Filed 8/7/26 P. v. Turner CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A172384
v.
(Contra Costa County Super.
BYRON TURNER, Ct. No. 04-22-01210)
Defendant and Appellant.
Byron Turner appeals from a conviction for carrying a loaded handgun.
He contends the trial court erroneously denied his motion to suppress
evidence of the firearm — which was obtained after a warrantless search of
his car — arguing that no exception to the warrant requirement justified the
search. We agree and reverse.
BACKGROUND
One evening in June 2022, an officer and his partner were on patrol in
Pittsburg near a gas station, which was located on a street corridor known to
be a gang hangout and high crime area. The officer had investigated
shootings, violent crimes, drug possession, and weapons violations in the
area. At the gas station, he noticed Turner, then 23 years old, wearing a
crossbody bag — approximately the size of a fanny pack — against his torso
while standing next to his car parked at the gas pump. In the officer’s
training and experience, people were “notoriously known” to conceal weapons
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in such bags. But he acknowledged the bag had other uses and did not itself
necessarily carry indicia of criminality. Nonetheless, he believed there was
something in the bag and decided to investigate Turner. When Turner drove
away, the officer gave pursuit to conduct a traffic enforcement stop; the car
had tinted driver and passenger windows and was missing its front license
plate — both violations of the Vehicle Code. (Veh. Code, §§ 26708.5, subd. (a),
5200, subd. (a).)
The officer activated his overhead lights and chirped his siren to
maneuver past two additional cars — it was a “busy time of day,” and there
were “a lot of cars passing by.” It took Turner 12 seconds after the siren
chirped to turn on his right turn signal and pull to the side of the freeway on-
ramp. The officer described this as a “prolonged time” to pull over and
believed Turner was concealing items inside the car. After stopping, the
officer approached the driver’s side window and noticed Turner was no longer
wearing the crossbody bag; it was now on the rear passenger seat within
arm’s reach of the driver. He told Turner he’d been stopped for his tinted
windows and missing license plate. At the officer’s request, Turner provided
an insurance card and retrieved his driver’s license from a wallet in his
pocket rather than the crossbody bag, which “stood out” to the officer. The
officer smelled both fresh and burnt cannabis coming from the vehicle but did
not believe Turner was under the influence of marijuana. In the center
console were “doobies” — ends of a cigar containing cannabis — and on the
passenger seat a rolling tray, tobacco cigars, rolling papers and a pair of
scissors.
Based upon what he saw, the officer grew concerned about unlawful
possession and an open container of cannabis; no open container was ever
found. He asked Turner, “do you have an issue with me searchin’ your car?”
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Turner said, “No, I don’t want you searchin’ my car.” When the officer asked
why, Turner responded, “I didn’t do anything wrong. [Y]ou pulled me over for
window tint, now you asking me to search my car?” The officer replied,
“[T]he reason why I’m askin’ ‘cause the smell of weed in the car.” Turner
denied the presence of cannabis, at which point the officer returned to his
vehicle, consulted with his partner — who noted Turner took his wallet out of
his pocket and questioned what was in the crossbody bag — and returned to
Turner’s car.
The officer directed Turner to “step out the car” to discuss “a few
things”; he later testified he felt unsafe because he believed there was a gun
inside the car. Turner refused. Instead, he phoned his father, explained he
had been pulled over and asked to step out of the car “for no reason,” and
expressed worry that “they gonna try to do something.” To the officer,
making a call indicated that Turner was nervous and trying to distract him
from searching the vehicle. It also heightened his suspicion that there was
contraband inside. But Turner remained cooperative and made no sudden
movements.
The officer returned to his car where he simultaneously began writing a
traffic citation and requested a K-9 unit to detect ammunition and explosives.
Additional officers arrived, but the officer told them the situation was “good”
and he was just waiting for the K-9 unit; he did not tell them he felt unsafe.
He stopped writing the citation as soon as the K-9 unit arrived. The officer
asked Turner a few more times to exit the car, but Turner refused. He
ultimately exited after the officer advised him he otherwise could be arrested
for delaying, resisting, or obstructing an investigation. Before Turner got out
of the car, the officer expressly told him that he was not under arrest.
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Turner was not handcuffed, and a pat search revealed nothing. The
officer led Turner behind the patrol car, where he was surrounded by three
other officers. The police dog did a perimeter sniff of the vehicle but did not
alert. The officer conducted a vehicle frisk — search of the passenger
compartment of the car within arm’s reach of the driver — because Turner
was outside the car and unhandcuffed so, according to the officer, he could
potentially access the car before the investigation was complete. The officer’s
partner assisted in the search, picked up the crossbody bag, and immediately
stated there was a firearm in the bag. A search revealed a semiautomatic
Glock handgun inside. Turner was immediately arrested.
The Contra Costa County District Attorney charged Turner with
carrying a loaded handgun (Pen. Code, § 25850, subd. (a); subsequent
statutory references are to this code), receiving a large-capacity magazine
(§ 32310, subd. (a)), and having a concealed firearm in a vehicle (§ 25400,
subd. (a)(1)). Turner moved to suppress the evidence of the firearm obtained
after the search of his car. After a hearing at which the officer testified to the
above facts, the trial court denied the motion. It found that the officer
credibly testified to his belief that the crossbody bag contained a firearm
when he saw Turner at the gas station, but he did not have sufficient
articulable facts to seize it at that time. It also noted that, once the officer
saw the “open container of marijuana,” he pursued other investigations.
Probable cause to arrest Turner arose once he refused to exit his vehicle.
Thus, the officer was entitled to search the car for his safety — areas that
Turner could reach — as a search incident to arrest.
Pursuant to a negotiated deal, Turner pled no contest to carrying a
loaded handgun and agreed to two years of probation. The district attorney
dismissed the remaining charges.
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DISCUSSION
“ ‘The Fourth Amendment to the federal Constitution prohibits
unreasonable searches and seizures.’ ” (People v. Macabeo (2016) 1 Cal.5th
1206, 1212.) Generally, law enforcement officers must “obtain a warrant
before conducting a search.” (People v. Lopez (2019) 8 Cal.5th 353, 359.) A
warrantless search or seizure is presumptively unreasonable unless it falls
within a specific judicially recognized exception. (Macabeo, at p. 1213; People
v. Williams (1999) 20 Cal.4th 119, 125.) Evidence obtained in violation of the
Fourth Amendment is generally prohibited from being used in criminal trials.
(People v. Marquez (2019) 31 Cal.App.5th 402, 411.)
Turner contends the trial court erred by denying his suppression
motion because no recognized exception to the warrant requirement justified
the search of his car. (People v. Lopez, supra, 8 Cal.5th at p. 359.)
Defendants may move “to suppress as evidence any tangible or intangible
thing obtained as a result” of a warrantless, unreasonable search or seizure.
(§ 1538.5, subd. (a)(1)(A).) The prosecution bears the burden of establishing
an exception applies. (People v. Gale (1973) 9 Cal.3d 788, 795.) When
reviewing the denial of a suppression motion, we defer to the trial court’s
factual findings if supported by substantial evidence — evidence that is
reasonable, credible, and of solid value — but exercise our independent
judgment to determine whether the search or seizure was reasonable under
the Fourth Amendment. (People v. Macabeo, supra, 1 Cal.5th at p. 1212;
People v. Ayon (2022) 80 Cal.App.5th 926, 937.) Having engaged in that
review, we conclude none of the People’s proffered exceptions to the warrant
requirement apply here.
First, the People argue the officer properly searched his car as a
protective sweep — a “quick and limited” preventative search of a vehicle for
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weapons during a roadside encounter “to protect the safety of police officers
or others.” (Maryland v. Buie (1990) 494 U.S. 325, 327; Michigan v. Long
(1983) 463 U.S. 1032, 1049.) We disagree.
Searching “the passenger compartment of an automobile, limited to
those areas in which a weapon may be placed or hidden” is permissible, but
the officer must possess a “reasonable belief based on ‘specific and articulable
facts which, taken together with the rational inferences from those facts,
reasonably warrant’ ” the officer’s belief that “the suspect is dangerous and
the suspect may gain immediate control of weapons.” (Michigan v. Long,
supra, 463 U.S. at p. 1049.) 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.’ ” (Id. at p. 1050.) In “determining whether the
officer acted reasonably in such circumstances, due weight” is given to
“specific reasonable inferences” the officer “is entitled to draw from the facts
in light of his experience.” (Terry v. Ohio (1968) 392 U.S. 1, 27, 30–31.)
The circumstances here, however, demonstrate the officer improperly
acted on his “inchoate and unparticularized suspicion or ‘hunch’ ” to search
the car. (Terry v. Ohio, supra, 392 U.S. at p. 27.) Upon observing Turner, the
officer immediately suspected he was carrying a firearm simply because he
was getting gas at a gas station in a high crime area known for gang activity
and wearing a crossbody bag “notoriously known” for carrying weapons.1 But
he conceded that the bag itself did not carry any indicia of criminality. He
1 While the officer testified crossbody bags were used to conceal
weapons, he did not testify that they were used to conceal firearms. The trial
court’s finding that, in the officer’s experience, crossbody bags were
commonly used for “carrying a weapon, a handgun specifically,” is not
supported by the evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362
[deferring to magistrate factual findings only if supported by substantial
evidence].)
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also failed to identify facts suggesting that Turner’s bag specifically may have
contained a firearm. His belief that Turner was thus armed and dangerous
based primarily upon his carrying a crossbody bag was purely speculative.
(People v. Pantoja (2022) 77 Cal.App.5th 483, 490 [officer’s testimony that
defendant was armed and dangerous because he wore baggy clothing that
could conceal a weapon even though it naturally had bulges was speculative
and lacking in specific, articulable facts].)
That the gas station was in a high crime area “does not elevate” the
carrying of a crossbody bag “into a reasonable suspicion of criminality,” as the
People contend. (People v. Bower (1979) 24 Cal.3d 638, 645.) “Many citizens
of this state are forced to live in areas that have ‘high crime’ rates or they
come to these areas to shop, work, play, transact business, or visit relatives
or friends.” (Ibid.) Courts are reluctant “to conclude that a location’s crime
rate transforms otherwise innocent-appearing circumstances into
circumstances justifying the seizure of an individual.” (Ibid.; In re Tony C.
(1978) 21 Cal.3d 888, 897 [high crime area “justification is so easily subject to
abuse that this fact alone should not be deemed sufficient to support the
intrusion”], superseded by constitutional amendment on another point in In
re Christopher B. (1990) 219 Cal.App.3d 455, 460, fn. 2.) Indeed, there was
no testimony regarding any reason to believe Turner was in a gang. (King v.
State of California (2015) 242 Cal.App.4th 265, 286.) In fact, the officer had
never met Turner and had no knowledge of his history. (People v. Bush
(2001) 88 Cal.App.4th 1048, 1052 [knowledge of person’s history of violence
and possession of weapons provided reasonable suspicion suspect was armed
and dangerous].) Turner’s presence in that area, standing alone, did not
support a reasonable suspicion that he was armed and dangerous. (People v.
Perrusquia (2007) 150 Cal.App.4th 228, 233.) Even the trial court
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acknowledged there were no “sufficient articulable facts” at that point to
search the bag.
Subsequent information gathered by the officer, even when viewed
under the totality of the circumstances, also fails to support a reasonable
suspicion that Turner was armed and dangerous and could “gain immediate
control of a weapon” so as to justify a protective sweep of the car. (People v.
Miranda (1993) 17 Cal.App.4th 917, 927.) The officer stopped Turner for a
missing front license plate and tinted windows — “minor traffic offenses
[that] do not reasonably suggest the presence of weapons.” (Ibid.) We also
fail to see how Turner taking 12 seconds to pull over after the officer chirped
his siren gives rise to a specific, reasonable inference he was engaging in
criminal activity, particularly when the officer admitted there were many
cars driving by. (Michigan v. Long, supra, 463 U.S. at pp. 1049–1050.) The
officer testified that he chirped his siren to attract both Turner’s attention
and the other cars that the officer was passing. By his own admission, the
12-second “prolonged time period[]” reflected the time it took for the officer to
maneuver past at least two other vehicles and for Turner to pull over. The
record does not support the finding that this yield time was objectively
suspicious.
Next, that Turner retrieved his wallet from his pocket rather than from
his crossbody bag, which was in the back seat of the car when he was
stopped, does not support a reasonable suspicion that he was armed. There
were no weapons or firearms in plain view in Turner’s car. (Compare with
People v. Lafitte (1989) 211 Cal.App.3d 1429, 1430–1431 [sweep of car for
weapons before allowing defendant back in the car justified where officers
viewed a knife in the passenger compartment].) The officer also did not
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testify that Turner’s retrieval of his wallet from his pocket was indicative of
criminal activity, nor does the record reflect any testimony that Turner
made furtive movements towards the bag. (People v. Pantoja, supra,
77 Cal.App.5th at p. 490.) Rather, the officer simply testified that Turner
keeping his wallet in his pocket “stood out.” This falls short of an articulable
fact that would lead a reasonable person to suspect the bag contained
something presenting a danger to the officer’s safety.2 (Terry v. Ohio, supra,
392 U.S. at p. 27.)
Nor does Turner’s nervousness — demonstrated by, in the officer’s
opinion, Turner phoning his father and explaining that police were asking to
search his car — or refusal to consent to the search support a suspicion that
he was armed and dangerous, as the People contend. At the outset, a
“ ‘refusal to consent to a search cannot itself form the basis for reasonable
suspicion.’ ” (In re H.H. (2009) 174 Cal.App.4th 653, 658.) If “ ‘refusal of
consent were a basis for reasonable suspicion, nothing would be left of Fourth
Amendment protections.’ ” (Ibid.) Moreover, there is a “ ‘danger in
considering “nervous” and “evasive” behavior in the totality of the
circumstances analysis when devoid of real world context.’ ” (Sellers v.
Superior Court (2026) 19 Cal.5th 75, 90.) Drivers will exhibit signs of
2 The presence of burnt ends of tobacco leaves from a cigar —
“doobies” — in the absence of any suspicion Turner was driving under the
influence of marijuana or the officer finding an open container of cannabis
also fails to support any reasonable suspicion the satchel contained a weapon.
(People v. Hall (2020) 57 Cal.App.5th 946, 954 [lawful possession of cannabis
is “ ‘not contraband’ and lawful conduct” may “not ‘constitute the basis for
detention, search, or arrest’ ”].) Indeed, the People expressly declined to
defend the magistrate’s finding that the marijuana odor and “doobies” in
Turner’s vehicle provided the officer with probable cause to believe there was
an open container of cannabis that consequently provided the officer with the
authority to further investigate the car for a weapon.
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nervousness based on the extended police questioning based, as here, on a
traffic violation. (People v. Loewen (1983) 35 Cal.3d 117, 125.) There was no
evidence that Turner’s answers were evasive or that he exhibited any other
unusual behavior. (Compare with In re H.M. (2008) 167 Cal.App.4th 136,
144 [dashing through heavy traffic causing cars to swerve, behavior of
nervous glances, sweating profusely, appearing confused, combined with
being known to officers supported reasonable suspicion].) Quite the opposite:
Turner called his father to inform him that officers had pulled him over for
window tint, and the officer described Turner as being cooperative and
making no sudden movements. Turner’s refusing a search of his vehicle —
expressing reasonable confusion why such a search would be justified when
he’d been told he had been pulled over due to tinted windows — and alleged
nervousness illustrated by wanting to call his father, “considered singly or in
combination, would [not] lead an officer to ‘ “reasonably believe in the
possibility that a weapon may be used against him.” ’ ” (People v. Dickey
(1994) 21 Cal.App.4th 952, 956.)
Critically, the K-9 unit’s negative sniff of Turner’s vehicle undermined
any reasonable suspicion the officer arguably could have had that Turner was
armed and dangerous. The officer testified that the police dog he requested
was specifically trained in detecting ammunition and explosives. The
magistrate even noted the officer “tried to get a dog to come . . . validate some
information.” The dog did not. After sniffing the perimeter of Turner’s
vehicle, it failed to alert. Nevertheless, the officer searched the vehicle,
dismissing the negative alert as unreliable since “K-9s aren’t always a
hundred percent.” We question the officer’s request of a K-9 sniff as
probative of the existence of a firearm but the negative result as essentially
irrelevant. All the circumstances, particularly given the negative alert, do
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not support a reasonable suspicion that Turner possessed a weapon that
could be used against the officer. (People v. Dickey, supra, 21 Cal.App.4th
at p. 956.) Thus, the officer acted unreasonably in conducting a protective
sweep of the passenger compartment of Turner’s vehicle and searching the
crossbody bag.
Next, the People contend the search would have been lawful as a search
incident to arrest had Turner been arrested for his refusal to exit his vehicle
upon the officer’s request. We question the merit of this argument. The
People concede “application of this exception to the warrant requirement is
hypothetical because [Turner] was not actually subjected to a full custodial
arrest.” Officers may search a person “ ‘incident to a lawful custodial
arrest.’ ” (People v. Macabeo, supra, 1 Cal.5th at p. 1213.) It “ ‘does not
depend on what a court may later decide was the probability in a particular
arrest situation that weapons or evidence would in fact be found upon’ ” the
suspect. (Ibid.) Rather, “ ‘the fact of the lawful arrest’ ” — supported by
probable cause — “ ‘establishes the authority to search.’ ” (Ibid.) Since a
lawful “ ‘arrest of a suspect . . . is a reasonable intrusion,’ ” a “ ‘search
incident to the arrest requires no additional justification.’ ” (Ibid.) But even
assuming there was probable cause to arrest Turner for refusing orders
(which we do not find), the officer expressly stated he was not placing Turner
under arrest. “Once it was clear that an arrest was not going to take place,
the justification for a search incident to arrest was no longer operative,” as
the People admit. (Id. at p. 1219.) That exception to the warrant
requirement does not excuse the officer’s search of Turner’s car.
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In sum, the trial court erred by denying Turner’s suppression motion
because the search violated the Fourth Amendment. 3
DISPOSITION
The judgment is reversed, and the matter is remanded. The trial court
must vacate the order denying Turner’s suppression motion. Proceedings
regarding the plea entered by Turner should proceed in accordance with this
judgment.
3 In light of this conclusion, we need not address Turner’s argument
that the officer unduly prolonged his traffic stop to pursue an unrelated
investigation, thus violating his constitutional rights. We note, however, that
the officer testified the encounter lasted approximately 25 minutes, and that
it would ordinarily take him 10 to 12 minutes to write a traffic citation.
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_________________________
RODRÍGUEZ, J.
WE CONCUR:
_________________________
FUJISAKI, Acting P. J.
_________________________
PETROU, J.
A172384; People v. Turner
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