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Name: In re T.F.-G. (2023) 94 Cal.App.5th 893
Case #: H050112
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/24/2023

Warrantless search incident to minor’s arrest was valid because there was probable cause for his arrest for resisting police. The minor was with a group of people who were approached by police and questioned about smoking marijuana in public. He witnessed his companions being restrained and searched. Rather than submit to a search when summoned by police, he ran. Police caught and searched him, finding a loaded gun. His motion to suppress was denied and he admitted allegations in a 602 petition that he carried a loaded firearm in public (Pen. Code, § 25850(a)) and resisted arrest. On appeal, he argued the juvenile court erred in denying his motion to suppress because he was not searched incident to a lawful arrest as the officers lacked probable cause to believe that he was resisting or delaying the lawful performance of their duties, in violation of section 148(a). Held: Affirmed. After analyzing relevant case law and the facts in this case, the Court of Appeal concluded there was probable cause to arrest the minor for a violation of section 148(a), following his flight in response to a mandatory demand. A person who flees an officer’s lawful attempt to detain violates section 148(a)(1). The totality of the circumstances reflects that a reasonable person in the minor’s position would have understood that the request to go to the officer was mandatory and that he was not free to leave. The court disagreed with the minor’s argument that the encounter reasonably appeared to be consensual. Because there was probable cause to arrest the minor, the search incident to his arrest was lawful. [Editor’s Note: On appeal, the minor did not dispute that the police officers could have lawfully detained him based on reasonable suspicion that he was committing or had just committed a crime. The court noted that, subject to specified exceptions, smoking marijuana in public and possessing marijuana under the age of 21 are unlawful.]

California’s unconstitutional “good cause” firearm licensing requirement, which is discrete and severable, does not render Penal Code section 25850 (carrying a loaded firearm in public) facially unconstitutional. The minor also advanced a facial Second Amendment challenge to the prohibition on the unlicensed public carrying of loaded firearms (§ 25850). To successfully make such an argument, it must be shown that the statute is unconstitutional in all or at least the generality or great majority of cases. Section 25850(a), exists within a framework of exemptions, including a discretionary licensing process, which provides for the granting of a “concealed carry” permit based on enumerated criteria, including “good cause.” The “good cause” requirement is unconstitutional because it grants the type of open-ended discretion to licensing officials held unconstitutional in New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. ___ [142 S.Ct. 2111]. However, the “good cause” portion of the scheme is severable and Bruen does not support a categorical ban on a state’s authority to require licenses. Because the constitutional defect in the licensing scheme reaches only a narrower subset of the cases to which section 25850 applies, the minor failed to demonstrate that section 25850 is facially unconstitutional. [Editor’s Notes: (1) The court also concluded the minor had standing to challenge the constitutionality of section 25850. (2) In a concurring opinion, Justice Bromberg explained that he would decline to reach the minor’s Second Amendment challenge because he had not offered any historical materials or analysis in support of the argument, which makes it difficult for the court to engage in the historical determination that the U.S. Supreme Court now appears to require.]