People v. McGaughran

BIRD, C. J., Concurring and Dissenting.

I concur in the result reached by the majority. However, I cannot join the reasoning employed in parts I and II, ante. Today, this court creates a rule which not only represents an unneeded exception to the usual Fourth Amendment 1 detention analysis, but leads to absurd results. Further, officers acting in the field are given an impractical rule to enforce.

The process of “running a warrant check” on a detained individual involves three steps. The officer must first ascertain the identity of the detained individual and then initiate the warrant check. This second step normally involves returning to the patrol car, using the radio to reach the dispatcher or warrant officer, and communicating to this person the information concerning the identity of the detained individual. 2 The third and final step in the process is to await the reply or the “return” on the warrant check._

*592 In the usual traffic detention case, no Fourth Amendment problem is posed when an officer carries out the first step of this process since the officer is entitled to inquire about the driver’s identity as a necessary adjunct to the investigation of the initial traffic offense. (Maj. opn., ante, at p. 584.) However, constitutional difficulties may arise in connection with the second and third steps. Initiating a warrant check and awaiting the return are not activities that are directed at resolving the traffic offenses which authorized the stop in the first place. Thus, those portions of a traffic detention which are used solely to initiate or complete a warrant check cannot be deemed a detention to investigate the traffic offenses.

Under well-established constitutional rules which the majority recognize, the scope of a detention is limited by the circumstances which justified its inception and by any specific and articulable facts lawfully discovered thereafter. (See maj. opn., ante, at p. 586.) This settled rule can easily be applied to warrant checks run during traffic stops. The scope of a lawful, routine traffic detention must be limited to what is necessary to investigate the traffic infraction itself. It logically cannot be expanded to permit using a portion of the detention solely to investigate the separate question of whether there are unrelated arrest warrants in the name of the drivér. Therefore, unless other facts are discovered which suggest a warrant check will be fruitful, no portion of a traffic detention should be used for that purpose alone. 3 , 4 (See In re Tony C. (1978) 21 Cal.3d 888 [ 148 Cal.Rptr. 366 , 582 P.2d 957 ]; People v. Bower (1979) 24 Cal.3d 638 [ 156 Cal.Rptr. 856 , 597 P.2d 115 ].)

The majority articulate a different rule. They set forth a rule that would allow a warrant check to be run during the lawful detention of any driver—even if there is no reasonable basis for believing the warrant check will be fruitful If the officer does not detain the driver beyond the time *593 which would have been “ ‘reasonably necessary’ to deal with the [traffic] offense,” his actions are legal. (Maj. opn., ante, at p. 587.) If an officer would “reasonably” need to detain a driver for a total of five minutes to “deal with” an infraction, the officer could detain the driver a total of five minutes to await the completion of a warrant check.

This rule is unworkably vague. How is it possible to determine what amount of time would have been “reasonably necessary” for an officer to discharge the duties he or she had with respect to the traffic infraction itself? I submit, it is not possible. Further, the rule requires the officer and the judge to determine the duration of a past event which never occurred, i.e., the length of time the traffic detention would reasonably have required if the officer had not run the warrant check. Not only must past history be thus reorganized, but a determination must be made as tó how many of the officer’s actions that never occurred would have been reasonably “necessary” to perform duties that may have been only partly performed. 5

I have previously expressed concern that the guidelines which the court sets down for the police must be clear in order to ensure that the police can obey the commands of the Fourth Amendment. (In re Tony C., supra, 21 Cal.3d at p. 902 et seq. [conc. & dis. opn. of Bird, C. J.].) Vague and unclear rules afford officers no guidance as to what the Constitution might require of them in an impromptu situation in the field. Similar problems arise in the courtroom leading to inconsistent and unpredictable applications of the sanction of exclusion of evidence. Without predictable sanctions, there is no incentive for officers to learn the rules or attempt to conform to them; the proficient and the careful are no more likely to be rewarded and no less likely to be sanctioned than the ignorant and the reckless. (See id., at pp. 906-907.)

A separate defect in the majority’s rule is its potential for easy abuse. Since a warrant check during a traffic detention does not have to be justified on any factual basis, the decision as to whether or not to run a warrant check will turn not upon the driver’s apparent involvement in crime but upon the unconstrained and standardless discretion of the officer. The United States Supreme Court has recently noted the “ ‘grave danger’ of abuse” which may result when decisions involving the Fourth *594 Amendment are left wholly to “the unbridled discretion of law-enforcement officials.” (Delaware v. Prouse (1979) 440 U.S. 648, 661, 662 [ 59 L.Ed.2d 660, 672 , 99 S.Ct. 1391, 1400 ].) “To insist upon neither an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion ‘would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .’ ” (Ibid, quoting Terry v. Ohio (1968) 392 U.S. 1, 22 [ 20 L.Ed.2d 889, 906 , 88 S.Ct. 1868 ].)

Finally, the rule proposed by the majority leads to absurd results. Consider this factual setting. Suppose five minutes is “reasonably necessary” to perform the duties associated with a particular infraction for which an officer has made a traffic stop. The officer spends one minute obtaining identification from the driver and four minutes in his patrol vehicle initiating and awaiting a reply on a warrant check. The check reveals that the driver has no warrants. The officer has now used up the five minutes which the majority have allotted him. Therefore, he must permit the driver to drive away and he cannot take the extra time necessary to write a citation as any detention beyond the five-minute period would be unconstitutional.

Under the majority rule if the officer decides to run a warrant check, he runs the risk that he will be precluded from issuing a citation or otherwise conducting his duties with respect to the traffic infraction for which he made the stop in the first place. This is not an unlikely risk. The vast majority of California drivers have no warrants outstanding 6 and may thereby become potentially immune from traffic citations. An ironic result, indeed!

In my view, the majority went astray very early in this case. At the point they decided to permit the scope of a traffic detention to be *595 expanded to permit a warrant check even when there are no suspicious circumstances indicating the warrant check would be fruitful, the court set down an unworkable rule and a dangerous precedent. To my knowledge, there is no case precedent which would permit the scope of a search or seizure to be intensified without some showing of a factual justification. Certainly, there is no need to create án exception for routine traffic detentions. The overwhelming majority of California drivers who commit minor traffic infractions simply do not have arrest warrants outstanding.

In cutting loose traffic detention warrant checks from the requirement of suspicious circumstances, to which all other constitutional “seizures” are tied, the majority have not been able to articulate a workable and sensible rule. To that extent, the court has made the job of our police and judges that much more difficult and unpredictable; and the freedom of our citizens from unreasonable searches and seizures that much more precarious.

It is true that the intrusion appears minor, the indignity minimal, the event commonplace. However, “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” (Boyd v. United States (1886) 116 U.S. 616, 635 [ 29 L.Ed. 746, 752 , 6 S.Ct. 524 ].)

NEWMAN, J.

I concur, except that I would rely solely on the California Constitution.

The phrase “Fourth Amendment” as used in this opinion refers to both the state and federal guarantees against unreasonable searches and seizures. (See People v. Triggs (1973) 8 Cal.3d 884, 891-892, fn. 5 [ 106 Cal.Rptr. 408 , 506 P.2d 232 ].)

It is now within the technical capacity of some police departments to place computer terminals directly into individual patrol cars so that the patrol officers will have almost instantaneous input into a warrant computer.

I agree with my colleagues in the majority that no such additional facts are present in this case. (Maj. opn., ante, part III.)

Clearly, the act per se of running a warrant check does not implicate the Fourth Amendment. (See maj. opn., ante, at pp. 582-583.) Only if an individual is being detained while a warrant check is run will Fourth Amendment considerations arise.

Even then, there will be no constitutional violation in running a warrant check if the detained individual is simultaneously being investigated lawfully for other offenses, such as a traffic infraction. For example, if one officer initiates and completes a warrant check while a second officer carries out his duties with respect to the traffic infraction which justified the stop,.the driver has not been unlawfully detained.

However, if at any point in the traffic detention the focus of the investigation shifts away from the traffic offense and turns to the warrant check alone, that expansion of the scope of the detention is unlawful unless justified by suspicious circumstances other than the traffic infraction itself.

In this court’s first opinion in this case, a majority of the court expressed similar reservations. “For a court to decree at a later date precisely how much time “would have been’ necessary to perform the officer’s duties in any given case would be at best hindsight and at worst sheer speculation.” (See 149 Cal.Rptr. 584 , 593.)

In our prior opinion in this case, the court concluded that “2 percent of California drivers—at the very most—may be operating with suspended or revoked licenses” and “less than 2 percent” of the licensed drivers have traffic warrants outstanding. (149 Cal.Rptr. at pp. 591, 592.) While amici do not quarrel with this determination, their statistics based on all warrant checks run by the Los Angeles County Sheriff suggest the figures may be somewhat higher.

In addition to disclosing traffic warrants, a warrant check may also reveal felony and misdemeanor warrants. The information supplied by the Los Angeles Sheriff suggests that felony warrants are discovered in 1 percent of all warrant checks and nontraffic misdemeanor warrants in 5 percent.

I use these figures as suggestive only. Whatever may be the precise proportion of drivers with outstanding warrants, it is clearly quite low.