THE PEOPLE, Plaintiff and Respondent, v. LARRY SANCHEZ McGAUGHRAN, Defendant and Appellant.
Crim. No. 20293
Supreme Court of California
Oct. 25, 1979
25 Cal.3d 577
Paul N. Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Clifton R. Jeffers and Ezra Hendon, Chief Assistant State Public Defenders, for Defendant and Appellant.
Evelle J. Younger and George Deukmejian, Attorneys General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, William D. Stein, Linda Ludlow and David Schneller, Deputy Attorneys General, for Plaintiff and Respondent.
D. Lowell Jensen, District Attorney (Alameda), John J. Meehan, Assistant District Attorney, and Rodney J. Blonien as Amici Curiae on behalf of Plaintiff and Respondent.
MOSK, J.—Defendant was convicted of burglary committed by breaking into a locked automobile with intent to steal. (
The operative fаcts 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 position turn around and reach over the back of the seat towards the floor. 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. Defendant produced his driver‘s license, showing his address to be in San Francisco. Thomas thereupon asked for the driver‘s license of the passenger, Walter Acosta; it was presented, аnd also showed a San Francisco address. 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. This discussion took three or four minutes. Thomas then returned to his patrol car and initiated a radio check for outstanding arrest warrants in both names. Some 10 minutes later the dispatcher called back and reported an Alameda County burglary warrant for defendant and two traffic warrants for Acosta.
Upon learning of the pending charges against the two men, Thomas called for assistance and requested a confirmation of the warrants. Officer Fischer arrived in 5 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 thе wallet lying open on the dashboard, disclosing a methadone treatment card from San Francisco. On the back seat he saw an open canvas bag containing several screwdrivers, a set of small wrenches, and a pair of pliers.
I
At the outset it will be helpful to narrow the scope of the problem by noting what is not involved in this case. First, in contrast to such cases as Delaware v. Prouse (1979) 440 U.S. 648, and In re Tony C. (1978) 21 Cal.3d 888, the issue here is not whether Officer Thomas lawfully stopped defendant for the purpose of investigating criminal activity. Defendant acknowledges that he was traveling in the wrong direction on a one-way street, and that it was proper for the officer to stop him for the traffic violation. (
Second, just as this is not a “stop” case, so also it is not a “search” case. In distinction to People v. Grace (1973) 32 Cal.App.3d 447, Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, and People v. Lingo (1970) 3 Cal.App.3d 661, during the detention herein Officer Thomas did not undertake to seаrch either the driver‘s person or his car. Indeed, in conducting a warrant check the officer does not “search” at all in the constitutional sense: the object of the inquiry—an outstanding arrest warrant—is not a personal document that an individual legitimately expects will remain private,
Third, this is not a case in which an unlawful detention led merely to the discovery of an outstanding warrant and the defendant‘s arrest thereon. In that event the illegality is no bar to a prosecution on the pending charge, for a defendant is not immunized from criminal liability simply because he was arrested on a warrant that had been improperly issued or executed. (See, e.g., Frisbie v. Collins (1952) 342 U.S. 519, 522; People v. Bradford (1969) 70 Cal.2d 333, 344.) It is only when the arrest on the warrant thus discоvered results in the seizure and use of incriminating evidence against the arrestee that he can invoke, as defendant does here, the exclusionary rule. (See, e.g., Willett v. Superior Court (1969) 2 Cal.App.3d 555, 559.)
Fourth, the traffic violation justifying the stop herein was not of the limited class of offenses for which the officer is either required or authorized to take the defendant into custody and transport him before a magistrate for the filing of a complaint. (
Each of the foregoing steps, of course, requires a certain amount of time to accomplish. Nor is much less time consumed if the officer in his discretion (see
By the foregoing process of exclusion, we reach the precise issue in the case at bar. It is undisputed that Officer Thomas initially detained defendant for a period of “about three or four minutes” to advise him why he had been stopped, to examine the driver‘s licenses of both defendant and Acosta, and to discuss their explanation that they were lost. It is also undisputed that Thomas did not in fact issue a citation to defendant for driving in the wrong direction on the one-way street, and indeed 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 the traffic pattern was confusing, 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 motorists “the benefit of the doubt” and “let them off with a warning.” 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.
The Attorney General and the amici curiae supporting him vigorously claim that warrant checks are in fact completed in less time than an officer ordinarily needs to carry out his functions after a traffic stop. They allege in particular that because of modern communications systems and advances in computer technology the usual response time to a warrant check is now from a few seconds to less than four minutes, depending on the method used and the number of inquiries being processed. Defendant replies that such allegations are beyond the scope of proper judicial notice, and holds up the present case as typical of the delays experienced in conducting warrant checks. We are inclined to believe that reality lies somewhere between these two extremes: i.e., that under ideal conditions warrant checks can now be swiftly completed, but that in a still significant number of places in the state—presumably diminishing with the spread of the new technology—the ideal is not yet attained. The proceeding before us evidently falls into the latter category, but nothing we say here is intended to foreclose proof of the Attorney General‘s claim in an appropriate case.
The Attorney General also relies on a series of four decisions of the Court of Appeal holding that after a stop for a traffic violation it is not unreasonable for the officer to detain the motorist “for a short period of time” to run a warrant check. (People v. Gilliam (1974) 41 Cal.App.3d 181, 188; People v. Bremmer (1973) 30 Cal.App.3d 1058, 1061-1062; People v. Brown (1969) 272 Cal.App.2d 448, 450; People v. Elliott (1960) 186 Cal.App.2d 185, 189.) The rule is sound if the “short period” is construed to mean no more than the time needed by the officer to perform his functions as discussed herein. It is true the rule was criticized in People v. Grace (1973) supra, 32 Cal.App.3d 447, 453, footnote 3, on the belief that its “inevitable result” will be that in every case the officer will delay completing his duties until he receives a response to his warrant inquiry. We are unwilling to engage in such a wholesale presumption of official misconduct; but we agree that if in any individual case the defendant can prove the officer did in fact delay completion of his duties for this purpose, the rule will be inoperative. This is no more than a corollary of the rule itself.
The answer must be in the negative, and it is given both by statute and by Constitution.
The statute, moreover, implements settled constitutional doctrine. It is now beyond question that “just as a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope (Terry v. Ohio, 392 U.S. 1, 18), so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.” (Willett v. Superior Court (1969) supra, 2 Cal.App.3d 555, 559; accord, People v. Harris (1975) 15 Cal.3d 384, 390.) In Willett an officer saw the defendant driving with a nonfunctioning taillight and properly stopped him to issue an equipment warning. (
Similarly, in the case at bar the event that made the initial detention permissible was defendant‘s conceded violation of the one-way traffic pattern. All that was “reasonably necessary” to deal with the offense, however, was for Officer Thomas to examine defendant‘s license and registration, explain the violation, and then issue either a citation or a warning. The аdditional period of detention for the purpose of seeking out unrelated arrest warrants in the name of defendant or his passenger was not “reasonably necessary” to that process, and hence “exceeded constitutional limitations” under the foregoing rule.7
III
In the alternative, the Attorney General contends that the additional detention for a warrant check was permissible here because Officer Thomas reasonably suspected that defendant and Acosta were involved in criminal activity. (People v. Herrera (1975) 52 Cal.App.3d 177, 181 [burglary]; People v. Junious (1973) 30 Cal.App.3d 432, 437 [loitering about a school for criminal purposes]; People v. Wickers (1972) 24 Cal.App.3d 12, 16 [robbery].)
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 turned and reached over the back seat when Thomas activated his flashing light. The Attorney General contends these circumstances reasonably support a suspicion that defendant and Acosta were involved in the sale of narcotics at Redwood High School.
The argument is unconvincing. 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, playgrounds, or similar portions of the school premises normally frequented only by students (cf.
No comparable combination of circumstances was shown here: defendant and Acosta promptly and fully identified themselves, and they were not found parked at the curb and engaged in suspicious dealings with juveniles. Indeed, on cross-examination Officer Thomas was specifically asked, “In fact, you didn‘t see these individuals loitering?” He replied, “No, at the time I saw the subjects they were leaving the area.” To vest this conduct with sinister significance would in effect make it lawful for the 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 geographical line. Yet 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 school.
In the present case Officer Thomas obviously had no “prior reliable information” that defendant and Acosta were planning to engage in criminal activity, nor did he observe the latter deliberately hide a package or box apparently containing narcotics as in People v. Doherty (1967) 67 Cal.2d 9, 21-22. On the contrary, Thomas admitted on cross-examination that he did not see what Acosta placed on the rear floor of the car; when Officer Fischer later inquired what the object was, Acosta explained it was his lunch—and in fact Fischer subsequently found a brown paper bag in that location containing the typical residue of a picnic meal. Nor were there any other facts known to Thomas that reasonably invested this gesture with a guilty meaning. It is true that Kiefer is a search case; but its principle is not so narrow that it cannot fairly be invoked to bar an investigative detention of the occupants of an automobile рredicated on a similar unsupported “furtive gesture,” and it has been so applied. (People v. Williams (1971) 20 Cal.App.3d 590, 592.)
In the case at bar we have discussed the allegedly suspicious circumstances seriatim simply because we cannot discuss them simultaneously. Like the trial court, however, in determining their sufficiency we view them not in isolation but in their totality, taking account of the effect
The evidence here challenged was the direct product of exploitation of the 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 further contention that Officer Fischer had no probable cause to search his car at the police station.
The judgment is reversed.
Clark, J., and Manuel, J., concurred.
BIRD, C. J., Concurring and Dissenting.—I concur in the result reached by the majority. However, I cannot join the reasoning employed in parts I and II, ante. Today, this court creates a rule which not only represents an unneeded exception to the usual Fourth Amendment1 detention analysis, but leads to absurd results. Further, officers acting in the field are given an impractical rule to enforce.
The process of “running a warrant check” on a detained individual involves three steps. The officer must first ascertain the identity of the detained individual and then initiate the warrant check. This second step normally involves returning to the patrol car, using the radio to reach the dispatcher or warrant officer, and communicating to this person the information concerning the identity of the detained individual.2 The third and final step in the process is to await the reply or the “return” on the warrant check.
Under well-established constitutional rules which the mаjority recognize, the scope of a detention is limited by the circumstances which justified its inception and by any specific and articulable facts lawfully discovered thereafter. (See maj. opn., ante, at p. 586.) This settled rule can easily be applied to warrant checks run during traffic stops. The scope of a lawful, routine traffic detention must be limited to what is necessary to investigate the traffic infraction itself. It logically cannot be expanded to permit using a portion of the detention solely to investigate the separate question of whether there are unrelated arrest warrants in the name of the driver. Therefore, unless other facts are discovered which suggest a warrant check will be fruitful, no portion of a traffic detention should be used for that purpose alone.3 4 (See In re Tony C. (1978) 21 Cal.3d 888; People v. Bower (1979) 24 Cal.3d 638.)
The majority articulate a different rule. They set forth a rule that would allow a warrant check to be run during the lawful detention of any driver—even if there is no reasоnable basis for believing the warrant check will be fruitful. If the officer does not detain the driver beyond the time
This rule is unworkably vague. How is it possible to determine what amount of time would have been “reasonably necessary” for an officer to discharge the duties he or she had with respect to the traffic infraction itself? I submit, it is not possible. Further, the rule requires the officer and the judge to determine the duration of a past event which never occurred, i.e., the length of time the traffic detention would reasonably have required if the officer had not run the warrant check. Not only must past history be thus reorganized, but a determination must be made as to how many of the officer‘s actions that never occurred would have been reasonably “necessary” to perform duties that may have been only partly performed.5
I have previously expressed concern that the guidelines which the court sets down for the police must be clear in order to ensure that the police can obey the commands of the Fourth Amendment. (In re Tony C., supra, 21 Cal.3d at p. 902 et seq. [conc. & dis. opn. of Bird, C. J.].) Vague and unclear rules afford officers no guidance as to what the Constitution might require of them in an impromptu situation in the field. Similar problems arise in the courtroom leading to inconsistent and unpredictable applications of the sanction of exclusion of evidence. Without predictable sanctions, there is no incentive for officers to learn the rules or attempt to conform to them; the proficient and the careful are no more likely to be rewarded and no less likely to be sanctioned than the ignorant and the reckless. (See id., at pp. 906-907.)
A separate defect in the majority‘s rule is its potential for easy abuse. Since a warrant check during a traffic detention does not have to be justified on any factual basis, the decision as to whether or not to run a warrant check will turn not upon the driver‘s apparent involvement in crime but upon the unconstrained and standardless discretion of the officer. The United States Supreme Court has recently noted the “‘grave danger’ of abuse” which may result when decisions involving the Fourth
Finally, the rule proposed by the majority leads to absurd results. Consider this factual setting. Suppose five minutes is “reasonably necessary” to perform the duties associated with a particular infraction for which an officer has made a traffic stop. The officer spends one minute obtaining identification from the driver and four minutes in his patrol vehicle initiating and awaiting a reply on a warrant check. The check reveals that the driver has no warrants. The officer has now used up the five minutes which the majority have allotted him. Therefore, he must permit the driver to drive away and he cannot take the extra time necessary to write a citation as any detention beyond the five-minute period would be unconstitutional.
Under the majority rule if the officer decides to run a warrant check, he runs the risk that he will be precluded from issuing a citation or otherwise conducting his duties with respect to the traffic infraction for which he made the stop in the first place. This is not an unlikely risk. The vast majority of California drivers have no warrants outstanding and may thereby become potentiаlly immune from traffic citations. An ironic result, indeed!
In my view, the majority went astray very early in this case. At the point they decided to permit the scope of a traffic detention to be
In cutting loose traffic detention warrant checks from the requirement of suspicious circumstances, to which all other constitutional “seizures” are tied, the majority have nоt been able to articulate a workable and sensible rule. To that extent, the court has made the job of our police and judges that much more difficult and unpredictable; and the freedom of our citizens from unreasonable searches and seizures that much more precarious.
It is true that the intrusion appears minor, the indignity minimal, the event commonplace. However, “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the cоnstitutional rights of the citizen, and against any stealthy encroachments thereon.” (Boyd v. United States (1886) 116 U.S. 616, 635.)
NEWMAN, J.—I concur, except that I would rely solely on the California Constitution.
TOBRINER, J., Concurring and Dissenting.—I concur in the majority‘s conclusion that the running of a warrant check, in itself, does not violate an individual‘s constitutional rights and that, as a consequence, the police may validly conduct such a warrant check during the time an individual is properly detained for a traffic violation. (Ante, p. 584.) I dissent, however, from the majority‘s determination that on the
“[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. See also People v. Martin (1956) 46 Cal.2d 106, 108; People v. Blodgett (1956) 46 Cal.2d 114, 117; People v. Simon (1955) 45 Cal.2d 645, 650.) 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, “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, 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
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 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 . . . .” (Italics added.) I would affirm the trial court.
In People v. Gale (1973) 9 Cal.3d 788, 795-799, we held that the reasonableness of the duration of a detention must be governed by an examination of the “totality of the circumstances.” 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 fоr 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 defend-
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, 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.” (Italics 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, as defendant himself concedes, constituted no invasion of defendant‘s privacy. 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
The detention in the case before us involves a minor and unintrusive law enforcement procedure. Although I agree that thе police should not be permitted unduly to detain a motorist to conduct an extended warrant or record inquiry, I believe that the detention in the instant case falls within constitutional bounds. In weighing the competing interests here—a
Richardson, J., concurred.
Notes
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 I 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 to the minimal intrusion which the present defendant may have experienced.
Even then, there will be no constitutional violation in running a warrant check if the detained individual is simultaneously being investigated lawfully for other offenses, such as a traffic infraction. For example, if one officer initiates and completes a warrant check while a second officer carries out his duties with respect to the traffic infraction which justified the stop, the driver has not been unlawfully detained.
However, if at any point in the traffic detention the focus of the investigation shifts away from the traffic offense and turns to the warrant check alone, that expansion of the scope of the detention is unlawful unless justified by suspicious circumstances other than the traffic infraction itself.
In addition to disclosing traffic warrants, a warrant check may also reveal felony and misdemeanor warrants. The information supplied by the Los Angeles Sheriff suggests that felony warrants are discovered in 1 percent of all warrant checks and nontraffic misdemeanor warrants in 5 percent.
I use these figures as suggestive only. Whatever may be the precise proportion of drivers with outstanding warrants, it is clearly quite low.