Filed 12/8/23 P. v. Fortson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B325044
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. YA104713)
v.
MICHEAUX FORTSON,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Nicole C. Bershon, Judge. Affirmed.
George Gascon, District Attorney, Cassandra Thorp and
Kenneth Von Helmolt, Deputy District Attorneys, for Plaintiff
and Appellant.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Respondent.
________________________
INTRODUCTION
Micheaux Fortson was detained at gunpoint, handcuffed,
and frisked by Los Angeles County sheriff’s deputies after they
saw him jaywalk at approximately 3:40 a.m. in Inglewood. After
searching Fortson, the deputies recovered an unregistered,
loaded firearm from a fanny pack Fortson was wearing and
Fortson, who has prior felony convictions, was charged with gun
possession. Fortson was not charged with jaywalking.
Fortson moved to suppress the evidence of the firearm and
his statement he had a gun as products of an illegal search and
seizure, arguing the deputies seized him in an unreasonable
manner and without reasonable suspicion he was armed and
dangerous. The People contended the deputies had reasonable
suspicion Fortson was armed and dangerous because Fortson was
present in a “high crime area,” he “quickly walked” away upon
seeing the deputies, and when approached, he “bladed his body”
to shield his fanny pack from the deputies’ view.
Hearing testimony from the arresting deputy and
reviewing video from his body camera, the magistrate judge ruled
there was no reasonable suspicion Fortson was armed and
dangerous and Fortson’s seizure was unreasonable under the
circumstances. The magistrate judge granted the motion to
suppress and dismissed the criminal complaint. The People filed
a Penal Code1 section 871.5 motion in superior court to reinstate
the complaint. The superior court denied the People’s motion.
We affirm.
1 Statutory references are to the Penal Code unless
otherwise noted.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Fortson’s Seizure and Search
At 3:40 a.m. on October 15, 2021 Los Angeles County
Sheriff’s Deputy Justin Sabatine and his partner, Deputy
Quinones, were on patrol in a marked black and white patrol car
in the 600 block of Manchester Avenue in Inglewood. Deputy
Quinones drove the patrol car into a Best Western Hotel parking
lot. Deputy Sabatine, testifying at the suppression hearing,
characterized the location as a “high crime area.” As the deputies
drove into the hotel parking lot, Deputy Sabatine saw Fortson
“leisurely walking” eastbound through the lot, toward the hotel’s
breezeway. Deputy Sabatine testified that on making eye contact
with the deputies, Fortson continued in the direction he was
walking, exiting the hotel parking lot towards Manchester
Boulevard, but increased his pace for a “couple seconds” “just
briefly.”
Deputy Sabatine stated the high crime location, the early
morning hour, and Fortson’s reaction upon seeing the officers
drew his attention. Deputy Sabatine lost sight of Fortson when
Fortson reached the street. But after Deputy Quinones made a
U-turn and exited the hotel parking lot, Deputy Sabatine saw
Fortson walking away “quickly” in a northbound direction. He
observed Fortson “jaywalking” across the westbound traffic lanes
of Manchester Boulevard outside the marked crosswalk.
According to Deputy Sabatine, a marked crosswalk was nearby
where Fortson could have legally crossed the street. Fortson
continued to “walk[] fast” northeast through the parking lot of a
shopping complex on the other side of Manchester Avenue.
Deputy Sabatine testified Fortson was “not running.”
3
Upon witnessing Fortson jaywalk, Deputy Sabatine
determined Fortson had violated the California Vehicle Code.2
He decided to stop Fortson to give him a citation for jaywalking
and “to figure out why he was quickly walking away from us on
observing us.” The patrol car drove through the shopping
complex parking lot and pulled up behind Fortson, with Fortson
to the right of the car. Deputy Sabatine testified that, as the
patrol car approached, he ordered Fortson to stop. Fortson took
one more step and stopped. Deputy Sabatine exited the patrol
car with his firearm drawn and pointed at Fortson.
As he approached, Deputy Sabatine observed Fortson wore
a fanny pack strapped across his chest and “assumed there was a
gun in that fanny pack,” relying on his experience that “it’s
common for individuals to conceal weapons inside of these fanny
packs.” Deputy Sabatine testified Fortson “bladed his body,”
turning his shoulders “to where you can no longer see half of his
body,” while holding “his hands a little bit above his waist.”
Deputy Sabatine testified he found this movement suspicious
because “[i]nstead of [Fortson] turning his chest to face me to look
at me like a normal person would, he bladed his shoulders to the
side, which turned his fanny pack away from my view.” Deputy
Sabatine told Fortson “to put his hands up and put his hands
2 In October 2021 at the time Fortson was arrested,
jaywalking was punishable by fine or citation pursuant to Vehicle
Code sections 21954 and 21955. As of January 1, 2023, Vehicle
Code section 21955 no longer criminalizes jaywalking when it is
not hazardous or risky, or there are no cars present; law
enforcement may cite pedestrians in situations only where a
reasonably careful person would realize there is immediate
danger of collision. (See Veh. Code, § 21955; see also Assem. Bill
No. 2147 (2021-2022 Reg. Sess.) § 11.)
4
behind his back,” and Fortson complied. Deputy Sabatine took
Fortson’s wrists and pushed Fortson’s hands behind his back.
Deputy Sabatine testified he asked Fortson “if he had a pistol in
his fanny pack, and he somewhat nodded his head up and down,
which indicated ‘yes’ to me.”
Deputy Sabatine’s partner, Deputy Quinones, patted the
outside of Fortson’s fanny pack and felt a gun inside. Deputy
Quinones removed a loaded, unregistered Smith & Wesson
.40 caliber semiautomatic handgun from the fanny pack. Deputy
Sabatine checked Fortson’s criminal history and learned he was
on active probation with search conditions and prior felony
convictions.
B. The Preliminary Hearing
Fortson was arrested and charged in a three-count felony
complaint. Count 1 charged Fortson with carrying a concealed
unregistered firearm (§ 25400, subd. (a)(2)); count 2 with carrying
a loaded firearm in public (§ 25850, subd. (a)); and count 3 with
possessing a firearm as a felon (§ 29800, subd. (a)(1)).3 Fortson
was not charged with jaywalking. Fortson filed a motion to
suppress the gun and his statement he had a gun.
3 For sentencing purposes, the information also alleged two
prior serious or violent felony convictions requiring a prison
sentence (§§ 667.5, subd. (c), 1170, subd. (h)(3), and 1192.7,
subd. (c)); two prior serious or violent felony convictions requiring
an indeterminate term of life imprisonment (§§ 667, subds. (b)-(j),
and 1170.12); and four prior felony convictions precluding a
probation sentence (§ 1203, subd. (e)(4)).
5
On June 24, 2022 the magistrate judge4 held a preliminary
hearing at which the court heard the suppression motion.
Deputy Sabatine was the sole prosecution witness, and he
testified concerning the circumstances leading to Fortson’s stop,
search, and arrest. The court admitted the People’s exhibit, a
certified rap sheet showing Fortson’s prior felony convictions, and
the defense’s exhibit, a DVD of video and audio taken from
Deputy Sabatine’s body camera that partially recorded Fortson’s
detention.5
Fortson’s counsel conceded Fortson had jaywalked and that
a brief detention for jaywalking was generally legally
permissible, but he argued Fortson’s detention at gunpoint
transformed the detention into an illegal stop because the officers
did not have reasonable suspicion that Fortson was armed and
dangerous. Fortson’s counsel argued there was no reasonable
suspicion “for this deputy under the circumstances to believe that
Mr. Fortson is armed and dangerous. There’s no real reason to
point a gun at him during a simple traffic citation. . . . The point
where the gun is pointed at Mr. Fortson . . . the detention
becomes illegal, and anything obtained after the gun was pointed
at Mr. Fortson should be suppressed.” Fortson did not argue the
4 The Honorable Victor L. Wright.
5 There is a 60-second delay after Deputy Sabatine’s body
camera is activated and before it begins to record audio, so there
is no sound at the beginning of the recording. Deputy Sabatine
testified this silent portion of the video included the part of the
detention when he directed Fortson to stop. Deputy Sabatine
further testified that because of the timing of the recording and
the angle of the camera not all of Fortson’s conduct is visible on
the video, including Fortson “blading his body.”
6
stop was motivated by racial profiling or any other discriminatory
factor.
The prosecutor argued the stop was justified based on the
deputies witnessing the jaywalking offense. The prosecutor also
argued the subsequent search did not violate the Fourth
Amendment because Deputy Sabatine had a reasonable suspicion
Fortson was armed and dangerous, based on the way he “bladed”
his body and Fortson’s later admission he had a firearm.
The magistrate judge granted Fortson’s motion to suppress.
The magistrate judge found that Fortson jaywalked across the
street. But the magistrate judge further ruled Deputy Sabatine
lacked reasonable suspicion Fortson was armed, and stated that
“the result [of the search] confirms suspicions that Mr. Fortson
had a firearm in his possession, but the basis of that suspicion I
think was improper.” The magistrate judge rejected Deputy
Sabatine’s testimony that the “high-crime area,” his “eye contact
with Mr. Fortson,” and the fact Fortson jaywalked supported
reasonable suspicion he was unlawfully carrying a firearm.
Although the magistrate judge did not expressly state as much,
the magistrate judge implicitly found Deputy Sabatine’s
testimony lacked credibility.
The magistrate judge further ruled Fortson’s detention was
unreasonable in the context of jaywalking. Because “Mr. Fortson
almost immediately [was] given directions to . . . stop and the
firearm is pulled out,” the magistrate judge determined the stop
was “[n]othing in terms of what I would consider to be a normal
contact to give someone a jaywalking citation.” The magistrate
judge concluded the deputies’ contact with Fortson was not
“reasonable under those circumstances”—rather, “the contact
should be, ‘Hey, stop. We need to talk to you. We’re going to
7
write you a citation.’” Finally, the magistrate judge determined
that Fortson did not “blade his body” to conceal the fanny pack,
but instead “in response to being contacted by the officers when
they told him to stop. He’s walking northeast. He hears these
words presumably from behind him. Stops; he turns. By
turning, he’s going to be blading his body.”
The magistrate judge also questioned Deputy Sabatine’s
motives for stopping Fortson. Because Deputy Sabatine chose to
follow Fortson before he jaywalked, the magistrate judge
determined the stop for jaywalking was “pretextual.” The
magistrate judge further commented, “I think there’s a lot of
things in Deputy Sabatine’s mind, perhaps . . . that time of night,
that location, prior experiences there and the presence and, you
know, I have to say it, the presence of a black man walking
through that area at that time of night. I think that probably
accelerated things in Deputy Sabatine’s mind. Doesn’t make him
a bad person or anything like that. It’s just the way things are.”6
The magistrate judge granted Fortson’s motion to suppress.
The prosecution conceded it could not proceed without the
suppressed evidence, and the magistrate judge dismissed the
criminal complaint.
6 The magistrate judge further stated during other parts of
the preliminary hearing that, “I’m afraid of sheriff’s deputies in
this area. I’m afraid of sheriff’s deputies in my area, and they
used to come to my house routinely, and I would work with
sheriff’s deputies on a daily basis.” He also shared a personal
anecdote about receiving a citation for jaywalking under different
circumstances—during the day, while he was dressed in business
attire. He offered that his interaction with the police on that
occasion did not involve a search or the officer drawing a weapon.
8
C. The People’s Motion To Reinstate the Information
On July 7, 2022 the People filed a motion to reinstate the
charges against Fortson under section 871.5. The People argued
the deputies could lawfully detain Fortson for jaywalking and
search him given his conduct and pre-search affirmation that he
was armed. The People further asserted the magistrate judge
erred by considering Deputy Sabatine’s subjective intent and
injecting the magistrate judge’s personal views into the analysis.
For these reasons, the People argued the stop and search were
objectively reasonable under the circumstances.
Fortson opposed the motion, arguing: (1) the prosecutor
failed to prove Fortson violated the Vehicle Code when he crossed
Manchester Boulevard; (2) Fortson’s detention exceeded the scope
of a stop for jaywalking; and (3) the search was unjustified as a
lawful search incident to arrest because Fortson was searched
before he was arrested. In the reply brief, the People argued
Fortson could have been lawfully arrested for jaywalking and
legally searched incident to his arrest.
The superior court denied the People’s motion to reinstate
the complaint. At the hearing on the motion, the court confirmed
that “it’s clear [the magistrate judge] found [Fortson] had
jaywalked.” The superior court then ruled, contrary to the
magistrate judge, that the stop for jaywalking was permissible,
but that the search violated the Fourth Amendment. The court
further determined there was “no indication [the deputies] were
going to arrest him for jaywalking[,]” so the search could not be
justified as a search incident to arrest. The superior court
determined suppression was proper because the magistrate judge
rejected Deputy Sabatine’s testimony about Fortson “blading his
body,” and this movement did not establish reasonable suspicion
9
Fortson was armed and dangerous. The superior court also noted
the magistrate judge did not find the deputy’s testimony credible.
The superior court ruled the search was unlawful and denied the
People’s motion to reinstate the complaint.
The People filed a timely notice of appeal from the denial of
their motion to reinstate.
DISCUSSION
A. Standard of Review
Section 871.5 provides “the exclusive method by which the
People may obtain a review of a magistrate’s order of dismissal”
(People v. Mimms (1988) 204 Cal.App.3d 471, 481) by requesting
reinstatement of the complaint. (People v. Massey (2000)
79 Cal.App.4th 204, 210 (Massey).) Section 871.5 does not permit
“a relitigation of the defendant’s suppression motion. Instead, it
is simply a means to have the superior court determine the legal
propriety of the magistrate’s dismissal of the complaint.”
(People v. Toney (2004) 32 Cal.4th 228, 233; accord, People v.
Shrier (2010) 190 Cal.App.4th 400, 409-410 (Shrier).)
On appeal from an order denying the People’s section 871.5
motion to reinstate the complaint, “‘we disregard the superior
court’s ruling and directly examine the magistrate’s ruling to
determine if the dismissal of the complaint was erroneous as a
matter of law.’” (Shrier, supra, 190 Cal.App.4th at pp. 409-410,
italics omitted.) “To the extent the magistrate’s decision rests
upon factual findings, ‘[w]e, like the superior court, must draw
every legitimate inference in favor of the magistrate’s ruling and
cannot substitute our judgment, on the credibility or weight of
the evidence, for that of the magistrate.’” (Massey, supra,
10
79 Cal.App.4th at p. 210.) We affirm the magistrate judge’s
suppression ruling “if it is correct on any theory of law applicable
to the case, even if for reasons different than those given by the
trial court.” (People v. Evans (2011) 200 Cal.App.4th 735, 742.)
B. The Magistrate Judge Correctly Granted Fortson’s
Suppression Motion Because He Was Unreasonably Seized
in Violation of the Fourth Amendment
The Fourth Amendment guarantees the right of the people
to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures by police officers and other
government officials. (See People v. Robles (2000) 23 Cal.4th 789,
794-795.) Here, the parties agree Fortson was “seized” within the
meaning of the Fourth Amendment when he complied with
Deputy Sabatine’s order to stop. (People v. Brown (2015)
61 Cal.4th 968, 974 [“‘[W]hen [an] officer, by means of physical
force or show of authority, has in some way restrained the liberty
of a citizen,’ the officer effects a seizure of that person, which
must be justified under the Fourth Amendment.”].) We examine
whether Fortson’s seizure and the resulting search complied with
the Fourth Amendment.
1. Deputy Sabatine Had Reasonable Suspicion To
Initiate a Terry Stop Relating to Jaywalking
Consistent with the Fourth Amendment, a police officer
may “conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.”
(Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow), citing
Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry).) “[T]he touchstone of
reasonableness” for an investigatory stop under Terry “is the
11
presence of ‘specific and articulable facts’ that reasonably
warrant the intrusion on personal liberty and privacy.” (People v.
Glaser (1995) 11 Cal.4th 354, 374.)
Deputy Sabatine testified he detained Fortson for the
purpose of issuing him a jaywalking citation. Because he
witnessed Fortson jaywalking, Deputy Sabatine had reasonable
suspicion to stop Fortson to investigate jaywalking in violation of
the Vehicle Code. “A Terry stop is justified if it is based on at
least reasonable suspicion that the individual has violated the
Vehicle Code or some other law.” (In re H.M. (2008)
167 Cal.App.4th 136, 142.) When an officer personally witnesses
a traffic infraction such as jaywalking (see § 853.5; Veh. Code,
§ 21955; ), the officer has reasonable suspicion to detain the
person. (In re H.M., at p. 142.; accord, People v. Superior Court
(1980) 111 Cal.App.3d 948, 953.) Deputy Sabatine testified, and
the magistrate judge found, that Fortson jaywalked across
Manchester Boulevard. It was proper to initiate a stop of Fortson
on this basis.7
7 For the first time on appeal, Fortson contends based on the
magistrate judge’s remarks that his stop was the result of racial
profiling, and that the magistrate judge applied principles from
the California Racial Justice Act (CRJA). The CRJA provides:
“The state shall not seek or obtain a criminal conviction or seek,
obtain, or impose a sentence on the basis of race, ethnicity, or
national origin.” (§ 745, subd. (a).) The court in Young v.
Superior Court (2022) 79 Cal.App.5th 138 held the CRJA can
provide a remedy for racially motivated stops by law
enforcement. (Id. at pp. 161-162.) Recent amendments to the
CRJA, effective January 1, 2024, permit a defendant to raise it
for the first time on direct appeal. (See Assem. Bill No. 1118
(2022-2023 Reg. Sess.); Stats. 2023, ch. 464, § 1.) Since we affirm
12
But Deputy Sabatine did not have reasonable suspicion to
initiate a Terry stop based on criminal activity other than
jaywalking that could have made it permissible to draw his
weapon. Deputy Sabatine testified he stopped Fortson to
investigate potential unspecified criminal activity because
Fortson was present in a “high-crime location,” in the early
morning, and Fortson “picked up [his] pace” after seeing the
deputies. Deputy Sabatine further testified, however, that
Fortson never broke into a run and Fortson continued to walk in
the same direction he was walking before he saw the patrol car.
Under the circumstances of this case, these facts cannot
establish reasonable suspicion of criminal activity other than
jaywalking. In Wardlow, supra, 528 U.S. 119, the U.S. Supreme
Court held that a person’s “unprovoked,” “[h]eadlong flight” from
police in a “high crime area” constituted reasonable suspicion and
justified an investigatory stop under Terry. (Id. at pp. 124-125.)
But Fortson was walking quickly in the same direction he was
already walking in, away from the deputies, which is not
“headlong flight.” (People v. Flores (2019) 38 Cal.App.5th 617,
632 [“‘unprovoked headlong flight’ is not a ‘brisk walk,’ or a ‘quick
pace’”]; Cornell v. City and County of San Francisco (2017)
17 Cal.App.5th 766, 782 [affirming no reasonable suspicion to
detain a person “already walking away” from police because no
“[h]eadlong flight”].) Fortson’s “presence in a ‘high crime area,’
standing alone, [was] not enough to support a reasonable,
particularized suspicion of criminal activity.” (Wardlow, supra,
the magistrate judge’s suppression ruling on Fourth Amendment
grounds, however, we need not reach Fortson’s CRJA argument.
Further, the magistrate judge’s remarks on racial profiling play
no part in our decision today.
13
528 U.S. at p. 119; accord, People v. Souza (1994) 9 Cal.4th 224,
241 [emphasizing “mere presence in a high crime area” is not
“‘sufficient to justify interference with an otherwise innocent-
appearing citizen’”].) Considering these factors as a whole, they
do not provide reasonable suspicion to initiate a Terry stop for
unspecified criminal activity beyond jaywalking. (See People v.
Wilkins (1986) 186 Cal.App.3d 804, 811 [“police avoidance
behavior, the reputation of the area for crime, and time of night”
were insufficient for reasonable suspicion]; People v. Aldridge
(1984) 35 Cal.3d 473, 478 [no reasonable suspicion where
“defendant and his companions apparently sought to avoid the
police” at “nighttime . . . ‘in an area of continuous drug
transactions’”].)
2. The Deputies Exceeded the Permissible Scope of the
Terry Stop Through Unreasonably Intrusive Conduct
Approaching Arrest
While the deputies had reasonable suspicion to initiate a
Terry stop for jaywalking, a traffic infraction, we conclude the
unreasonably intrusive nature of the stop—where one of the two
arresting officers drew his weapon and physically restrained
Fortson—contravened the Fourth Amendment.
a. Drawing weapons and physically restraining a
detainee for an ordinary traffic infraction
violates the Fourth Amendment
Even if specific facts support reasonable suspicion of
criminal activity, a Terry stop may violate the Fourth
Amendment when “officers’ conduct was more intrusive than
necessary to effectuate an investigative detention otherwise
14
authorized by the Terry line of cases.” (Florida v. Royer (1983)
460 U.S. 491, 504.) For this reason, “[t]he scope of [a] detention
must be carefully tailored to its underlying justification.” (Id. at
pp. 499-500.) “The detention must be temporary, last no longer
than necessary for the officer to confirm or dispel the officer’s
suspicion, and be accomplished using the least intrusive means
available under the circumstances.” (People v. Stier (2008)
168 Cal.App.4th 21, 26 (Stier).) There is no “litmus-paper test”
for “determining when a seizure exceeds the bounds of an
investigative stop.” (Royer, at p. 506.) Instead, “[t]he scope of the
intrusion permitted during a detention will vary with the
particular facts and circumstances of each case.” (Stier, at p. 27.)
One consideration is “the facts known to the police officer at the
time of the detention to determine whether the officer’s actions
went beyond what was necessary to confirm or dispel the officer’s
suspicion of criminal activity.” (Ibid.)
As noted above, Deputy Sabatine testified he detained
Fortson for the purpose of issuing him a jaywalking citation, and
the deputy did not possess reasonable suspicion of any other
crime at that time. “An investigation relating to the detention
required to issue a warning or citation for a minor traffic or
vehicle equipment violation is limited in scope.” (People v. Grace
(1973) 32 Cal.App.3d 447, 452.) Generally, all that is
“‘reasonably necessary’” to deal with a traffic infraction is for an
officer to examine the detainee’s identification, “explain the
violation, and then issue either a citation or a warning.”
(People v. McGaughran (1979) 25 Cal.3d 577, 587; accord, United
States v. Luckett (9th Cir. 1973) 484 F.2d 89, 91 [police may
“detain an individual stopped for jaywalking only [for] the time
15
necessary to obtain satisfactory identification from the violator
and to execute a traffic citation”].)
A “routine traffic stop” will “rarely justify a police officer in
drawing a gun” (People v. Celis (2004) 33 Cal.4th 667, 676) or
physically restraining a detainee. (See People v. Medina (2003)
110 Cal.App.4th 171, 176 (Medina) [individual “stopped for a
minor traffic infraction cannot be physically restrained absent
‘“specific and articulable facts” that could support a rational
suspicion that [the person was] involved in “some activity
relating to crime”’” beyond the traffic infraction]; accord, Stier,
supra, 168 Cal.App.4th at p. 27; Washington v. Lambert (9th Cir.
1996) 98 F.3d 1181, 1187 [“Under ordinary circumstances, when
the police have only reasonable suspicion to make an
investigatory stop, drawing weapons and using handcuffs and
other restraints will violate the Fourth Amendment.”]; People v.
Campbell (1981) 118 Cal.App.3d 588, 595-596 [detention may be
unconstitutionally unreasonable “if the restraint employed by the
police goes beyond that which is reasonably necessary for a
detention”].)
b. The use of force was not justified by reasonable
suspicion Fortson was armed and dangerous
The People argue that drawing a firearm and physically
restraining Fortson was reasonably necessary to effectuate the
Terry stop because Deputy Sabatine reasonably suspected
Fortson was armed and dangerous. The law recognizes that if,
“at the time of the detention, the officer had a reasonable basis to
believe the detainee presented a physical threat to the officer,”
drawing weapons on or physically restraining a detainee during
an investigatory stop does not violate the Fourth Amendment.
16
(In re Antonio B. (2008) 166 Cal.App.4th 435, 442 [restraints];
accord, People v. Brown (1985) 169 Cal.App.3d 159, 167 [drawing
a weapon].) The People contend the following circumstances
provided reasonable suspicion Fortson was armed: (1) Fortson’s
“nervous and evasive response to the patrol car;” (2) Fortson’s
fanny pack, “in which Deputy Sabatine knew people often
concealed weapons”; and (3) Fortson’s movement “blading his
body” when turning to face the deputies, which suggested Fortson
was concealing the fanny pack from their view. According to the
People, because Deputy Sabatine reasonably suspected Fortson
was carrying a firearm, he could detain Fortson with force and
subsequently frisk him for weapons.
The Fourth Amendment authorizes “‘“a reasonable search
for weapons for the protection of the police officer, where he has
reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely
certain that the individual is armed; the issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger.”’” (People v. Pantoja (2022) 77 Cal.App.5th 483, 488
(Pantoja).) Circumstances supporting reasonable suspicion a
suspect is armed “typically include visible bulges or baggy
clothing that suggest a hidden weapon; sudden movements or
attempts to reach for an object that is not immediately visible;
evasive and deceptive responses to an officer’s questions about
what the individual was doing; and unnatural hand postures that
suggest an effort to conceal a weapon. [Citation.] Other relevant
circumstances can include the type of crime at issue; the detained
individual’s suspected involvement in such a crime; and the
17
searching officer’s experience with such crimes.” (In re
Jeremiah S. (2019) 41 Cal.App.5th 299, 305.)
The People place great emphasis on Deputy Sabatine’s
testimony that Fortson “bladed his body” to hide the fanny pack
from his view. “[S]udden movements,” “attempts to reach for an
object that is not immediately visible,” or “unnatural hand
postures that suggest an effort to conceal a weapon” all support
reasonable suspicion a detainee is armed. (In re Jeremiah S.,
supra, 254 Cal.App.5th at p. 305.) The People’s contention that
Fortson “bladed his body” is belied by the magistrate judge’s
factual and credibility findings. The magistrate judge expressly
rejected Deputy Sabatine’s testimony that Fortson “bladed his
body” to conceal the fanny pack. The magistrate judge found
instead that Fortson did not move with the purpose of hiding the
fanny pack. Rather, Fortson heard Deputy Sabatine’s command
to stop “from behind him,” stopped and turned around, and “[b]y
turning, he’s going to be blading his body.” Further, it was clear
from Deputy Sabatine’s testimony and from the body camera
footage that Fortson made no other suspicious movements toward
the fanny pack, his hands were visible at all times, and he
immediately complied with the deputy’s orders to stop and raise
his hands in the air.
Based on our independent review of the preliminary
hearing transcript and the body camera video, the People’s other
arguments for reasonable suspicion Fortson was armed and
dangers are unpersuasive under the circumstances of this case.
First, the non-violent offense of jaywalking does not provide
reasonable suspicion Fortson was armed. (See In re H.H. (2009)
174 Cal.App.4th 653, 660 [no reasonable suspicion where the
defendant “was stopped for a traffic infraction, not a crime of
18
violence”].) Next, as to Fortson’s “nervous and evasive behavior,”
nervousness does not necessarily establish reasonable suspicion
that a detainee is armed. (See People v. Dickey (1994)
21 Cal.App.4th 952, 956; People v. Lawler (1973) 9 Cal.3d 156,
162 [“nervousness could understandably result from extended
police questioning because of a ‘traffic violation’”].)
That Fortson wore a fanny pack does not establish
reasonable suspicion he was armed. Merely wearing clothes or
accessories that could possibly conceal a weapon—without
additional facts like a visible bulge in the clothing or a detainee
reaching into their clothing or bag—does not establish reasonable
suspicion a detainee is armed and dangerous. (See People v.
Thomas (2018) 29 Cal.App.5th 1107, 1117 [“wearing a jacket or
sweatshirt on a ‘pretty warm’ day” does not support reasonable
suspicion detainee was armed]; People v. Collier (2008)
166 Cal.App.4th 1374, 1377, fn. 1 [police do not have “carte
blanche to pat down anyone wearing baggy clothing”]; Ybarra v.
Illinois (1979) 444 U.S. 85, 93 [wearing a long jacket, without
more, insufficient to support reasonable suspicion]; People v.
Lopez (2004) 119 Cal.App.4th 132, 137 [reasonable suspicion of
weapon where uncooperative detainee wore “loose, baggy pants”
and “refused to keep his hands away from his pocket”]; In re
Frank V. (1991) 233 Cal.App.3d 1232, 1241 [same, with detainee
in “heavy coat” “starting for his pockets”].) Although Deputy
Sabatine testified that, in his experience, “it’s common for
individuals to conceal weapons inside of these fanny packs,” this
did not establish reasonable suspicion particular to Fortson. (Cf.
People v. Hernandez (2008) 45 Cal.4th 295, 299 [“no articulable
facts supporting a reasonable suspicion that [defendant], in
particular, may have been acting illegally” by driving with a
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temporary permit, even though officer knew from experience
“that some people driving with a temporary permit may be
violating the law”].)
Considering all these circumstances in their totality, they
fall short of reasonable suspicion Fortson was armed.8 (See
Pantoja, supra, 77 Cal.App.5th at pp. 487, 490-491 [no reasonable
suspicion of weapons on a “‘nervous’” but “cooperative” person
detained on vehicle infractions in a “high crime area” while
wearing “baggy” clothing].) Because Deputy Sabatine possessed
only reasonable suspicion of jaywalking and lacked reasonable
suspicion Fortson was armed, we conclude Fortson’s detention at
gunpoint while physically restrained was unduly intrusive and
unreasonable. (See Stier, supra, 168 Cal.App.4th at pp. 25, 28
[unreasonable seizure to restrain a suspect for a Vehicle Code
violation without any reasonable suspicion of weapons]; accord,
In re Antonio B., supra, 166 Cal.App.4th at p. 442 [marijuana
misdemeanor]; Medina, supra, 110 Cal.App.4th at p. 177 [traffic
infraction]; cf. People v. Saldana (2002) 101 Cal.App.4th 170, 173,
176 (Saldana) [illegal seizure at gunpoint and with handcuffs on
a nonviolent misdemeanor warrant].)
Since Fortson’s seizure was beyond what is permissible
under the Fourth Amendment, the evidence obtained was
8 The People also argue Deputy Sabatine’s reasonable
suspicion Fortson was armed justified the subsequent pat-down
for weapons, revealing the gun in Fortson’s fanny pack. Because
we conclude Deputy Sabatine had no reasonable suspicion
Fortson was armed to justify detaining him at gunpoint and
physically restraining him, we also conclude Deputy Sabatine
had no reasonable suspicion justifying a pat-down for weapons.
(See Medina, supra, 110 Cal.App.4th at pp. 176-177.)
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properly suppressed. (See People v. Harris (1975) 15 Cal.3d 384,
392 [“It is a fundamental principle in our jurisprudence that an
illegal police procedure cannot be justified by its fruits.”].)
3. The Search-incident-to-arrest Exception Does Not
Apply
The People argue that because Deputy Sabatine could have
formally arrested Fortson for jaywalking, he could have searched
Fortson incident to the arrest and would have discovered the gun.
Consistent with the Fourth Amendment, an officer may effect a
custodial arrest for a minor traffic infraction such as jaywalking.
(See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.) The
search-incident-to-arrest exception allows officers to conduct a
full search alongside any custodial arrest. (See People v. Monroe
(1993) 12 Cal.App.4th 1174, 1195 (Monroe).) This exception does
not justify Fortson’s detention and frisk.
Generally, an officer may not arrest an individual for traffic
infractions, including jaywalking; rather, an officer must cite and
release any person who provides identification and signs a notice
to appear. (See Veh. Code, §§ 21955, 40302, 40500; Pen. Code,
§ 853.5; see Monroe, supra, 12 Cal.App.4th at pp. 1181-1182.)
And, when an officer chooses to cite a detainee for a traffic
infraction, the Fourth Amendment does not permit a “search
incident to citation,” even if the officer could have arrested the
detainee for the offense cited. (Knowles v. Iowa (1998) 525 U.S.
113, 115-119.) Although an officer may have “probable cause to
arrest for a traffic infraction,” “[o]nce it [is] clear that an arrest
[is] not going to take place, the justification for a search incident
to arrest [is] no longer operative” and the exception does not
apply. (People v. Macabeo (2016) 1 Cal.5th 1206, 1218-1219
21
(Macabeo), citing Knowles v. Iowa, supra, 525 U.S. at pp. 114,
117.)
Deputy Sabatine testified he approached Fortson to “detain
him for the purposes of giving him a citation” for jaywalking, not
to effect a custodial arrest for that infraction. While the deputies’
overly intrusive seizure of Fortson approached the conditions of
arrest, Deputy Sabatine testified the jaywalking played no part
in his decision to approach Fortson at gunpoint and restrain him
with handcuffs.9 And critically, Deputy Sabatine testified he
arrested Fortson only after discovering the gun.
There is nothing in the record “to suggest, as the People’s
argument presumes, that the officers would have arrested”
Fortson for jaywalking. (Macabeo, supra, 1 Cal.5th at pp. 1212,
1219 [search unconstitutional even though the defendant “could
have been arrested for failing to stop at a stop sign”]; accord,
People v. Espino (2016) 247 Cal.App.4th 746, 765 [unlawful
search even when police “could have arrested and searched
[defendant] based on the traffic violation—but they did not”]; cf.
In re D.W. (2017) 13 Cal.App.5th 1249, 1253 [declining to apply
search-incident-to-arrest exception “because when officers
decided to search [defendant], they had neither cause to make a
custodial arrest nor evidence that he was guilty of anything more
9 The magistrate judge likewise rejected the argument that
Deputy Sabatine arrested Fortson because of jaywalking,
observing that a jaywalking investigation does not “happen at
gunpoint.” (See Saldana, supra, 101 Cal.App.4th at p. 176, fn. 4
[rejecting analysis of illegal seizure “as if it were a traffic stop on
an outstanding warrant,” because trial court found overly
intrusive seizure via “‘felony extraction’” indicated “the officers
didn’t put an awful lot of weight on” the misdemeanor warrant].)
22
than an infraction”].) The search-incident-to-arrest exception
does not apply.
Accordingly, the magistrate judge correctly granted the
motion to suppress and properly dismissed the complaint. (See
Medina, supra, 110 Cal.App.4th at pp. 178-179 [affirming
suppression of a defendant’s admission he had cocaine while he
was illegally detained and questioned]; Willett v. Superior Court
(1969) 2 Cal.App.3d 555, 559 [ordering suppression of
“information learned well after [the defendant’s] detention had
exceeded constitutional limitations”].)
DISPOSITION
The order denying the People’s section 871.5 motion to
reinstate the complaint is affirmed.
MARTINEZ, J.
We concur:
SEGAL, Acting P. J. EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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