In re R.C.

Filed 9/15/11 In re R.C. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re R.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
R.C.,
Defendant and Appellant.
A130996
(Alameda County
Super. Ct. No. SJ10-015659-01)
After defendant‟s motion to suppress evidence (Welf. & Inst. Code, § 700.1) was
denied, he entered an admission to one count of disturbing the peace (Pen. Code, § 415).
In this appeal he renews his claim that he was unlawfully detained and searched. We find
that defendant gave consent to the search before any unlawful detention occurred, and
affirm the judgment.
STATEMENT OF FACTS
San Leandro Police Officer Timothy Chinn testified that on the night of August
22, 2010, he responded to the report of a “possible battery” at Washington Elementary
School. When Officer Chinn arrived at the school, Sergeant Henderson was already on
the scene and “talking to a group of juveniles” sitting on a bench. In a “different
location” on the school property, two other officers had contacted another “group of
juveniles.”
Officer Chinn approached Sergeant Henderson “to cover him.” He recognized
defendant, who was “sitting on a park bench,” from “prior contacts” with him a week

-- 1 of 7 --

2
before. The officer asked defendant to “stand up and come over toward” him. The
battery investigation was ongoing, and Officer Chinn “wanted to talk to” defendant.
Defendant “walked over” to Officer Chinn, whereupon the officer asked if he had
“anything illegal or any contraband on his person.” Defendant “said „no‟ ” Officer
Chinn then asked defendant, “Do you mind if I check?” Again defendant replied “No.”
During the search of defendant and his backpack that followed, Officer Chinn found a
large black permanent marking pen, smaller marking pens, three bottles of fabric paint,
and a notebook. The officers thereafter determined that no battery had been committed.
DISCUSSION
Defendant argues that the prosecution “presented no evidence of the validity of
Sergeant Henderson’s initial detention” of him. Therefore, despite the subsequent
consent to search given by defendant, he claims that the “search cannot stand.” He asks
us to remand the case to the trial court with directions to grant the motion to suppress and
afford him an opportunity to “withdraw his admission if he so desires.”
“The standard of appellate review of a trial court‟s ruling on a motion to suppress
evidence is well established. We defer to the trial court‟s factual findings, express or
implied, if supported by substantial evidence, with all presumptions favoring the trial
court‟s exercise of its power to judge the credibility of the witnesses, resolve conflicts in
the testimony, weigh the evidence and draw factual inferences. [Citations.] However, in
determining whether on the facts so found the search or seizure was reasonable under the
Fourth Amendment, we exercise our independent judgment.” (People v. McHugh (2004)
119 Cal.App.4th 202, 209.) “Further, we examine the legal issues surrounding the
potential suppression of evidence derived from a police search and seizure by applying
federal constitutional standards.” (People v. Superior Court (Walker) (2006) 143
Cal.App.4th 1183, 1195.) “Pursuant to article I, section 28, of the California
Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if
exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th
926, 934.) We defer to the trial court‟s findings of fact, but measure those facts against

-- 2 of 7 --

3
federal constitutional standards of reasonableness. (People v. Miller (2004) 124
Cal.App.4th 216, 221.)
Our first inquiry in the present case is whether a detention of defendant occurred
before consent to search was obtained. “A seizure occurs when the police, by the
application of physical force or show of authority, seek to restrain the person‟s liberty
[citations]; the police conduct communicates to a reasonable innocent person that the
person is not free to decline the officer‟s request or otherwise terminate the encounter
[citation]; and the person actually submits to that authority [citation] for reasons not
„independent‟ of the official show of authority [citation]. Admittedly, the application of
this test to particular circumstances is sometimes more an art than a science. [Citation.]
As the high court has emphasized, „for the most part per se rules are inappropriate in the
Fourth Amendment context. The proper inquiry necessitates a consideration of “all the
circumstances surrounding the encounter.” ‟ [Citations.]” (People v. Brendlin (2006) 38
Cal.4th 1107, 1118.) “ „ “[A] person has been „seized‟ within the meaning of the Fourth
Amendment” . . . “only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he [or she] was not free to leave.” ‟
[Citation.] The high court later made clear that this test „states a necessary, but not a
sufficient, condition for seizure.‟ [Citation.] In order for there to be a seizure under the
Fourth Amendment there must also be an arrest, by the application of physical force or by
submission to the assertion of authority.” (People v. Hoyos (2007) 41 Cal.4th 872, 893,
italics omitted.)
“ „Although there is no “bright-line” distinction between a consensual encounter
and a detention . . . “the police can be said to have seized an individual „only if, in view
of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.‟ ” ‟ [Citations.] „ “The test is necessarily
imprecise, because it is designed to assess the coercive effect of police conduct, taken as
a whole, rather than to focus on particular details of that conduct in isolation.” ‟
[Citation.]” (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a
realistic assessment of appellant‟s encounter with the police based upon the totality of the

-- 3 of 7 --

4
specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287;
People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) “What constitutes a restraint on
liberty such that a person would conclude that he is not free to leave varies with the
particular police conduct at issue and the setting in which the conduct occurs.” (People v.
Ross (1990) 217 Cal.App.3d 879, 884.) “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.” (In re
Manuel G. (1997) 16 Cal.4th 805, 821.)
We find based on the record before us that no detention or seizure of defendant
occurred when Officer Chinn parked his vehicle, approached the group assembled on the
bench, and asked to speak with defendant. (People v. Turner (1994) 8 Cal.4th 137, 179–
180; People v. Menifee (1979) 100 Cal.App.3d 235, 238–239.) The established rule is
“ „that a detention does not occur when a police officer merely approaches an individual
on the street and asks a few questions. [Citation.] 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. Only when
the officer, by means of physical force or show of authority, in some manner restrains the
individual‟s liberty, does a seizure occur. [Citations.]‟ [Citation.]” (People v. Colt
(2004) 118 Cal.App.4th 1404, 1411.) “An officer has every right to talk to anyone he
encounters while regularly performing his duties . . . . Until the officer asserts some
restraint on the contact‟s freedom to move, no detention occurs.” (People v. Castaneda
(1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952,
954–955.) “[T]here must also be an actual taking into custody, whether by the
application of physical force or by submission to the assertion of authority. [Citation.]
[The United States Supreme Court] has also cautioned against an undue focus on the fact
that government action caused some restriction on an individual‟s freedom of movement:
„ “a Fourth Amendment seizure does not occur whenever there is a governmentally
caused termination of an individual‟s freedom of movement . . . , nor even whenever

-- 4 of 7 --

5
there is a governmentally caused and governmentally desired termination of an
individual‟s freedom of movement . . . , but only when there is a governmental
termination of freedom of movement through means intentionally applied.” ‟
[Citations.]” (People v. Brendlin, supra, 38 Cal.4th 1107, 1115–1116.)
Here, Officer Chinn observed defendant and the others in his group sitting on a
park bench. Nothing in the record before us indicates that Sergeant Henderson had
confined the freedom to leave of defendant or anyone else in the group. Officer Chinn
testified that when he arrived Sergeant Henderson was merely “talking to” the group
assembled on the bench. Officer Chinn wanted to “talk to” defendant about the battery
report, and asked him to “come over” to do so. He used a “normal speaking” tone, and
did not draw his firearm. He did not engage in any further display of physical force or
show of authority to signify to defendant that he was compelled to stay. (In re Manuel
G., supra, 16 Cal.4th 805, 821–822; People v. Terrell (1999) 69 Cal.App.4th 1246,
1254.)
“Unlike a detention, a consensual encounter between a police officer and an
individual does not implicate the Fourth Amendment. It is well established that law
enforcement officers may approach someone on the street or in another public place and
converse if the person is willing to do so.” (People v. Rivera (2007) 41 Cal.4th 304,
309.) As we read the record, Officer Chinn did nothing more than approach defendant,
then ask to speak to him and for consent to search. Defendant had the right to refuse to
speak with Officer Chinn or deny the request for consent to search. A request to search,
“by its nature, carries the implication that permission may be withheld.” (People v.
Ledesma (2006) 39 Cal.4th 641, 704.) The consent was not the product of an unlawful

-- 5 of 7 --

6
detention, and no evidence was presented that the ensuing consent obtained from
defendant was involuntary. (People v. Rivera, supra, at p. 311.)
Accordingly, the judgment is affirmed.
__________________________________
Dondero, J.
We concur:
__________________________________
Margulies, Acting P. J.
__________________________________
Banke, J.

-- 6 of 7 --

7
People v. R.C., A130996

-- 7 of 7 --