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Name: In re H.H.
Case #: A122799
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 06/01/2009
Summary

Refusal to consent to search does not create reasonable suspicion to pat search or probable cause to search a detainee. The police officer detained H.H. after noticing that the bicycle he was riding did not have proper lighting. The minor complied with the directive to step from the bicycle and take off his backpack. As he did, the minor. stated , “I’m not on probation.” When the officer said he was going to conduct a pat search, the minor said he did not give consent to search. Regardless, the search was conducted and the minor did, in fact, have a revolver in his bulky jacket. At the suppression hearing, the officer testified that the minor’s statement was like a warning flag and he felt fearful that the minor might have a weapon. The appellate court reversed the trial court’s denial of the suppression motion, finding that a pat search cannot be justified on the detainee’s attempted exercise of his Fourth Amendment right and refusal to consent to search. The issue is whether a reasonably prudent person in the totality of the circumstances would be warranted in the belief that his safety was in danger. Here, the minor was stopped for an infraction; there was no indication the officer was outnumbered; and there was no evidence that the minor was dressed in a way suggesting he was carrying a weapon. Under the totality of the circumstances, the appellate court found that there were no specific and articulable facts that minor was armed and dangerous and ordered the dispositional order reversed.