S049304 · 1997-08-26