Opinion
Opinion on Rehearing, see 159 Cal.Rptr. 191, 601 P.2d 207.
Opinion on pages 469-492 omitted.
REHEARING GRANTED
[149 Cal.Rptr. 585]Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, and Ezra Hendon, Deputy State Public Defender, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Linda M. Ludlow and David J. Schneller, Deputy Attys. Gen., for plaintiff and respondent.
MOSK, Justice.
Defendant was convicted of burglary committed by breaking into a locked automobile with intent to steal. (Pen.Code, § 459.) On this appeal from the judgment he contends primarily that the superior court should have granted his pretrial motion to suppress the evidence on the ground of illegal search and seizure. (Pen.Code, § 1538.5.) We conclude that his point is well taken and the judgment must be reversed.
The operative facts are without dispute. Early on a weekday afternoon Police Officer Thomas of the City of Larkspur, Marin County, was on patrol in a marked vehicle in the vicinity of Redwood High School. He observed a Plymouth automobile proceeding in the wrong direction on a one-way public street that crosses the high school parking lot. Because of the violation the officer drove up behind the vehicle and activated his red flashing light. As he did, he saw the person in the front passenger seat turn around, lean over the back of the seat, and appear to move an object on the rear floorboard. Both cars then stopped at the curb, and Thomas approached the driver of the Plymouth, defendant McGaughran. Thomas explained why he had stopped the car and asked for identification from both occupants. They produced their driver's licenses, showing San Francisco addresses. The two men told Thomas they were lost and were looking for the Marin County Juvenile Hall, a facility that the officer knew was several miles away. Thomas then returned to his vehicle and made a radio check for outstanding arrest warrants in both names. The dispatcher reported a burglary warrant for defendant from Alameda County, and two traffic warrants for the passenger, Walter Acosta. The warrant check took approximately 10 minutes.
Upon learning of the pending charges against the two men, Thomas called for assistance and requested a "confirmation" of the warrants. Officer Fischer arrived within five minutes in response to the call, and the warrants were confirmed by radio some 20 to 25 minutes later. Defendant was then arrested on the burglary warrant, pat-searched, and seated in Fischer's patrol car. He asked Fischer to return to the Plymouth to retrieve his jacket and wallet. Fischer complied, and found the wallet lying open on the dashboard, disclosing a methadone treatment card from San Francisco. On the back seat he saw an open [149 Cal.Rptr. 586] [585 P.2d 208] canvas bag containing several screwdrivers, wrenches, and pliers.
Thomas questioned Acosta about his outstanding traffic warrants. The latter replied that if he were allowed to make a telephone call he could raise the necessary bail, and defendant said that in such event he would release the Plymouth to Acosta so that he could return to San Francisco. A quick inspection of the car revealed no weapons, and Acosta was permitted to drive it to the Larkspur police station, preceded by Thomas and followed by Fischer in their respective vehicles. After they arrived at the station, Fischer searched under the front seat of the Plymouth and found a citizens band radio that had been stolen earlier the same day from a car parked about a mile from the scene of the arrest. Examination of that car revealed one door had been broken open, and defendant's fingerprints were on the door.
The car was owned by defendant's wife.
The majority note the investigation was moved from the scene of the stop because a crowd was beginning to form. (Ante, p. 589 of 149 Cal.Rptr., p. ----of ---P.2d, fn. 10.) The testimony quoted in the footnote indicates onlookers were attracted not by the ten-minute warrant check, but by the sight of a suspect in handcuffs following arrest. Thus, the majority offer no basis for their claim a motorist's embarrassment will be "compounded" by a warrant check.
According to testimony at trial, Officer Thomas remained in his patrol car during the warrant check, and defendant and his passenger "were in their vehicle talking." As Justice Clark notes in dissent, the curiosity of passersby focused on defendant's predicament only After defendant had been arrested and handcuffed.
We recently summarized the rule that "in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so. The facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience (citation), to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith." (Fn. omitted.) (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959.)
Defendant concedes it was proper for Officer Thomas to stop him for his traffic violation of driving in the wrong direction on a one-way street. (Veh.Code, § 21657.) He contends, however, that the ensuing detention for a warrant check was impermissible under the general rule that "A detention of an individual which is reasonable at its inception may exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances." (People v. Harris (1975) 15 Cal.3d 384, 390, 124 Cal.Rptr. 536, 539, 540 P.2d 632, 635.)
Only the initial detention, of course, is before us. If it was valid, Officer Thomas became entitled to arrest defendant and Acosta on the outstanding warrants and could lawfully detain them for the additional 20 to 25 minutes necessary to "confirm" those warrants.
In the present case, defendant's automobile was observed proceeding in the wrong direction on a one-way public street crossing a high school parking lot.
The majority's reliance on People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 and People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 is misplaced. In those cases we held that probable cause to arrest a traffic offender, "no matter how persuasive, is neither a necessary nor a sufficient condition" for a warrantless search of his vehicle or person for contraband. (3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 733, 478 P.2d 449, 453, 7 Cal.3d 186, 191, 101 Cal.Rptr. 837, 841, 496 P.2d 1205, 1209.) To justify such a search, we concluded, there must be independent probable cause to believe that contraband is present.
Officer Thomas claimed two different justifications for detaining defendant and Acosta for the warrant check. He testified that he decided to run such a check because of certain suspicious circumstances surrounding the stop, and listed those circumstances; but he simultaneously acknowledged that he "didn't have any reason to believe" there were outstanding warrants for the two men, and agreed that the warrant check he conducted in this case was a "routine" investigation he makes of "every single individual" he stops. The Attorney General adopts both theories, and we examine them seriatim.
The apparent inconsistency in this testimony makes it doubtful that Officer Thomas in fact entertained the Subjective suspicion required to justify a detention on the ground of apparent criminal activity. (In re Tony C., supra, 21 Cal.3d, at p. 893, fn. 2, 148 Cal.Rptr. 366, 582 P.2d 957.)
The majority's holding is destined to be misunderstood by both law enforcement personnel and motorists. The assumption that "none of us needs to be reminded that a system of criminal justice exists not just for the protection of the innocent but for the punishment of the guilty . . ." (Witkin, The Second Noble Experiment of the Twentieth Century (Sept.-Nov. 1977) Prosecutor's Brief, pp. 42-45), may be incorrect. However, the author reminds us in the next sentence "that only by consistent apprehension and conviction of the murderer, the burglar, the arsonist, the rapist, the drug-peddler . . . can the system justify itself in the eyes of our people. We are therefore in deep trouble if, as these critics would have us believe, the judges of our state and federal courts are frustrating law enforcement by placing burdensome restrictions on arrest, production of evidence and trials." Certainly we should not contribute to such "deep trouble."
Under the general rule stated at the outset, a brief detention for a warrant check following a valid traffic stop is justifiable when the circumstances known or apparent to the officer include specific and articulable facts causing him to reasonably suspect that there may be an outstanding warrant for the driver's arrest. That suspicion may properly arise, for example, when the driver takes unmistakably evasive action in the course of the stop (see, e. g., [149 Cal.Rptr. 587] [585 P.2d 209] Carpio v. Superior Court (1971) 19 Cal.App.3d 790, 792-793, 97 Cal.Rptr. 186); when there are objective indicia that the stopped vehicle may be stolen, such as missing or deliberately obscured license plates (see cases discussed in People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 196-197, 101 Cal.Rptr. 837, 496 P.2d 1205); or when the officer has independent grounds to infer that the motorist may be involved in more serious criminal activity (Cf. People v. Herrera (1975) 52 Cal.App.3d 177, 124 Cal.Rptr. 725 (burglary); People v. Wickers (1972) 24 Cal.App.3d 12, 100 Cal.Rptr. 732 (robbery)).
In Carpio, "a Highway Patrol officer observed petitioner driving south on Highway 101 at a speed of approximately 75 miles per hour. The officer gave chase. When petitioner was aware of the officer he pulled onto the shoulder and then, when the officer was pulling in behind him, petitioner drove back onto the highway, causing the officer to pursue him further. Eventually, petitioner stopped and the officer interrogated him." (Id. 19 Cal.App.3d at p. 792, 97 Cal.Rptr. at p. 187.) Similar conduct may not be adequate, however, to support a warrantless search of the driver or his property. (See People v. Norman (1975) 14 Cal.3d 929, 932-934, 132 Cal.Rptr. 109, 538 P.2d 237.)
However, for the reasons stated in Simon (Id. 7 Cal.3d at pp. 193-195, 101 Cal.Rptr. 837, 496 P.2d 1205) the motorist's inability to produce his driver's license or the registration card for the vehicle, without more, does not reasonably support a suspicion of automobile theft.
In neither Herrera nor Wickers was the driver first stopped for a traffic violation. The cases were therefore governed by the general rule permitting an investigative detention upon a reasonable suspicion of criminal involvement.
In the case at bar Officer Thomas listed the following circumstances when asked why he ran a warrant check on defendant and Acosta: (1) the men were not local residents, but were from San Francisco; (2) they appeared to be lost; (3) they were in the vicinity of a high school but were not of high school age; (4) a substantial traffic in illegal drugs was known to exist at the high school in question; and (5) Acosta reached over the back seat when Thomas activated his flashing light. The Attorney General contends these circumstances support a suspicion that defendant and Acosta were involved in the sale of narcotics at Redwood High School.
The inference is unreasonable. To begin with, the first three circumstances noted are wholly innocent. The fact that the occupants of the car were residents of a neighboring county is not only devoid of any sinister significance, but may well explain the further fact that they seemed to be lost. Nor is it relevant that they were lost or found in the vicinity of a high school. They were not, for example, loitering in its restrooms, locker rooms, or similar portions of the school premises normally frequented only by students (cf. Pen.Code, § 653g); rather, they were proceeding on a public thoroughfare that crosses the school property. There is nothing suspicious in the sight of adults whether teachers, parents, or ordinary citizens passing through public areas adjacent to high schools, either on school business or merely en route to another destination.
The next circumstance mentioned by Officer Thomas that an illicit drug traffic was known to exist at Redwood High School invokes the "high crime area" rationale. But we recently observed that "the justification is so easily subject to abuse that this fact alone should not be deemed sufficient to support the intrusion." (In re Tony C., supra, 21 Cal.3d, at p. 897, 148 Cal.Rptr. at p. 371, 582 P.2d at p. 962.) Defendant asserts that at the present time some degree of drug use occurs in virtually every high school of this state; if this is so, of course, defendant is also correct in concluding that reliance on that fact would in effect make it lawful for police to detain for a warrant check every hapless driver who is stopped for a traffic infraction on a street that happens to be "in the vicinity of" a high school wherever the officer may choose to draw that geographic line. As long as such streets remain open to the public their mere use cannot be deemed a suspicious event, whatever the reputation of the local high school. [149 Cal.Rptr. 588]The final circumstance relied on by Officer Thomas the observed motion of the passenger in turning and reaching over the back of the seat invokes the "furtive gesture" rationale. But in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, we rejected a claim that a remarkably similar gesture furnished probable cause to search a vehicle for contraband after an ordinary traffic stop. We there analyzed in detail the dangers of giving too much weight to such gestures, recognizing they are usually totally innocuous and unrelated to any criminal activity. (Id. at pp. 817-823, 91 Cal.Rptr. 729, 478 P.2d 449.) We concluded that such a gesture can be deemed suspicious only when there are additional facts known to the officer that reasonably give it a guilty connotation, such as "prior reliable information or . . . the officer's personal observation of contraband or a deliberate act of concealment under otherwise suspicious circumstances." (Id. at pp. 819-820, 91 Cal.Rptr. at p. 736, 478 P.2d at p. 456.) And we criticized as largely inadequate the "additional facts" relied on for this purpose in a number of Court of Appeal decisions. (Id. at pp. 824-827, 91 Cal.Rptr. 729, 478 P.2d 449.)
After the officer in Kiefer switched on his red flashing light, the woman passenger in the front seat "turned and put her arm over the back of the seat, then faced forward again, bent down toward the floor, and reassumed a normal sitting position." (Id. at p. 811, 91 Cal.Rptr. at p. 730, 478 P.2d at p. 450.)
In the case at bar, for example, Officer Fischer asked Acosta what he had placed on the rear floor, and he replied it was his lunch. The officer subsequently found a brown paper bag in that location containing typical residue of a picnic lunch.
Just as an unsupported "furtive gesture" cannot justify a vehicle search after a traffic stop, so also it cannot justify an investigative detention of the driver. (See, e. g., People v. Williams (1971) 20 Cal.App.3d 590, 91 Cal.Rptr. 815.) Applying the Kiefer analysis to the record before us, we conclude that Acosta's gesture alone was insufficient to furnish reasonable grounds to suspect there might be an outstanding warrant for defendant's arrest, and the listed additional circumstances cannot fairly be deemed to have invested the gesture with such significance.
In the alternative indeed as his "primary contention" the Attorney General asserts that no suspicious circumstances at all are required to justify the detention of a motorist for the purpose of conducting a warrant check. He claims that such a detention is reasonable per se, provided only that (1) it is preceded by a valid stop for a traffic offense and (2) it remains relatively brief. He distinguishes the cases relied on by defendant on the ground there was either no traffic offense committed in fact (People v. Grace (1973) 32 Cal.App.3d 447, 451-452, 108 Cal.Rptr. 66 (officer mistakenly believed vehicle's brake light was inoperative); see also People v. Bello (1975) 45 Cal.App.3d 970, 973, 119 Cal.Rptr. 838) or the detention was unduly long (Willett v. Superior Court (1969) 2 Cal.App.3d 555, 558-559, 83 Cal.Rptr. 22 (warrant check took 40 minutes)). For his authority the Attorney General relies on a series of four decisions of the Court of Appeal holding that "where an automobile is stopped for a traffic violation it is not unreasonable to detain the occupants for a short period of time for the purpose of determining whether there are outstanding traffic warrants against the driver or other information relating to him in police records." (People v. Gillian (1974) 41 Cal.App.3d 181, 188, 116 Cal.Rptr. 317, 322; accord, People v. Bremmer (1973) 30 Cal.App.3d 1058, 1061-1062, 106 Cal.Rptr. 797; People v. Brown (1969) 272 Cal.App.2d 448, 450, 77 Cal.Rptr. 438; People v. Elliott (1960) 186 Cal.App.2d 185, 189, 8 Cal.Rptr. 716.)
We are urged to adopt this rule. The Attorney General bases his argument on [149 Cal.Rptr. 589] [585 P.2d 211] the principle that reasonableness in the constitutional sense is determined by balancing the government's need for the information against the nature and extent of the intrusion required to obtain it (Terry v. Ohio (1968) 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Brisendine (1975) 13 Cal.3d 528, 538, 119 Cal.Rptr. 315, 531 P.2d 1099.) He begins by characterizing the latter intrusion as "the minor inconvenience of a brief wait by a motorist."
We observe at the outset that by its terms the proposed rule would permit a routine check for outstanding warrants only "against the driver," such as defendant herein. The Attorney General wisely does not attempt to justify on any grounds Officer Thomas' act of running the same check on the Passenger in this case.
We recognize that in contrast to Tony C., here the detention followed a lawful stop predicated not on mere curiosity or hunch but on a traffic offense committed in the officer's presence; and in contrast to People v. Superior Court (Kiefer) (1970) supra, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, and People v. Superior Court (Simon) (1972) supra, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, here the ensuing intrusion was neither a search of the driver's person nor a search of his car, but a temporary detention while a warrant check was conducted by radio. Indeed, there was no "search" at all in the constitutional sense: the incriminating information an outstanding arrest warrant was not sought among records that a person reasonably expects will remain private, such as his bank statements (Burrows v. Superior Court (1974) 13 Cal.3d 238, 242-248, 118 Cal.Rptr. 166, 529 P.2d 590); rather, it was contained in the government's own files, compiled from official reports of law enforcement agencies and the Department of Motor Vehicles, and was retrieved via state and local police telecommunications systems.
Nevertheless we cannot say that in all or even a majority of instances the type of detention here challenged is only a "minor inconvenience." Given the pace of contemporary life, it may well be a significant interference with a motorist's schedule to make him sit idly by for a full 10 or more minutes while the police run a warrant check on him. And his embarrassment will be compounded when, as often occurs, the presence of one or more marked police vehicles parked adjacent to his car throughout the detention focuses the curiosity of passersby on his predicament.
In the case at bar, for example, Officer Fischer testified that he decided to move the investigation from the scene of the stop to the Larkspur police station because "High school was in the process of breaking for the day and with two patrol cars there, one subject in handcuffs and another subject detained, we were starting to draw a crowd."
Against this intrusion we must weigh the interests of the police in running a warrant check after every traffic stop. As none of the decisions relied on by the Attorney General articulates those interests, he assays the task in the case before us. He proposes three different purposes said to be served by such a routine warrant check. First he contends the inquiry is necessary to verify the identity of the driver, as it would frustrate the citation process if the motorist were permitted to deceive the officer as to his true name and address. The only way in which the officer can be sure that the motorist is who he says he is, the argument runs, is by retrieving from the records of the Department of Motor Vehicles (hereinafter DMV) the information he disclosed when applying for his driving permit, i. e., his name, age, sex, address, and a brief identifying description. (Veh.Code, § 12800, subds. (a) and (b).) But the license that the driver is compelled by law to carry when operating a vehicle and present to the officer on demand (§ 12951) bears on its face exactly the same information as that contained in the DMV records (§ 12811), together with his photograph (§ 12800.5) and his signature (§ 12950). The reason for requiring such descriptive information on the license, of course, is primarily to allow the officer to compare it with the appearance of the individual before him. It is true that such a license could conceivably have been altered to show a fictitious name and address; but the Attorney General [149 Cal.Rptr. 590] [585 P.2d 212] furnishes us with no evidence of how often a motorist stopped for a traffic infraction presents a fraudulently altered license to the arresting officer, and in view of the patent illegality of such conduct we cannot presume it to be a frequent occurrence. In the vast majority of cases, rather, the officer may reasonably rely on the descriptive information on the face of the license in verifying that the motorist has correctly identified himself. Indeed, for the purpose of facilitating identification the DMV issues cards, similar to a driver's license, to nondrivers. (§ 13000.)
All statutory references hereinafter are to the Vehicle Code.
It is highly unlikely that the license as originally issued would bear a fictitious name and address: the DMV is empowered to require every applicant for a license "to produce such identification as it determines is necessary in order to insure that the name of the applicant stated in the application is his true name and that his residence address as set forth in the application is his true residence address." (§ 12800.7.)
It is unlawful (1) to alter a driver's license in any unauthorized manner, (2) to display or even possess a reproduction or duplicate of the license or any fictitious or fraudulently altered license, and (3) to permit any unlawful use of a license. (§ 14610, subds. (a), (e), (g), (h).) Violation of any of the foregoing prohibitions is not merely an infraction but a misdemeanor punishable by a fine of up to $500 or imprisonment in county jail for up to six months, or by both such fine and imprisonment. (§§ 40000.11, 42002.)
Next the Attorney General contends that a routine warrant check is necessary to verify the current validity of the license. The DMV or the courts may suspend or revoke a driver's license on various grounds. (See generally Veh. Code, div. 6, ch. 2, arts. 2, 3.) The Attorney General avers there is "a significant number" of such cases each year, and cites DMV statistics assertedly showing 295,006 revocations and suspensions during the 12-month period ending November 1977. From this figure he concludes that without conducting a radio check the officer "has no idea whether the license handed to him by the driver is or is not valid."
Defendant contends these and other statistics cited by the Attorney General are not proper subjects of judicial notice (Evid. Code, § 452, subd. (h)) because no showing has been made of their reliability or significance. We need not resolve the issue: as will appear, even assuming arguendo the statistics are accurate and have the meaning attributed to them by the Attorney General, they do not support his position on the law.
The argument is not persuasive for several reasons. First, the relevant statistic is not the total number of licenses suspended or revoked during the year but the average number in that status at any one time necessarily a lower figure. In addition, the law requires that when the DMV suspends or revokes a license, it "shall be surrendered to the department" (§ 13551, subd. (a)); the surrender, of course, fully eliminates the risk that the license might thereafter be presented to an officer as valid. The Attorney General responds that the DMV "has no enforcement section," implying the statute is largely disregarded. But he cites no evidence in support, and again we cannot presume widespread disobedience of a clear statutory command that carries multiple penal consequences. Moreover, many suspensions and revocations are the result not of departmental action but of court orders, and in all such cases it is the court that requires the surrender of the license in question. (§ 13550; see also §§ 13206, 13207.) For obvious reasons the Attorney General does not contend the court lacks enforcement powers.
This is so because license suspensions by definition are not permanent: they may be as brief as 30 days (§ 13200), and ordinarily do not exceed six months (§ 13556, subd. (a)). It follows that suspended licenses are continuously being reinstated, and on any given day the number of licenses in a state of suspension must be considerably lower than the total number ordered suspended in the course of the year.
It is a misdemeanor to fail to surrender on demand to the DMV any suspended or revoked license. (§§ 14610, subd. (d), 40000.11.) It is a misdemeanor to display or even possess a suspended or revoked license. (§§ 14610, subd. (a), 40000.11.) And it is a still more serious misdemeanor punishable on a second conviction within seven years by a $1,000 fine or imprisonment in the county jail of up to one year to knowingly drive with a suspended or revoked license. (§§ 14601, 14601.1.)
In any event, even if we were to assume that the 295,006 annual suspensions and [149 Cal.Rptr. 591] [585 P.2d 213] revocations cited by the Attorney General represented the daily average number of motorists in that status and that none had surrendered his license as required by law, such motorists would still constitute merely 2 percent of the California driving population. In People v. Superior Court (Kiefer) (1970) supra, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, we held that it would be an intolerable and unreasonable intrusion into the lives of the motoring public "if the police were authorized to search for contraband, without probable cause, every vehicle involved in a routine traffic violation. Millions of such vehicles are stopped every year, and all but a small proportion are doubtless proceeding at the time on lawful business or innocent pleasure." (Fn. omitted; Id. at p. 815, 91 Cal.Rptr. at p. 733, 478 P.2d at p. 453.) We reiterated that rationale in further holding (at p. 829, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 464) that "To allow the police to routinely search for weapons in all such instances would likewise constitute an 'intolerable and unreasonable' intrusion into the privacy of the vast majority of peaceable citizens who travel by automobile." And two years later, in People v. Superior Court (Simon) (1972) supra, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, we held the same reasoning "equally applicable to the search of the driver," agreeing with the New York Court of Appeals that "the ordinary motorist who transgresses against a traffic regulation 'does not thereby indicate a propensity for violence or iniquity' " (Id. at p. 206, 101 Cal.Rptr. at p. 851, 496 P.2d at p. 1219).
The Attorney General cites DMV sources for the proposition that as of June 1977 there were an estimated 14,355,000 valid licenses outstanding. Adding thereto the 295,006 motorists assumed for present purposes to be driving with suspended or revoked licenses gives a total of 14,650,006; and 295,006 is 2 percent of that total.
Kiefer and Simon are controlling here. To allow the police to detain for a routine warrant check every motorist stopped for a traffic violation simply because 2 percent of California drivers at the very most may be operating with suspended or revoked licenses, would also constitute an " intolerable and unreasonable" intrusion into the lives of "the vast majority of peaceable citizens who travel by automobile." (3 Cal.3d at p. 829, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 464.)
The third and last justification offered by the Attorney General for a routine warrant check is that the inquiry is necessary to verify that the driver has no outstanding unpaid traffic fines. In most instances a person arrested for a traffic violation is promptly released upon giving his written promise to appear. (§§ 40500, 40504.) Thereafter he may choose to deposit the prescribed bail by mail (§ 40510) and forfeit that amount in lieu of making an appearance (§ 40512); if he neither appears nor posts bail, a complaint is filed against him (§ 40513, subd. (a)) and a warrant for his arrest is issued (§ 40515, subd. (a)). In addition, when a driver is convicted of an infraction the judgment may provide for his fine to be paid within a specified time or in specified installments, contingent on his written promise to pay or to appear on the due date; if he neither pays nor appears as promised, he is guilty of a new offense. (§ 42003.)
The Attorney General cites DMV statistics assertedly showing that it received a total of 732,520 notices of "failure to appear" or "failure to pay" during the 12-month period ending December 1977. From these figures he concludes that "a significant number" of drivers are scofflaws who deliberately ignore any traffic citations they receive, and hence that a routine warrant check after every traffic stop is justified as the "least intrusive" method of enforcing the motor vehicle laws.
The argument is no more persuasive than its predecessors. First, it appears from other figures cited by the Attorney General that during the same 12-month period the DMV also received a total of 474,082 "clearances" of notices of failure to appear or to pay. Subtracting these clearances from the figure quoted above leaves a remainder of 258,438 unresolved notices. But even that sum does not represent an equal number of [149 Cal.Rptr. 592] [585 P.2d 214] individual motorists with outstanding traffic warrants. This is so because court records reveal that persons who scoff at the motor vehicle laws tend to be recidivists and often accumulate numerous unpaid tickets before they are caught. It follows that the actual number of drivers with outstanding traffic warrants at any given time is substantially less than the foregoing net figure of 258,438 notices of failure to appear or to pay.
In any event, even if we were to assume that every one of those notices represented an individual motorist with an outstanding warrant against him, such individuals would still constitute less than 2 percent of the licensed California drivers. (See fn. 17, Ante.) For the reasons given above, to permit routine police detentions of all persons stopped for a traffic violation in the hope of apprehending the relatively few scofflaws among them would be an unreasonable imposition on the motoring public. After Kiefer and Simon we cannot indulge in the assumption that the majority of California drivers are wanted criminals. (People v. Grace (1973) supra, 32 Cal.App.3d 447, 453, fn. 3, 108 Cal.Rptr. 66.)
We conclude that the intrusion resulting from routine detentions of all traffic offenders for warrant checks without regard to the presence or absence of suspicious circumstances is not outweighed by the government's asserted interests in conducting the checks, and hence that such detentions are constitutionally unreasonable. We therefore disapprove the Court of Appeal decisions to the contrary, and hold in the case at bar that the initial detention of defendant and Acosta for a warrant check was unjustifiable on either ground claimed by the Attorney General.
In a related context we note that the highest courts of three of our sister states have rejected the claim that random police stops and detentions of motorists are permissible for the purpose of enforcing the licensing and registration laws, and have held that such intrusions are unconstitutional in the absence of specific and articulable facts giving rise to a reasonable suspicion that a violation of such laws has actually occurred in each case. (State v. Prouse (1978) Del., 382 A.2d 1359; People v. Ingle (1975) 36 N.Y.2d 413, 369 N.Y.S.2d 67, 74, 330 N.E.2d 39; Commonwealth v. Swanger (1973) 453 Pa. 107, 307 A.2d 875, 879.)
People v. Gilliam (1974) supra, 41 Cal.App.3d 181, 188, 116 Cal.Rptr. 317; People v. Bremmer (1973) supra, 30 Cal.App.3d 1058, 1061-1062, 106 Cal.Rptr. 797; People v. Brown (1969) supra, 272 Cal.App.2d 448, 450, 77 Cal.Rptr. 438; People v. Elliott (1960) supra, 186 Cal.App.2d 185, 189, 8 Cal.Rptr. 716.
This is not to say, of course, that no detention whatever of a motorist lawfully stopped for a traffic violation is proper in the absence of suspicious circumstances. Rather, the guiding principle is that such an intrusion is permissible when it is " '. . . reasonably related in scope to the circumstances which justified the interference in the first place.' " (People v. Brisendine (1975) supra, 13 Cal.3d 528, 538, 119 Cal.Rptr. 315, 321, 531 P.2d 1099, 1105, quoting from Terry v. Ohio (1968) supra, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Under that principle, the officer may properly detain the driver for the short period of time necessary to perform his duties arising from the traffic violation itself. For example, a brief detention is permissible while the officer explains the violation to the motorist, examines his driver's license (§ 12951, subd. (b)) and the registration card of the vehicle (§ 4462, subd. (a)), conducts appropriate equipment checks if he reasonably believes the vehicle is in an unsafe condition (§§ 2804, 2806), and either warns the driver against future violations or writes out a citation and obtains the driver's signature thereon (§§ 40500, 40504). (See, e. g., People v. Mack (1977) 66 Cal.App.3d 839, 848, 136 Cal.Rptr. 283; People v. Grace (1973) supra, 32 Cal.App.3d 447, 452, 108 Cal.Rptr. 66; People v. Lingo (1970) 3 Cal.App.3d 661, 663-664, 83 Cal.Rptr. 755.)
Performance of these duties, however, must not be used as a subterfuge to give the officer time and opportunity to run a "routine warrant check." We agree with the Grace court that "It is no answer to assert the procedure involves no added inconvenience [149 Cal.Rptr. 593] [585 P.2d 215] to the citizen because it is carried out while the officer makes an investigation of the offense and writes out the citation. The inevitable result is that the length of the detention will be governed, not by the time reasonably required by the officer to perform his proper duty, but instead by how long it takes him to receive an 'all clear' from the source or sources to which he made inquiry." (32 Cal.App.3d at p. 453, fn. 3, 108 Cal.Rptr. at p. 70.) Nor is it an answer to say that the courts can intervene in instances of such abuse by declaring illegal any detention longer than the period that "would have been" necessary to investigate the violation and issue a citation. That period will obviously be different in every case, varying according to such factors as the time and place of the stop, the seriousness of the violation, the complexity of the equipment check in safety cases, the thoroughness of the officer, and even the argumentativeness of the driver. For a court to decree at a later date precisely how much time "would have been" necessary to perform the officer's duties in any given case would be at best hindsight and at worst sheer speculation.
Moreover, the courts could "intervene" in this fashion only in cases in which outstanding warrants are actually found during the detention. But in the vast majority of instances the motorist is innocent of prior criminal activity, and the intrusion would therefore go unnoticed by the judicial system and unaffected by the deterrent sanctions of the exclusionary rule.
The record of the case at bar amply illustrates the dangers of such abuse. Officer Thomas did not in fact issue a citation to defendant for driving in the wrong direction on the one-way street, and indeed he never intended to do so. The street in question is a two-way thoroughfare on either side of the Redwood High School parking lot, but while it crosses that lot it becomes one way only. Thomas admitted at the hearing that although he had seen a number of other drivers make the same "mistake" as defendant, he had never cited any of them, and that it was his "personal policy" in this situation to give the errant drivers "the benefit of the doubt" and "let them off with a warning." When Thomas signalled to him defendant promptly stopped his car, and just as promptly produced his driver's license and identified himself; in the circumstances a brief explanation of the unusual traffic pattern and a warning against repeating the mistake would have completed Thomas' duties as he conceived them, and would have consumed only a fraction of the time that defendant and his companion were actually compelled to wait while the officer conducted his "routine warrant check." The excessive detention was thus unnecessary to the performance of Thomas' functions arising from the traffic stop, and hence was impermissible under the rule stated above. (Willett v. Superior Court (1969) supra, 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22; cf. People v. Lingo (1970) supra, 3 Cal.App.3d 661, 664-665, 83 Cal.Rptr. 755.)
The evidence here challenged was the direct product of exploitation of that unlawful detention, and should have been suppressed. It was essential to the case against defendant, and the ensuing conviction therefore cannot stand. Accordingly, we need not reach defendant's additional contention that Officer Fischer had no probable cause to search his car at the police station.
The judgment is reversed.
BIRD, C. J., and MANUEL, and NEWMAN, JJ., concur.
CLARK, Justice, dissenting.
This case questions the validity of detention of a motorist, legally stopped for a traffic violation, for the purpose of conducting a warrant or record check. The majority conclude that police may not routinely continue a detention for such purposes and that no special circumstances exist in this case justifying any detention. I agree with the courts below that it was not unreasonable to detain defendant briefly to determine whether there existed outstanding warrants against him, or related information in police records. [149 Cal.Rptr. 594]Warrant checking presents one of the most effective and least intrusive methods of law enforcement, as this case illustrates. Here, a peaceful ten-minute detention resulted in a burglary suspect being apprehended, stolen property recovered, and possible future criminal activity prevented. No force was used nor was defendant placed in an embarrassing "predicament" until after the radio transmissions had been completed. 1
The majority concede a police radio inquiry, seeking information contained in government files is not a "search" in the constitutional sense. They correctly distinguish People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, and People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, as cases involving Searches of a traffic violator's person or car; yet, these same cases are later relied on as "controlling here." The majority thus implicitly and incorrectly hold a ten-minute detention to be a "significant interference" of the same magnitude as a search of the motorist's person or car.
Obviously the vast majority of California drivers are not wanted criminals; they should not be and are not treated as such. "An officer may not, routinely and without any cause whatsoever, detain every citizen he encounters even if he has violated some traffic rule in order to interrogate him . . . about any other possible offense, and then use the reply to such questioning as an excuse for a search otherwise unlawful." (People v. Grace (1973) 32 Cal.App.3d 447, 453, 108 Cal.Rptr. 66, 70.)
On the other hand, violation of traffic laws constitutes a serious matter, involving an obvious threat to public safety. 2 Ten minutes is not an unreasonable length of time to detain a violator, check license and registration, discuss the driver's error, and issue either a warning or citation.
Nor is it improper to conduct a routing warrant inquiry during this brief period. Unlike Grace, the driver was not "interrogated." He was required only to present a driver's license to the arresting officer as evidence of identity. (Veh. Code, §§ 2800, 40302, subd. (a).) No further inquiry was made of the motorists regarding information unrelated to the traffic violation. As the majority note, most persons arrested for traffic violations are cited and released upon a written promise to appear. (Veh. Code, §§ 40500, 40504.) Police should be permitted to briefly detain a motorist and conduct a warrant or record inquiry as a matter of routine to determine whether the offender has a record of dishonoring such promises. The only alternative an impractical one at best is to release the motorist and follow him until there is a response to the inquiry. Such a procedure would constitute as great an intrusion as that in the instant case.
Because the detention was initially lawful and thereafter did not become unlawful, the evidence derived from it was properly received at trial. 3
The judgment should be affirmed.
RICHARDSON, J., concurs.
[149 Cal.Rptr. 595]TOBRINER, Justice, dissenting.
I dissent.
The instant case presents the issue whether a police officer who validly detains a motorist for a traffic violation may extend the detention for 10 minutes for the purpose of conducting a warrant check. On the basis of the record before us, I have concluded that specific and articulable facts known or apparent to the police officer in question caused him reasonably to suspect that some activity relating to crime had taken place and that defendant was involved in that activity and hence constitutionally justified his brief extended detention of defendant.
"(W)e have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning." (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660. See also People v. Martin (1956) 46 Cal.2d 106, 108, 293 P.2d 52; People v. Blodgett (1956) 46 Cal.2d 114, 117, 293 P.2d 57; People v. Simon (1955) 45 Cal.2d 645, 650, 290 P.2d 531.) The federal rules governing police investigations and arrests are in accord, for as the United States Supreme Court recognized in Terry v. Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest."
We have recently elaborated on the grounds necessary to justify such an investigative stop or detention. In In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 368, 582 P.2d 957, 959, we held that "in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . ., to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. . . ." (Fn. omitted.)
To summarize the circumstances involved in the case before us: Officer Thomas witnessed defendant commit the traffic violation of driving in the wrong direction on a one-way street. As Officer Thomas drove up behind defendant, he saw defendant's passenger lean over the back of the seat, apparently moving something on the rear floorboard. When Officer Thomas approached to question defendant, he noted that although defendant had been driving on the one-way street which crosses the Redwood High School parking lot, defendant was not of high school age. On Thomas' request for identification, defendant produced a driver's license showing a San Francisco address, and, appearing somewhat confused, explained that he was looking for the Marin County Juvenile Hall, a facility which Thomas knew was several miles away. At that point Thomas initiated the radio check for outstanding arrest warrants which the majority here rule "constitutionally unreasonable."
On the basis of the above-mentioned facts the trial court held Officer Thomas' action lawful and admitted subsequently discovered contraband. As the trial court explained, "obviously the facts of this case are like any . . . questions of search and [149 Cal.Rptr. 596] [585 P.2d 218] seizure, and the magistrate must consider the Totality of the circumstances which is, as they testified, number one, . . . whether they are acting honestly and in good faith in the manner in which they proceeded, and taking the Totality of the circumstances, I believe they did act reasonably . . .." (Emphasis added.) I would affirm the trial court.
In People v. Gale (1973) 9 Cal.3d 788, 795-799, 108 Cal.Rptr. 852, 511 P.2d 1204, we held that the reasonableness of the duration of a detention must be governed by an examination of the "totality of the circumstances." Our decision in Tony C., supra, does not purport to change this standard. (See 21 Cal.3d at pp. 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.) Nevertheless the majority in the instant case, after examining each circumstance In isolation, dismiss the conditions surrounding defendant's detention as "wholly innocent" or otherwise "insufficient to support the intrusion." Contrary to the majority's approach, we must uphold a detention when an analysis of the Entire factual setting in which the detention occurred reveals that "specific and articulable facts" supported the detention.
In the present case, Officer Thomas himself articulated the Combination of specific factors upon which he based his decision to detain defendant: "The fact that they were confused, were from San Francisco, were in an area of the high school which has high drug traffic, and were not of high school age." Officer Thomas had witnessed defendant's traffic violation, and justifiably mistrusted defendant's claim to be looking for the distant Marin County Juvenile Hall. Furthermore, Thomas understandably felt "some trepidation or concern or suspicion" at observing defendant's passenger "actually lean over the seat": as Officer Thomas testified, "It is not uncommon to glance back, but it is very uncommon for someone to actually lean over the seat." While a "furtive gesture" or a San Francisco address Alone may not suffice to sustain a detention, nevertheless the Combination of factors apparent to Officer Thomas in the present case reasonably deepened Thomas' suspicion; because Officer Thomas "fairly entertained growing doubts as to the veracity of defendant and his companion" (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632, cert. den. (1976) 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175), Officer Thomas properly extended his investigation.
In light of the totality of these suspicious circumstances, Officer Thomas reasonably detained defendant for a short period for purposes of investigation. In People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96, 41 Cal.Rptr. 290, 292, 396 P.2d 706, 708, we recognized that "a police officer in the discharge of his duties may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is Necessary to the proper discharge of those duties." (Emphasis added.) As Officer Thomas testified in the present case, his original intention on witnessing defendant's traffic violation was to detain defendant "for purposes of investigation." Clearly Thomas did not exceed reasonable bounds in interpreting his duty to include a few minutes' detention to conduct a warrant check, particularly in light of his well-grounded suspicions as to defendant's bona fides. The warrant check itself constituted no invasion of defendant's privacy, as defendant himself concedes. Contrary to the majority's suggestion, the 10-minute period at issue did not expose defendant to more than minor inconvenience or embarrassment: 1 certainly defendant's detention did not involve the personally offensive and stigmatizing treatment of an arrest or search. 2 [149 Cal.Rptr. 597]The detention in the case before us involves a minor and unintrusive law enforcement procedure. Although I do not agree with Justice Clark that police should be permitted to detain a motorist and conduct a warrant or record inquiry as a matter of routine, I believe that the detention in the instant case falls within constitutional bounds. In weighing the competing interests here a function inherent in all judgment we cannot believe that a fleeting moment of delay to a motorist, provided that it is indeed of very limited duration, is so massive an intrusion as to foreclose the quite legitimate procedure of law enforcement which the warrant check constitutes.
By contrast in the instant case we are concerned with neither a search of the driver's person nor a search of his vehicle and, as we have explained, circumstances short of probable cause may suffice to justify defendant's extended detention. Thus, the majority err in applying the constitutional standard of Kiefer and Simon to the minimal intrusion which the present defendant may have experienced.