In re Albert v. CA5

California Court of Appeal Feb 13, 2015 No. F068956Unpublished

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Holding. The court held that the detention and subsequent handcuffing of the appellant were objectively reasonable under the Fourth Amendment given the totality of the circumstances, including the high-crime location, the presence of gang members, and the officer's observation of a suspicious bulge in the appellant's pocket.

Issues

Whether the detention of the appellant was objectively reasonable.
Whether the use of handcuffs converted the detention into an unlawful de facto arrest.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In view of these circumstances, Officer Miller acted reasonably in removing Albert from the SUV and handcuffing him while he patsearched him to make sure the bulge in his pants’ pocket was not a weapon”

“The issue is whether the use of handcuffs during a detention was reasonably necessary under all of the circumstances of the detention.”

Filed 2/13/15 In re Albert V. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re ALBERT V., a Person Coming Under the Juvenile Court Law.

F068956 THE PEOPLE, (Super. Ct. No. 513483) Plaintiff and Respondent,

v. OPINION ALBERT V.,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Valli K. Israels, Judge. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.

The court adjudged appellant, Albert V., a ward of the court after it sustained a petition charging Albert with possession of a concealable handgun (Pen. Code, § 29610). On appeal, Albert contends the court erred when it denied his motion to suppress. We affirm. FACTS On November 26, 2013, Albert was a passenger in an SUV that was stopped by Modesto police officers. During the stop the officers found a handgun in Albert’s pants’ pocket and arrested him. On December 2, 2013, the district attorney filed a petition charging Albert with possession of a concealable handgun. On December 24, 2013, Albert filed a motion to suppress. On February 3, 2014, the court heard the motion at a combined jurisdiction and disposition hearing. During the hearing, Modesto Police Officer Dwight Miller testified that on November 26, 2013, while working in the street gang unit, he and Officer John Carrico were parked in a patrol car near Avalon and Sutter, a high gang crime area, watching traffic. At approximately 12:26 p.m. Officer Miller noticed an SUV travelling north on Sutter driven by Jaime Chavez, a Norteño gang member whose driving privilege had been suspended and who was on searchable probation. Officer Miller initiated a stop and he and Officer Carrico approached the SUV with guns drawn. A second Norteño gang member, Subhe Qarqat, was sitting in the front passenger seat and Albert was sitting in the back seat. Albert was wearing a black and red hat and a red sweatshirt. The clothing gave Officer Miller the impression that Albert was a Norteño gang member because red is the primary color of identification for that gang. Additionally Albert’s clothes were baggy and he had a bulge in one of his pants’ pockets. After verifying that Chavez’s driving privilege was suspended the officers intended to cite him, conduct a probation search of his vehicle, and possibly tow it after

In re Albert v. CA5

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