SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Stopping, detaining, and patting down a known gang
member, observed running through traffic in a gang area,
while looking back nervously as if fleeing from a crime (as
either a victim or a perpetrator), was held to be lawful. (In
re H.M. (2008) 167 Cal.App.4 th 136.)
Observing defendant an three others running down the
street, carrying rudimentary weapons (i.e., a brick, rock and
part of a lamp), in a gang area with defendant being
recognized as a member of that gang, with one of the
subjects yelling “He’s over there,” and another pointing up
the street, was sufficient probable cause to arrest the
subjects for possession of a deadly weapons for the purpose
of committing an assault, per P.C. § 12024. (In re J.G.
(2010) 188 Cal.App.4 th 1501.)
Trying to catch a person who runs from a consensual encounter is
not a constitutional issue until he is caught. A person is not
actually detained (thus no Fourth Amendment violation) until he
is either physically restrained or submits to an officer’s authority to
detain him. (California v. Hodari D. (1991) 499 U.S. 621 [113
L.Ed.2 nd 690]; “threatening an unlawful detention,” by chasing a
person with whom a consensual encounter had been attempted, is
not a constitutional violation in itself. See also United States v.
Smith (9 th Cir. 2011) 633 F.3 rd 889.)
Photographing Subjects:
Note: Actions taken by the subject being chased, such as
dropping contraband prior to being caught, will, if observed
by the pursuing officer, likely justify the detention once the
subject is in fact caught.
Defendant who refused to submit to an illegal,
suspicionless detention, physically threatening the officer
before fleeing, could lawfully be arrested upon the making
of the threat. Therefore, arresting him after a foot pursuit
was lawful. (United States v. Caseres (9 th Cir. 2008) 533
F.3 rd 1064, 1069.)
A person who exposes his facial features, and/or body in general,
to the public, in a public place, has no reasonable expectation of
privacy in his appearance. (People v. Benedict (1969) 2
Cal.App.3 rd 400.) It is not, therefore, a constitutional violation to
photograph him, so long as he is not detained for that purpose.
© 2012 Robert C. Phillips. All rights reserved
20