F 16.108

F 16.108a

Lawful Detention Defined: Investigative Stop Explained

*Add to CJ 16.108:

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

This instruction provides an amplification of the law relating to lawful detention which may be helpful to the jury when appropriate in a resisting arrest case per PC 148. It is a correct, well-established statement of the law. (In re Tony 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].) Hence, the defendant has a right to such an instruction when they are applicable to a defense theory of the case. (See FORECITE PG III(A).) 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).]

NOTES

This instruction is also applicable to prosecution for felony resisting arrest: attempted removal of firearm (PC 148(b), PC 148(c) and PC 148(d); CJ 9.80, CJ 9.81); felony resisting arrest resulting in death or serious bodily injury (PC 148.10; CJ 9.82) and resisting an executive officer (PC 69); assault, battery and brandishing vis a vis a police officer, firefighter, etc. per PC 243(b) and PC 243(c); PC 245(b), PC 245(c) and PC 245(d); PC 245.2; PC 245.3; PC 245.5; and PC 417(b). (Also see murder of a peace officer special circumstances (PC 190.2(a)(7), PC 190.2(a)(8) and PC 190.2(a)(9); CJ 8.81.7 and CJ 8.81.8.)

F 16.108b

Lawful Detention Defined:

Apparent Effort To Avoid Police Officer Does Not Justify Detention

*Add to CJ 16.108:

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. Mere ignorance of, or failure to cooperate with the police, does not alone justify a detention because a citizen has every right to ignore the police and go on about his or her business. However, if a person runs away from the police in head long flight, a detention may be lawful.

Points and Authorities

This instruction provides an amplification of the law relating to lawful detention which may be helpful to the jury when appropriate in a resisting arrest case per PC 148. It is a correct, well-established statement of the law. The courts have long held that a person’s flight upon encountering a uniformed police officer or a marked patrol car is not alone sufficient to justify a detention. (People v. Souza (94) 9 C4th 224 [36 CR2d 569]; People v. Aldridge (84) 35 C3d 473, 479 [198 CR 538] [pre-Proposition 8 case]; People v. Gonzales (92) 7 CA4th 381, 384-86, 8 CR2d 640 [cause to detain required to prevent passenger of a lawfully stopped car from opening his door and leaving].) Hence, the defendant has a right to such an instruction when they are applicable to a defense theory of the case. (See FORECITE PG III(A).) 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).]

Illinois v. Wardlow (2000) 528 US 119, 123-25 [145 LEd2d 570; 120 SCt 673, 676] reiterated that a person’s refusal to cooperate with the police, without more, does not justify stopping or detaining the individual. (See also Florida v. Royer (83) 460 US 491, 498 [75 LEd2d 229; 103 SCt 1319]; Florida v. Bostick (91) 501 US 429, 437 [115 LEd2d 389; 111 SCt 2382.) Thus, if a person simply ignores the police officer and goes about his or her business, that refusal to cooperate without more will not justify stopping or detaining the person. However, if the person runs away from the police in “headlong flight” then a detention is justified. (Wardlow, 120 SCt at 676.)

NOTES

F 16.108c

Lawful Detention Defined: History Of Past Criminal Activity In Locality

Does Not Justify Unwarranted Detention

*Add to CJ 16.108:

A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality.

Points and Authorities

This instruction provides an amplification of the law relating to lawful detention which may be helpful to the jury when appropriate in a resisting arrest case per PC 148. It is a correct, well-established statement of the law. (People v. Aldridge (84) 35 C3d 473, 479 [198 CR 538].) Hence, the defendant has a right to such an instruction when they are applicable to a defense theory of the case. (See FORECITE PG III(A).) 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).]

NOTES

F 16.108d

Lawful Detention Defined:

Citizen Has No Obligation To Cooperate With The Police

*Add to CJ 16.108:

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

This instruction provides an amplification of the law relating to lawful detention which may be helpful to the jury when appropriate in a resisting arrest case per PC 148. It is a correct, well-established statement of the law. (PC 148; see Florida v. Royer (83) 460 US 491, 497-98 [75 LEd2d 229; 103 SCt 1319] [absent legal cause to detain, if a police officer asks a person a question, the person is free to refuse to answer and walk away]; see also People v. Bennett (98) 68 CA4th 396, 401-02 [same]; People v. Gonzalez (92) 7 CA4th 381, 384-86 [8 CR2d 604]; People v. Wetzel (74) 11 C3d 104, 109-10 [113 CR 32]; California Peace Officer’s Legal Sourcebook’s discussion of “Consensual Encounters.”) Hence, the defendant has a right to such an instruction when they are applicable to a defense theory of the case. (See FORECITE PG III(A).) 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).]

NOTES