People v. McKay

WERDEGAR, J .

I concur in the majority’s conclusion that Vehicle Code section 40302, subdivision (a) (section 40302(a)) permits a police officer to *626 effect a custodial arrest of a bicyclist who, having been stopped for violating a provision of the Vehicle Code, lacks satisfactory evidence of his identity. (Maj. opn., ante, at p. 619 et seq.) I agree that section 40302(a) contemplates an offender will produce written or other tangible evidence of identity, but that oral evidence may suffice if, in the reasonable discretion of the officer, it is “satisfactory” to ensure the citee will honor his promise to appear. Moreover, I agree section 40302(a), as interpreted, does not violate the Fourth Amendment’s protection against unreasonable searches and seizures. (Atwater v. Lago Vista (2001) 532 U.S. 318 [ 121 S.Ct. 1536 , 149 L.Ed.2d 549 ] (Atwater).) Accordingly, the search incident to the custodial arrest in this case, in which the officer found a baggie of methamphetamine, was permissible. (United States v. Robinson (1973) 414 U.S. 218 [ 94 S.Ct. 467 , 38 L.Ed.2d 427 ].)

Unfortunately, the majority does not stop there or, rather, does not start and stop there, but instead addresses at the outset an unresolved and unnecessary constitutional question: whether the law permitting police to conduct a search incident to an arrest is limited to those situations, as here, in which the arrest is lawful under state law, or embraces as well an arrest that complies with the minimum constitutional requirements but violates state law. Because we conclude today that defendant’s arrest complied with both statutory (§ 40302(a)) and constitutional ( Atwater, supra, 532 U.S. 318 ) prerequisites, we have no need to address this further constitutional issue. The majority’s extensive analysis of the question is thus no more than obiter dictum.

As the majority knows well, 1 “ ‘we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.’ [Citations.] As the United States Supreme Court reiterated, ‘A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’ [Citation.] Applying that principle, the high court observed that if statutory relief had been adequate in the case before it, ‘a constitutional decision would have been unnecessary and therefore inappropriate.’ ” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231 [ 45 Cal.Rptr.2d 207 , 902 P.2d 225 ], quoting Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445, 446 [ 108 S.Ct. 1319, 1323, 1324 , 99 L.Ed.2d 534 ]; see also Three Affiliated Tribes v. Wold *627 Engineering (1984) 467 U.S. 138, 157-158 [ 104 S.Ct. 2267, 2279 , 81 L.Ed.2d 113 ]; Ashwander v. Valley Authority (1936) 297 U.S. 288, 346-347 [ 56 S.Ct. 466, 482-483 , 80 L.Ed. 688 ] (conc. opn. of Brandeis, J.); People v. Williams (1976) 16 Cal.3d 663, 667 [ 128 Cal.Rptr. 888 , 547 P.2d 1000 ].)

“Principles of judicial restraint counsel that we not reach out to decide gratuitously constitutional questions of first impression. Sound jurisprudence dictates that such issues be decided only in the context of cases and controversies actually raising the issue.” (People v. Bennett (1998) 17 Cal.4th 373, 393 [ 70 Cal.Rptr.2d 850 , 949 P.2d 947 ] (conc. opn. of Werdegar, J.).)

The majority seeks to evade this basic constitutional tenet by characterizing the constitutional issue as a “threshold” one (maj. opn., ante, at p. 607) and a “predicate” {id. at p. 608, fn. 3) to reaching the statutory issue. By so reasoning, the majority places the cart before the horse. In fact, the statutory issue (Did the arrest violate Vehicle Code section 40302?) is a predicate for the constitutional issue {If the arrest was bad, was the search nevertheless constitutional?). We need never reach the constitutional issue in this case because we find defendant’s arrest did not violate Vehicle Code section 40302. Only in a case involving a statutory violation would we be required to continue the analysis and decide whether the fruits of a search incident to an illegal arrest nevertheless fell outside the Fourth Amendment’s exclusionary rule. I would await such a case.

The majority also finds justification for its approach in its desire to reassure the Legislature, local governments and police departments that any efforts to craft laws and regulations guiding police officer discretion when making arrests will not result in the exclusion of relevant evidence as a sanction for their violation. (Maj. opn., ante, at pp. 608-609, fn. 3.) But as this court has often observed, “ ‘The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court.’ ” (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 [ 39 Cal.Rptr.2d 21 , 890 P.2d 43 ].) We need not reiterate here the problems associated with providing gratuitous constitutional decisions. 2 The ban on advisory opinions has existed from almost the beginning of our Republic (Hayburn’s Case (1792) 2 U.S. (2 Dall.) 409 [ 1 L.Ed. 436 ]) to the present day (see, e.g., United States v. Fruehauf (1961) *628 365 U.S. 146, 157 [ 81 S.Ct. 547, 553-554 , 5 L.Ed.2d 476 ]; Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126 [ 278 Cal.Rptr. 346 , 805 P.2d 300 ]). Nor does it matter whom the advisory opinion would benefit. (Salazar v. Eastin, supra, at p. 860 [declining to provide advisory opinion to assist the California State Board of Education]; Younger v. Superior Court (1978) 21 Cal.3d 102, 119 [ 145 Cal.Rptr. 674 , 577 P.2d 1014 ] [declining to provide advisory opinion to assist court clerks]; People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912 [ 83 Cal.Rptr. 670 , 464 P.2d 126 ] [declining to provide advisory opinion to assist law enforcement]; Denny’s, Inc. v. City of Agoura Hills (1997) 56 Cal.App.4th 1312, 1329, fn. 10 [ 66 Cal.Rptr.2d 382 ] [declining to provide advisory opinion to assist a city in drafting a permissible ordinance].) Thus, that such constitutional guidance would be potentially useful to legislative, governmental or law enforcement entities in discharging their duties is an insufficient reason to disregard the prohibition on advisory opinions.

Our decision finding defendant’s arrest valid under section 40302(a) renders it unnecessary to consider whether a search incident to an arrest in violation of a state law could nevertheless be constitutionally valid. Accordingly, I concur in the opinion with the exception of part II.B.l, about which I express no opinion. \

See Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128-129 [ 105 Cal.Rptr.2d 46 , 18 P.3d 1198 ] (maj. opn. of Kennard, J.); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [ 34 Cal.Rptr.2d 898 , 882 P.2d 894 ] (maj. opn. of Baxter, J.); Pearl v. Workers’ Comp. Appeals Bd. (2001) 26 Cal.4th 189, 196, fn. 3 [ 109 Cal.Rptr.2d 308 , 26 P.3d 1044 ] (maj. opn. of Chin, J.).

Contrary to the majority’s suggestion (maj. opn., ante, at p. 608, fn. 3), in neither California v. Greenwood (1988) 486 U.S. 35 [ 108 S.Ct. 1625 , 100 L.Ed.2d 30 ] nor Sibron v. New York (1968) 392 U.S. 40 [ 88 S.Ct. 1889 , 20 L.Ed.2d 917 ] did the United States Supreme Court render a gratuitous constitutional decision. In both cases, the high court resolved a constitutional issue that was necessary to decide the case. The qualified immunity cases cited by the majority (Wilson v. Layne (1999) 526 U.S. 603 [ 119 S.Ct. 1692 , 143 L.Ed.2d 818 ]; County of Sacramento v. Lewis (1998) 523 U.S. 833 [ 118 S.Ct. 1708 , 140 L.Ed.2d 1043 ]; maj. *628 opn., ante, at p. 608, fn. 3) are also inapposite for in neither case did the high court give priority to a constitutional question in derogation of a statutory one.