People v. Tobin

WHITE, P. J.

I respectfully dissent. In my view, this case is controlled by People v. Scott (1976) 16 Cal.3d 242 [ 128 Cal.Rptr. 39 , 546 P.2d 327 ]. Stare decisis requires that we follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ]; People v. Brown (1987) 193 Cal.App.3d 957, 962 [ 238 Cal.Rptr. 697 ].)

In Scott , the California Supreme Court considered whether “a police officer who proposes to give a private citizen a lift in his patrol car can lawfully subject him to a nonconsensual pat-down search for weapons when the individual is not under arrest and the officer has no duty to transport him and no reason to believe he is armed and dangerous.” (16 Cal.3d at pp. 244-245, italics added.) The court held that an officer may not conduct a pat-down search in these circumstances. (Id., at p. 249.) Nevertheless, the court recognized that cases will arise where the police, acting out of compassion, may offer rides to citizens although not absolutely required to do so. In order to “accommodate the state’s interest in the safety of police officers who volunteer to give rides not required by their duty, and the individual’s right to be secure from unreasonable invasions of his privacy,” the court *642 mandated the following procedure: “[T]he officer must first inform the individual that he has a right to refuse the ride but if he accepts it he will be subjected to a pat-down search for weapons. Such a brief admonition will protect both the officer’s safety and the individual’s right to decide for himself whether he is willing to undergo a pat-down search in order to obtain the offered assistance of the police.” (Id., at p. 250, italics added.)

The majority contend that Scott is distinguishable because, unlike the officers in that case, Officer Shabazz had an affirmative duty to transport appellant off the freeway, (maj. opn. ante, at pp. 638-639.) Although I agree that the Scott procedure need not be followed when the police have a “duty to transport” the person searched (16 Cal.3d at pp. 245, 250), I do not believe that the duty in this case is of the type contemplated by the Scott majority.

The Scott majority did not explicitly specify the type of duty a police officer must be under in order to be excused from complying with the admonition procedure outlined in that case. In my view, the duty might be one of three types: (1) a statutory duty to transport a person (e.g., where an officer stops a driver for a traffic violation and the driver is unable to produce a driver’s license or other identification (Veh. Code, § 40302, subd. (a)); People v. Scott, supra, 16 Cal.3d at p. 248 ); (2) a tort duty of due care owed by the officer to the person transported or to third persons; or (3) the kind of “general protective duties” of the police discussed by the dissent. 1

In my view, it is clear that the police need not give a Scott admonition prior to pat-searching a person whom they have a statutory duty to transport. On the other end of the spectrum, the Scott majority necessarily rejected the Scott dissent’s assertion that no admonition is required where the police transport a person merely as part of their “general protective duties.” (Scott, supra, at pp. 249-250, 256-257 .) Consequently, a “general protective duty” is not sufficient to excuse compliance with the Scott admonition procedure. The question left unanswered by Scott is whether the *643 police are excused from giving the required admonition when they transport a person because such transportation is required by a tort duty of due care.

The majority do not point to any statute which required that Officer Shabazz transport appellant off the freeway. Consequently, his failure to give the Scott admonition cannot be excused on the theory that he had a statutory duty to transport appellant. Further, although I believe Officer Shabazz’s decision to transport appellant off the freeway properly fell within the “general protective duties of the police,” this is not enough, in my view, to excuse compliance with the Scott admonition. Consequently, I believe the majority have implicitly found that Officer Shabazz was excused from complying with Scott because he owed a tort duty of due care to appellant and the other drivers on Highway 680. I cannot join in this reasoning.

“As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. (Rest.2d Torts, § 314; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 554, p. 2821.)” (Williams v. State of California (1983) 34 Cal.3d 18, 23 [192 Cal Rptr. 233, 664 P.2d 137 ].) However, once one undertakes to come to the aid of another he is “under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of. . . harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” (Ibid.; Rest.2d Torts, § 323.) These general rules apply to police officers who render assistance to members of the public. ( 34 Cal.3d at p. 24, fn. 3 ; Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1076 [ 235 Cal.Rptr. 844 ].)

Had Officer Shabazz come upon appellant stranded on the roadside there is no question that, absent some special relationship, he would not have had a duty to come to appellant’s aid. Here, however, it can be argued that Officer Shabazz “created” the peril facing appellant (and the peril appellant presented to the other drivers on Highway 680) when he stopped appellant’s car on the highway. Thus, I can see where the majority could conclude that Officer Shabazz owed a duty of due care to appellant and, possibly, to other drivers on Highway 680 who might be endangered by appellant walking along the freeway.

It is here, however, that I part company with the majority. In my view, Officer Shabazz should not be permitted to rely on the very peril he created as an excuse for searching appellant without a warrant, probable cause, or any independent exigent circumstances. (See Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 540-541 [ 106 Cal.Rptr. 452 ] [police-created emergency *644 did not justify warrantless seizure of person and home]; 2 LaFave, Search and Seizure (2d ed. 1987) § 6.5(b), p. 662.) In short, Officer Shabazz should not be permitted to bootstrap himself into an exception to the Scott admonition.

Nor am I persuaded by the majority’s alternative argument that Scott has been “limited” by subsequent “public safety” rulings, (maj. opn. ante at p. 641.) The only arguably relevant subsequent decision the majority cite is New York v. Quarles (1984) 467 U.S. 649 [ 81 L.Ed.2d 550 , 104 S.Ct. 2626 ], In trying to bring this case within the “public safety” exception created by Quarles , the majority are, in essence, attempting to fit a square peg into a round hole. In Quarles , the Supreme Court created a “public safety” exception to the requirement that Miranda 2 warnings be given before a suspect’s answers may be admitted into evidence. (Id., at p. 655 [81 L.Ed.2d at pp. 556-557].) Quarles said nothing about the Fourth Amendment, other than to note that the Supreme Court has long recognized an exigent-circumstances exception to the warrant requirement. (Id., at p. 653, fn. 3 [ 81 L.Ed.2d at p. 555 ].) The leap the majority take from the Fifth Amendment to the Fourth is untenable.

Moreover, even if I were to agree that a “public safety” exception could apply in this context, I cannot agree that the appellant in this case was required to ride in a police car against his will for the sake of “public safety.”

The facts of this case are made far clearer by referring to a map of the area where the stop occurred. Consequently, a map of the subject area has been attached to this dissent as appendix A. 3

The record indicates that the vehicle appellant was riding in was pulled to the side of the northbound lanes of Highway 680 at a location “just north” of the Monument Boulevard interchange and south of the Highway 24 and Highway 680 split. Officer Shabazz testified it was approximately three-quarters of a mile to a mile to the next exit (Willow Pass Road) via Highway 24, and that it was about three-quarters of a mile via Highway 680, but *645 that route would have required crossing two lanes of traffic to get to the 680 split. Based on this testimony, the approximate location of the stopped vehicle is marked on the attached map.

It should be noted that appellant was merely a passenger in the stopped vehicle. Although another passenger appeared to be intoxicated or suffering from a nervous condition, nothing indicated that appellant was then under the influence of drugs or was otherwise incapacitated.

Vehicle Code section 21960, subdivision (a) provides that “the driver or passengers of a disabled vehicle stopped on a freeway may walk to the nearest exit, in either direction, on that side of the freeway upon which the vehicle is disabled. . . .” (Italics added.) Thus, without violating the law or crossing lanes of traffic, appellant could have walked back to Monument Boulevard and gotten off at that exit, a distance of approximately three-quarters of a mile. Although this walk may have presented some risk to appellant, this risk did not justify the nonconsensual pat-search. Indeed, Officer Shabazz admitted as much when he stated that if appellant had refused to be searched “I don’t believe I would have had him transported in the sergeant’s vehicle.”

In short, I do not believe the risk created by allowing appellant to walk the short distance back to the Monument Boulevard exit outweighed appellant’s Fourth Amendment right to be free of invasions of his privacy. The officer here should have given appellant the explicit option mandated by Scott : Either submit to a pat-search and ride with me, or walk the three quarters of a mile back to Monument Boulevard. Here, it is likely appellant would have welcomed the opportunity to walk.

For the foregoing reasons, I dissent.

*646 Appendix A

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In arguing that the officer in Scott did in fact have a duty to transport the defendant in that case, the Scott dissent observed: “The general protective duties of police are a vital part of police activity, and there has been increasing emphasis on the need for expansion of the police role beyond that of mere apprehension and arrest of criminal suspects. . . . Recognition of the protective role to be played by the police has been extended by the American Bar Association in the ABA Standards Relating to the Administration of Criminal Justice, Compilation (1974), outlining the ‘Major Current Responsibilities of Police’: ‘. . . [M]ost police agencies are currently given responsibility, by design or default: . . . (iii) to aid individuals who are in danger of physical harm:. . . (v) to facilitate the movement of people and vehicles; (vi) to assist those who cannot care for themselves; . . . and (xi) to provide other services on an emergency basis.’ [Citations.]” (People v. Scott, supra, 16 Cal.3d at p. 256 , (dis. opn. of Richardson, J.).)

Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ],

We may take judicial notice of this map under Evidence Code section 452, subdivision (g) [“Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute”] and subdivision (h) [“Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”]. Since I am taking judicial notice of these matters in dissent, the parties have not been afforded the procedural protections provided by Evidence Code sections 455, subdivision (a) and 459, subdivisions (c) and (d).