Return to CALJIC Part 9-12 – Contents
F 9.27a
Lawful Detention Defined: Miscellaneous Instructions
*Add to CJ 9.27 when appropriate:
*These instructions provide several supplemental amplifications of the law relating to lawful detention which may be helpful to the jury when appropriate in a resisting arrest case per PC 148. They all state correct well-established statements of the law. Hence if any of these instructions pinpoint a defense theory (i.e., relate the defense theory of the evidence to an element of the charge), then the instruction should be given upon request. (See People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also FORECITE PG III.)
NOTE: These instructions are also applicable to prosecution for felony resisting arrest: attempted removal of firearm (PC 148(b), PC 148(c) and PC 148(d)); felony resisting arrest resulting in death or serious bodily injury (PC 148.10); resisting an executive officer (PC 69); and assault, battery and brandishing vis a vis a police officer, firefighter, etc. per PC 243.1, PC 243(c), PC 245(b), PC 245(c), PC 245(d), PC 245.2, PC 245.3, PC 245.5, and PC 417(c). (Also see murder of a peace officer special circumstances (PC 190.2(a)(7), PC 190.2a(8) and PC 190.2a(9); CJ 8.81.7 and CJ 8.81.8.)
Investigative Stop Explained
An investigate stop or detention predicated on mere curiosity, rumor or hunch is unlawful, even though the officer may be acting in complete good faith.
Points and Authorities
In re C. (78) 21 C3d 888, 893 [148 CR 366]; Terry v. Ohio (68) 392 US 1, 22 [20 LEd2d 889; 88 SCt 1868]; People v. Gonzalez (92) 7 CA4th 381, 384-86 [8 CR2d 640].
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Apparent Effort to Avoid Police Officer
Does Not Justify Detention
It is the right of every person to enjoy the use of public streets, buildings, parks and other conveniences without unwarranted interference or harassment by agents of the law. An apparent effort to avoid a police officer does not justify a detention as a citizen has every right to avoid contact with the police, absent legal justification for the detention as explained in other instructions you have been given.
Points and Authorities
People v. Gonzalez (92) 7 CA4th 381, 383-86 [8 CR2d 604]; People v. Aldridge (84) 35 C3d 473, 479 [198 CR 538]; see also FORECITE F 16.108b.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
History Of Past Criminal Activity In Locality
Does Not Justify Unwarranted Detention
A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may be present in that locality.
Points and Authorities
People v. Aldridge (84) 35 C3d 473, 479 [198 CR 538].
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Citizen Has No Obligation To Cooperate
With The Police
Ordinarily, a citizen has no obligation to cooperate with the police and the police have no right to interfere with the freedom of a citizen. The circumstances which justify police interference with the freedom of a citizen are set forth in the other instructions you are being given.
Points and Authorities
[See FORECITE F 16.108d.]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.27b
Lawful Detentions: “Tony C.” Standard
*Replace CJ 9.27 with the following:
To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts causing [him] [her] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person [he] [she] intends to stop or detain is involved in that activity. Such a suspicion must be objectively reasonable: the facts must be such as would cause any reasonable police officer in a like position, drawing appropriately on [his] [her] training and experience, to suspect the same criminal activity and the same involvement by the person in question. An investigative stop or detention predicated on mere curiosity, rumor or hunch is unlawful, even though the officer may be acting in complete good faith. There must be some objective manifestation that the person detained is, or is about to be, engaged in criminal activity.
Points and Authorities
CJ 9.27 predates the constitutional standard promulgated in In re Tony C. (78) 21 C3d 888 [148 CR 366]. It is a patchwork of statements by the CALJIC committee and language culled from earlier cases. (See e.g., People v. Flores (74) 12 C3d 85, 91 [115 CR 225]; Irwin v. Superior Court (69) 1 C3d 423, 427 [82 CR 484], quoting People v. Henze (67) 253 CA2d 986, 988 [61 CR 545]; People v. Ellsworth (61) 190 CA2d 844, 846 [12 CR 433]; see also former CJ 9.56 (3d ed) (1976 Pocket Part), pp. 5, 186-86.)
In particular, the words used to describe the “general grounds” for a reasonable detention such as “suggest,” “indicate” and “connect” are imprecise.
Hence, CJ 9.27 should be replaced with the above instruction which is adapted from In re Tony C. (21 C3d at 893.) (The last sentence is taken from U.S. v. Cortez (81) 449 US 411, 417 [66 LEd2d 621; 101 SCt 690]; see also, People v. Souza (94) 9 C4th 224, 231 [36 CR2d 569].) (Note: The subjective awareness component of the Tony C. standard has been omitted in light of Proposition 8. (See In re Christopher B. (90) 219 CA3d 455, 460 [268 CR 8].)
NOTES
[An unpublished decision (People v. Ramirez UNPUBLISHED (9/1/94, H012732) which, for the above reasons, stated that CJ 9.27 is “ripe for revision” is available to FORECITE subscribers. Ask for Opinion Bank # O-187.]
