Filed 10/21/26 P. v. Clark CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A172780
v.
BRESHAWN CLARK, (Contra Costa County
Super. Ct. No. 04-24-02449)
Defendant and Appellant.
Breshawn Clark moved to suppress evidence found during a pat-down
search after he was detained by police officers responding to a reported
shooting. The motion to suppress was denied, Clark pled no contest to
carrying an unregistered loaded handgun (Pen. Code, § 25850, subds. (a) &
(c)(6); all statutory citations are to this code), and he was placed on probation.
Clark challenges the denial of the motion to suppress, arguing the detention
was not justified because the officer lacked reasonable suspicion to believe he
committed a crime. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 1, 2024, three Antioch police officers responded to an
apartment building based on information from an anonymous caller who
reported the sound of gunshots. While the officers were on their way to the
apartment building, a second anonymous call was received, and the caller
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said the individuals involved were multiple Black male adults. In addition,
ShotSpotter, a service that reports gunshots and their approximate location,
had alerted the officers to gunshots in the same approximate area.
Upon arriving at the scene, the officers found Clark, a Black man, and
two women in the parking lot behind the building; no one else was present.
The officers detained Clark and subsequently conducted a pat-down search,
which revealed a loaded AR-15 firearm on his person. Clark was arrested.
An information was filed charging Clark with unlawful possession of an
assault weapon (§ 30605, subd. (a)), carrying an unregistered loaded handgun
(§ 25850, subds. (a) & (c)(6)), and possession of a short-barreled rifle or
shotgun (§ 33215).
Motion To Suppress and Relevant Testimony
Clark moved to suppress the evidence (the loaded AR-15 firearm) found
as a result of the detention and subsequent pat-down search pursuant to
section 1538.5. The motion was premised on Clark’s assertion that the
officers did not have reasonable suspicion to believe he was engaged in
criminal activity and the detention therefore violated the Fourth
Amendment. He further contended the pat-down search was unjustified.
At the December 16, 2024 preliminary hearing, the magistrate heard
testimony from two of the officers involved in Clark’s detention. The evidence
at the preliminary hearing, which is not in dispute, was as follows.
At 9:38 p.m. on December 1, 2024, an anonymous caller reported
hearing two gunshots in the area of an apartment building in Antioch to
police dispatch. There was also a ShotSpotter activation indicating gunshots
were fired with a radius in the area of that same apartment complex.
Officers Joseph Amiri, Jonathan Downie, and Ryan Tryner were
dispatched to the apartment building. At or around 9:49 p.m., before the
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officers arrived at the apartment building, another anonymous call came in
describing the people who may have fired the shots as Black male adults and
indicating they were still at the apartment complex. All this information was
reflected in a log generated by dispatch and provided to the officers
responding to scene; the log was admitted into evidence at the preliminary
hearing.
Around 9:58 p.m., the officers arrived at the apartment building. Upon
arriving, Officer Amiri was looking for anyone who matched the description
provided by the anonymous caller of the people involved. Amiri saw one
Black male adult, later identified as Clark, and two females in a parking lot
attached to the back of the apartment complex. The officers’ attention was
drawn to that group because they appeared to be yelling, and Clark was a
Black male adult. Amiri did not see anyone else in the area.
The officers decided to approach the group of people, who were about 20
to 40 feet away. As they approached, Amiri had his gun unholstered and
facing the ground, and he verbally commanded the group not to move. The
two females did not move, but Clark began walking away. Officers Downie
and Tryner instructed Clark to stop multiple times, but he continued walking
away from them. While he was walking away, Clark was touching and
moving his hands along his waistband. Amiri testified that, based on his
training and experience, a person holding his or her waistband while trying
to leave as officers are approaching is usually seeking to conceal a weapon.
Once Amiri was close to the group, he lifted his firearm and pointed it at
them.
After around 15 seconds, Clark finally heeded the officers’ demands to
stop walking. Tryner conducted a pat-down search and felt a large object on
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Clark’s upper torso. Tryner asked what the object was, and Clark told him it
was an AR-15 firearm.
Amiri, who had been talking to the two females, was called over and
was told Clark stated he had an AR-15 on him. As Amiri went to remove the
firearm, Clark said the gun’s safety was not on and to not shoot him with it.
Amiri placed the gun in an evidence bag and Clark was arrested.
Rulings on Motion To Suppress and Renewed Motion To Suppress
The magistrate denied the motion to suppress at the conclusion of the
preliminary hearing. The magistrate found the officers arrived at the
apartment building approximately 10 minutes after the second anonymous
call at 9:49 p.m. reporting the people involved with the gunshots were still at
the location, which was not a prolonged period of time. There was also a
ShotSpotter activation and a report that the suspects were Black male
adults.
Given the totality of the circumstances, namely, Clark’s walking away
and disregarding commands to stop, “fumbling” with his waistband, the
officers’ belief that he was trying to conceal a weapon, and the other two
individuals remaining in place, the magistrate concluded there was
reasonable suspicion for the detention and pat-down search.
Clark filed a renewed motion to suppress before the trial court, arguing
the magistrate erred as a matter of law by denying the initial motion. No
new evidence was presented in support of his renewed motion. The court
denied the renewed motion to suppress. It stated it was bound by the
magistrate’s findings but, regardless, the court saw nothing in the transcript
in conflict with those findings.
The court found the officers had not only the right but a duty to
investigate the report of a shooting from the calls and ShotSpotter activation,
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which was very dangerous and placed the officers on high alert. It stated
that Clark “began to walk away before any real detention occurred” while
making motions toward his waistband, and that just because he was walking
away did not mean he was not a threat. Accordingly, the court concluded
there was no Fourth Amendment violation.
Plea and Sentencing
On February 19, 2025, pursuant to a plea agreement, Clark pled no
contest to carrying an unregistered loaded handgun (§ 25850, subds. (a) &
(c)(6)), and the court dismissed the other two counts on motion of the
prosecution.
That same day, February 19, in accordance with the negotiated plea,
the trial court suspended imposition of sentence, placed Clark on probation
for two years, and ordered him to serve a time-served sentence of 80 days in
county jail. Clark appealed the denial of the motion to suppress.
DISCUSSION
Clark argues his detention at the apartment complex was not
supported by reasonable suspicion and, therefore, the fruits of that detention,
namely, the firearm, should have been suppressed. We are not convinced.
Where, as here, a suppression motion is made before a magistrate as
part of a preliminary hearing and no new evidence is presented to the
superior court, we are concerned only with the findings of the magistrate.
(People v. Tacardon (2022) 14 Cal.5th 235, 242.) We defer to the magistrate’s
findings of fact if supported by substantial evidence and we independently
assess whether the search or seizure violates the Fourth Amendment. (Ibid.)
In making that assessment, we do not consider each fact in isolation but
rather consider the totality of the circumstances. (People v. Flores (2024) 15
Cal.5th 1032, 1043 (Flores).)
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When a police 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 . . . .” (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown),
quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 (Terry).) “In situations
involving a show of authority, a person is seized ‘if “in view of all of the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave,” ’ or ‘ “otherwise terminate the
encounter” ’ [citation], and if the person actually submits to the show of
authority.” (Brown, at p. 974.)
Here, the detention took place when Clark heeded the officers’
directives to stop walking away. At that point, he had acquiesced to the show
of authority and a reasonable person would not have believed he was free to
leave. (See People v. Tacardon, supra, 14 Cal.5th at pp. 241–242
[circumstances relevant to whether detention occurred include presence of
multiple officers, their display of a weapon, and using language or tone of
voice indicating compliance with their request is compelled].) Having
determined when the detention occurred, we turn to whether the detention
was supported by reasonable suspicion.
Brief, investigative stops, sometimes referred to as Terry stops, are
permissible under the Fourth Amendment when an officer has “ ‘ “a
particularized and objective basis for suspecting the particular person
stopped of criminal activity.” [Citations.] “Although a mere ‘hunch’ does not
create reasonable suspicion, the level of suspicion the standard requires is
considerably less than proof of wrongdoing by a preponderance of the
evidence, and obviously less than is necessary for probable cause.” ’ ” (Flores,
supra, 15 Cal.5th at p. 1041.) This standard “ ‘allows officers to draw on their
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own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that “might
well elude an untrained person.” ’ ” (People v. Barnes (2013) 216 Cal.App.4th
1508, 1514.) “ ‘[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.’ ” (Flores, at p. 1044.) Examples of such
behavior include a sudden change in direction and failing to acknowledge an
officer’s attempt to engage a suspect. (Ibid.)
“An officer ‘who lacks the precise level of information necessary for
probable cause to arrest’ is not constitutionally required to ‘simply shrug his
shoulders and allow a crime to occur or a criminal to escape. On the
contrary, Terry recognizes that it may be the essence of good police work to
adopt an intermediate response. [Citation.] A brief stop of a suspicious
individual, in order to determine his identity or to maintain the status quo
momentarily while obtaining more information, may be most reasonable in
light of the facts known to the officer at the time.’ ” (Brown, supra, 61
Cal.4th at p. 986.) “ ‘What is required is not the absence of innocent
explanation, but the existence of “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that
intrusion.” ’ ” (Id. at pp. 985–986.)
Considering the totality of the circumstances, we conclude the officers
had a particularized and objective basis for suspecting that Clark may be
involved in criminal activity—specifically, the shooting for which they were
dispatched to the apartment complex—as he was the only person in the
apartment complex parking lot who matched the description of the
individuals involved in the shooting and he disregarded their commands not
to move, instead walking away while moving his hands along his waistband.
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Central to our conclusion is the indicia of reliability supporting the
information provided by the anonymous callers. Although “ ‘an anonymous
tip alone seldom demonstrates the informant’s basis of knowledge or
veracity,’ ” the United State Supreme Court has recognized “there are
situations in which an anonymous tip, suitably corroborated, exhibits
‘sufficient indicia of reliability to provide reasonable suspicion to make the
investigatory stop.’ ” (Florida v. J.L. (2000) 529 U.S. 266, 270, italics added.)
Critically, the first call reporting the shooting at the apartment
complex was corroborated by the ShotSpotter activation regarding a shooting
in the same radius in which officers encountered Clark. Given the
corroboration by ShotSpotter, the tip was plainly “reliable in its assertion of
illegality.” (Florida v. J.L., supra, 529 U.S. at p. 272.) Moreover, the second
call at 9:49 p.m. describing the people who fired the shots as Black male
adults was made soon after the shooting. That both calls were
“contemporaneous with the observation of criminal activity” weighs in favor
of their veracity. (Navarette v. California (2014) 572 U.S. 393, 400.)
Equipped with this sufficiently reliable information, and seeing Clark
walk away from them while manipulating his waistband, the officers were
justified in briefly detaining Clark “ ‘to determine his identity or to maintain
the status quo momentarily while obtaining more information . . . in light of
the facts known to the officer[s] at the time.’ ” (Brown, supra, 61 Cal.4th at
p. 986.) Brown is illustrative.
In Brown, a 911 caller contemporaneously reported multiple people
fighting in an alley behind the caller’s home and that one of the people
involved referenced a loaded gun. (Brown, supra, 61 Cal.4th at pp. 972–973.)
The caller said the participants lived on the same block and that there was a
car in the alley, but did not provide any identifying information for the
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participants. (Id. at p. 973.) Dispatch provided this information to an officer,
who arrived at the scene within three minutes. (Ibid.)
The officer saw a car driving in the alley and asked if the driver,
Brown, had seen a fight, but Brown did not respond and kept driving.
(Brown, supra, 61 Cal.4th at p. 973.) Finding no one else in the alley, the
officer suspected Brown might have been involved in the fight. (Ibid.) The
officer turned around, pulled behind Brown’s car, and initiated an
investigatory stop. (Ibid.; see id. at p. 980.) After talking to Brown, the
officer learned Brown had been drinking and was involved in the fight. (Id.
at p. 973.) Brown was charged with felony driving under the influence and
unsuccessfully moved to suppress the evidence obtained as a result of the
detention. (Id. at p. 974.)
Our Supreme Court concluded the officer had reasonable suspicion to
detain Brown based on the sufficiently reliable 911 call, the officer’s quick
response time, the fact that Brown was the only person in the alley around
10:30 p.m., and the very recent report of a possible weapon and a serious
crime in progress. (Brown, supra, 61 Cal.4th at pp. 983–986.) The Court
reasoned: “Under these circumstances, it was reasonable for [the officer] to
suspect the sole occupant of the alley may have been involved in the fight and
to effectuate a brief and minimally intrusive detention, which immediately
yielded observations of criminal activity. The citizen who called for his help
would surely hope the officer would do more to secure the safety of his
neighborhood than shrug and drive away.” (Id. at pp. 986–987.)
Similarly, here, the officers were responding to reliable information
that a serious crime, a shooting, had taken place at the apartment complex.
The officers arrived at the scene around nine minutes after the 9:49 p.m. call,
which indicated the people involved were Black male adults and were still at
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the apartment. At that late hour, the officers found only one person, Clark,
who matched the description given by the caller. After the officers
commanded the group not to move, Clark alone exhibited evasive behavior by
changing direction and failing to acknowledge the officers’ attempt to engage
him. (Flores, supra, 15 Cal.5th at p. 1044.) And, while walking away, he was
moving his hand along his waistband in a manner Amiri testified could
indicate an attempt to conceal a weapon.
Under these circumstances, it was reasonable for the officers to
effectuate a brief stop of the sole person at the scene of a very recently
reported shooting who matched the description of the suspect provided by
dispatch, disregarded their commands, suddenly changed direction, and
walked away from them for 15 seconds while potentially attempting to
conceal a weapon. (See Brown, supra, 61 Cal.4th at pp. 986–987.) The
officers were justified in conducting the detention, which “immediately
yielded observations of criminal activity,” to secure the safety of the area
rather than “shrug and drive away.” (Ibid.)
Clark’s arguments to the contrary are unavailing. His assertion that
walking away from officers was merely an “ ‘ “odd” . . . deviation from
perceived social convention’ ” that did not give the officers reasonable
suspicion to detain him misses the point. Although that action may not have
been enough by itself, it was certainly a “ ‘pertinent factor’ ” in determining
whether the officers had reasonable suspicion. (Flores, supra, 15 Cal.5th at
p. 1044.) And, importantly, as we have explained, it was not the only
relevant factor supporting the officers’ investigatory stop. Rather, the stop
was supported by the totality of the circumstances described above.
Further, Clark’s assertion that there is a “big difference” between the
three-minute response time in Brown and the roughly 10-minute response
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time in this case because “[p]eople who illegally fire guns in public places do
not tend to remain in the area very long” is entirely unsupported by citation
to authority. While the short response time was an important consideration
in Brown, we do not find the six-minute distinction in this case to warrant a
different outcome. Moreover, according to the anonymous calls the
individuals involved did not leave in the minutes after the gunshots; that fact
further supports the inference that Clark could have been involved.
Finally, we note that Clark does not challenge the legality of the pat-
down search itself. Instead, he challenges only the initial detention.
Regardless, the magistrate’s finding that the limited pat-down search was
justified in order to ensure the safety of the officers under the
circumstances—including the nature of the reported crime and Amiri’s
testimony that, in his experience and training, an individual adjusting his
waistband while walking away may be concealing a weapon—is supported by
substantial evidence. (See Terry, supra, 392 U.S. at p. 27 [an “officer need
not be absolutely certain that the individual is armed” to conduct a
reasonable search for weapons for the officer’s protection, as “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”]; see also Florida
v. J.L., supra, 529 U.S. at p. 274 [it is an officer’s “prerogative, in accord with
Terry, to conduct a protective search of a person who has already been
legitimately stopped”].)
In sum, the motion to suppress was properly denied.
DISPOSITION
The order is affirmed.
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PETROU, J.
WE CONCUR:
TUCHER, P. J.
RODRÍGUEZ, J.
A172780 / People v. Clark
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