• Lawful Detention and What Constitutes Resisting, Delaying, Obstructing

Fleeing a lawful detention constitutes resisting, delaying, obstructing an officer in the performance of duty (148(a)(1) P.C.). 

Two uniformed San Jose officers were on patrol in an unmarked vehicle. They observed five people, a family known from prior contacts, in and about a parked Ford Mustang. From the open window of their vehicle, officers said they could smell “freshly burned marijuana” and “marijuana being smoked.” They parked mid-lane near the group and approached to investigate. There were two people seated in the Mustang, including the defendant's brother in the passenger seat who was “rolling a joint.” The defendant, 16 years old, was seated in a chair next to the vehicle. 

An officer first ordered the defendant’s brother to exit the vehicle. His hands were secured, he was frisked, and then escorted to sit on the curb. A second person was similarly secured, frisked and “curbed.” Working their way through the group, an officer next told the defendant to “come over here.” The defendant protested, ran and was tackled by an officer. He was arrested for resisting or delaying a peace officer (148(a) (1) P.C.). A search incident to arrest located a handgun in the pocket of the basketball shorts underneath the jeans he was wearing.  

The defendant objected to the introduction of the gun because the officer did not have probable cause for arrest. He argued that he was never detained and was exercising his freedom to not cooperate with a consensual encounter or contact. 

6DCA ruled under the “totality of circumstances” there was probable cause to arrest the defendant for 148(a)(1) P.C.). The search incident to arrest and recovery of the handgun was lawful. A reasonable person in the defendant's position would have understood that he was not free to leave or terminate the police investigation (Peo. v. Tacardon (2022) 14 Cal. 5th 241).  

This was evidenced by:  

• When the officers parked their vehicle mid-lane and approached, this action communicated more than a casual contact. 

• There was a verbal inquiry into unlawful cannabis smoking which was acknowledged by some members of the group. The group and the defendant knew they were the focus of “particularized suspicion.” 

• The defendant witnessed two companions being restrained, searched and “curbed.” He knew he was next in line for investigation. 

• The officer’s order to the defendant (“come over here”) was a show of authority. “This would have objectively communicated to a reasonable person in T.G.-F’s position that he was not free to go.” 

Officers had reasonable suspicion to detain the defendant because he was committing or had been committing a crime. Persons under 21 years are prohibited from using/possessing cannabis (11357(a), 11362.3(a) H&S). 

The corpus of 148(a)(1) P.C. was fulfilled because the defendant was fleeing a lawful detention. In doing so he:  

• Resisted, delayed or obstructed a peace officer. 

• Engaged in the lawful performance of his or her duty. 

• The defendant knew or reasonably should have known the officer was in lawful performance of duty.  

Case law establishing that a person cannot resist a lawful detention goes back 30-plus years [In re: Gregory S. (1980) 112 Cal. App. 3d 764; Peo. v. Allen (1980) 109 Cal. App. 3d 981; Peo. v. Lopez (1986) 188 Cal. App. 3d 592.] 

See also Bob Phillips’ “The Fourth Amendment and Search and Seizure: An Update,” 23rd Edition (March 2023) – Use of Force and Refusal to Submit, pages 407-409 on LEGALUPDATES.COM.  This is available exclusively to our Professional Members. 

Whether one likes it or not, he or she must remain at the scene of a detention until the purpose of the stop is concluded. Officers may use reasonable force or restraint to keep a person at the detention scene, including handcuffing to prevent escape or, if necessary, make a custodial arrest (In re: Andre P. (1991) 158 Cal. App. 3d 336). 

It is always the prosecution’s burden of proof to establish the corpus delicti of a crime (550 E.C.). The lawfulness of an officer’s conduct is an essential element of 148(a)(1) P.C. (Peo. v. Fuentes (2022) 78 Cal. App. 5th 670). This will be the focus of a defense argument that an officer was not actually lawfully. In the T.F.-G case, there was adequate evidence recorded by the officer’s body worn cameras which the court stated, “clearly documented the transaction” (250 E.C.). 

NOTE: A related case brief by Robert Phillips will follow this case brief. 

Stay safe, 

RH