THE PEOPLE, Plaintiff and Respondent, v. CONRAD RICHARD McKAY, Defendant and Appellant.
No. S091421
Supreme Court of California
Mar. 4, 2002.
27 Cal.4th 601
Richard L. Fitzer, under appointment by the Supreme Court, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Marc E. Turchin, Acting Assistant Attorney General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant
OPINION
BAXTER, J.---California has, in various statutes, limited the circumstances in which a peace officer may effect a custodial arrest for minor offenses. (E.g.,
In this case, the only remedy defendant Conrad Richard McKay seeks is the exclusion of a baggie of methamphetamine that was found in his sock during a search incident to his arrest for the infraction of riding his bicycle in the wrong direction on a residential street. Defendant argues that a custodial arrest for a fine-only offense, such as a traffic infraction, violates the Fourth Amendment prohibition on unreasonable seizures. He also argues, in the event the Fourth Amendment does not bar such arrests categorically, that his custodial arrest nonetheless violated the federal Constitution by the deputy‘s failure to comply with
We conclude, in accordance with United States Supreme Court precedent, that custodial arrests for fine-only offenses do not violate the Fourth Amendment and that compliance with state arrest procedures is not a component of the federal constitutional inquiry. We also conclude, in the alternative, that the arrest here complied with section 40302(a). Accordingly, we affirm the judgment of the Court of Appeal.
BACKGROUND
Around 6:00 p.m. on June 19, 1999, Los Angeles County Deputy Sheriff Valento observed defendant riding a bicycle in the wrong direction on a residential street. Deputy Valento initiated a traffic stop, intending to issue defendant a citation for violating
After placing defendant in the back of the patrol car, Deputy Valento entered the name and date of birth defendant had provided into the patrol car‘s computer and received an address that matched the address defendant had given him and a general description that was consistent with defendant‘s appearance.
Defendant was charged with possession of methamphetamine (
II
Defendant was arrested for violating
A
Appellant‘s first contention, he now concedes, is foreclosed by Atwater v. Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549] (Atwater), which upheld a custodial arrest for a violation of Texas‘s seatbelt law, an offense punishable by a fine of not less than $25 nor more than $50. (Id. at p. 323 [121 S.Ct. at p. 1541].) Under Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Id. at p. 354 [121 S.Ct. at p. 1557].) We must therefore conclude that there is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense. (U.S. v. McFadden (2d Cir. 2001) 238 F.3d 198, 204 [upholding search incident to arrest for riding a bicycle on the sidewalk].)
B
Although Atwater permits the police to effect custodial arrests for even the most minor of offenses, many states---including California---have sought to limit this broad discretion by statute, local ordinance, or departmental regulation. Defendant relies in particular on section 40302(a), which requires the officer to effect a custodial arrest for nonfelony Vehicle Code offenses when the offender fails to present a driver‘s license “or other satisfactory evidence of . . . identity for examination.” Defendant claims that his oral statements to the deputy constituted “satisfactory evidence of . . . identity” under section 40302(a), rendering his arrest unauthorized under California law. The Attorney General, on the other hand, contends that the deputy complied with California law in that section 40302(a) requires an officer to accept only a driver‘s license or its functional equivalent.
1
Before we resolve the dispute over the construction of section 40302(a), though, we must first determine whether compliance with state arrest procedures affects the validity of an arrest under the federal Constitution. Neither the majority nor the dissent below considered this threshold issue, nor did the majority and dissent in Monroe. The issue, however, cannot be ignored.
Thus, in order to prevail, defendant must show as an initial matter that a Los Angeles County deputy sheriff‘s compliance with state procedure is pivotal to the validity of an arrest under the federal Constitution. We requested supplemental briefing to determine whether defendant‘s arrest, notwithstanding its constitutionality under Atwater, became unconstitutional because it assertedly was not authorized by section 40302(a).3
This is a rickety foundation on which to base a federal constitutional argument. It is a well-settled part of ” ‘Our Federalism’ ” that “the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” (Younger v. Harris (1971) 401 U.S. 37, 44 [91 S.Ct. 746, 750, 27 L.Ed.2d 669].) “[A]nxious though it may be to vindicate and protect federal rights and federal interests,” the federal government “always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” (Ibid.) For this reason, the United States Supreme Court has repeatedly resisted efforts to invoke the federal Constitution to force state officials to comply with state law. (See Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies (1997) 107 Yale L.J. 77, 161 [“Such a decision seems inevitable if there is any continuing wish to maintain a federal system“].) Rather, where state officials have been derelict under state law, the high court has reminded us that the illegality of such conduct “under the state statute can neither add to nor subtract from its constitutional validity. Mere violation of a state statute does not infringe the federal Constitution. [Citation.] And state action, even though illegal under state law, can be no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature.” (Snowden v. Hughes (1944) 321 U.S. 1, 11 [64 S.Ct. 397, 402, 88 L.Ed. 497].)
To assert (as defendant does) that state law can transform constitutional police conduct into its opposite would unravel our federal system, since treating a state law violation as a violation of the Constitution “is to
It will come as no surprise, then, that the United States Supreme Court has never ordered a state court to suppress evidence that has been gathered in a manner consistent with the federal Constitution but in violation of some state law or local ordinance.4 To the contrary, the high court has repeatedly emphasized that the Fourth Amendment inquiry does not depend on whether the challenged police conduct was authorized by state law.
In Cooper v. California (1967) 386 U.S. 58 [87 S.Ct. 788, 17 L.Ed.2d 730] (Cooper), for example, the defendant complained that the search of his vehicle was not authorized by California‘s forfeiture statute and was thus unconstitutional. The court found instead that the state law inquiry and the constitutional inquiry were distinct: “the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.” (Id. at p. 61 [87 S.Ct. at p. 790]; see also Sibron, supra, 392 U.S. at p. 61 [88 S.Ct. at p. 1902].) More recently, the court has observed that although individual states may construe their own laws as imposing more stringent constraints on police conduct than does the federal Constitution, “[w]e have never intimated . . . that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.” (Greenwood, supra, 486 U.S. at p. 43 [108 S.Ct. at p. 1630].) “In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither
Our determination of the validity of the search under the federal Constitution thus does not depend on whether “it was authorized by state law” (Cooper, supra, 386 U.S. at p. 61 [87 S.Ct. at p. 790]) or “the law of the particular State in which the search occurs” (Greenwood, supra, 486 U.S. at p. 43 [108 S.Ct. at p. 1630]). According to Elkins, supra, 364 U.S. at page 224 [80 S.Ct. at page 1447], the test “is one of federal law“---and, in this case, was disposed of by Atwater. Therefore, we need not consider whether defendant‘s arrest complied with section 40302(a).
Defendant, however, argues that a different line of Supreme Court authority makes state procedure relevant to the constitutional calculus. He begins with United States v. Di Re (1948) 332 U.S. 581 [68 S.Ct. 222, 92 L.Ed. 210] (Di Re). Di Re was convicted in federal court of knowingly possessing counterfeit gasoline coupons, which were found on his person following his arrest “by a state officer accompanied by federal officers who had no power of arrest.” (Id. at p. 591 [68 S.Ct. at p. 227].) The government sought to justify the search as incident to the arrest. The court stated that because “[n]o act of Congress lays down a general federal rule for arrest without warrant for federal offenses” (ibid.), the rule would be that “the law of the state where an arrest without warrant takes place determines its validity.” (Id. at p. 589 [68 S.Ct. at p. 226].) The law of New York, where the arrest occurred, permitted an arrest where ” ‘a felony has in fact been committed’ ” and the officer ” ‘has reasonable cause for believing the person to be arrested to have committed it.’ ” (Id. at p. 589, fn. 7 [68 S.Ct. at p. 226].) Finding no probable cause to effect the arrest, the court affirmed the order suppressing the evidence seized during the search incident. (Id. at pp. 593-595 [68 S.Ct. at pp. 228-229].)
Drawing on Di Re‘s adoption of state law as a general federal rule of arrest, defendant submits that Di Re compels us to measure the constitutionality of this warrantless arrest under California law in general and under section 40302(a) in particular. If Di Re had grounded its adoption of state law on the federal Constitution, defendant‘s submission would be sound. Unfortunately for defendant, the court did not do so.
A review of Di Re reveals that its adoption of state arrest procedure was a matter of statutory construction, not constitutional compulsion. The court
Without Di Re, defendant is left only with dicta. In Ker v. California (1963) 374 U.S. 23 [83 S.Ct. 1623, 10 L.Ed.2d 726] (Ker), a plurality of the high court observed that “the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. [Citations.] A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law.” (Id. at p. 37 [83 S.Ct. at p. 1632] (lead opn. of Clark, J.).) Since the police
In Michigan v. DeFillippo (1979) 443 U.S. 31 [99 S.Ct. 2627, 61 L.Ed.2d 343] (DeFillippo), the court stated that “whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.” (Id. at p. 36 [99 S.Ct. at p. 2631].) This statement is as true as it is unremarkable---state law “is relevant to the validity of the arrest and search only as it pertains to the ‘facts and circumstances’ we hold constituted probable cause for arrest.” (Id. at p. 40 [99 S.Ct. at p. 2633]; accord, Ryan v. County of DuPage (7th Cir. 1995) 45 F.3d 1090, 1093 [“the legality under the Fourth Amendment of an arrest for violating state law depends on that law in the following sense: there must be probable cause to believe that a state crime has been committed“].) In any event, this statement too was dictum, since (as the court immediately noted) “Respondent does not contend . . . that the arrest was not authorized by Michigan law.” (DeFillippo, supra, at p. 36 [99 S.Ct. at p. 2631].)
When we balance it against the forceful reasoning of Pennhurst, Elkins, Cooper, and Greenwood, we cannot accept the dicta in these two opinions as a pronouncement from the United States Supreme Court that compliance with state arrest procedures is a prerequisite to the validity of an arrest under the federal Constitution. Had the court intended to condition the constitutionality of an arrest on state law, it had ample opportunity to say so in Atwater. But Atwater nowhere rested its holding on the circumstance that Texas had by statute authorized a custodial arrest for a seatbelt offense. Indeed, the court‘s announcement of its holding betrayed no reliance on state law: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Atwater, supra, 532 U.S. at p. 354 [121 S.Ct. at p. 1557], italics added.)6
As for the federal courts of appeals, “[n]early every circuit to address the issue is in accord.” (U.S. v. Le (10th Cir. 1999) 173 F.3d 1258, 1264,
The majority view is sound. What would be gained, after all, by invoking the federal Constitution to exclude evidence seized following an arrest merely because, in violation of state law, a nonuniformed police officer failed to display a badge (e.g., Drewitt v. Pratt (4th Cir. 1993) 999 F.2d 774, 777 [the violation of Virginia law “did not rise to a violation of a federal constitutional magnitude“]), a uniformed officer effected an arrest beyond the officer‘s territorial limit (e.g., People v. Wolf (Colo. 1981) 635 P.2d 213, 217-218 [denying the suppression motion “[d]espite the fact that the Denver police violated the statutes governing their authority to arrest“]), or a deputy‘s commission suffered from technical administrative deficiencies (e.g., U.S. v. Jones (5th Cir. 1999) 185 F.3d 459, 462-463 [state law deficiency “does not affect our analysis” of the constitutional issue])? “The exclusionary rule was created to discourage violations of the Fourth Amendment, not violations of state law.” (U.S. v. Walker, supra, 960 F.2d at p. 415.) Constitutionalizing the myriad of technical state procedures that govern arrests would not only trivialize Fourth Amendment protections but would discourage states from even enacting such rules. (Cf. United States v. Caceres, supra, 440 U.S. at pp. 755-756 [99 S.Ct. at pp. 1473-1474].)
Against this array of authority, defendant has identified only one court that has excluded evidence under the authority of the federal Constitution for an officer‘s failure to comply with state arrest procedures. In U.S. v. Mota, supra, 982 F.2d 1384 (Mota), the Ninth Circuit held that the failure of state
In suppressing the evidence based on this violation of state procedure, the Ninth Circuit acknowledged its prior rulings that application of the exclusionary rule is a matter of federal law (Mota, supra, 982 F.2d at p. 1387) and that “in the context of a suit brought under
First, as discussed above, Di Re, DeFillippo, and Ker do not constitutionalize state arrest procedures. Much more on point, we think, are Cooper and Greenwood (which were not cited in Mota) and Atwater (which was decided after Mota), all of which emphasize that state procedures are irrelevant to the Fourth Amendment inquiry.
Second, Mota‘s holding that the custodial arrest was constitutionally unreasonable because it failed to comply with state procedure is utterly inconsistent with the Ninth Circuit‘s earlier holding in Barry that “state law governing an arrest is irrelevant to determining whether the arrest deprived an individual of rights secured by the federal constitution or a federal statute.” (Mota, supra, 982 F.2d at p. 1387.)
Defendant attempts to reconcile these inconsistent rulings by quoting Professor LaFave as suggesting that the Ninth Circuit “might have more precisely said that though the arrest was constitutional despite the violation of state law, the incidental search was not because [United States v.] Robinson [(1973) 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427]] imposes as a prerequisite not just a constitutional arrest but, more demandingly, a ‘lawful custodial arrest.’ ” (1 LaFave, Search and Seizure, supra, § 1.5(b), p. 141.) What defendant fails to include is Professor LaFave‘s cogent rebuttal to this
Conditioning a search incident to arrest on the degree to which an otherwise constitutional arrest complies with state procedure, moreover, makes no sense. The justification for a search incident to arrest rests on “(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial.” (Knowles v. Iowa, supra, 525 U.S. at p. 116 [119 S.Ct. at p. 487].) Neither the need to disarm the suspect nor the need to preserve evidence depends upon the arrest‘s compliance with state law.
Third, Mota‘s reliance on Welsh v. Wisconsin (1984) 466 U.S. 740 [104 S.Ct. 2091, 80 L.Ed.2d 732] is misplaced. Welsh held that “an important factor to be considered when determining whether any exigency exists [to effect a warrantless arrest in the home] is the gravity of the underlying offense for which the arrest is being made.” (Id. at p. 753 [104 S.Ct. at p. 2099].) In that case, the offense was “a noncriminal violation” subject to a civil forfeiture proceeding. (Id. at p. 746 [104 S.Ct. at p. 2095].) Welsh, however, nowhere suggests that the validity of a warrantless arrest not based on exigent circumstances depends on a weighing of “the state‘s assessment of the gravity of the offense justifying the arrest” or “the state‘s expression of disinterest in allowing warrantless arrests for mere infractions.” (Mota, supra, 982 F.2d at pp. 1388-1389.) Any doubt on this score was resolved by Atwater, in which the court said: “we confirm today what our prior cases have intimated: the standard of probable cause ‘applie[s] to all arrests, without the need to “balance” the interests and circumstances involved in particular situations.’ ” (Atwater, supra, 532 U.S. at p. 354 [121 S.Ct. at p. 1557].)
In sum, we find Cooper, Elkins, Gustafson, Greenwood, and Atwater more persuasive and conclude that so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest---even one effected in violation of state arrest procedures---does not violate the Fourth Amendment. In this case, then, it is of no moment that defendant‘s arrest assertedly violated the procedures set forth in section 40302(a) since (as defendant concedes) Deputy Valento had probable cause to believe defendant had violated a provision of the Vehicle Code.
By this decision, we in no way countenance violations of state arrest procedure. As we explained at the outset, Proposition 8 left intact the substantive scope of state statutory and constitutional rights against arrest for minor offenses. Violation of those rights exposes the peace officers and their departments to civil actions seeking injunctive or other relief. (Garrett v. City of Bossier City (La.Ct.App. 2001) 792 So.2d 24, 26-28 [although the arrest for a seatbelt offense was constitutional under Atwater, the arrest‘s failure to comply with state procedure supported a private civil suit]; see
Moreover, by removing the threat that relevant evidence will be excluded for violation of their rules, our decision today may have the salutary effect of encouraging state and local governments as well as individual police departments to seize the opportunity Atwater presents to craft careful and detailed regulations governing the ability of officers to arrest for minor offenses. (See People v. Mayoff, supra, 42 Cal.3d at pp. 1318-1319; cf. County of Sacramento v. Lewis, supra, 523 U.S. at p. 841, fn. 5 [118 S.Ct. at p. 1714].) Thus, eliminating the sanction of exclusion does not mean that affected individuals or the public generally are without remedy against a wayward officer. “We, the judiciary, cannot claim that we and we alone wield the only power or possess the only wisdom to enforce rules.” (People v. Hoag (2000) 83 Cal.App.4th 1198, 1215 [100 Cal.Rptr.2d 556] (conc. opn. of Morrison, J.).)
2
Even if compliance with state procedure were a predicate to the constitutionality of defendant‘s arrest under the Fourth Amendment, he still would not be entitled to relief in this proceeding, since (as we conclude) his arrest did not violate section 40302(a).
Our state law authorizes custodial arrests for violations of the Vehicle Code, but not in all circumstances. If the violation is declared to be a felony, the offender is to be dealt with in like manner “as upon arrest for the commission of any other felony.” (
The parties agree that the arrest here is governed by section 40302, which states in pertinent part: “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: [] (a) When the person arrested fails to present his driver‘s license or other satisfactory evidence of his identity for examination.” The parties disagree over whether Deputy Valento complied with this provision. The Attorney General argues that defendant‘s custodial arrest was justified under section 40302(a) by his failure “to present his driver‘s license or other satisfactory evidence of his identity for examination.” Defendant, on the other hand, argues that section 40302(a) cannot be used to justify his arrest because he told the officer his name and birthdate and thus provided “other satisfactory evidence of his identity.” This case therefore turns on the meaning of the requirement in section 40302(a) that the offender “present his driver‘s license or other satisfactory evidence of his identity for examination.”
One part of the statute requires little construction. An offender may avoid a custodial arrest by presenting a driver‘s license to the officer for examination. So long as the license is current, valid, and raises no suspicion that it has been altered or falsified, section 40302(a) does not require a custodial arrest. On this point, there is no dispute.
There is likewise no dispute that at least one category of identification qualifies as “other satisfactory evidence of . . . identity“---those forms of documentary evidence that are the functional equivalent of a driver‘s license. This would include a state-issued identification card (
Here, of course, defendant did not present a driver‘s license or other documentary evidence of his identity. He contends, though, that “[n]othing in the code section provides that the person to be cited must present documentary evidence of his identity,” merely “satisfactory evidence of . . . identity.” Defendant offers an incomplete reading of the statute.
“‘In analyzing statutory language, we seek to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose. . . .‘” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634 [59 Cal.Rptr.2d 671, 927 P.2d 1175], quoting Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159 [278 Cal.Rptr. 614, 805 P.2d 873].) The statute here directs the offender to “present his driver‘s license or other satisfactory evidence of his identity for examination.” (
This interpretation of
By construing
The question then arises to what extent the officer‘s exercise of discretion can be reviewed by a court. The mere fact that discretion has been entrusted to the officer, of course, does not warrant invalidation or revision of the statute. (U.S. v. Trigg (7th Cir. 1989) 878 F.2d 1037, 1041 [“The Court, however, has never indicated that the discretionary exercise of the arrest power, a power that is contingent upon a prior determination of probable cause, is constitutionally significant“].) Indeed,
Defendant interprets the statute to impose additional limits on an officer‘s discretion. In his view, the officer should be required to conduct sufficient inquiries calculated to elicit satisfactory evidence of identity and to accept verifiable oral evidence of identity, and the officer‘s failure to do so should be reviewed in the same manner as other police conduct under the Fourth Amendment. The fundamental problem with this interpretation, of course, is that the statute does not require the officer to act as defendant suggests. Rather, the statute plainly puts the burden of presenting satisfactory evidence of identity on the offender. Once the officer has made some inquiry that has put the offender on notice to produce evidence of his or her identity, the officer has done all that is required by the statute.
Moreover, defendant‘s proposal that the officer be required to ask a specific set of questions would facilitate the use of false identities. If, as defendant asserts, requiring the officer to ask for the offender‘s name, address, and date of birth “does not impose a heavy or unreasonable burden on the officer in the field,” it follows that the unscrupulous offender could just as easily memorize those three bits of information, parrot it back to the officer, and thus evade responsibility for any number of Vehicle Code offenses, since the physical description available through a computer database may well be too general to adequately confirm the offender‘s identity. (See Lee v. Superior Court (2000) 22 Cal.4th 41, 43 [91 Cal.Rptr.2d 509, 989 P.2d 1277] [petitioner evaded traffic citation by falsely identifying himself as his deceased brother]; accord, Cal. Highway Patrol, Enrolled Bill Rep. on Assem. Bill No. 219 (1995-1996 Reg. Sess.) prepared for Governor Wilson (July 3, 1995) p. 1 [“there have been several occasions where individuals have misrepresented themselves when they did not have photographic identification to substantiate their identity“].) If, on the other hand, the essential litany of questions is left undefined, then the officer is without guidance as to the number of questions that should be sufficient to elicit satisfactory evidence of identity or the quantum of evidence that an officer should know would be sufficient to establish identity in each instance. Case-by-case adjudication to flesh out the prerequisites for compliance with
It is one thing for a court to review an officer‘s decision to reject a driver‘s license or other documentary evidence of identification, since the item itself can be brought to the magistrate to support the officer‘s belief it had been altered or falsified. It is quite another to review an officer‘s decision to reject oral evidence of identification, since that decision will be based entirely on the officer‘s assessment of the offender‘s credibility—an assessment involving intangible factors that may be difficult to reproduce in the courtroom. There is a world of difference in making that judgment as a matter of discretion “and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or . . . personal [42 United States Code] § 1983 liability for the misapplication of a constitutional standard, on the other.” (Atwater, supra, 532 U.S. at p. 350 [121 S.Ct. at p. 1555].)
Furthermore, transferring the locus of discretion from the officer in the field to the courtroom, as defendant suggests, would have perverse results. Under
Defendant‘s final argument is not without some initial common-sense appeal: “If a person is not required by law to carry identification, he cannot be constitutionally arrested for not doing so.” The flaw in defendant‘s argument, though, is that he was not arrested because of his failure to carry identification. Rather, he was arrested for committing a Vehicle Code infraction. A bicyclist is subject to all provisions of the rules of the road “applicable to the driver of a vehicle” (
In sum,
III
DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Chin, J., and Moreno, J., concurred.
WERDEGAR, J.—I concur in the majority‘s conclusion that
Unfortunately, the majority does not stop there or, rather, does not start and stop there, but instead addresses at the outset an unresolved and unnecessary constitutional question: whether the law permitting police to conduct a search incident to an arrest is limited to those situations, as here, in which the arrest is lawful under state law, or embraces as well an arrest that complies with the minimum constitutional requirements but violates state law. Because we conclude today that defendant‘s arrest complied with both statutory (
As the majority knows well,1 “‘we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.’ [Citations.] As the United States Supreme Court reiterated, ‘A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’ [Citation.] Applying that principle, the high court observed that if statutory relief had been adequate in the case before it, ‘a constitutional decision would have been unnecessary and therefore inappropriate.‘” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [45 Cal.Rptr.2d 207, 902 P.2d 225], quoting Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445, 446 [108 S.Ct. 1319, 1323, 1324, 99 L.Ed.2d 534]; see also Three Affiliated Tribes v. Wold Engineering (1984) 467 U.S. 138, 157-158 [104 S.Ct. 2267, 2279, 81
“Principles of judicial restraint counsel that we not reach out to decide gratuitously constitutional questions of first impression. Sound jurisprudence dictates that such issues be decided only in the context of cases and controversies actually raising the issue.” (People v. Bennett (1998) 17 Cal.4th 373, 393 [70 Cal.Rptr.2d 850, 949 P.2d 947] (conc. opn. of Werdegar, J.).)
The majority seeks to evade this basic constitutional tenet by characterizing the constitutional issue as a “threshold” one (maj. opn., ante, at p. 607) and a “predicate” (id. at p. 608, fn. 3) to reaching the statutory issue. By so reasoning, the majority places the cart before the horse. In fact, the statutory issue (Did the arrest violate
The majority also finds justification for its approach in its desire to reassure the Legislature, local governments and police departments that any efforts to craft laws and regulations guiding police officer discretion when making arrests will not result in the exclusion of relevant evidence as a sanction for their violation. (Maj. opn., ante, at pp. 608-609, fn. 3.) But as this court has often observed, “The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.” (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 [39 Cal.Rptr.2d 21, 890 P.2d 43].) We need not reiterate here the problems associated with providing gratuitous constitutional decisions.2 The ban on advisory opinions has existed from almost the beginning of our Republic (Hayburn‘s Case (1792) 2 U.S. (2 Dall.) 409 [1 L.Ed. 436]) to the present day (see, e.g., United States v. Fruehauf (1961) 365 U.S. 146, 157 [81 S.Ct. 547, 553-554, 5 L.Ed.2d 476]; Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126 [278 Cal.Rptr. 346, 805 P.2d 300]). Nor does it matter whom the advisory opinion would benefit. (Salazar v. Eastin, supra, at p. 860 [declining to provide advisory opinion to assist the California State Board of Education]; Younger v. Superior Court (1978) 21 Cal.3d 102, 119 [145 Cal.Rptr. 674, 577 P.2d 1014] [declining to provide advisory opinion to assist court clerks]; People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [83 Cal.Rptr. 670, 464 P.2d 126] [declining to provide advisory opinion to assist law enforcement]; Denny‘s, Inc. v. City of Agoura Hills (1997) 56 Cal.App.4th 1312, 1329, fn. 10 [66 Cal.Rptr.2d 382] [declining to provide advisory opinion to assist a city in drafting a permissible ordinance].) Thus, that such constitutional guidance would be potentially useful to legislative, governmental or law enforcement entities in discharging their duties is an insufficient reason to disregard the prohibition on advisory opinions.
Our decision finding defendant‘s arrest valid under
BROWN, J., Concurring and Dissenting.—As Justice Jackson warned in 1949: “We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit. . . . [¶] . . . [¶] And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.” (Brinegar v. United States (1949) 338 U.S. 160, 182 [69 S.Ct. 1302, 1314, 93 L.Ed. 1879] (dis. opn. of Jackson, J.).) From what we know of human nature, this observation seems unassailable: for every inch given, a mile will be taken.
This is a case about pushing to the limits and beyond. The majority concludes
Mr. McKay was sentenced to a prison term for the trivial public offense of riding a bicycle the wrong way on a residential street. Well . . . not exactly.
Deputy Valento observed Mr. McKay riding the “wrong way” on a residential street—a minor violation of the
So what makes such minor lawbreaking worthy of attention? What if Mr. McKay rides a bicycle because he does not have a driver‘s license? What if, being a dedicated libertarian, he deliberately eschews all forms of government-issued identification? What if not being photographed is a tenet of his religious faith? No matter. The result according to the majority is that Mr. McKay may be subjected to a full custodial arrest, have himself and his possessions thoroughly searched, have contraband unrelated to the observed public offense or to concerns about officer safety seized and used in the prosecution of a new crime.
The majority‘s approach is flawed in two ways. First, its interpretation of Atwater v. Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549] (Atwater) turns a California procedural rule, enacted to lessen the degree of constitutional intrusion when people are detained for minor offenses, into a general warrant—a result that cannot be reconciled with the
Thus, while I agree with the majority‘s conclusion in part II.B.1 that noncompliance with state procedures does not affect the validity of an arrest under the federal Constitution without an independent violation of the Fourth Amendment, I conclude that on these facts the arrest and search of defendant were unreasonable and therefore unconstitutional.
I.
The majority insists this result is compelled by Atwater. I do not think so. In Atwater, the high court ruled that an arrest for a very minor criminal offense is not per se unreasonable under the Fourth Amendment. (Atwater, supra, 532 U.S. at pp. 353-354 [121 S.Ct. at p. 1557].) It is also true that the court had previously authorized broad searches incident to arrest (see United States v. Robinson (1973) 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427] (Robinson); United States v. Gustafson (1973) 414 U.S. 260 [94 S.Ct. 488, 38 L.Ed.2d 456]; New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768] (Belton)), and placed its imprimatur on pretextual traffic stops (Whren v. United States (1996) 517 U.S. 806 [116 S.Ct. 1769, 135 L.Ed.2d 89] (Whren)).
Nevertheless, the “touchstone” of the Fourth Amendment remains “‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen‘s personal security.‘” (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109 [98 S.Ct. 330, 332, 54 L.Ed.2d 331]; see also United States v. Ramirez (1998) 523 U.S. 65, 71 [118 S.Ct. 992, 996-997, 140 L.Ed.2d 1911].) “The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials . . . ‘to safeguard the privacy and security of individuals against arbitrary invasions.‘” (Delaware v. Prouse (1979) 440 U.S. 648, 653-654 [99 S.Ct. 1391, 1396, 59 L.Ed.2d 660] (Prouse), fn. omitted; Camara v. Municipal Court (1967) 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930].) “[T]he central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.” (United States v. Ortiz (1975) 422 U.S. 891, 895 [95 S.Ct. 2585, 2588, 45 L.Ed.2d 623].)
A. The Problem with General Warrants
“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that
General warrants were objectionable precisely because of their indiscriminate character, and the Fourth Amendment was designed to prevent indiscriminate searches and seizures conducted by petty officials with unfettered discretion. The framers sought to preclude “the petty tyranny of unregulated rummagers.” (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn. L.Rev. 349, 411.)
The first clause of the Fourth Amendment issues a global command: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” The second clause—specifically prohibiting the issuance of a warrant except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized“—addresses the narrower compass of traditional search warrants “for contraband, stolen goods, and the like.” (Amar, Fourth Amendment First Principles (1994) 107 Harv. L.Rev. 757, 765, fn. omitted.) Its purpose was probably not to make warrants mandatory, but to limit the opportunity of the executive to obtain warrants in the first place. (See Taylor, Two Studies in Constitutional Interpretation (1969) pp. 38-50.)
Unfortunately, the Supreme Court‘s modern Fourth Amendment jurisprudence gives new vigor to petty rummagers. In analyzing searches incident to arrest, the court has tended to equate probable cause with reasonableness, but these terms “serve distinct functions, which are lost by homogenization of the legal vocabulary.” (Gramenos v. Jewel Companies, Inc. (7th Cir. 1986) 797 F.2d 432, 442.) In Whren, supra, 517 U.S. 806, Justice Scalia authored a unanimous opinion in which the Supreme Court ruled that when a police officer observes a traffic violation, stopping the vehicle is reasonable and the officer‘s subjective motivation plays no part in the Fourth Amendment analysis. (Id. at pp. 810, 813 [116 S.Ct. at pp. 1772-1774].) Whren essentially legitimized pretextual stops—the sine qua non of unjustified and arbitrary law enforcement. A pretext stop occurs when “the justification proffered by the State for an arrest is legally sufficient, but where the
The court has clearly seen the need to curb police discretion only when law enforcement agents search and seize without probable cause (Prouse, supra, 440 U.S. at p. 663 [99 S.Ct. at p. 1401]), and when police operate under vague enforcement standards which confer a virtually unrestrained power to arrest. (Kolender v. Lawson (1983) 461 U.S. 352, 360 [103 S.Ct. 1855, 1859-1860, 75 L.Ed.2d 903] (Kolender).) In Prouse, an officer randomly stopped the defendant to check his driver‘s license and registration. The United States Supreme Court held that subjecting drivers to random checks, without reasonable suspicion, is unreasonable under the Fourth Amendment. (Prouse, at p. 663 [99 S.Ct. at p. 1401].) The Prouse court could not “conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. [Moreover,] [t]his kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” (Id. at p. 661 [99 S.Ct. at p. 1400].) Whren distinguished Prouse on the ground that the spot-checking officer did not have “‘probable cause to believe that a driver [was] violating any one of the multitude of applicable traffic and equipment regulations‘” (Whren, supra, 517 U.S. at p. 817 [116 S.Ct. at p. 1776]), whereas in Whren, the arresting officer did have probable cause to believe that the defendant had violated a traffic law.
Probable cause to believe that a traffic violation has occurred does not adequately distinguish Whren, Atwater and the case at hand from Prouse, however. The United States Supreme Court purportedly believes that “‘observed [traffic] violations’ . . . afford the ‘quantum of individualized suspicion’ necessary to ensure that police discretion is sufficiently constrained.” (Whren, supra, 517 U.S. at pp. 817-818 [116 S.Ct. at p. 1776].) In reality, an officer‘s discretion in deciding whom to stop is not constrained at all by a probable cause prerequisite because the officer need only point to a minor traffic violation to negate a claim of unfettered arbitrariness. (1 LaFave, Search and Seizure (3d ed. 1996) § 1.4(e), p. 123.) Due to the widespread violation of minor traffic laws, an officer‘s discretion is still as wide as the driving population is large.
In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum “crimes“—many too trivial even to be
An officer‘s observation of a very minor offense authorizes him to stop the car (Whren, supra, 517 U.S. at p. 817 [116 S.Ct. at p. 1776]) or bicycle (U.S. v. McFadden (2d Cir. 2001) 238 F.3d 198), arrest the driver or rider (Atwater, supra, 532 U.S. at p. 354 [121 S.Ct. at p. 1557]; McFadden, at p. 204), search the driver or rider (Robinson, supra, 414 U.S. at p. 235 [94 S.Ct. at pp. 476-477]), search the entire passenger compartment of the car including any package inside (Belton, supra, 453 U.S. at p. 460 [101 S.Ct. at p. 2864]), impound the car and inventory all of its contents (Colorado v. Bertine (1987) 479 U.S. 367, 374 [107 S.Ct. 738, 742, 93 L.Ed.2d 739]), and imprison the offender for up to 48 hours (Atwater, at p. 352 [121 S.Ct. at p. 1556]; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56 [111 S.Ct. 1661, 1669-1670, 114 L.Ed.2d 49]).
Thus, after Atwater, the notion that “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation” (Prouse, supra, 440 U.S. at p. 662 [99 S.Ct. at p. 1400]) is simply no longer true. In fact, the same rules apparently apply to those who walk, bicycle, rollerblade, skateboard, or propel a scooter. Probable cause is ubiquitous.
Given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone,4 the probable cause requirement is so diluted it ceases to matter, “for there exists ‘a power that places the liberty of every man in the hands of every petty officer,‘” precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. (1 LaFave, Search and Seizure, supra, § 1.4(e), p. 123, quoting 2 Wroth & Zobel, Legal Papers of John
B. The Problem with Vagueness
The problem of arbitrariness is compounded in circumstances like these where the enforcement standard is impermissibly vague. A statute that either forbids or requires the doing of an act in “terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322].) The basic premise of the void-for-vagueness doctrine is that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888].) In the Fourth Amendment context, constitutional reasonableness should “encompass procedural regularity as well as substantive fairness” and, as these facts illustrate, the two are often “tightly intertwined.” (Amar, Fourth Amendment First Principles, supra, 107 Harv. L.Rev. at pp. 808-809.)
In California, a Vehicle Code offender is generally arrested pursuant to
The majority correctly points out that “presenting a driver‘s license” or its functional equivalent avoids an intrusive custodial arrest under
The majority‘s grant of discretion to law enforcement under
The Court of Appeal in People v. Monroe (1993) 12 Cal.App.4th 1174, 1191 [16 Cal.Rptr.2d 267] (Monroe) rejected a similar vagueness attack on
With this in mind, I would adopt an “objective reasonableness” standard that requires the arresting officer to articulate specific “‘facts, which taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion’ of a full custodial arrest.” (Atwater, supra, 532 U.S. 318, 366 [121 S.Ct. at p. 1564] (dis. opn. of O‘Connor, J.); see also State v. Walker (Tenn. 2000) 12 S.W.3d 460, 466 & fn. 12 [holding officer lacked objectively reasonable basis for rejecting oral identification offered by defendant under a cite-and-release statute “similar in many respects to our own“].) This does not mean that an officer will be obligated to accept oral identification any time that it is given. The officer must still weigh the sufficiency of the identification with a corroborating source. If the proffered oral identification is not corroborated, the identification is unsatisfactory. “[T]his ‘discretion,’ if one may use that term, is not the complete unbounded discretion of which the majority speak. It is a discretion which can be abused if the officer acts unreasonably or arbitrarily.” (Monroe, supra, 12 Cal.App.4th 1174, 1200 (dis. opn. of Smith, J.).)
In recent years, Fourth Amendment analysis has attained a kind of perverse, irrational fixity: probable cause equals reasonableness. Only by insisting probable cause and reasonableness are synonymous can courts avoid the socially costly consequences of the exclusionary rule. For this false peace, we pay too high a price. We are asked to surrender our right to be protected from unreasonable intrusions. Ironically, the severe sanction of the exclusionary rule has not discouraged unreasonable searches; it has, instead, shrunk the constitutional protection against them. (See, e.g., U.S. v. Castro (5th Cir. 1999) 166 F.3d 728, 735 (dis. opn. of Politz, J.) [“technical distortions and expansion of exclusionary rule exceptions threaten to make the fourth amendment a hollow shell of its former self“].) The police have a difficult, dangerous and often thankless job. Trying to combat crime and violence and protect the public without losing the public‘s trust is a formidable challenge. In the cause of public trust, the exclusionary rule has been at best counterproductive and at worst pernicious. Looking beyond probable cause and viewing reasonableness as a mandate of independent vitality restores some measure of constitutional balance. Probable cause and reasonable conduct are not the same thing. Requiring the police to behave reasonably—i.e., to assess their conduct in light of all the surrounding circumstances—is not asking too much. It is the same burden we impose on every adult. The Constitution demands no less of the government.
The high court has historically applied such a reasonableness test—balancing the individual‘s and the state‘s interests—notwithstanding the existence of probable cause. In a somewhat analogous case, the court held that a nighttime entry into a house to arrest a drunk driving suspect was unreasonable even though the officers had both probable cause and a legitimate claim of exigent circumstances. (Welsh v. Wisconsin (1984) 466 U.S. 740 [104 S.Ct. 2091, 80 L.Ed.2d 732].) The court found the intrusion unreasonable solely on the basis of the minor nature of the offense. “[T]he penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State‘s interest in arresting individuals suspected of committing that offense.” (Welsh, at p. 754, fn. 14 [104 S.Ct. at p. 2100].) Given this expression of the state‘s interest, the court ruled a warrantless home arrest could not be sustained simply because the offender‘s blood-alcohol level might have dissipated while police obtained a warrant. (Ibid.)
A similar traditional Fourth Amendment balancing of the legitimate governmental interests in arrest against the degree of intrusiveness upon an individual‘s privacy would reveal the unreasonableness of defendant‘s arrest
Here, the state has classified the riding of a bicycle on the wrong side of the road, like most other Vehicle Code offenses, as an infraction. “An infraction is not punishable by imprisonment.” (
Nor do I believe that the state‘s interest is significantly bolstered in this case because defendant failed to present documentary identification. The only logical reasons to confirm an offender‘s identity or guarantee a court appearance in the first place are to ensure that (1) the offender is held personally accountable for the traffic offense by paying the applicable fine and (2) the state actually receives the payment. What the majority fails to acknowledge is that “[i]n today‘s computer age the officer in the field has a host of readily available methods of verifying the identity of a person” in an objective manner. (Monroe, supra, 12 Cal.App.4th 1174, 1199 (dis. opn. of Smith, J.).) Attempting to verify oral identification would also be “[c]onsistent with California Highway Patrol policy” to avoid arresting a driver for merely failing to have a driver‘s license, so requiring officers to corroborate oral identification before arrest should not be problematic. (People v. Grant (1990) 217 Cal.App.3d 1451, 1455 [266 Cal.Rptr. 587].) For instance, patrol cars are now equipped with laptop computers, enabling an officer to quickly confirm proffered oral identification. (See, e.g., U.S. Dept. of Justice, Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics, 1999: Data for Individual State and Local Agencies of 100 or More Officers (Nov. 2000) pp. vi, xvi, 157-158, 193-194, 205-206, 242.)
Here, defendant furnished his name and date of birth to the officer. Only after arresting, handcuffing, searching and placing defendant in the back of the patrol car did the officer even attempt to corroborate defendant‘s oral identification on the laptop computer mounted in his patrol car. As it turned out, defendant‘s oral identification was quite accurate. When the means are readily available, an officer‘s failure to at least attempt to corroborate the proffered oral identification before placing the offender in custodial arrest is unreasonable per se. (See State v. Satterwhite (1997) 123 Ohio App.3d 322, 324 [704 N.E.2d 259, 261] [holding that officer‘s failure to even attempt to verify the defendant‘s identity before making an arrest under a cite-and-release statute was objectively unreasonable].)
An objective reasonableness standard of review is also in accord with the Vehicle Code‘s cite-and-release “honor system.” (Simon, supra, 7 Cal.3d at p. 201.) The entire legislative framework operates on the assumption that the offender will either honor his “promise to appear” in court or will mail the fine payment. (
In the unlikely event that the officer has no readily available way to corroborate the offender‘s identity, I, like the majority, would hold that the officer‘s judgment in believing or disbelieving the offender is largely in the officer‘s discretion.
II.
Every court that has approved sweeping search powers in conjunction with broad authority to arrest for minor offenses has acknowledged the potential for abuse. Of course, everyone who has not spent the last 20 years sealed in an ivory tower knows the problem is real. (But see Atwater, supra, 532 U.S. at pp. 351, 353 & fn. 12 [appen.] [121 S.Ct. at pp. 1556, 1557].)
Empirical data on stop-and-search practices in Maryland, New Jersey and New York also confirm statistically significant disparities between the rates at which people of color are stopped and searched and the rates for Whites in similar circumstances. (DOJ, supra, at pp. 7-9.) Nor has California been immune. Questions have been raised about the disparate impact of stop-and-search procedures of the California Highway Patrol. (McCormick et al., Racial Bias in CHP Searches, S.F. Chronicle (July 15, 2001) p. A-1.) The practice is so prevalent, it has a name: “Driving while Black.”
Both the Atwater majority and the majority here suggest pretextual stops can be adequately remedied by challenging them as “being based on invalid criteria, such as race, religion, or other arbitrary classification.”6 (Maj. opn, ante, at p. 622.) Such a suggestion overlooks the fact that most victims of pretextual stops will barely have enough money to pay the traffic citation, much less be able to afford an attorney. Even if a pretextual stop victim is able to convince an attorney to handle the case pro bono, the defendant‘s chances of even obtaining discovery are slight, for he must first make “a credible showing of different treatment of similarly situated persons [of other races]” (United States v. Armstrong (1996) 517 U.S. 456, 470 [116 S.Ct. 1480, 1489, 134 L.Ed.2d 687])—a hurdle that has proved to be higher in the lower courts than one would initially suspect. (See, e.g., U.S. v. Bell (8th Cir. 1996) 86 F.3d 820, 823 [holding that the defendant did not meet the Armstrong standard because he did not present evidence about the number of
“The insult remains.” (State v. Overby (1999) 1999 N.D. 47 [590 N.W.2d 703, 708] (conc. opn. of Vande Walle, C. J.).) To dismiss people who have suffered real constitutional harms with remedies that are illusory or nonexistent allows courts to be complacent about bigotry while claiming compassion for its victims. Judges go along with questionable police conduct, proclaiming that their hands are tied. (U.S. v. Herring (D.Or. 1999) 35 F.Supp.2d 1253, 1258.) If our hands really are tied, it behooves us to gnaw through the ropes.
CONCLUSION
In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.
I do not know Mr. McKay‘s ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes—places where no resident would be arrested for riding the “wrong way” on a bicycle whether he had his driver‘s
According to Atwater, a full custodial arrest for a trivial infraction is constitutionally permissible. Broad powers to search incident to an arrest have a long common law and constitutional history. (Taylor, Two Studies in Constitutional Interpretation, supra, at pp. 28-29.) However, if full custodial arrest is authorized for trivial offenses, the power to search should be constrained. If broad searches incident to arrest are permitted, the power to effect a full custodial arrest should be limited. To permit both full custodial arrest for minor offenses and virtually unlimited authority to search incident to such an arrest allows officers to push past the boundaries of the Fourth Amendment. When officers may arrest for minor offenses, conduct virtually unlimited searches, and are granted unbounded and unreviewable discretion to select the target of such enforcement activity, the resulting search cannot be constitutionally permissible.
It is certainly possible to argue that the rationale of Atwater can be extended to encompass what happened here. The question is why we should do so. It is clear the Legislature could not authorize the kind of standardless discretion the court confers in this case. Why should the court permit officers to do indirectly what the Constitution directly prohibits? How can such an action be deemed constitutionally reasonable? And if we insist it is, can we make any credible claim to a commitment to equal justice and equal treatment under law?
Well . . . . No. Not exactly.