When will estoppel apply to a patdown search?

The People agree that estoppel applies in the present case to uphold the patdown search. Defendant argues the estoppel argument is "waived" ("forfeited" is the correct term) because the prosecutor did not urge it at the hearing. This is an insufficient basis on which to argue forfeiture. The prosecutor apparently chose to focus on the merits of the validity of the patdown search at the hearing (perhaps feeling it to be the stronger argument), but never explicitly abjured the fallback estoppel argument, which was a question of law on undisputed facts that did not require further litigation. It was a theory of which defendant had notice, and to which apparently he chose not to respond. None of the purposes of the forfeiture rule are served in applying it to the present instance, which preclude raising an issue in the first instance on appeal because it is unfair to the trial court and the opponent, contrary to judicial efficiency, and also encourages the practice of embedding reversible error. (People v. Crockett (2015) 234 Cal.App.4th 642, 651.) Defendant also asserts the present case is distinguishable, but his focus is on the lack of basis for the present detention, which does not have any bearing on applying estoppel to a patdown search after upholding the initial detention. We therefore reject his challenge to the patdown search.

Page 7

The judgment is affirmed.