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.