People v. Lopez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Appellant,

v.

MARIA ELENA LOPEZ,

Defendant and Respondent.

S238627

Third Appellate District

C078537

Yolo County Superior Court

CRF143400

November 25, 2019

Justice Kruger authored the opinion of the Court, in which

Justices Liu, Cuéllar, and Groban concurred.

Justice Chin filed a dissenting opinion, in which Chief Justice

Cantil-Sakauye and Justice Corrigan concurred.

PEOPLE v. LOPEZ

S238627

Opinion of the Court by Kruger, J.

Acting on an anonymous tip about a motorist’s erratic

driving, a police officer approached defendant Maria Elena

Lopez after she parked and exited her car. When the officer

asked if she had a driver’s license, she said she did not. Police

then detained her for unlicensed driving and, without asking

her name, searched the car for Lopez’s personal identification.

They found methamphetamine in a purse sitting on the front

passenger’s seat.

The trial court held the search was invalid under Arizona

v. Gant (2009) 556 U.S. 332 (Gant), which narrowed the scope of

permissible warrantless vehicle searches incident to a driver’s

arrest. The Court of Appeal reversed. It held that the search

was authorized under this court’s pre-Gant decision in In re

Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which allowed police

to conduct warrantless vehicle searches for personal

identification documents at traffic stops when the driver failed

to provide a license or other personal identification upon

request.

We granted review to consider the application and

continuing validity of the Arturo D. rule in light of subsequent

legal developments. At the time Arturo D. was decided, no other

state or federal court had recognized an exception to the Fourth

Amendment’s warrant requirement for suspicionless traffic-stop

PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

vehicle searches. The same holds true today; California remains

the only state to have recognized such an exception.

Considering the issue in light of more recent decisions from both

the United States Supreme Court and our sister states, we now

conclude that the desire to obtain a driver’s identification

following a traffic stop does not constitute an independent,

categorical exception to the Fourth Amendment’s warrant

requirement. To the extent Arturo D. held otherwise, we

conclude that rule should no longer be followed. We reverse the

judgment of the Court of Appeal and remand for further

proceedings.

I.

On the morning of July 4, 2014, City of Woodland Police

Officer Jeff Moe responded to an anonymous tip concerning

erratic driving. The tip described the car, a dark-colored Toyota,

and the area in which it was driving. Unable to locate the

vehicle, Officer Moe asked dispatch to run a computer search of

the license plate, then drove by the address where the car was

registered. Not seeing the vehicle, he resumed his duties.

Around 1:30 p.m., Officer Moe received a second

anonymous report concerning the same car. The tipster

identified the car’s location and asserted the driver, whom the

tipster identified as “Marlena,” “had been drinking all day.”

Again unable to locate the car, Officer Moe returned to the

address where the car was registered. This time, he parked and

waited. A few minutes later, defendant Maria Elena Lopez

drove up and parked in front of the house.

Moe did not observe any traffic violations or erratic

driving. But believing the driver to be “Marlena,” Officer Moe

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Opinion of the Court by Kruger, J.

approached the car. Moe testified at the suppression hearing

that Lopez saw him, looked nervous, got out of the car, and

began walking away from him. Moe did not smell alcohol or note

any other signs of intoxication. But because he “wanted to know

what her driving status was based on the allegations earlier,

plus [he] wanted to identify who she was,” Moe asked Lopez if

she had a driver’s license. Lopez said that she did not. Without

asking Lopez for her name or other identifying information, Moe

detained her by placing her in a control hold. When Lopez tried

to pull away, Moe handcuffed her.

Officer Moe then asked Lopez “if she had . . . any

identification possibly within the vehicle.” When Lopez

responded “there might be,” a second officer on the scene opened

the passenger door, retrieved a small purse from the passenger

seat, and handed it to Moe. Moe then searched the purse and

found a baggie containing methamphetamine in a side pocket.

Lopez was charged with misdemeanor violations of

possessing methamphetamine (Health & Saf. Code, § 11377,

subd. (a)) and driving when her license to drive had been

suspended or revoked (Veh. Code, § 14601.2, subd. (a)). She filed

a motion to suppress evidence (Pen. Code, § 1538.5, subd. (a)(1)),

arguing she had been unlawfully detained and her purse

unlawfully searched.

The trial court granted the suppression motion. The court

concluded the initial contact between Lopez and Officer Moe

after she exited her vehicle was consensual. Once Lopez told

Moe she did not have a license, the officer also had probable

cause to detain and arrest her for driving without a valid license.

(See Veh. Code, § 12500, subd. (a) [“A person may not drive a

motor vehicle upon a highway, unless the person then holds a

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valid driver’s license issued under this code”].) But the trial

court concluded that the ensuing search of Lopez’s vehicle was

invalid because neither of the justifications for conducting a

vehicle search incident to arrest under Gant, supra, 556 U.S.

332, was present. Gant held that a vehicle search incident to

arrest is justified only if it is reasonable to believe the suspect

can gain access to weapons inside the vehicle or that evidence of

the offense of arrest might be found inside the vehicle. (Id. at

p. 335.) Here, Lopez was handcuffed at the rear of her car when

the search took place and could not reach any weapons inside

the car. Nor was there any likelihood a search of the car would

produce evidence of Lopez’s driving without a license in her

possession.1 With the evidence suppressed, the trial court

dismissed the case.

The Court of Appeal reversed the suppression ruling. The

appellate court explained that Gant was not applicable because

Lopez had not been formally arrested, only detained, at the time

of the search. (People v. Lopez (2016) 4 Cal.App.5th 815, 827–

828.) The authority for the search was therefore not the search

incident to arrest exception at issue in Gant, but the traffic-stop

identification-search exception recognized in Arturo D., supra,

27 Cal.4th 60. (Lopez, at pp. 825–826.) Once Lopez told Officer

Moe that she did not have a driver’s license, Officer Moe had

cause to believe Lopez had driven without a license in violation

1

The trial court also concluded the People had not supplied

support for a search for evidence of driving under the influence.

The first anonymous tip was remote in time, the second was

vague and conclusory, Officer Moe observed nothing to indicate

Lopez was under the influence, and the hearing testimony made

clear the search was directed at finding identification.

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Opinion of the Court by Kruger, J.

of the Vehicle Code. (Id. at p. 825; see Veh. Code, § 12500,

subd. (a).) Under Arturo D., the police were then permitted to

search Lopez’s vehicle for other forms of identification in order

to ensure that any citation and notice to appear for the Vehicle

Code violation reflected Lopez’s true identity. (Lopez, at p. 826.)

If Arturo D. “is still good law,” the Court of Appeal concluded,

“the search in this case was reasonable under the Fourth

Amendment.” (Lopez, at p. 825.)

We granted review.

II.

A.

The Fourth Amendment to the United States Constitution

prohibits “unreasonable searches and seizures.” In general, a law

enforcement officer is required to obtain a warrant before

conducting a search. (Vernonia School Dist. 47J v. Acton (1995)

515 U.S. 646, 653.) Warrantless searches “are per se unreasonable

under the Fourth Amendment—subject only to a few specifically

established and well-delineated exceptions.” (Katz v. United States

(1967) 389 U.S. 347, 357, fns. omitted; accord, People v. Redd (2010)

48 Cal.4th 691, 719 [“A warrantless search is presumed to be

unreasonable”].) Whether a particular kind of search is exempt

from the warrant requirement ordinarily depends on whether,

under the relevant circumstances, law enforcement’s need to

search outweighs the invasion of individual privacy. (Riley v.

California (2014) 573 U.S. 373, 385; Delaware v. Prouse (1979) 440

U.S. 648, 654; Camara v. Municipal Court (1967) 387 U.S. 523,

536–537.)

In Arturo D., supra, 27 Cal.4th 60, we considered the

existence and scope of an exception permitting officers to

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conduct a warrantless vehicle search when a driver pulled over

for a traffic infraction is unable to produce the required

documentation in response to an officer’s request. Arturo D.

involved two consolidated cases in which law enforcement

officers had detained drivers for traffic infractions and the

drivers could produce neither a driver’s license nor the vehicle’s

registration in response to the officers’ requests. In one case,

the officer entered the defendant’s truck and reached under the

driver’s seat. The officer did not locate any relevant documents

but did discover a box that later was found to contain

methamphetamine. In the other case, the officer entered the

defendant’s car and looked first in the glove compartment and

then under the front passenger seat, finding a wallet that

contained a baggie of methamphetamine. (Arturo D., at pp. 65–

67.)

Arturo D. upheld both searches. The opinion concluded

that when a driver has been detained for a traffic infraction and

fails to produce vehicle registration or personal identification

documentation upon request, the Fourth Amendment “permits

limited warrantless searches of areas within a vehicle where

such documentation reasonably may be expected to be found.”

(Arturo D., supra, 27 Cal.4th at p. 65.)

Although Arturo D. upheld warrantless searches for both

vehicle registration and personal identification, its reasoning

focused primarily on the former rather than the latter. In

explaining the basis for this exception to the Fourth

Amendment’s warrant requirement, Arturo D. relied heavily on

various California and out-of-state cases upholding warrantless

searches of vehicles for the purpose of locating the vehicle

registration. (Arturo D., supra, 27 Cal.4th at p. 71 & fn. 7 [citing

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Opinion of the Court by Kruger, J.

People v. Webster (1991) 54 Cal.3d 411 and various Court of

Appeal cases]; see also Arturo D., at p. 76, fn. 16 [citing

additional out-of-state cases concerning searches for vehicle

registration].)2 Arturo D. did not identify any prior cases, either

from California or elsewhere, that had concluded the need to

locate a driver’s license or other form of personal identification

could alone justify a warrantless search. But Arturo D. reasoned

that a similar balance of interests should yield the same result

for both vehicle registration and personal identification

searches. On the one hand, the state has an important interest

in identifying drivers so that it can properly cite them for traffic

violations. (Arturo D., at p. 67.) And on the other hand, drivers

have a “reduced expectation of privacy while driving a vehicle

on public thoroughfares.” (Id. at p. 68, citing New York v. Class

(1986) 475 U.S. 106, 112–113 (Class).) While officers have the

power to arrest drivers who violate the Vehicle Code by failing

to keep their licenses in their possession while driving, an arrest

“in most circumstances would subject the driver to considerably

greater intrusion.” (Arturo D., at p. 76, fn. 17.) Arturo D.

concluded it is therefore permissible for the officer to search

those areas of the vehicle in which the necessary documentation

“reasonably may be expected to be found.” (Id. at p. 65; see also

id. at pp. 78, 79, 84, 86.)3

2

The portion of Arturo D., supra, 27 Cal.4th 60, upholding

a search for registration documents is not at issue in this case.

3

The dissent would reconceptualize Arturo D. as applying

only to “places in the vehicle where a driver, slowing to a halt,

might quickly put or toss a wallet or similar container.” (Dis.

opn. post, at p. 11; see id. at p. 10.) The standard this court

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Opinion of the Court by Kruger, J.

As Arturo D. acknowledged, the United States Supreme

Court had previously held that the Fourth Amendment does not

permit law enforcement to search the vehicle of a person who

has been cited, but not arrested, for a traffic violation. (Knowles

v. Iowa (1998) 525 U.S. 113 (Knowles).) Knowles had invalidated

a vehicle search after the driver had been ticketed for speeding,

a search conducted under what the court termed a putative

“ ‘search incident to citation’ ” exception to the Fourth

Amendment’s warrant requirement. (Knowles, at p. 115.)

Knowles dismissed the state’s argument that “a ‘search incident

to citation’ is justified because a suspect who is subject to a

routine traffic stop may attempt to hide or destroy evidence

related to his identity (e.g., a driver’s license or vehicle

registration).” (Id. at p. 118.) “[I]f a police officer is not satisfied

with the identification furnished by the driver,” the court

responded, “this may be a basis for arresting him rather than

merely issuing a citation.” (Ibid.)

Arturo D. acknowledged the high court’s guidance on this

point but distinguished Knowles on the ground that the case

concerned a full search of the entire vehicle “following the

issuance of a traffic citation,” not a search for documentation

“prior to issuing a traffic citation,” limited to the areas in which

actually embraced, directly quoted in the text above, is

considerably broader. It extends beyond places a driver might

hide identification at the last second; it also includes other

places where a driver, not trying to conceal identification, might

“store” his or her identification as a matter of routine or habit.

(Arturo D., supra, 27 Cal.4th at p. 87.) Thus, containers in

which identification might be expected to be kept are subject to

search even if they could not have been accessed in the moments

when the driver was being pulled over.

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Opinion of the Court by Kruger, J.

such documentation might reasonably be found. (Arturo D.,

supra, 27 Cal.4th at p. 76, fn. omitted.) Because the high court

had never considered whether the Fourth Amendment permits

warrantless traffic-stop searches for documentation, as opposed

to contraband (Arturo D., at p. 79), Arturo D. rejected the

drivers’ arguments that Knowles foreclosed the recognition of

such an exception to the warrant requirement.

Arturo D. found reassurance in a second high court

decision, Class, supra, 475 U.S. 106, in which the court had

upheld a traffic-stop search for a Vehicle Identification Number

(VIN) that had been covered by papers on the car’s dashboard.

(Arturo D., supra, 27 Cal.4th at pp. 71–74; see Class, at pp. 116–

119.) Class had emphasized law enforcement’s important

interest in tracking stolen vehicles and promoting highway

safety, drivers’ decreased expectation of privacy when driving

automobiles on public roads, and the relatively limited nature of

the VIN search. (Class, at pp. 111–114, 118–119; see Arturo D.,

at p. 72.) Arturo D. concluded that this reasoning and approach

was “not inconsistent” with approving a limited warrantless

search for registration documents or driver identification.

(Arturo D., at p. 73.)

Three justices dissented from Arturo D.’s traffic-stop

identification-search holding. Although Justice Werdegar

agreed with Arturo D.’s holding as to registration searches, she

argued that the logic of the identification-search exception

would take officers not only into glove compartments and visors,

but also into drivers’ pockets and purses. She saw no adequate

justification for granting law enforcement such authority

whenever a driver who has committed a traffic infraction fails

to produce a license upon request. (Arturo D., supra, 27 Cal.4th

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Opinion of the Court by Kruger, J.

at pp. 89–91 (conc. & dis. opn. of Werdegar, J.).) Justice

Kennard, joined by Justice Brown, opined that granting officers

such authority was inconsistent with Knowles, supra, 525 U.S.

113. And despite the majority’s assurance that the

identification-search authority was “limited”—and thus unlike

the “full-scale” search invalidated in Knowles (Arturo D., at

p. 75)—Justice Kennard opined that the exception “may well

result in limitless searches throughout a vehicle whenever a

driver cannot produce the requisite documentation.” (Arturo D.,

at p. 91 (dis. opn. of Kennard, J.).)

B.

In this case, police searched a driver’s purse after

detaining her for a traffic violation. This is not a scenario

squarely addressed in Arturo D. Although Justice Werdegar’s

partial dissent had argued that this is where the logic of the

identification-search rule would lead, the majority opinion

neither responded to the point nor otherwise directly addressed

the application of its rule to these circumstances.

Nevertheless, although Lopez briefly argues otherwise,

there is no real question that the search in this case was

conducted in accordance with Arturo D.’s general guidance.

Officer Moe approached Lopez as she got out of her car and

asked whether she had a driver’s license. Lopez concedes that

by answering no, she admitted that she had committed, at a

minimum, the traffic infraction of driving a car without physical

possession of a license. (Veh. Code, § 12951, subd. (a).) That

admission gave Officer Moe the authority to detain her for a

reasonable period to determine whether to issue a traffic

citation and to conduct the “ ‘ordinary inquiries incident to [the

traffic] stop,’ ” which generally include verifying the driver’s

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identity. (Rodriguez v. U.S. (2015) 575 U.S. ___, ___ [135 S.Ct.

1609, 1615]; see U.S. v. Sharpe (1985) 470 U.S. 675, 683–686; cf.

People v. McGaughran (1979) 25 Cal.3d 577, 585–587.)4 And

under Arturo D., Lopez’s inability to produce a driver’s license

also gave Officer Moe the authority to search her vehicle for the

license or other forms of personal identification.5

4

The temporary detention may sometimes also include a

“determin[ation] whether there are outstanding warrants

against the driver” (Rodriguez v. U.S., supra, 135 S.Ct. at

p. 1615) and a criminal history check (U.S. v. Purcell (11th Cir.

2001) 236 F.3d 1274, 1278), which is done by consulting an in-

car computer terminal or radioing dispatch (see, e.g., People v.

McGaughran, supra, 25 Cal.3d at pp. 584–585, fn. 6; 4 LaFave,

Search and Seizure (5th ed. 2012) § 9.3(c), pp. 511–513).

5

Lopez argues in passing that Arturo D. does not apply

because the incident was a consensual encounter. This is a

strange way to describe an interaction that ended with Lopez in

handcuffs. True, the encounter did begin consensually, as the

trial court found. But once Lopez indicated she had no license,

the officer had grounds to detain Lopez and determine whether

she indeed had been driving without a valid license. At that

point, Arturo D. authorized a warrantless search for

identification if Lopez could not produce any.

Lopez also takes a contradictory tack, urging she was

already under arrest when the search was conducted and so only

a search for weapons or evidence of the crime of arrest would

have been permissible. (See Gant, supra, 556 U.S. at pp. 342–

344.) The record does not support this contention either. At the

time of the search, Lopez had been temporarily detained to

enable Officer Moe to investigate and process her traffic

violation. The handcuffing did not transform the detention into

an arrest. (People v. Celis (2004) 33 Cal.4th 667, 675 [“stopping

a suspect at gunpoint, handcuffing him, and making him sit on

the ground for a short period, as occurred here, do not convert a

detention into an arrest”]; see ibid. [citing additional cases].)

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The search in this case does, as mentioned, differ from the

searches at issue in Arturo D. in that it focused on the driver’s

purse. But that the purse was within the scope of the officer’s

search authority under Arturo D. is beyond reasonable dispute;

a purse is, after all, “[t]he most ‘traditional repository’ of a

driver’s license” for a certain class of drivers. (Arturo D., supra,

27 Cal.4th at p. 90 (conc. & dis. opn. of Werdegar, J.).) Lopez

argues the search nonetheless violated Arturo D. because

officers proceeded directly to searching her vehicle for

identification instead of first asking her who she was, allowing

her to retrieve identification herself, or arresting her. Arturo D.,

however, does not require officers to do any of these things. The

rule adopted and applied in that case does not require officers to

ask for oral identification before searching for physical

documentation; to the contrary, Arturo D. upheld identification

searches conducted even after each driver gave an officer

truthful identifying information, including, in one case, his

name, address, and date of birth. (Id. at pp. 65–66, 83–84.) Nor

does Arturo D. require officers to allow persons detained outside

the vehicle to reach into the vehicle to retrieve identification

themselves—even where, as here, officers did not testify to

particularized safety concerns. (Id. at pp. 84–85.) Finally,

Arturo D. pointedly held it was not unreasonable for law

enforcement to search the vehicle for personal identification

instead of either asking for the driver’s consent to search or

arresting the driver if unsatisfied with the driver’s

identification, as the high court had suggested in Knowles.

(Arturo D., at pp. 76–77, fn. 17; see Knowles, supra, 525 U.S. at

p. 118.)

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Opinion of the Court by Kruger, J.

As the Court of Appeal correctly surmised, the central

issue in this case is not whether the search of Lopez’s car was

consistent with the guidance given in Arturo D. The issue,

rather, is whether to continue to adhere to the rule of Arturo D.,

notwithstanding subsequent legal developments casting doubt

on the validity of a categorical rule authorizing warrantless

vehicle searches whenever a driver stopped for a traffic

infraction fails to produce a license or other satisfactory

identification documents upon request.

III.

A.

Lopez’s primary argument concerns the effect of the

United States Supreme Court’s 2009 decision in Gant, supra,

556 U.S. 332, on which the trial court relied in invalidating the

search of Lopez’s car. The Court of Appeal correctly held that

Gant is not directly applicable here because it concerned a

different exception to the Fourth Amendment’s warrant

requirement. But Lopez contends that the reasoning of Gant

nonetheless undermines the validity of the Arturo D.

identification-search exception.

The question in Gant concerned the scope of the exception

governing vehicle searches incident to the arrest of the driver or

another recent occupant. In Chimel v. California (1969) 395

U.S. 752, 762–763, the court had held that law enforcement may

conduct a warrantless search incident to a person’s arrest for

certain safety or evidentiary reasons: specifically, to disarm the

person or to prevent the person from destroying evidence. Some

years later, in New York v. Belton (1981) 453 U.S. 454, the high

court applied Chimel in the context of a vehicle stop. After

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pulling a driver over for speeding, an officer discerned evidence

of marijuana use in the vehicle. The officer ordered the

occupants out of the car and arrested them for drug offenses,

then searched the vehicle. The high court upheld the search

under Chimel, holding that when an officer lawfully arrests a

person who has recently occupied a car, the officer may “search

the passenger compartment of that automobile” and any interior

containers as areas “ ‘into which an arrestee might reach in

order to grab a weapon or evidentiary ite[m].’ ” (Belton, at

p. 460, quoting Chimel, at p. 763.)

Belton was “[f]or years . . . widely understood to have set

down a simple, bright-line rule” permitting vehicle “searches

incident to arrests of recent occupants, regardless of whether

the arrestee in any particular case was within reaching distance

of the vehicle at the time of the search.” (Davis v. United States

(2011) 564 U.S. 229, 233.) This trend was exemplified by the

facts of Thornton v. United States (2004) 541 U.S. 615

(Thornton), a case decided not long after our decision in Arturo

D. In Thornton, the court upheld a Belton search for weapons

or evidence even though the driver had exited the vehicle before

the police encounter and was handcuffed and in the back of a

patrol car at the time of the search. (Thornton, at pp. 617–618.)

Rejecting a proposed rule that would limit Belton searches

depending on whether police initiated contact with the suspect

while he was still in the car or after, the majority opined that

the “need for a clear rule, readily understood by police officers

. . . justifies the sort of generalization which Belton enunciated.”

(Thornton, at p. 623.) But a number of justices—collectively

representing a majority of the court—expressed dissatisfaction

with the broad scope of the Belton rule and how it had been

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applied in the lower courts. (See Thornton, at p. 624 (conc. opn.

of O’Connor, J.); id. at pp. 625–632 (conc. opn. of Scalia, J.,

joined by Ginsburg, J.); id. at pp. 633–636 (dis. opn. of Stevens,

J., joined by Souter, J.).)

The court revisited the issue in Gant and this time reached

a different conclusion. The defendant in that case had been

arrested for driving with a suspended license. While he was

handcuffed in the back of a locked patrol car, police officers

searched his vehicle and found drugs. The United States

Supreme Court invalidated the search. The court held that a

Belton search for weapons or destructible evidence is permitted

only when an arrestee is actually capable of reaching the area

to be searched. (Gant, supra, 556 U.S. at p. 343 & fn. 4.)

Drawing on Justice Scalia’s Thornton concurrence, the court

also allowed searches for evidence “ ‘relevant to the crime of

arrest’ ”—a justification rooted in historical practice. (Gant, at

p. 343, quoting Thornton, supra, 541 U.S. at p. 632 (conc. opn. of

Scalia, J.).) But in Gant, as in most cases involving arrests for

traffic violations, there was no chance of finding relevant

evidence inside the car. (Gant, at p. 344; see Knowles, supra,

525 U.S. at p. 118.)

The high court rejected the state’s argument that a

broader, more categorical rule authorizing vehicle searches

incident to arrest “correctly balances law enforcement interests,

including the interest in a bright-line rule, with an arrestee’s

limited privacy interest in his vehicle.” (Gant, supra, 556 U.S.

at p. 344.) On one side of the balance, the court noted, the

argument “seriously undervalues the privacy interests at

stake[:] Although we have recognized that a motorist’s privacy

interest in his vehicle is less substantial than in his home, see

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. . . Class, [supra,] 475 U.S. [at pp.] 112–113 . . . , the former

interest is nevertheless important and deserving of

constitutional protection, see Knowles, [supra,] 525 U.S.[] at

p. 117. It is particularly significant that Belton searches

authorize police officers to search not just the passenger

compartment but every purse, briefcase, or other container

within that space. A rule that gives police the power to conduct

such a search whenever an individual is caught committing a

traffic offense, when there is no basis for believing evidence of

the offense might be found in the vehicle, creates a serious and

recurring threat to the privacy of countless individuals. Indeed,

the character of that threat implicates the central concern

underlying the Fourth Amendment—the concern about giving

police officers unbridled discretion to rummage at will among a

person’s private effects.” (Gant, at pp. 344–345, fn. omitted.)

Turning to the law enforcement interests on the other side

of the balance, the court found little to commend a rule that

permits Belton searches regardless of the suspect’s ability to

access the vehicle at the time of the search or the likelihood of

finding offense-related evidence inside. “Construing Belton

broadly to allow vehicle searches incident to any arrest would

serve no purpose except to provide a police entitlement, and it is

anathema to the Fourth Amendment to permit a warrantless

search on that basis.” (Gant, supra, 556 U.S. at p. 347.)

B.

In cutting back the prevailing understanding of

permissible vehicle searches incident to arrest, Gant neither

considered nor disapproved Arturo D.’s rule authorizing

prearrest searches for driver identification. That is hardly

surprising: as Arturo D. itself acknowledged, the high court has

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never approved a prearrest search for identification, either.

(Arturo D., supra, 27 Cal.4th at p. 79; see id. at p. 73.) Nor is

that the end of our inquiry today.

It is important to remember that the question before us is

a question of federal constitutional law, not one of state law. In

matters of federal law, the United States Supreme Court has the

final word; we operate as an intermediate court and not as a

court of last resort. In such matters, although we recognize the

importance of following precedent in our judicial system, we also

recognize that our role in that system sometimes requires us to

reevaluate our precedent in light of new guidance. “When

emergent [United States] Supreme Court case law calls into

question a prior opinion of another court, that court should

pause to consider its likely significance before giving effect to an

earlier decision.” (Carpenters Local Union No. 26 v. U.S.

Fidelity & Guar. Co. (1st Cir. 2000) 215 F.3d 136, 141.) This is

so even when the high court’s decision does not directly address

the continuing validity of the rule in question; the high court’s

guidance may nonetheless erode the analytical foundations of

the old rule or make clear that the rule is substantially out of

step with the broader body of relevant federal law. (See, e.g.,

People v. Anderson (1987) 43 Cal.3d 1104, 1138–1141; id. at

p. 1141 [“it is our duty to reconsider” precedent when

subsequent United States Supreme Court decisions cast doubt

on our reading of that court’s earlier decisions]; see also, e.g.,

People v. Gallardo (2017) 4 Cal.5th 120, 134–135 [reconsidering

precedent in light of reasoning of subsequent high court

decisions].) Of necessity, then, we retain “the flexibility to

consider emerging United States Supreme Court case law when

considering earlier decisions on federal issues . . . even when the

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newer cases have not directly overruled or superseded [our]

prior cases.” (W.G. Clark Const. Co. v. Pacific Northwest

Regional Council of Carpenters (2014) 180 Wn.2d 54, 66.)

Arturo D. itself had taken its cues from high court

precedent concerning other types of vehicle searches, taking

care to ensure the exception was “not inconsistent” with the

reasoning and general approach of these cases. (Arturo D.,

supra, 27 Cal.4th at p. 73.) In fashioning a new identification-

search exception to the warrant requirement, Arturo D.

concluded, in light of then-available guidance, that the state’s

interests in conducting such a search outweighed the degree of

privacy intrusion. (See, e.g., Delaware v. Prouse, supra, 440 U.S.

at p. 654.) The reasoning of Gant offers additional, highly

relevant guidance not available at the time of Arturo D. Gant

speaks clearly to the stakes on each side, and its reasoning calls

for a reappraisal of the proper balance of interests to ensure

consistency with the larger body of Fourth Amendment law.

On the privacy side of the scales, Gant cautions against

“undervalu[ing] the privacy interests at stake” in the context of

vehicle searches. (Gant, supra, 556 U.S. at pp. 344–345.) The

opinion in Arturo D. contained no discussion of the magnitude

of the intrusion associated with a search for a driver’s license or

other proof of identity. Arturo D. found reassurance in the high

court’s reasoning in Class, which held that an officer did not act

unreasonably in shifting papers on a dashboard to read the car’s

VIN, without ever acknowledging the very different privacy

implications of permitting officers to look through drivers’

wallets and purses for their personal identification. (See

Arturo D., supra, 27 Cal.4th at pp. 71–74, discussing Class,

supra, 475 U.S. 106.) Arturo D.’s discussion of privacy instead

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was limited to citing high court authority for the proposition

that drivers “have a reduced expectation of privacy while driving

a vehicle on public thoroughfares.” (Arturo D., at p. 68, citing

Class, at pp. 112–113.)

Gant reaffirms this proposition, but clarifies that while a

“motorist’s privacy interest in his vehicle is less substantial than

in his home [citation], the former interest is nevertheless

important and deserving of constitutional protection.” (Gant,

supra, 556 U.S. at p. 345.) It then goes on to explain that a rule

that permits police officers to search vehicles (and the purses

and other containers therein) “whenever an individual is caught

committing a traffic offense” is not only a “serious and recurring

threat to . . . privacy,” but a threat that “implicates the central

concern underlying the Fourth Amendment—the concern about

giving police officers unbridled discretion to rummage at will

among a person’s private effects.” (Gant, at p. 345, fn. omitted.)

Although Gant addresses a different exception to the

warrant requirement, its relevance here is hard to miss. The

identification-search exception, after all, is also a rule that

permits officers to search vehicles, including—especially

including—purses, briefcases, and other personal effects

contained therein. It applies “whenever an individual is caught

committing a traffic offense” (Gant, supra, 556 U.S. at p. 345)—

even one that will simply result in a traffic ticket, and not an

arrest as in Gant—and is unable to produce identification upon

request. Where Arturo D. had contained no explicit

acknowledgment of this incursion on privacy, Gant makes clear

that this qualifies as a “serious” privacy threat that goes to the

very core of the Fourth Amendment’s protections. (Gant, at

p. 345.) Indeed, the intrusion on privacy in the Arturo D. setting

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is arguably greater than the intrusion in Gant: While the

privacy interests of an arrestee are necessarily diminished to

some extent by the very fact of having been arrested (see, e.g.,

Riley v. California, supra, 573 U.S. at pp. 391–392), Arturo D.

applies to individuals who are merely detained for having

committed a traffic violation. Such individuals have at least an

equal, if not greater interest in officers not “rummag[ing] at will”

through their belongings. (Gant, at p. 345.)

The dissent suggests drivers’ privacy concerns are

overblown because Arturo D. outlined a series of limits to the

identification-search power. Among other things, Arturo D.

cautioned that the power is not to be used as a pretext to search

for contraband and that the searches must be targeted to focus

on the areas in which identification is likely to be found. (Dis.

opn. post, at pp. 9–10.) As the dissent notes, these limitations

were important to Arturo D.’s identification-search holding—

indeed, they were arguably crucial, given the high court’s

disapproval of vehicle searches “ ‘incident to [traffic] citation’ ”

in Knowles, supra, 525 U.S. at page 118. But experience in the

years since Arturo D. was decided has lent credence to Justice

Kennard’s fear that its “new rule [might] well result in limitless

searches throughout a vehicle” that are indistinguishable in

effect from the kind of search disapproved in Knowles. (Arturo

D., supra, 27 Cal.4th at p. 91 (dis. opn. of Kennard, J.).) Arturo

D. has been used as authority to uphold searches into purses,

bags, center consoles, and glove compartments, under both

driver and passenger seats, into backpacks in the bed of a truck,

and up the sleeves of a jacket lying in the well behind the front

seats of an SUV.

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None of this is surprising. As much as Arturo D.

attempted to cordon off the authority it granted from the full-

scale vehicle searches disapproved in Knowles, the inevitable

consequence of a categorical rule authorizing officers to look for

identification in places where they might reasonably believe the

identification is located, or where it might have been hidden, is

that officers will look throughout the area “into which [the

driver] might reach,” much as they would if they were

conducting a vehicle search incident to arrest. (Chimel v.

California, supra, 395 U.S. at p. 763.) Officers will naturally

focus in particular on purses, wallets, briefcases, and other

similar personal effects where identification is typically carried

but the intrusion into privacy is also at its apex. And given an

officer’s authority to seize any “ ‘evidence in plain view from a

position where the officer has a right to be’ ” (Arturo D., supra,

27 Cal.4th at p. 70), in practice the scope of the authority

granted under Arturo D. has proved perilously close to the “full-

scale search for contraband” we acknowledged was expressly

prohibited by Knowles, supra, 525 U.S. 113 (Arturo D., at p. 86).

The privacy interests at stake in such a regime are weighty—

certainly weightier than Arturo D. had recognized.

Although Gant speaks most clearly to the privacy side of

the balance, it also offers by example important guidance about

how to weigh the law enforcement interests on the other side of

the scale. The justification for the search incident to arrest

exception, Gant emphasized, is ultimately only to permit law

enforcement to respond to particular safety or evidentiary

concerns that may arise during the course of the arrest of a

driver or recent occupant of a vehicle. (Gant, supra, 556 U.S. at

pp. 335, 347.) To ensure the scope of the exception did not

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become “untether[ed]” from its justifications, Gant insisted that

the exception be limited to the subset of arrests in which

genuine safety or evidentiary concerns are present—that is,

cases in which officers reasonably believed the arrestee could

have accessed a weapon or destructible evidence in the car at

the time of the search, or that evidence of the offense for which

the person was arrested might be found in the car. (Id. at

p. 343.) In other words, courts must pay close attention to the

presence or absence of the circumstances that justify breaching

a person’s privacy by searching a vehicle and the personal effects

contained therein. (See also Riley v. California, supra, 573 U.S.

at pp. 401–403 [confining any exception for warrantless

cellphone searches to exigent circumstances or a like case-

specific showing of police necessity].)

The justification for Arturo D.’s identification-search

exception was the need to ensure that a law enforcement officer

has the information necessary to issue a citation and notice to

appear for a traffic infraction—despite drivers’ incentives to

conceal that information, and notwithstanding safety concerns

that might arise if officers were compelled to allow drivers to

retrieve the relevant documents themselves. (Arturo D., supra,

27 Cal.4th at pp. 67, 70, fn. 6, 79.) To give effect to these

important interests, Arturo D. considered a limited warrantless

search to be more reasonable than the alternative of subjecting

the driver to full custodial arrest, which would impose

substantially greater burdens on drivers and law enforcement

alike. (Id. at p. 76, fn. 17.)

But Arturo D.’s discussion of the issue was not exhaustive.

Indeed, experience and common sense suggest a range of options

that are both less intrusive than a warrantless search and less

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burdensome than a full custodial arrest. Closer attention to the

presence or absence of circumstances justifying the invasion of

privacy alters the appraisal of the law enforcement interests at

stake: To the extent there are adequate alternative avenues for

obtaining the information needed by law enforcement, the

interest in searching a vehicle without a warrant necessarily

carries less weight.

The first alternative is straightforward: an officer can ask

questions. If a driver professes not to have a driver’s license or

other identification, the officer can ask for identifying

information such as the driver’s full name and its spelling,

address, and date of birth. The answers need not be accepted at

face value. Rather, they may be checked against Department of

Motor Vehicles (DMV) records—just as driver’s licenses

themselves are routinely checked against such records to verify

the driver’s identity and the validity of the license. (See Gov.

Code, §§ 15150–15167 [providing for statewide law enforcement

telecommunications system]; Veh. Code, § 1810.5 [authorizing

law enforcement telephone access to DMV records]; see also,

e.g., People v. Boissard (1992) 5 Cal.App.4th 972, 978–979

[records check of individual who failed to produce identification

at officer’s request]; see generally 4 LaFave, Search and Seizure,

supra, § 9.3(c), pp. 508–511 [noting that such records checks,

which are typically conducted by computer or radio, are both

routine and critical to the operation of any system of citation].)

Similarly, the detainee’s size and physical appearance, such as

height, weight, eye color, and hair color, may be subject to

verification against such records. (See People v. Hunt (1990) 225

Cal.App.3d 498, 503.) Officers may also check the name and

address against the DMV’s registration record for the vehicle

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and explore any discrepancies.6 Officers have discretion to

accept such oral evidence of identity for purposes of issuing a

citation if they determine the information to be sufficiently

reliable. (People v. McKay (2002) 27 Cal.4th 601, 622 (McKay);

Arturo D., supra, 27 Cal.4th at p. 68, fn. 4.) If, instead, officers

have reason to believe they have been lied to, they have other

options at their disposal, as discussed below.7

6

It perhaps states the obvious to observe that

telecommunications technology has advanced significantly since

2002, when Arturo D. was decided, and will continue to evolve

in ways that make remote verification of a detainee’s

information and identity easier for law enforcement.

7

In addition, an officer can ask for and examine written

forms of identification other than a driver’s license, such as a

student identification or health insurance card. As we

acknowledged in Arturo D., the Vehicle Code “permits an officer

who plans to issue a Vehicle Code citation to accept ‘other

satisfactory evidence of [the driver’s] identity.’ ” (Arturo D.,

supra, 27 Cal.4th at p. 68, fn. 4, quoting Veh. Code, § 40302,

subd. (a); cf., e.g., U.S. v. Zubia-Melendez (10th Cir. 2001) 263

F.3d 1155, 1161; U.S. v. Reyes-Vencomo (D.N.M. 2012) 866

F.Supp.2d 1304, 1338.)

And as case law demonstrates, in some circumstances, an

officer may be personally acquainted with the driver or may be

able to obtain adequate identifying information from others who

are. (McKay, supra, 27 Cal.4th at p. 622; see, e.g., U.S. v. Davis

(11th Cir. 2010) 598 F.3d 1259, 1261 [after detainee gave false

name, bystanders supplied true name, which officer was then

able to verify].)

In the absence of other satisfactory identification, an

officer “may require the arrestee to place a right thumbprint” on

a notice to appear. (Veh. Code, § 40500, subd. (a); accord,

§§ 40303, subd. (a), 40504, subd. (a).)

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The officer may also seek the driver’s consent to search the

vehicle for identification. (See Schneckloth v. Bustamonte (1973)

412 U.S. 218, 219 [“a search that is conducted pursuant to

consent” is a well-established exception to the warrant and

probable cause requirements].) The driver can then decide

whether to permit the officer to retrieve the identification, and

if so, whether to limit the places within the vehicle where the

officer may look for it.

The Attorney General, echoing a suggestion in Arturo D.,

dismisses the value of consent in this context; he suggests that

any consented-to search might later be challenged as the

product of coercion. (See Arturo D., supra, 27 Cal.4th at p. 76,

fn. 17.) Perhaps so, but we are unwilling to assume that every

such challenge would necessarily have merit. “Police officers act

in full accord with the law when they ask citizens for consent.

It reinforces the rule of law for the citizen to advise the police of

his or her wishes and for the police to act in reliance on that

understanding. When this exchange takes place, it dispels

inferences of coercion.” (United States v. Drayton (2002) 536

U.S. 194, 207.) If an officer asks for permission to enter a car to

retrieve the driver’s identification, we see no categorical reason

why a driver may not validly consent to a full or limited search

of the vehicle for that purpose, just as drivers regularly consent

to other types of vehicle searches. (See, e.g., Florida v. Jimeno

(1991) 500 U.S. 248, 249–250 [detained driver validly consented

to search of his vehicle for narcotics]; People v. Grant (1990) 217

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Cal.App.3d 1451, 1456–1462 [search of vehicle for identification

valid based on consent].)8

Other established exceptions to the warrant requirement

may also permit a vehicle search. For example, exigent

circumstances may be shown based on the particular situation

an officer faces. (U.S. v. Haley (8th Cir. 1978) 581 F.2d 723, 725–

726; see Riley v. California, supra, 573 U.S. at p. 402 [“Such

exigencies could include the need to prevent the imminent

destruction of evidence in individual cases, to pursue a fleeing

suspect, and to assist persons who are seriously injured or are

threatened with imminent injury . . . [¶] . . . The critical point is

that . . . the exigent circumstances exception requires a court to

examine whether an emergency justified a warrantless search

in each particular case”].)

In circumstances where an officer believes he or she has

been given false identification information, other exceptions

may come into play. At that point, the officer is no longer solely

concerned with issuing an enforceable traffic citation; lying to a

police officer about one’s identity is a criminal offense

punishable by imprisonment in county jail. (Pen. Code, § 148.9;

Veh. Code, §§ 31, 40000.5.) Under the automobile exception to

the warrant requirement, an officer may search a vehicle if the

8

At oral argument, the Attorney General noted that the

Supreme Court has placed limits on the extent to which a

motorist may be implied to have consented to a search by virtue

of choosing to drive on public roads. (See Birchfield v. North

Dakota (2016) 579 U.S. ___, ___–___ [136 S.Ct. 2160, 2185–

2186].) We do not suggest consent could be implied here, only

that express consent could be sought, and no reason appears as

to why, if granted, it would be presumptively invalid.

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officer has probable cause to believe that evidence of a crime will

be found inside. (E.g., United States v. Ross (1982) 456 U.S. 798,

799.) Ordinarily, a driver’s license or other identification will

supply no evidence of a traffic violation. (See State v. Scheer

(1989) 99 Or.App. 80, 83 [781 P.2d 859, 860].) But identification

may well supply evidence of the crime of lying about one’s

identity (see, e.g., State v. Fesler (1984) 68 Or.App. 609, 613 [685

P.2d 1014, 1017]), and an officer may search a vehicle upon

probable cause to believe evidence of such lying will be found

therein (State v. Bauman (Minn.Ct.App. 1998) 586 N.W.2d 416,

422). Relatedly, some out-of-state courts have upheld vehicle

searches for identification under the search incident to arrest

exception, which authorizes searching an arrestee’s vehicle for

evidence relevant to his or her crime when an officer has reason

“ ‘to believe evidence relevant to the crime of arrest might be

found in the vehicle.’ ” (Gant, supra, 556 U.S. at p. 343; see

Deemer v. State (Alaska Ct.App. 2010) 244 P.3d 69, 75 [search

incident to arrest for lying to officer]; State v. Gordon (1991) 110

Or.App. 242, 245–246 [821 P.2d 442, 443–444] [same]; Armstead

v. Com. (2010) 56 Va.App. 569, 577 [695 S.E.2d 561] [same].)9

The permissibility of such searches depends in the first

instance on the existence of probable cause to believe that a

particular driver is, in fact, lying about his or her identity. Thus,

for example, in Armstead, the court explained that the officer

9

The automobile exception and the “evidence relevant to

the crime of arrest” exception overlap to some degree, but the

former applies independent of any arrest. To the extent the

latter exception is contingent on an arrest, we express no view

whether any search may come before, or only after, the arrest.

(Cf. People v. Macabeo (2016) 1 Cal.5th 1206, 1216–1219.)

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had probable cause to believe the driver was lying about his

identity based on computer checks, notified the driver he was

under arrest, and therefore could search the vehicle for evidence

of the crime of providing false identity information. (Armstead

v. Com., supra, 695 S.E.2d at pp. 563–566 [upholding search

under Gant].) Arturo D., in contrast, had authorized a search

any time a detainee is unable to supply identification—without

any requirement that the officer have probable cause or even a

reasonable suspicion that the detainee has lied about his or her

identity.10

When an officer has obtained satisfactory evidence of a

detainee’s identity, he or she may cite and release the detainee.

(Pen. Code, § 853.5, subd. (a); Veh. Code, §§ 40303, 40500,

40504; People v. Superior Court (Simon) (1972) 7 Cal.3d 186,

199.)11 The officer also has discretion to release the suspect with

10

In so doing, Arturo D. authorized a new sort of

suspicionless search. The high court has long held that

“[e]xceptions to the requirement of individualized suspicion are

generally appropriate only where the privacy interests

implicated by a search are minimal and where ‘other safeguards’

are available ‘to assure that the individual’s reasonable

expectation of privacy is not “subject to the discretion of the

official in the field.” ’ ” (New Jersey v. T. L. O. (1985) 469 U.S.

325, 342, fn. 8, quoting Delaware v. Prouse, supra, 440 U.S. at

pp. 654–655.) After Gant, the privacy interests implicated by

identification searches cannot be dismissed as minimal. And

the Attorney General has identified no “safeguards” that would

limit an officer’s discretion to conduct such a search to facilitate

writing a traffic citation.

11

Citation and release is employed in a wide range of

nonvehicle circumstances, from jaywalking to fare evasion to

cyclist moving violations, yet no one argues that failure to

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Opinion of the Court by Kruger, J.

a warning against committing future violations. (Pen. Code,

§ 849, subd. (b)(1); People v. McGaughran, supra, 25 Cal.3d at

p. 584.) And finally, if no other path seems prudent or

permissible, the officer can arrest the detainee and take him or

her to be booked into jail for the traffic violation. (Veh. Code,

§ 40302; Atwater v. Lago Vista (2001) 532 U.S. 318, 323;

Knowles, supra, 525 U.S. at p. 118; McKay, supra, 27 Cal.4th at

pp. 620–625.) In the end, arrest is one option—but it is certainly

not the only alternative to a warrantless search.12

produce identification upon request, without more, justifies a

warrantless search through pockets or purses. The idea that,

without authority for a warrantless identification search unique

to this context, officers will be forced to issue unenforceable

citations and “traffic laws can be flouted with impunity” (dis.

opn. post, at p. 14), is a fiction; an arrestee is eligible for citation

and release only when the arrestee is “able to convince the

officer—either by exhibiting his driver’s license or by ‘other

satisfactory evidence’—that the name he is signing on the

written promise to appear corresponds to his true identity”

(People v. Superior Court (Simon), supra, 7 Cal.3d at p. 201; see

Veh. Code, § 40302, subd. (a)).

12

The dissent suggests that because custodial arrest is a

possible outcome of such an encounter, authorizing officers to

perform a warrantless, suspicionless, nonconsensual search of

the driver’s belongings actually “serves to protect [the] privacy

interests” the Fourth Amendment was intended to safeguard.

(Dis. opn. post, at p. 13.) This is a curious notion. In the absence

of a categorical traffic-stop identification-search exception, both

driver and officer would have precisely the same range of options

for locating and producing identification; the only difference is

that it would be up to the driver, not the officer, to decide

whether to allow in whole or in part a search of the vehicle to

supply the necessary identification. Stripping the driver of that

choice cannot seriously be described as the option that better

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The Fourth Amendment does not, of course, require law

enforcement to employ the least intrusive means of achieving its

objectives. (Board of Ed. of Independent School Dist. No. 92 of

Pottawatomie Cty. v. Earls (2002) 536 U.S. 822, 837.) But the

Fourth Amendment does require law enforcement to act

reasonably. If, as Gant instructs, a substantial intrusion on

personal privacy must be adequately justified by genuine need,

the availability of so many alternative means for achieving law

enforcement ends tends to undermine the notion that the

intrusion is reasonable. (See Birchfield v. North Dakota, supra,

579 U.S. at pp. ___–___ [136 S.Ct. at pp. 2184–2185]

[warrantless blood test of person suspected of driving while

intoxicated violates 4th Amend. because equally effective less

intrusive alternative exists]; Delaware v. Prouse, supra, 440

U.S. at p. 659 [striking down discretionary spot checks for

driver’s licenses and registration in light of “the alternative

mechanisms available, both those in use and those that might

be adopted” to satisfy the government’s public safety interests].)

The dissent insists that warrantless identification

searches are a necessary tool for coping with drivers who seek

to deceive officers concerning their identity but who have left

evidence of that deception in their vehicles. (Dis. opn. post, at

pp. 4–7.) (For those who have not, any search would of course

be futile.) This idea is belied by the great many cases in which

officers have successfully ferreted out this sort of deception

protects the constitutional right of the people to be secure in

their persons and effects.

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through the ordinary investigative techniques we have already

described.13 And, as we have already explained, officers who

have probable cause to believe a driver is lying about his or her

identity already have search options at their disposal in

appropriate circumstances. (Ante, at pp. 26–28.) But the

warrant exception we are asked to apply here is not limited to

cases of deception; it applies to honest drivers and dishonest

drivers alike. Indeed, it applies even when, as here, the driver

has not so much as been given the chance to identify herself

before having her vehicle, and the personal belongings

contained therein, opened for official examination.

The dissent worries that in the absence of a categorical

authorization to search, officers may not be able to achieve

13

A small but representative sample includes: People v.

Casarez (2012) 203 Cal.App.4th 1173, 1178 (identification based

on distinctive tattoos); Loveless v. State (2016) 337 Ga.App. 894,

895 [789 S.E.2d 244, 245] (database search revealed driver had

given false name; vehicle tag search revealed driver’s true

identity; license search on vehicle’s registered owner provided

driver’s photograph); State v. Cannady (Me. 2018) 190 A.3d

1019, 1021 (officer transported driver to jail for fingerprinting

after officer was unable to verify driver’s identity with name

supplied and driver “had difficulty providing an address, phone

number, and social security number”; driver confessed to true

identity en route to jail); People v. Vasquez (2001) 465 Mich. 83,

101–102 [631 N.W.2d 711, 722] (driver recognized by other

officers during booking); State v. Ford (Mo.Ct.App.) 445 S.W.3d

113, 117 (confession to true identity following record check and

further questioning); cf. U.S. v. Pena-Montes (10th Cir. 2009)

589 F.3d 1048, 1051 (database search revealed defendant had

given false name and other identifying information; defendant’s

true identity revealed through fingerprinting).

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absolute certainty about the identity of some subset of traffic

violators before issuing traffic tickets. (Dis. opn. post, at pp. 4–

9; see id. at p. 7 [driver may give sibling’s name], p. 8, fn. 5

[driver may conceal face with a tinted visor or niqab].) But the

same is true under the dissent’s own proposed rule.14 In the end,

the test for whether an exception should be recognized is not

whether, in its absence, there might be some cost in effective

enforcement of the traffic laws; it is, instead, whether the

tradeoff to lower that risk is worth the coin in diminished

privacy. The price of giving officers the “discretion to rummage

at will among a person’s private effects” whenever that person

has committed a traffic infraction is a high one. (Gant, supra,

556 U.S. at p. 345, fn. omitted.) It is not a price we should lightly

require California drivers to pay.

Here, Officer Moe had a tip that provided the driver’s

name, and he was able to locate the driver because she pulled

her car up in front of the address where dispatch informed him

the vehicle was registered. He could have employed any one of

several approaches to ascertain Lopez’s identity once she exited

the car. But Officer Moe never so much as asked Lopez her

name. Instead, after detaining Lopez for a suspected traffic

infraction, the officer proceeded directly to searching the purse

on the passenger’s seat. Under Gant, Officer Moe could not have

searched Lopez’s vehicle if he had arrested her for unlicensed

14

The dissent’s preferred rule would do nothing to assist in

the apprehension of the wrongdoer who manages to slip his or

her license into a crumpled fast-food bag (Arturo D., supra, 27

Cal.4th at p. 86)—or, for that matter, who simply left his or her

license at home.

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driving instead of simply detaining her.15 Searching Lopez’s

vehicle for her personal identification before she was arrested

was no less unreasonable.

C.

Although, as Lopez argues, Gant provides important

guidance calling the identification-search exception into

question, our consideration of the issue is not limited to that

case. Careful examination of the practices in other jurisdictions

reinforces our conclusion that the search at issue here was not

reasonable under the circumstances.

As noted, Arturo D.’s identification-search rule was an

outlier when the case was first decided: At the time Arturo D.

was handed down, neither the United States Supreme Court nor

any other state embraced—or, so far as our research reveals,

ever had embraced—a similar exception for traffic-stop

identification searches. It remains an outlier today. Indeed, 17

years after Arturo D. was decided, California still stands alone

in authorizing warrantless vehicle searches for identification.

15

The Attorney General argues in passing that the search

here would have been permissible under Gant because Officer

Moe had probable cause to arrest Lopez for driving without a

license. But no reason appears to think evidence of that crime

would be found in the car. (Gant, supra, 556 U.S. at p. 343 [“In

many cases, as when a recent occupant is arrested for a traffic

violation, there will be no reasonable basis to believe the vehicle

contains relevant evidence”].) A license is not something police

need to search for as evidence of driving without a license; at

most, it might provide a defense to the charge. (State v. Scheer,

supra, 781 P.2d at p. 860; see State v. Conn (2004) 278 Kan. 387,

392–394 [99 P.3d 1108, 1112–1113]; State v. Lark (App.Div.

1999) 319 N.J.Super. 618, 626–627 [726 A.2d 294, 298–299],

affd. (2000) 163 N.J. 294 [748 A.2d 1103].)

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Opinion of the Court by Kruger, J.

No federal or state court has seen fit to adopt the rule; some have

expressly rejected it. This, too, lends force to the argument for

reevaluating whether such searches are permitted by the

Fourth Amendment. (See Moradi-Shalal v. Fireman’s Fund Ins.

Companies (1988) 46 Cal.3d 287, 298 [reconsidering precedent

when the “the clear consensus of . . . out-of-state cases” suggests

it falls well outside the mainstream].)

Arturo D. did rely on a handful of federal appellate

decisions in support of its holding. (Arturo D., supra, 27 Cal.4th

at p. 76, fn. 16.) In particular, Arturo D. relied on a Ninth

Circuit case, United States v. Brown (9th Cir. 1972) 470 F.2d

1120, 1122, and cases that preceded or relied on Brown

(Kendrick v. Nelson (9th Cir. 1971) 448 F.2d 25, 27–28 and U.S.

v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080,

1088, fn. 47). But none of these cases involved license or

identification searches, and so none supports the identification-

search exception fashioned in Arturo D.16 Nor has the situation

changed since we decided Arturo D. A search of post-2002

federal cases reveals none that approve the license-search

exception we adopted in Arturo D. What little authority there

is supports the contrary rule. (See, e.g., Crock v. City/Town

(W.D.Pa., Dec. 3, 2010, Civ. A. No. 2:09-426) 2010 U.S.Dist.

16

Even as far as they go, these decisions have not been free

from controversy. Brown has been described by a leading

commentator as flatly “in error” when compared with the full

body of Fourth Amendment law. (5 LaFave, Search and Seizure

(5th ed. 2012) § 10.8(a), p. 401, fn. 33.) Rather, according to

LaFave, “[s]earch of the car should be permitted only when the

failure to produce the registration and the other relevant

circumstances establish probable cause that the car is stolen.”

(Ibid.)

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PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

Lexis 136442, *18–*25 [failure to provide valid, current

identification does not justify warrantless vehicle search];

United States v. Osborne (E.D.Tenn., May 25, 2007, No. 3:06-

CR-110) 2007 U.S.Dist. Lexis 38558, *12, *17 [after suspect

detained and handcuffed, unreasonable to search vehicle for

evidence of identity instead of asking suspect his name in order

to perform records check].)

A similar story emerges when examining the treatment of

warrantless vehicle searches in our sister states. It appears no

other state has seen fit to vest its police with the power to

conduct warrantless searches for licenses or identification. As

with federal cases, Arturo D. cited a handful of state court cases

from elsewhere in support of its holding, but all involved

searches for vehicle registration, not a license or identification.

(See Arturo D., supra, 27 Cal.4th at p. 76, fn. 16.) A search

through the reported decisions in other states has located none

that approve a warrantless traffic-stop vehicle search, without

consent or probable cause, for a driver’s license or identification.

Perhaps particularly instructive in this vein is the

experience of New Jersey—a state which, like California, has

recognized an exception for warrantless vehicle searches to

locate registration and proof of insurance documentation. (E.g.,

State v. Keaton (2015) 222 N.J. 438, 448–449 [119 A.3d 906]; see

State v. Bauder (2007) 181 Vt. 392, 407, fn. 8 [924 A.2d 38, 51,

fn. 8] [highlighting New Jersey and California as the two

principal jurisdictions permitting warrantless vehicle searches

for documents].) Indeed, New Jersey appears to be the first

state to have carved out such an exception. (See State v. Boykin

(1967) 50 N.J. 73, 77 [232 A.2d 141].) But, tellingly, New Jersey

has not permitted the warrantless search of a vehicle, in the

35

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Opinion of the Court by Kruger, J.

absence of consent or probable cause, solely to locate a driver’s

license or identification.

In State v. Lark, supra, 726 A.2d 294, a driver stopped for

driving without a front license plate asserted he had a license

but was unable to provide it, and a computer search of the name

he gave produced no matches. Even so, “the investigating police

officer violated defendant’s rights under the Fourth Amendment

of the United States Constitution [and the state Constitution]

when, following a motor vehicle stop for a minor traffic violation,

he opened the door of defendant’s vehicle to search for proof of

defendant’s identity without probable cause” to think

contraband was located therein or other criminal activity

ongoing. (Lark, at p. 296.) Although the intrusion was

“minimal,” no warrantless search for a license or proof of

identity was permitted. (Id. at p. 297.) No recognized exception

to the probable cause requirement supported the search, nor

was the passenger compartment accessible to the driver after he

had been removed and detained. The crime of driving without

a license was complete; a search for a license or identification

could not supply additional evidence of that crime. (Id. at

pp. 298–299.)

The New Jersey Supreme Court unanimously affirmed,

“substantially for the reasons expressed” in the intermediate

court’s opinion. (State v. Lark (2000) 163 N.J. 294, 296 [748 A.2d

1103, 1104].) The Supreme Court stressed the presence of

alternatives that rendered a warrantless search unnecessary

and thus unjustifiable: in response to a driver’s failure to

identify himself truthfully, an officer could detain the driver for

further questioning and ultimately make a custodial arrest.

(Ibid.) What the officer could not do, however, was search the

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Opinion of the Court by Kruger, J.

vehicle for identification absent some other existing exception to

the warrant requirement. (Ibid.; see State v. Carty (App.Div.

2000) 332 N.J.Super. 200, 204 [753 A.2d 149, 151] [a “driver’s

inability to produce credentials . . . , without more, does not

justify a search of the vehicle”].)

Last year, the New Jersey Supreme Court revisited its

driving credentials exception. (See State v. Terry (N.J. 2018) 179

A.3d 378.) And while a sharply divided court reaffirmed the

state’s exception for proof-of-ownership searches, the majority

distinguished State v. Lark, supra, 726 A.2d 294, as involving a

different (and insufficient) rationale for a warrantless search.

(Terry, at pp. 393–394; see id. at pp. 400–401 (dis. opn. of

Rabner, C. J.) [arguing for three justices that Lark’s logic ought

to foreclose a registration search as well].)17

Appellate courts in other states have agreed as well. (See,

e.g., Commonwealth v. Pacheco (2001) 51 Mass.App.Ct. 736,

740–743 [need to establish suspect’s identity does not justify

warrantless vehicle search]; id. at p. 742 [to accept as sufficient

the asserted “need for absolute certainty of the identification of

the person arrested would be to sanction a principle having no

apparent stopping place and could risk the possibility of a

general exploratory search for evidence of criminal activity”];

State v. Green (1991) 103 N.C.App. 38, 41–45 [404 S.E.2d 363]

[vehicle search for identification documents of driver stopped for

weaving violates 4th Amend.]; State v. Smith (1986) 82 Or.App.

17

Indeed, virtually the only point of agreement among all

the justices was that the Fourth Amendment does not permit a

warrantless vehicle search solely for identification.

37

PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

636, 639–640 [729 P.2d 10] [warrantless vehicle search for

identification unlawful].)

Casting the net slightly more broadly, we have identified

limited authority allowing a warrantless search of a person solely

for evidence of his or her identity. (State v. Flynn (1979) 92

Wis.2d 427, 441–448 [285 N.W.2d 710] [officer justified in

removing and examining wallet of suspect who refuses to identify

himself].) Other states, however, have not sanctioned similar

searches. (People v. Williams (1975) 63 Mich.App. 398, 400–404

[234 N.W.2d 541] [officer can request identification, but seizure

of wallet to examine suspect’s driver’s license violates 4th

Amend.]; State v. Varnado (Minn. 1998) 582 N.W.2d 886

[warrantless frisk of driver after she failed to produce a license

not within any exception to the warrant requirement]; State v.

Webber (1997) 141 N.H. 817, 820 [694 A.2d 970] [refusing to

create an “ ‘identification search’ exception” to the warrant

requirement under the state Constitution]; State v. Scheer, supra,

781 P.2d at p. 860 [search of driver who fails to present license in

order to find license unlawful]; Baldwin v. State (Tex.Crim.App.

2009) 278 S.W.3d 367, 372 [during investigative detention, officer

may ask for identification but may not “search a defendant’s

person to obtain or confirm his identity”]; Jones v. Com. (2010)

279 Va. 665, 672 [691 S.E.2d 801] [seizure of driver’s wallet to

examine for identification, even after the driver denies having

any, violates 4th Amend.]; 4 LaFave, Search and Seizure, supra,

§ 9.6(g), p. 944 [expressing “considerable doubt” about

Wisconsin’s rule and noting the absence of other authority

nationally that would support it]; see id. at pp. 943–945.) And the

case-specific rationales the Wisconsin Supreme Court offered for

approving such a search in Flynn—a burglary suspect stopped in

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PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

the wee hours who repeatedly refused to give his name and whom

the officer had no other means of identifying—have limited

relevance in the context of a garden-variety traffic stop.18

In sum, California remains in a distinct minority—indeed,

a minority of one—when it comes to approving a warrantless

vehicle search solely for personal identification. “Although

holdings from other states are not controlling, and we remain free

to steer a contrary course,” this is a case in which “the near

unanimity” of out-of-state authority “indicates we should

question the advisability of continued allegiance to our minority

approach.” (Moradi-Shalal v. Fireman’s Fund Ins. Companies,

supra, 46 Cal.3d at p. 298.) This is particularly true given the

nature of the issue before us. It is noteworthy that the vehicle

search for a driver’s license anywhere “such documentation

reasonably may be expected to be found” (Arturo D., supra, 27

Cal.4th at p. 65) is authority the police of this state did without

for quite some time after the invention of the automobile. But it

is especially telling that the police of all other states appear to do

without that authority to this day, despite facing much the same

need to identify traffic violators for purposes of issuing citations.

18

The Court of Appeal decision in People v. Loudermilk

(1987) 195 Cal.App.3d 996 also does not suggest general

authority to search for identification. The court approved an

officer examining a wallet found in a patdown for weapons, but

only because the suspect first “lied to the officer and himself

created the confusion as to his own identity” by falsely stating

he had no identification. (Id. at p. 1004.) The court

“emphasize[d] that we do not hold that a suspect may be

detained and searched merely because he either refused to

identify himself or refused to produce proof of identification.”

(Ibid.)

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PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

To reaffirm the exception now would leave California out of step

not only with United States Supreme Court precedent, but also

with every other jurisdiction in the nation.

IV.

Reconsidering the scope of Arturo D. is not a task we

undertake lightly. Adherence to precedent is always “ ‘the

preferred course because it promotes the evenhanded,

predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.’ ” (Johnson v.

Department of Justice (2015) 60 Cal.4th 871, 879, quoting Payne

v. Tennessee (1991) 501 U.S. 808, 827.) It is also “ ‘ “usually the

wise policy, because in most matters it is more important that the

applicable rule of law be settled than it be settled right.” ’ ”

(Johnson, at p. 879, quoting Payne, at p. 827.)

But after considering both further guidance from the United

States Supreme Court and the practices of every other state in

the nation, we conclude the time has come to correct a

misperception of the constraints of the Fourth Amendment in this

context. We recognize that law enforcement agencies have

crafted policies in reliance on Arturo D., and our decision today

will require them to adopt a different approach in scenarios like

the one presented here. But inasmuch as subsequent legal

developments have called the validity of the traffic-stop

identification-search exception into question, the change in

approach is warranted.

On this point, too, Gant is instructive. In reaching its

conclusion, Gant pointed to the “checkered history” of the law in

the area of searches incident to arrest—the multiple shifts in

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PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

direction the court’s doctrine had undergone over the last 80

years. (Gant, supra, 556 U.S. at p. 350.) Indeed, Gant itself

represented a substantial shift in the prevailing understanding of

the Belton rule, and the high court acknowledged the decision

would require substantial revisions to police practice. But Gant

held this was an insufficient reason to avoid reexamining a rule

that had proved, over time, to result in “routine constitutional

violations.” (Gant, at p. 351.) Here, too, it must be acknowledged

that the field of vehicle searches is one that has been the subject

of considerable retilling over the years. Given this history,

reliance interests have less force. And here, too, we conclude that

the reliance interests at stake cannot justify continuation of a

practice that results in recurring and unwarranted invasions of

individual privacy. (See id. at pp. 350–351.)19

For these reasons, we now hold the Fourth Amendment

does not contain an exception to the warrant requirement for

searches to locate a driver’s identification following a traffic

19

The dissent urges that “[s]tare decisis alone should cause

the court to” adhere to a precedent at odds with United States

Supreme Court guidance and that finds no support anywhere

else in the nation. (Dis. opn. post, at p. 1.) “But the policy [of

stare decisis] is just that—a policy—and it admits of exceptions

in rare and appropriate cases,” including in the face of a “ ‘tide

of critical or contrary authority from other jurisdictions.’ ”

(Samara v. Matar (2018) 5 Cal.5th 322, 336; see In re Jaime P.

(2006) 40 Cal.4th 128, 133 [“reexamination of precedent may

become necessary when subsequent developments indicate an

earlier decision was unsound, or has become ripe for

reconsideration”].) For reasons already explained, this is the

rare case in which we consider it not only appropriate, but

important, to correct an apparent misconception of the

constraints imposed by the Fourth Amendment in this context.

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PEOPLE v. LOPEZ

Opinion of the Court by Kruger, J.

stop. To the extent it created such an exception, In re Arturo D.,

supra, 27 Cal.4th 60, is overruled and should no longer be

followed.

V.

Although the warrantless search of Lopez’s vehicle

violated the Fourth Amendment, the Attorney General argues

the trial court should nevertheless have denied Lopez’s motion

to suppress the fruits of the search because the officer acted in

good faith based on the existing state of the law. (See, e.g.,

People v. Macabeo, supra, 1 Cal.5th at p. 1220.) Lopez, in turn,

contends that the People have forfeited any such argument.

Because the Court of Appeal did not have occasion to consider

the issue, we express no views on it.

The judgment of the Court of Appeal is reversed, and this

case is remanded for further proceedings not inconsistent with

this opinion.

KRUGER, J.

We Concur:

LIU, J.

CUÉLLAR, J.

GROBAN, J.

42

PEOPLE v. LOPEZ

S238627

Dissenting Opinion by Justice Chin

The majority today overrules our decision in In re

Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which applied the

Fourth Amendment of the federal Constitution to uphold a

limited vehicle search. The majority does so first by giving

Arturo D. an unnecessarily expansive reading that makes the

decision into an easy target and then by claiming that Arturo D.

is inconsistent with the high court’s intervening decision in

Arizona v. Gant (2009) 556 U.S. 332 (Gant). But Gant is a case

that addressed a different issue and that did not change the

applicable constitutional standard in any way. In brief, the

majority sets up a straw man and then knocks it down, relying

on a decision that is not on point.

Stare decisis alone should cause the court to reaffirm

Arturo D., supra, 27 Cal.4th 60. “It is, of course, a fundamental

jurisprudential policy that prior applicable precedent usually

must be followed even though the case, if considered anew,

might be decided differently by the current justices. This policy,

known as the doctrine of stare decisis, ‘is based on the

assumption that certainty, predictability and stability in the law

are the major objectives of the legal system; i.e., that parties

should be able to regulate their conduct and enter into

relationships with reasonable assurance of the governing rules

of law.’ ” (Moradi-Shalal v. Fireman’s Fund Ins. Companies

(1988) 46 Cal.3d 287, 296.) Thus, the failure of a court to adhere

to its precedents undermines the court’s credibility as a judicial

PEOPLE v. LOPEZ

Chin, J., dissenting

body. But even if we were writing on a blank slate, there are

sound reasons supporting our holding in Arturo D., reasons that

should lead us to adopt the same rule today.

Therefore, I dissent.1

I.

The Fourth Amendment provides: “The right of the people

to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” (U.S. Const.,

4th Amend.) The Amendment by its terms protects only against

“unreasonable searches and seizures” (italics added), and its

warrant requirement is therefore not absolute. (See Brigham

City v. Stuart (2006) 547 U.S. 398, 403.) Instead, application of

the prohibition against unreasonable searches requires a

balancing of individual and governmental interests: “[T]here

can be no ready test for determining reasonableness [under the

Fourth Amendment] other than by balancing the need to search

against the invasion which the search entails.” (Camara v.

Municipal Court (1967) 387 U.S. 523, 536–537; accord, Riley v.

California (2014) 573 U.S. 373, 385–386; Georgia v. Randolph

(2006) 547 U.S. 103, 114–115; New York v. Class (1986) 475 U.S.

106, 116; New Jersey v. T. L. O. (1985) 469 U.S. 325, 337;

1

I would reaffirm our core holding in Arturo D., supra, 27

Cal.4th 60. I note in passing, however, that a footnote in

Arturo D. suggests an alternative basis for upholding the search

at issue in this case. (Id. at p. 87, fn. 28.)

2

PEOPLE v. LOPEZ

Chin, J., dissenting

Michigan v. Long (1983) 463 U.S. 1032, 1046; Terry v. Ohio

(1968) 392 U.S. 1, 21.)

Consistent with that balancing approach, the high court

has recognized many situations in which an entry and/or search

without a warrant is reasonable and does not violate the Fourth

Amendment. (See, e.g., Kentucky v. King (2011) 563 U.S. 452

[entry and search to prevent imminent destruction of evidence];

Gant, supra, 556 U.S. 332 [search of areas of vehicle accessible

to recent occupant who has been arrested; holding of Belton,

infra, narrowed]; Brigham City v. Stuart, supra, 547 U.S. 398

[entry based on rendering emergency aid or protection];

Colorado v. Bertine (1987) 479 U.S. 367 [inventory search of

impounded vehicle]; United States v. Ross (1982) 456 U.S. 798

[search of containers within vehicle with probable cause to

believe vehicle contains evidence of crime]; New York v. Belton

(1981) 453 U.S. 454 (Belton) [search of passenger compartment

of vehicle incident to arrest of occupant]; United States v.

Santana (1976) 427 U.S. 38 [entry in hot pursuit of fleeing

suspect]; United States v. Robinson (1973) 414 U.S. 218 [search

incident to arrest]; Cady v. Dombrowski (1973) 413 U.S. 433

[vehicle search while officers are performing community

caretaking functions unrelated to criminal investigation];

Chimel v. California (1969) 395 U.S. 752 [search incident to

arrest; rule narrowed to area immediately accessible to

arrestee]; Terry v. Ohio (1968) 392 U.S. 1 [frisk search based on

reasonable suspicion of criminal act and reasonable belief

person might be armed]; Carroll v. United States (1925) 267 U.S.

132 [search of vehicle with probable cause to believe vehicle

contains evidence of crime].) The high court has also made clear

that a person has a lesser expectation of privacy in a vehicle

3

PEOPLE v. LOPEZ

Chin, J., dissenting

than in a residence, although the privacy rights in a vehicle are

not insubstantial. (Gant, supra, 556 U.S. at p. 345; Knowles v.

Iowa (1998) 525 U.S. 113, 117 (Knowles); New York v. Class,

supra, 475 U.S. at pp. 112–113; Caldwell v. Lewis (1974) 417

U.S. 583, 590–591; Cady v. Dombrowski, supra, 413 U.S. at pp.

441–442.) In Arturo D., supra, 27 Cal.4th 60, a case involving a

limited search of a vehicle, this court recognized one more

situation in which it is reasonable for law enforcement officers

to proceed without first obtaining a warrant.

II.

Case law throughout the country establishes that a driver

who is being pulled over for a traffic violation and who hopes to

conceal his or her identity (and thus evade responsibility for the

violation) will sometimes, while slowing to a halt, hide a wallet

under the seat or elsewhere in the vehicle and then give law

enforcement officers a false name.2 Because this method of

2

We cited numerous such cases in Arturo D., supra, at

pages 80 to 81. (See, e.g., Mallett v. Bowersox (8th Cir. 1998)

160 F.3d 456, 457 [“Before Trooper Froemsdorf approached the

vehicle, [driver Jerome] Mallett hid his wallet and identification

under the front seat. When Trooper Froemsdorf arrived at the

side of the vehicle and requested Mallett’s driver’s license,

Mallett replied that he did not have his license with him and

falsely claimed to be Anthony Mallett, who is actually petitioner

Jerome Mallett’s brother.”]; State v. Mitzlaff (Wn. 1995) 907

P.2d 328, 329 [“[After a traffic stop,] Deputy Heinze contacted

the driver of the pickup truck, Jerry Mitzlaff, who at first

provided false identification. . . . After Mitzlaff failed field

sobriety tests, Heinze arrested him for driving under the

influence. [¶] . . . [¶] Under the driver’s seat, Heinze found

a . . . wallet containing Mitzlaff’s true identification.”].) Indeed,

4

PEOPLE v. LOPEZ

Chin, J., dissenting

we could have cited many more. (See, e.g., Chest v. State

(Ind.Ct.App. 2009) 922 N.E.2d 621, 622–623 [“[After a traffic

stop,] Officer Reynolds . . . asked [Marcus] Chest for his driver’s

license and registration. Chest replied he had forgotten his

license at home. . . . [¶] . . . Officer Reynolds then handcuffed

Chest and secured him in the back seat of the police car. . . . At

the trial, Officer Reynolds testified that in his experience,

suspects who refuse to provide identification have often hidden

their driver’s license ‘. . . somewhere in the vehicle.’ . . . Officer

Reynolds looked under the seat and discovered Chest’s wallet,

including his driver’s license.”]; People v. Washington (Aug. 7,

2007, F049975) [nonpub. opn.] [“[After a traffic stop,] [a]ppellant

handed Sergeant Marmolejo a driver’s license bearing the name

of Glenn Bernard Washington. However, the photograph on the

license did not resemble appellant. . . . [¶] Officers arrested

appellant for possession of a fraudulent driver’s license. . . . [¶]

Police searched the Jeep and found a wallet with appellant’s

identification under the driver’s seat.”]; State v. Lee

(Tenn.Crim.App. Jan. 9, 2004, No. M2003-01077-CCA-R3-CD)

2004 WL 49108, p. *1 [“The defendant, who was driving, told

Deputy Terns that he did not have a driver’s license and gave

Terns a false name. Upon conducting a search, Deputy Terns

found a wallet under the driver’s seat containing what appeared

to be a Department of Safety receipt with the defendant’s name

on it.”]; State v. Vandergriff (Wn.Ct.App. June 1, 1999, No.

16619-8-III) 1999 WL 360568, p. *1 [“The deputy requested a

driver’s license, registration and proof of insurance. Mr.

Vandergriff responded that he had none of those documents.

When asked his name, Mr. Vandergriff then gave his brother’s

name . . . . [¶] The deputy then placed Mr. Vandergriff under

arrest for driving without a valid driver’s license. . . . The

deputy then . . . searched the car. He discovered a wallet under

the driver’s seat containing identification for Mr. Vandergriff.”];

U.S. v. Milton (6th Cir. Mar. 10, 1995, Nos. 93-1812 & 93-1876)

1995 WL 106131, p. *1 [“After stopping the vehicle, Sergeant

Sitar asked the driver of the car for his license. The driver

refused, and identified himself as Derek Johnson. Other

5

PEOPLE v. LOPEZ

Chin, J., dissenting

evading responsibility for a traffic violation poses such a

persistent problem, it is to that extent reasonable for law

enforcement officers to take measured steps to ensure that our

traffic laws are duly enforced. Therefore, our decision in

Arturo D., supra, 27 Cal.4th 60, recognized a narrow exception

to the Fourth Amendment’s warrant requirement. If a law

enforcement officer pulls over a vehicle for a traffic violation and

the driver, when asked, is unable to produce identification

documents,3 despite state law requiring drivers to carry such

documentation (see Veh. Code, §§ 12500, 12951), or if the driver

produces documents that appear to be false or to belong to

passengers in the vehicle, however, identified the driver as Day

Day or Ade Milton, as did occupants of the house at which the

car had stopped. A wallet found under the driver’s seat

contained Milton’s identification.”]; State v. Gordon (Or.Ct.App.

1991) 821 P.2d 442, 442–443 [“[After a traffic stop, Officer]

Olson . . . asked for identification, and defendant produced from

a wallet six pieces of identification for a ‘Clark Blakely.’ Olson

asked if he was Clark Blakley. Defendant said that he was not

and that his name was Kirk Gordon. Olson then asked him for

some identification to prove that he was Kirk Gordon.

Defendant looked into his wallet, but could not find any

identification. . . . [¶] Olson testified that . . . it was his

experience that persons trying to hide their identity will often

put their wallets underneath the seat.”].) Several of these

decisions are not published in the official reports of the states in

which they were decided, but we may nonetheless take judicial

notice of their fact statements without contravening California

Rules of Court, rule 8.1115. (See People v. Hill (1998) 17 Cal.4th

800, 847, fn. 9.)

3

Arturo D., supra, 27 Cal.4th 60, also authorized a limited

search for vehicle registration documentation. That aspect of

the decision is not at issue here.

6

PEOPLE v. LOPEZ

Chin, J., dissenting

different person, then a limited search of places in the vehicle

where the driver may have hidden a wallet while slowing to a

halt is reasonable. That was correct when we decided Arturo D.,

and it is correct today.

If, after being pulled over for a traffic violation, a driver

gives a false name and declines to provide adequate proof of

identity, what options does an officer have? If the officer writes

a traffic citation using the false name that the driver has

provided and then allows the driver to go, the driver has

successfully gamed the system, because the citation will

eventually be dismissed. Of course, the officer can question the

driver for details about his or her identity and check those

details against state records that are available to the officer, but

that approach might not adequately identify the driver,

particularly if—as uncooperative drivers frequently do—the

driver gives the name of a brother or sister.4 The officer can also

ask the driver to consent to a search, but the driver, who may

have just hidden or refused to provide identification documents,

will be unlikely to grant such consent. So, what more practical

options does the officer have?

First, the officer can require the driver to place a

thumbprint on the notice to appear, and the officer can accept

4

In some cases, the officer’s questioning of the driver about

his or her identity may demonstrate that the driver has lied to

the officer in violation of Vehicle Code section 31 (giving false

information to a peace officer), Penal Code section 148.9 (giving

false identity to a peace officer), and perhaps in violation of

Penal Code section 530.5 (false personation). The officer may

then arrest the driver and search the vehicle for evidence of

those violations, including evidence of correct identity. (Gant,

supra, 556 U.S. at pp. 343–344.)

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PEOPLE v. LOPEZ

Chin, J., dissenting

that thumbprint as “satisfactory evidence” of identity. (Veh.

Code, §§ 40302, subd. (a), 40500, subd. (a); see § 40504.) The

thumbprint can later be used to track down the driver and hold

him or her accountable for the traffic violation. The problem,

however, with the thumbprint solution is that the driver might

refuse to give it. (See Pen. Code, § 853.5, subd. (a) [“Only if the

arrestee refuses to sign a written promise, has no satisfactory

identification, or refuses to provide a thumbprint or fingerprint

may the arrestee be taken into custody.”].) Moreover, even if the

driver agrees to give a thumbprint, the thumbprint is not

necessarily a satisfactory substitute for documentary

identification. For example, a matching thumbprint might not

be found in the database of the Department of Motor Vehicles.5

Second, the officer can make a custodial arrest of the

driver for failure to carry a driver’s license. (Veh. Code, §§

5

It might be supposed that with advances in technology, the

officer can use face recognition software to identify the driver,

assuming the Department of Motor Vehicles has access to a

database containing an image of the driver’s face along with

accurate identifying information. But a driver is not obligated

to expose his or her face to the officer. It might happen, for

example, that a driver refuses to remove a motorcycle helmet

that has a tinted visor or that a driver is wearing niqab for

religious reasons. Moreover, there is at present no statutory

authorization for the use of face recognition software to identify

drivers who have committed traffic violations, and the possible

constitutional questions that such a methodology would raise

remain unresolved. (Cf. People v. Gray (2014) 58 Cal.4th 901,

905 [defendant stipulated that the photographic evidence

recorded by a red light camera proved that he was the driver of

the car that allegedly failed to stop at the red traffic signal; the

use of face recognition software was not at issue].)

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PEOPLE v. LOPEZ

Chin, J., dissenting

12500, 12951, 40302; People v. McKay (2002) 27 Cal.4th 601,

618, 625.) The officer can then search the person of the driver

incident to that arrest. (United States v. Robinson, supra, 414

U.S. 218.) Moreover, if the vehicle is illegally parked and no

passenger in the vehicle is authorized to drive the vehicle, the

officer can impound the vehicle and conduct a comprehensive

inventory search. (Colorado v. Bertine, supra, 479 U.S. 367.)

Thus, by arresting the driver, the officer can (in many cases)

search both the driver and the vehicle. Of course, if the driver

has hidden identification documents, that search will likely

result in their discovery.6

The second of these options would entail significant

burden, and the officer might not choose to pursue it, but if the

driver refuses to give an adequate thumbprint, the officer has it

as an alternative.

In light of the foregoing, our decision in Arturo D.

recognized a narrow exception to the Fourth Amendment’s

warrant requirement, giving officers a third, considerably less

intrusive option as compared to the option of custodial arrest.

When an officer detains a driver for a traffic violation, and the

driver declines to provide identification documents, the officer

does not contravene Fourth Amendment protections by

conducting a limited search of places in the vehicle where such

6

In this case, defendant’s vehicle was not illegally parked,

and therefore an arrest of defendant for driving without a

driver’s license would not have permitted the officers to

impound the vehicle. But the majority addresses the general

validity of Arturo D. It does not limit its holding to cases like

this one in which the vehicle is legally parked at the time of the

search.

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PEOPLE v. LOPEZ

Chin, J., dissenting

documentation reasonably may be expected to be found.

(Arturo D., supra, 27 Cal.4th at p. 78.) Contrary to the

majority’s view, an Arturo D. search is not “perilously close to

the ‘full-scale search for contraband’ we acknowledged was

expressly prohibited by Knowles, supra, 525 U.S. 113.” (Maj.

opn., ante, p. 21.) Actually, we cabined the search in several

important ways. The search may not be pretextual (Arturo D.,

at pp. 78, 86), which means of course that it must be limited to

searching for identification documents and that it must

terminate when those documents are found. We also said that

“the prospective reach of a driver in relation to the location

searched is a factor that can be considered in evaluating the

reasonableness of the search.” (Id. at p. 82.) In addition, our

strongly emphasized concern about drivers who put or toss a

wallet under the front seat in an effort to conceal identity (see

id., at pp. 79–82) served to narrowly circumscribe the scope of

the search we were authorizing. We clearly had in mind places

that a driver might easily access during the moments while he

or she, having been signaled by an officer to stop, is slowing to a

halt,7 and even then we said that we were not “condon[ing]

7

The majority asserts that the rule we adopted in Arturo D.

was not limited to places that a driver might easily access while

slowing to a halt. Instead, the majority argues that our holding

was broader, allowing officers to search any places in the vehicle

where identification documents “ ‘reasonably may be expected

to be found.’ ” (See maj. opn., ante, p. 7, quoting Arturo D.,

supra, 27 Cal.4th at p. 78.) But any statement of a holding is

necessarily summary in nature, and it must be construed in

light of the opinion’s facts and reasoning. Indeed, that is exactly

what the high court did in Gant, when it construed Belton’s

holding narrowly, relying on Belton’s facts and reasoning. (See

10

PEOPLE v. LOPEZ

Chin, J., dissenting

searches for required documentation of ‘virtually all areas in the

physical proximity of the driver.’ ” (Id. at p. 84.) We noted, for

example, that “an officer may not search in containers or

locations in which such documents are not reasonably expected

to be found,” and we gave as illustrations of that limitation a

“crumpled fast-food bag under [the] seat” and an “enclosed ‘rear

interior compartment.’ ” (Id. at p. 86, fn. omitted.) Finally, we

“emphasize[d]” that we were not “condon[ing] the equivalent of

the full-scale search for contraband prohibited by the high court

in Knowles, supra, 525 U.S. 113.” (Arturo D., at p. 86.) In short,

a search under Arturo D. is limited in both scope and objective,

and it must terminate as soon as the officer has located

identification.

The facts of this case aptly illustrate the effective and

limited application of Arturo D.’s rule. Defendant’s car was

searched only after she admitted that she did not have a driver’s

license but that “ ‘there might be identification in the vehicle.’ ”

Having been so advised, the officers were entitled to protect

their own safety by retrieving the identification themselves

rather than permitting defendant to do so. (Arturo D., supra, 27

Cal.4th at p. 87, fn. 28.) One of the officers noticed an object on

the front passenger seat that looked like a purse, and he seized

it. The other officer opened the purse, “[l]ooking for . . .

identification,” which he found. The officer discovered the

Gant, supra, 556 U.S. at pp. 339–341, 343–344.) In Arturo D.,

we emphasized the problem of drivers who conceal identification

documents from police after being signaled to stop (see id. at pp.

79–82), and our holding should be construed accordingly.

Instead, the majority reads Arturo D. unnecessarily broadly,

thus making it an easier target for criticism.

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PEOPLE v. LOPEZ

Chin, J., dissenting

methamphetamine while searching for the identification

documents, and no broader search of the purse or car occurred.

If law enforcement officers have applied our decision in

Arturo D., supra, 27 Cal.4th 60, more broadly than its facts and

reasoning warrant (see maj. opn., ante, pp. 20–21), then it is the

task of reviewing courts to apply the decision correctly and

invalidate those searches, but we need not construe Arturo D. to

be something it is not and then reject it on that ground. An

officer conducting a search for identification documents in

accordance with Arturo D. may only examine places in the

vehicle where a driver, slowing to a halt, might quickly put or

toss a wallet or similar container. The officer may not open any

closed containers other than those, such as a wallet, that

typically contain identification documents, and because the

search may not be pretextual, the officer may only examine the

contents of a wallet (or comparable container) to the extent

necessary to determine the driver’s identity. There are

relatively few places where a driver can hide a wallet while

pulling to the side of the road during a traffic stop, and therefore

the search we approved in Arturo D. is narrowly circumscribed.

That limited search reflects an appropriate balancing of the

relevant interests, and it is consistent with present-day views of

the Fourth Amendment.

Of course, the officer also has the option of making a

custodial arrest and then searching the person of the driver and,

depending on the circumstances, searching the vehicle, too.8

8

The high court in Knowles expressly discussed the

possibility of a driver concealing identification documents (i.e.,

12

PEOPLE v. LOPEZ

Chin, J., dissenting

But a search of the driver’s person incident to a custodial arrest

of the driver is certainly more intrusive than the limited search

of the driver’s vehicle that we approved in Arturo D. (see, e.g.,

Wyoming v. Houghton (1999) 526 U.S. 295, 303), and a

comprehensive inventory search of a vehicle (in a case in which

the vehicle must be impounded after the driver’s arrest) is also

more intrusive than the Arturo D. search. Therefore, far from

encroaching on the privacy interests of drivers, the holding of

Arturo D., supra, 27 Cal.4th 60, serves to protect those privacy

interests while still allowing officers to achieve the important

purpose of adequately identifying the driver before issuing a

citation. If the Fourth Amendment permits the greater

intrusion of a custodial arrest and a full search of the person

(and perhaps the vehicle), then it should also permit the lesser

intrusion of no arrest and a limited search of just a few places

within the vehicle.9

the problem we addressed in Arturo D., supra, 27 Cal.4th 60),

and the court proposed custodial arrest of the driver as one way

of addressing that problem. (Knowles, supra, 525 U.S. at p. 118.)

But the court did not state that, in such circumstances, a very

limited search of the vehicle for a hidden wallet was

unconstitutional. At issue in Knowles was a “full-blown” search

incident to a citation that had already been issued (id. at p. 115),

not a limited search for identification to facilitate the issuance

of a citation. On that ground, our opinion in Arturo D.

reasonably distinguished Knowles. (Arturo D., at p. 76.)

9

The majority rejects this reasoning, but it focuses its

attention solely on the search of the vehicle (which would not

necessarily result from an arrest of the driver) and ignores the

inherently more intrusive search of the driver’s person (which

would almost certainly result from an arrest of the driver). (See

13

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Chin, J., dissenting

As noted, the Fourth Amendment requires courts to weigh

the relevant individual and governmental interests. (See, e.g.,

Camara v. Municipal Court, supra, 387 U.S. at pp. 536–537.) In

the circumstances presented in Arturo D., “the need to search”

(Camara v. Municipal Court, at p. 537) is great. The officer

needs to identify the driver to ensure that the driver is held

accountable. Indeed, if law enforcement officers are prevented

from issuing enforceable citations, then the traffic laws can be

flouted with impunity, risking the lives of innocent people who

use the public thoroughfares. By contrast, “the invasion which

the search entails” (id. at p. 537) is relatively minor, especially

when compared to the alternative that would follow from a

custodial arrest.10 The very limited search we approved in

maj. opn., ante, p. 29, fn. 12.) There can be no doubt that an

arrest, followed by a search of one’s person and booking at a local

police station, is more intrusive than having a police officer look

under the front seats of one’s car (and in similar places) for a

concealed wallet or purse. At oral argument, the Attorney

General made the same point. When asked what the biggest

danger would be if the court accepted defendant’s argument, the

Attorney General said: “[That] more persons who are guilty of

mere infractions will be arrested and that the increased

intrusions associated with arrest — embarrassing possible

future admissions, being put in a cell with strangers accused of

crime — will increase.” Among those “increased intrusions,” the

Attorney General might also have mentioned a full search of the

driver’s person and, depending on the circumstances, a full

search of the vehicle (instead of the limited search that

Arturo D. approved).

10

The majority opinion criticizes our opinion in Arturo D. for

not adequately discussing the magnitude of the intrusion on

privacy that was at issue. (Maj. opn., ante, pp. 18–19.) The issue

before us is not whether, with the aid of hindsight, Arturo D. is

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Chin, J., dissenting

Arturo D., supra, 27 Cal.4th 60, involves some trespass upon a

person’s privacy—it permits the search of areas within a vehicle

that are accessible to a driver who might be hiding identification

documents while slowing to a halt—but the search we approved

does not “giv[e] police officers unbridled discretion to rummage

at will among a person’s private effects.” (Gant, supra, 556 U.S.

at p. 345.) Thus, it does not match the comprehensive vehicle

search approved in Belton, supra, 453 U.S. 454, and disapproved

in Gant. The Arturo D. search is reasonable in that it is

narrowly constrained, and it allows the officer to find the

appropriate identification documents, confirm the driver’s

identity, issue any appropriate citations, and release the driver

without a custodial arrest and the more intrusive search that

would ensue therefrom.

III.

Even though our decision in Arturo D., supra, 27 Cal.4th

60, is consistent with the high court’s intervening decision in

Gant, supra, 556 U.S. 332, the majority asserts that Gant casts

doubt on Arturo D., justifying our reconsideration of that

decision. (Maj. opn., ante, at pp. 16–33.) It does not. Gant is

simply not on point.

Gant addressed the search-incident-to-arrest exception to

the warrant requirement. In Belton, supra, 453 U.S. 454, the

high court had upheld a search of the passenger compartment

of a vehicle incident to the arrest of the vehicle’s recent

occupant. (Id. at p. 460.) Gant read Belton narrowly, limiting

Belton’s holding to situations in which “the arrestee is within

written in the manner the majority would prefer. Rather, the

issue is whether it is correct.

15

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Chin, J., dissenting

reaching distance of the passenger compartment at the time of

the search or it is reasonable to believe the vehicle contains

evidence of the offense of arrest.” (Gant, supra, 556 U.S. at p.

351.) The court said that a broader reading of Belton “would . . .

untether the rule from the justifications underlying the . . .

exception” (Gant, at p. 343), which the court identified as officer

safety and the preservation of evidence (id. at pp. 338–339).

Our decision in Arturo D. did not rely on Belton, supra, 453

U.S. 454, or on the rationale of a search incident to an arrest. In

fact, Arturo D. only cited Belton once, in passing, in the context

of describing the basis of the lower court’s decision in Knowles,

supra, 525 U.S. 113. Thus, the high court’s narrow reading of

Belton in Gant, supra, 556 U.S. at page 351, had no effect on

Arturo D. Rather, Arturo D. recognized a different exception to

the Fourth Amendment’s warrant requirement, applying the

balancing test that traditionally governs constitutional review

of warrantless searches. (Arturo D., supra, 27 Cal.4th at pp. 83–

84.) As noted, the Arturo D. exception is reasonable in light of

the frequency with which drivers hide identification documents,

the strong need to enforce traffic laws and thus maintain road

safety, and the narrowly circumscribed nature of the search that

we approved, which avoided the necessity of arresting the driver

and conducting a more intrusive search.

In Gant, supra, 556 U.S. 332, the high court did not

repudiate the balancing test that we applied in Arturo D., supra,

27 Cal.4th at pages 83 to 84. On the contrary, it applied the

balancing test. (Gant, at pp. 344–347.) Gant made only two

points that might possibly be relevant to the question of

Arturo D.’s continuing validity. First, Gant noted that the

courts sometimes undervalue the privacy interests that a person

16

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Chin, J., dissenting

has in a vehicle. (Gant, at pp. 344–345.) In this regard, the high

court noted in particular the undesirable possibility of police

searching “every purse, briefcase, or other container” in the

vehicle’s passenger compartment. (Id. at p. 345.) The court was

“concern[ed] about giving police officers unbridled discretion to

rummage at will among a person’s private effects.” (Ibid.)

Second, Gant reiterated the unremarkable rule that any

exception to the warrant requirement must be tethered to the

justifications that support it. (Id. at p. 343.)

As to the concern about “undervalu[ing]” privacy interests

at issue in vehicular searches and the risk of “unbridled . . .

rummag[ing]” through “every purse, briefcase, or other

container” (Gant, supra, 556 U.S. at pp. 344–345), our decision

in Arturo D. did not take lightly the privacy concerns that the

dissenting justices in that case emphasized, and the search

Arturo D. approved does not come close to an “unbridled . . .

rummag[ing]” every time a driver declines to provide proof of

identification. On the contrary, we expressly disapproved the

search of any container the officer might find. (Arturo D., supra,

27 Cal.4th at p. 86.) It is true that an Arturo D. search might

involve the opening and search of a closed wallet or purse, but

the wallet or purse would have to be found in a place where the

driver might have put or tossed it while slowing to a halt, and

the officer would only be permitted to examine its contents to

the extent necessary to locate identifying documents. Arturo D.

expressly rejected the assertion that officers could rummage

about at will. (Ibid.)

Regarding Gant’s rule that an exception to the warrant

requirement must be tethered to the justifications that support

it (Gant, supra, 556 U.S. at p. 343), this rule is nothing new, and

17

PEOPLE v. LOPEZ

Chin, J., dissenting

therefore it does not justify reconsideration of Arturo D., supra,

27 Cal.4th 60. In fact, the rationale of the high court’s decision

in Knowles—a case we discussed at length in Arturo D. (id. at

pp. 74–76)—was that the justifications that supported an

exception to the warrant requirement for a search incident to an

arrest do not support an exception for a search incident to the

issuance of a citation. (Knowles, supra, 525 U.S. at pp. 116–

118.) Asserting that an exception must be tethered to the

justifications that support it is merely another way of saying

that the exception must be reasonable (reasonable both as a

general matter and in the specific manner of its application).

Putting the question in terms of the balancing of individual and

governmental interests, one could say that Gant merely made

the obvious point that the government has no interest in an

exception to the warrant requirement that is not tethered in

some way to the justifications offered in its defense. (Gant, at p.

347.) But the exception we recognized in Arturo D. is very much

tethered to the justifications that support it. The search that we

authorized in Arturo D. is a limited one that encroaches only a

relatively small amount on privacy interests, and it is closely

tethered to the governmental interest in identifying the

offending driver in the least intrusive way, so the driver can be

held accountable for his or her traffic violation and the safety of

the public thoroughfares can be preserved.

In summary, Gant addressed a different issue than the

issue we addressed in Arturo D., and it changed nothing as

regards the relevant standards that apply under the Fourth

18

PEOPLE v. LOPEZ

Chin, J., dissenting

Amendment. Nonetheless, the majority uses it as a basis for

ignoring stare decisis.11

I respectfully dissent.

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

11

The majority also relies on the assertion that other states

have not adopted the exception to the warrant requirement that

we recognized in Arturo D., supra, 27 Cal.4th 60. (See maj. opn.,

ante, pp. 33–40.) Considering that Gant’s significant narrowing

of Belton, supra, 453 U.S. 454, is only a decade old, it is probably

too early to tell if states will follow Arturo D. now that unbridled

vehicle searches incident to an arrest of an occupant cannot be

upheld. (See Gant, supra, 556 U.S. at p. 351.) But even if the

majority is correct that Arturo D. stands alone, we need not

overrule it on that account. Rather, if there is a split of

authority, then it is appropriate for the high court to grant a

writ of certiorari and resolve the question.

19

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lopez

_______________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 4 Cal.App.5th 815

Rehearing Granted

_______________________________________________________________________________

Opinion No. S238627

Date Filed: November 25, 2019

_______________________________________________________________________________

Court: Superior

County: Yolo

Judge: Samuel T. McAdam

_______________________________________________________________________________

Counsel:

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant

Attorney General, Michael P. Farrell, Assistant Attorney General, Joshua A. Klein, Deputy State

Solicitor General, Catherine Chatman, Rachelle A. Newcomb, R. Todd Marshall and Larenda R.

Delaini, Deputy Attorneys General, for Plaintiff and Appellant.

Solomon Wollack, under appointment by the Supreme Court, for Defendant and Respondent.

Emily A. Rehm, Michael M. Epstein and Rachel E. Vanlandingham as Amici Curiae on behalf of

Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

R. Todd Marshall

Deputy Attorney General

Office of the Attorney General

1300 I Street

Sacramento, CA 95814

(916) 210-7747

Solomon Wollack

P.O. Box 23933

Pleasant Hill, CA 94523

(925) 671-2501