94 Cal.App.5th 893
Cal. Ct. App.2023Background
- On June 13, 2021, two San Jose officers approached a curbside group after smelling freshly burnt marijuana; they began pat-searching and ordering two members to sit on the curb.
- Officer Ferrante asked 16-year-old T.F.-G. to “come over here”; when T.F.-G. asked why and the officer persisted, T.F.-G. fled.
- Officer Villaruz chased, tackled, punched, handcuffed, and conducted a search incident to arrest; later a second search recovered a loaded, unregistered handgun from T.F.-G.’s shorts.
- The DA petitioned for juvenile wardship alleging violations including carrying a loaded firearm (§25850) and resisting/obstructing an officer (§148); T.F.-G. moved to suppress the firearm.
- The juvenile court denied suppression; T.F.-G. admitted counts for §25850 and §148, was adjudged a ward and placed on probation, and appealed challenging the §148 arrest/probable cause and the facial constitutionality of §25850.
Issues
| Issue | People’s Argument | T.F.-G.’s Argument | Held |
|---|---|---|---|
| Lawfulness of arrest/search: Did officers have probable cause to arrest for resisting/delaying (§148) based on flight? | The detention had begun: officers’ conduct toward others, pat-searches, and a directive to come over would make a reasonable person feel not free to leave; flight violated §148, so search incident to arrest was lawful. | Flight was an attempt to terminate a consensual encounter; no detention had been imposed, so arrest lacked probable cause and the search was unlawful. | The totality of circumstances showed a reasonable person would have believed they were not free to leave; officers had probable cause to arrest under §148 and the search incident to arrest was lawful. |
| Facial Second Amendment challenge to §25850 (criminalizing unlicensed public carrying of loaded firearms) | The statute enforces a licensing regime that remains valid in many applications; Bruen invalidated only the “good cause” feature of licensing as applied, not all licensing or enforcement; §25850 is not facially invalid because many licensing conditions are constitutionally permissible. | Any unconstitutional licensing requirement (here, California’s pre-Bruen “good cause” rule) makes criminalizing unlicensed public carry facially unconstitutional; §25850 must fall if licensing contains an unconstitutional prerequisite. | Rejected the facial challenge. The court held that Bruen’s invalidation of California’s good-cause requirement does not render §25850 facially invalid because the defective portion is severable and §25850 has many constitutionally valid applications. |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (Supreme Court 2008) (recognizes individual right to possess firearms for self‑defense, but right is not unlimited)
- McDonald v. City of Chicago, 561 U.S. 742 (Supreme Court 2010) (incorporates Second Amendment against the states)
- New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (Supreme Court 2022) (requires historical‑tradition test for modern gun regulations and invalidates licensing that conditions permits on special need)
- Brendlin v. California, 551 U.S. 249 (Supreme Court 2007) (seizure occurs when police, by show of authority or force, restrain freedom of movement)
- Florida v. Bostick, 501 U.S. 429 (Supreme Court 1991) (use totality of circumstances to decide whether a reasonable person would feel free to leave)
- Terry v. Ohio, 392 U.S. 1 (Supreme Court 1968) (police pat‑down for officer safety is a serious intrusion requiring justification)
- United States v. Drayton, 536 U.S. 194 (Supreme Court 2002) (consensual encounters on public conveyances can be noncoercive under certain conditions)
- People v. Fayed, 9 Cal.5th 147 (California 2020) (warrantless searches require an established exception such as search incident to lawful arrest)
- In re D.L., 93 Cal.App.5th 144 (Cal. Ct. App. 2023) (discusses severability of California licensing requirements post‑Bruen and facial challenge standards)
- People v. Tacardon, 14 Cal.5th 235 (California 2022) (show of authority to others can communicate detention to a defendant)