People v. McKay

BROWN, J., Concurring and Dissenting.

As Justice Jackson warned in 1949: “We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit. . . . [¶] . . . [¶] And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.” (Brinegar v. United States (1949) 338 U.S. 160, 182 [ 69 S.Ct. 1302, 1314 , 93 L.Ed. 1879 ] (dis. opn. of Jackson, J.).) From what we know of human nature, this observation seems unassailable: for every inch given, a mile will be taken.

This is a case about pushing to the limits and beyond. The majority concludes Vehicle Code section 40302, subdivision (a) (section 40302(a)) 1 permits the full custodial arrest of a bicyclist for failure to produce written or other tangible proof of identity when the arresting officer, in the exercise of his unfettered and unreviewable discretion, rejects proffered oral evidence. I disagree with the majority’s interpretation of section 40302(a). Moreover, I *629 am not convinced the search incident to the custodial arrest—which is authorized solely as a result of the officer’s decision to reject the offender’s oral identification—is constitutionally permissible.

Mr. McKay was sentenced to a prison term for the trivial public offense of riding a bicycle the wrong way on a residential street. Well. . . not exactly.

Deputy Valento observed Mr. McKay riding the “wrong way” on a residential street—a minor violation of the Vehicle Code. 2 It was, in fact, such a minor offense that it hardly seems worth the officer’s time to issue a citation. There is no indication Mr. McKay was creating any risk or threatening the public safety in any way. Not surprisingly, Mr. McKay did not have a driver’s license with him. No license is required to operate a bicycle. He identified himself by telling the deputy his name and date of birth. Without making any effort to confirm McKay’s identity, the officer decided instead to arrest him. In California an officer is required to arrest a person who “fails to present his driver’s license or other satisfactory evidence of his identity for examination” after being arrested for a violation of the Vehicle Code. (§ 40302(a).) Well . . . not exactly. 3

So what makes such minor lawbreaking worthy of attention? What if Mr. McKay rides a bicycle because he does not have a driver’s license? What if, being a dedicated libertarian, he deliberately eschews all forms of government-issued identification? What if not being photographed is a tenet of his religious faith? No matter. The result according to the majority is that Mr. McKay may be subjected to a full custodial arrest, have himself and his possessions thoroughly searched, have contraband unrelated to the observed public offense or to concerns about officer safety seized and used in the prosecution of a new crime.

The majority’s approach is flawed in two ways. First, its interpretation of Atwater v. Lago Vista (2001) 532 U.S. 318 [ 121 S.Ct. 1536 , 149 L.Ed.2d 549 ] (Atwater) turns a California procedural rule, enacted to lessen the degree of constitutional intrusion when people are detained for minor offenses, into a general warrant—a result that cannot be reconciled with the *630 historical context of the Fourth Amendment. Second, the majority interpretation of section 40302(a) makes the failure to carry documentary proof of identification at all times an arrestable public offense—solely at the officer’s discretion. Since the failure to carry documentary proof of identity is not itself a criminal offense, unreviewable discretion of such breadth cannot be squared with concerns about notice, due process, and discriminatory enforcement.

Thus, while I agree with the majority’s conclusion in part II.B.l that noncompliance with state procedures does not affect the validity of an arrest under the federal Constitution without an independent violation of the Fourth Amendment, I conclude that on these facts the arrest and search of defendant were unreasonable and therefore unconstitutional.

I.

The majority insists this result is compelled by Atwater . I do not think so. In Atwater , the high court ruled that an arrest for a very minor criminal offense is not per se unreasonable under the Fourth Amendment. ( Atwater, supra, 532 U.S. at pp. 353-354 [ 121 S.Ct. at p. 1557 ].) It is also true that the court had previously authorized broad searches incident to arrest (see United-States v. Robinson (1973) 414 U.S. 218 [ 94 S.Ct. 467 , 38 L.Ed.2d 427 ] (Robinson); United States v. Gustafson (1973) 414 U.S. 260 [ 94 S.Ct. 488 , 38 L.Ed.2d 456 ]; New York v. Belton (1981) 453 U.S. 454 [ 101 S.Ct. 2860 , 69 L.Ed.2d 768 ] (Belton)), and placed its imprimatur on pretextual traffic stops (Whren v. United States (1996) 517 U.S. 806 [ 116 S.Ct. 1769 , 135 L.Ed.2d 89 ] (Whren)).

Nevertheless, the “touchstone” of the Fourth Amendment remains “ ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109 [ 98 S.Ct. 330, 332 , 54 L.Ed.2d 331 ]; see also United States v. Ramirez (1998) 523 U.S. 65, 71 [ 118 S.Ct. 992, 996-997 , 140 L.Ed.2d 191 ].) “The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials . . . ‘ “to safeguard the privacy and security of individuals against arbitrary invasions.” ’ ” (Delaware v. Prouse (1979) 440 U.S. 648, 653-654 [ 99 S.Ct. 1391, 1396 , 59 L.Ed.2d 660 ] (Prouse), fn. omitted; Camara v. Municipal Court (1967) 387 U.S. 523, 528 [ 87 S.Ct. 1727, 1730 , 18 L.Ed.2d 930 ].) “[T]he central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.” (United States v. Ortiz (1975) 422 U.S. 891, 895 [ 95 S.Ct. 2585, 2588 , 45 L.Ed.2d 623 ].)

A. The Problem with General Warrants

“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that *631 motivated the framing and adoption of the Fourth Amendment [to the United States Constitution].” (Payton v. New York (1980) 445 U.S. 573, 583 [ 100 S.Ct. 1371, 1378 , 63 L.Ed.2d 639 ], fn. omitted.) In 1761, James Otis denounced the general warrant as “ ‘the worst instrument of arbitrary power’ . . . [because it] placed ‘the liberty of every man in the hands of every petty officer.’ ” (Boyd v. U.S. (1886) 116 U.S. 616, 625 [ 6 S.Ct. 524, 529 , 29 L.Ed. 746 ], fn. omitted.) John Adams, after witnessing Otis’s famous oration, declared, “ ‘Then and there’ the child Independence was bom.” (Ibid.) At the very least, then and there the Fourth Amendment was bom.

General warrants were objectionable precisely because of their indiscriminate character, and the Fourth Amendment was designed to prevent indiscriminate searches and seizures conducted by petty officials with unfettered discretion. The framers sought to preclude “the petty tyranny of unregulated rummagers.” (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn. L.Rev. 349, 411.)

The first clause of the Fourth Amendment issues a global command: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” The second clause—specifically prohibiting the issuance of a warrant except “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”— addresses the narrower compass of traditional search warrants “for contraband, stolen goods, and the like.” (Amar, Fourth Amendment First Principles (1994) 107 Harv. L.Rev. 757, 765, fn. omitted.) Its purpose was probably not to make warrants mandatory, but to limit the opportunity of the executive to obtain warrants in the first place. (See Taylor, Two Studies in Constitutional Interpretation (1969) pp. 38-50.)

Unfortunately, the Supreme Court’s modem Fourth Amendment jurisprudence gives new vigor to petty rummagers. In analyzing searches incident to arrest, the court has tended to equate probable cause with reasonableness, but these terms “serve distinct functions, which are lost by homogenization of the legal vocabulary.” (Gramenos v. Jewel Companies, Inc. (7th Cir. 1986) 797 F.2d 432, 442 .) In Whren, supra, 517 U.S. 806 , Justice Scalia authored a unanimous opinion in which the Supreme Court ruled that when a police officer observes a traffic violation, stopping the vehicle is reasonable and the officer’s subjective motivation plays no part in the Fourth Amendment analysis. (Id. at pp. 810, 813 [116 S.Ct. at pp. 1772-1774].) Whren essentially legitimized pretextual stops—the sine qua non of unjustified and arbitrary law enforcement. A pretext stop occurs when “the justification proffered by the State for an arrest is legally sufficient, but where the *632 arresting officer was in fact making the arrest to search the arrestee incident to arrest for a reason which was legally insufficient to support the arrest.” (Burkoff, The Pretext Search Doctrine: Now You See It, Now You Don’t (1984) 17 U. Mich. J.L. Reform 523 , 523.)

The court has clearly seen the need to curb police discretion only when law enforcement agents search and seize without probable cause (Prouse, supra, 440 U.S. at p. 663 [ 99 S.Ct. at p. 1401 ]), and when police operate under vague enforcement standards which confer a virtually unrestrained power to arrest. (Kolender v. Lawson (1983) 461 U.S. 352, 360 [ 103 S.Ct. 1855, 1859-1860 , 75 L.Ed.2d 903 ] (Kolender).) In Prouse , an officer randomly stopped the defendant to check his driver’s license and registration. The United States Supreme Court held that subjecting drivers to random checks, without reasonable suspicion, is unreasonable under the Fourth Amendment. (Prouse, at p. 663 [ 99 S.Ct. at p. 1401 ].) The Prouse court could not “conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. [Moreover,] [t]his kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” (Id. at p. 661 [ 99 S.Ct. at p. 1400 ].) Whren distinguished Prouse on the ground that the spot-checking officer did not have “ ‘probable cause to believe that a driver [was] violating any one of the multitude of applicable traffic and equipment regulations’ ” (Whren, supra, 517 U.S. at p. 817 [ 116 S.Ct. at p. 1776 ]), whereas in Whren , the arresting officer did have probable cause to believe that the defendant had violated a traffic law.

Probable cause to believe that a traffic violation has occurred does not adequately distinguish Whren, Atwater and the case at hand from Prouse , however. The United States Supreme Court purportedly believes that “ ‘observed [traffic] violations’ . . . afford the ‘ “quantum of individualized suspicion” ’ necessary to ensure that police discretion is sufficiently constrained.” ( Whren, supra, 517 U.S. at pp. 817-818 [ 116 S.Ct. at p. 1776 ].) In reality, an officer’s discretion in deciding whom to stop is not constrained at all by a probable cause prerequisite because the officer need only point to a minor traffic violation to negate a claim of unfettered arbitrariness. (1 LaFave, Search and Seizure (3d ed. 1996) § 1.4(e), p. 123.) Due to the widespread violation of minor traffic laws, an officer’s discretion is still as wide as the driving population is large.

In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum “crimes”—many too trivial even to be *633 honestly labeled infractions. They are nevertheless public offenses for which a violator may be arrested. Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant. (Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses (1997) 16 Pace L.Rev. 97, 146.)

An officer’s observation of a very minor offense authorizes him to stop the car (Whren, supra, 517 U.S. at p. 817 [ 116 S.Ct. at p. 1776 ]) or bicycle (U.S. v. McFadden (2d Cir. 2001) 238 F.3d 198 ), arrest the driver or rider (Atwater, supra, 532 U.S. at p. 354 [ 121 S.Ct. at p. 1557 ]; McFadden , at p. 204), search the driver or rider (Robinson, supra, 414 U.S. at p. 235 [94 S.Ct. at pp. 476-477]), search the entire passenger compartment of the car including any package inside (Belton, supra, 453 U.S. at p. 460 [ 101 S.Ct. at p. 2864 ]), impound the car and inventory all of its contents (Colorado v. Bertine (1987) 479 U.S. 367, 374 [ 107 S.Ct. 738, 742 , 93 L.Ed.2d 739 ]), and imprison the offender for up to 48 hours (Atwater, at p. 352 [ 121 S.Ct. at p. 1556 ]; County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56 [ 111 S.Ct. 1661, 1669-1670 , 114 L.Ed.2d 49 ]).

Thus, after Atwater, the notion that “[a]n individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation” (Prouse, supra, 440 U.S. at p. 662 [ 99 S.Ct. at p. 1400 ]) is simply no longer true. In fact, the same rules apparently apply to those who walk, bicycle, rollerblade, skateboard, or propel a scooter. Probable cause is ubiquitous.

Given the pervasiveness of such minor offenses and the ease with which law enforcement agents may uncover them in the conduct of virtually everyone, 4 the probable cause requirement is so diluted it ceases to matter, “for . . . there exists ‘a power that places the liberty of every man in the hands of every petty officer,’ ” precisely the kind of arbitrary authority which gave rise to the Fourth Amendment. (1 LaFave, Search and Seizure, supra, § 1.4(e), p. 123, quoting 2 Wroth & Zobel, Legal Papers of John *634 Adams (1965), pp. 141-142; see People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 205-206 [ 101 Cal.Rptr. 837 , 496 P.2d 1205 ] (Simon).)

B. The Problem with Vagueness

The problem of arbitrariness is compounded in circumstances like these where the enforcement standard is impermissibly vague. A statute that either forbids or requires the doing of an act in “terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [ 46 S.Ct. 126, 127 , 70 L.Ed. 322 ].) The basic premise of the void-for-vagueness doctrine is that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [ 59 S.Ct. 618, 619 , 83 L.Ed. 888 ].) In the Fourth Amendment context, constitutional reasonableness should “encompass procedural regularity as well as substantive fairness” and, as these facts illustrate, the two are often “tightly intertwined.” (Amar, Fourth Amendment First Principles, supra, 107 Harv. L.Rev. at pp. 808-809.)

In California, a Vehicle Code offender is generally arrested pursuant to section 40300 et seq. For most violations, the Vehicle Code, recognizing the lesser degree of criminality associated with traffic violations, expresses a preference for citing and releasing the offender. (§§ 40303, 40304, 40500.) However, if the offender fails to present his “driver’s license or other satisfactory evidence of his identity for examination,” the officer may bring the offender before a magistrate, except in the case of a minor. (§§ 40302, 40302.5.) Here, defendant was arrested pursuant to section 40302 because he failed, in the majority’s view, to present satisfactory evidence of his identity.

The majority correctly points out that “presenting a driver’s license” or its functional equivalent avoids an intrusive custodial arrest under section 40302, “[s]o long as the [identification] is current, valid, and raises no suspicion that it has been altered or falsified.” (Maj. opn., ante, at p. 620.) I disagree, however, with the majority’s treatment of “ ‘other satisfactory evidence,’ ” namely, proffered oral identification. (Id. at pp. 620-622.) Effectively drafting a blueprint for arbitrary enforcement, the majority “reserves wide discretion to the officer to determine what [oral] evidence is satisfactory” and refuses to “review an officer’s decision to reject oral evidence of identification, since that decision will be based entirely on the officer’s assessment of the offender’s credibility—an assessment involving intangible factors that may be difficult to reproduce in the courtroom.” (Id. at p. 624.)

*635 The principal vice is that the discretion granted to the arresting officer by the majority is impermissibly vague under Kolender, supra, 461 U.S. 352 . The defendant in Kolender was convicted under Penal Code section 647, subdivision (e), which required that persons who loiter or wander on the streets provide “credible and reliable” identification when asked by an officer. (Kolender, at p. 353 [ 103 S.Ct. at p. 1856 ].) State decisional authority defined “ ‘credible and reliable’ ” identification as “ ‘carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself.’ ” (Id. at p. 357 [ 103 S.Ct. at p. 1858 ].) The Ninth Circuit Court of Appeals determined that the statute violated the Fourth Amendment’s proscription against unreasonable searches and seizures because it contained “a vague enforcement standard” susceptible to “arbitrary enforcement” and failed to give “fair and adequate notice of the type of conduct prohibited.” (Kolender, at p. 355 [ 103 S.Ct. at p. 1857 ].) The United States Supreme Court agreed, noting the most important aspect of the vagueness doctrine is not actual notice but the “ ‘other principle element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” (Id. at p. 358 [ 103 S.Ct. at p. 1858 ].) The Supreme Court held California’s interpretation of the statute was unconstitutionally vague under the Fourteenth Amendment’s due process clause, “ ‘conferring] on police a virtually unrestrained power to arrest and charge persons with a violation.’ ” (Kolender, at p. 360 [103 S.Ct. at p. I860].)

The majority’s grant of discretion to law enforcement under section 40302 and subsequent refusal to review that discretion fall squarely within the central concern in Kolender—“the full discretion accorded to the police to determine whether the suspect has provided a ‘credible and reliable’ identification necessarily ‘entrusts] lawmaking “to the moment-to-moment judgment of the policeman on his beat” ’ . . . [and] ‘furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.” ’ ” (Kolender, supra, 461 U.S. at p. 360 [103 S.Ct. at pp. 1859-1860].)

The Court of Appeal in People v. Monroe (1993) 12 Cal.App.4th 1174, 1191 [ 16 Cal.Rptr.2d 267 ] (Monroe) rejected a similar vagueness attack on section 40302 by distinguishing the statute at issue in Kolender on the ground that section 40302 is procedural, not substantive. The validity of such a distinction is not self-evident. ( Monroe, supra, 12 Cal.App.4th 1174, 1203-1204 (dis. opn. of Smith, J.).) Whether a statute is labeled procedural or substantive, it must provide “sufficiently definite guidelines for the police” to prevent “arbitrary and discriminatory enforcement.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106-1107 [ 40 Cal.Rptr.2d 402 , 892 *636 P.2d 1145 ]; cf. Hudson v. United States (1997) 522 U.S. 93, 99 [ 118 S.Ct. 488, 493 , 139 L.Ed.2d 450 , 162 A.L.R. Fed. 737 ] [in assessing application of ex post facto prohibition against increased punishment, courts must consider not only legislative intent to label penalty criminal or civil, but also punitive purpose or effect].) Even assuming the procedural/substantive distinction could be determinative, it should not affect the analysis in this case. Although some cases have held that section 40302 is not a substantive criminal statute and cannot provide probable cause to arrest (Simon, supra, 7 Cal.3d at pp. 200-201), the facts of this case prove otherwise. Defendant was not legally required to have a driver’s license in his possession, since only motor vehicle drivers, not bicyclists, are obligated to possess a driver’s license while on the roadways. (§ 12951.) The majority asserts that both motor vehicle drivers and bicyclists “are required to produce satisfactory evidence of identity for examination when stopped for a violation of the law.” (Maj. opn., ante, at p. 625.) The critical difference, however, is that the motor vehicle driver’s obligation to possess a driver’s license stems from substantive law; the bicyclist’s or pedestrian’s obligation derives solely from section 40302. In this way, as applied to defendant and any other bicyclist or pedestrian, section 40302 is both substantive and procedural in nature. (Cf. Monroe, supra, 12 Cal.App.4th 1174 .) Therefore, Kolender is problematic to the majority’s grant of “wide discretion to the officer to determine what evidence is satisfactory.” (Maj. opn., ante, at p. 624.) “Although the initial detention is justified, the State fails to establish standards by which the officers may determine whether the suspect has complied with the subsequent identification requirement.” (Kolender, supra, 461 U.S. at p. 361 [ 103 S.Ct. at p. 1860 ].)

With this in mind, I would adopt an “objective reasonableness” standard that requires the arresting officer to articulate specific “ ‘facts, which taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion’ of a full custodial arrest.” ( Atwater, supra, 532 U.S. 318, 366 [ 121 S.Ct. at p. 1564 ] (dis. opn. of O’Connor, J.); see also State v. Walker (Tenn. 2000) 12 S.W.3d 460 , 466 & fn. 12 [holding officer lacked objectively reasonable basis for rejecting oral identification offered by defendant under a cite-and-release statute “similar in many respects to our own”].) This does not mean that an officer will be obligated to accept oral identification any time that it is given. The officer must still weigh the sufficiency of the identification with a corroborating source. If the proffered oral identification is not corroborated, the identification is unsatisfactory. “[T]his ‘discretion,’ if one may use that term, is not the complete unbounded discretion of which the majority speak. It is a discretion which can be abused if the officer acts unreasonably or arbitrarily.” ( Monroe, supra, 12 Cal.App.4th 1174, 1200 (dis. opn. of Smith, J.).)

*637 C. The Virtue of Reasonableness

In recent years, Fourth Amendment analysis has attained a kind of perverse, irrational fixity: probable cause equals reasonableness. Only by insisting probable cause and reasonableness are synonymous can courts avoid the socially costly consequences of the exclusionary rule. For this false peace, we pay too high a price. We are asked to surrender our right to be protected from unreasonable intrusions. Ironically, the severe sanction of the exclusionary rule has not discouraged unreasonable searches; it has, instead, shrunk the constitutional protection against them. (See, e.g., U.S. v. Castro (5th Cir. 1999) 166 F.3d 728, 735 (dis. opn. of Politz, J.) [“technical distortions and expansion of exclusionary rule exceptions threaten to make the fourth amendment a hollow shell of its former self’].) The police have a difficult, dangerous and often thankless job. Trying to combat crime and violence and protect the public without losing the public’s trust is a formidable challenge. In the cause of public trust, the exclusionary rule has been at best counterproductive and at worst pernicious. Looking beyond probable cause and viewing reasonableness as a mandate of independent vitality restores some measure of constitutional balance. Probable cause and reasonable conduct are not the same thing. Requiring the police to behave reasonably—i.e., to assess their conduct in light of all the surrounding circumstances—is not asking too much. It is the same burden we impose on every adult. The Constitution demands no less of the government.

The high court has historically applied such a reasonableness test— balancing the individual’s and the state’s interests—notwithstanding the existence of probable cause. In a somewhat analogous case, the court held that a nighttime entry into a house to arrest a drunk driving suspect was unreasonable even though the officers had both probable cause and a legitimate claim of exigent circumstances. (Welsh v. Wisconsin (1984) 466 U.S. 740 [ 104 S.Ct. 2091 , 80 L.Ed.2d 732 ].) The court found the intrusion unreasonable solely on the basis of the minor nature of the offense. “[T]he penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” (Welsh, at p. 754, fn. 14 [ 104 S.Ct. at p. 2100 ].) Given this expression of the state’s interest, the court ruled a warrantless home arrest could not be sustained simply because the offender’s blood-alcohol level might have dissipated while police obtained a warrant. (Ibid.)

A similar traditional Fourth Amendment balancing of the legitimate governmental interests in arrest against the degree of intrusiveness upon an individual’s privacy would reveal the unreasonableness of defendant’s arrest *638 and search in this case. (See Wyoming v. Houghton (1999) 526 U.S. 295, 300 [ 119 S.Ct. 1297, 1300 , 143 L.Ed.2d 408 ] [balancing “on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests”].) 5

Here, the state has classified the riding of a bicycle on the wrong side of the road, like most other Vehicle Code offenses, as an infraction. “An infraction is not punishable by imprisonment.” (Pen. Code, § 19.6.) It is a fine-only offense subject to the Vehicle Code’s cite-and-release “honor system, requiring the good faith and cooperation of the person cited.” (Simon, supra, 7 Cal.3d at,p. 201.) “If the State has decided that a fine, and not imprisonment, is the appropriate punishment for an offense, the State’s interest in taking a person suspected of committing that offense into custody is surely limited, at best.” ( Atwater, supra, 532 U.S. 318, 365 [ 121 S.Ct. 1536, 1563 ] (dis. opn. of O’Connor, J.).)

Nor do I believe that the state’s interest is significantly bolstered in this case because defendant failed to present documentary identification. The only logical reasons to confirm an offender’s identity or guarantee a court appearance in the first place are to ensure that (1) the offender is held personally accountable for the traffic offense by paying the applicable fine and (2) the state actually receives the payment. What the majority fails to acknowledge is that “[i]n today’s computer age the officer in the field has a host of readily available methods of verifying the identity of a person” in an objective manner. ( Monroe, supra, 12 Cal.App.4th 1174, 1199 (dis. opn. of Smith, J.).) Attempting to verify oral identification would also be “[consistent with California Highway Patrol policy” to avoid arresting a driver for merely failing to have a driver’s license, so requiring officers to corroborate oral identification before arrest should not be problematic. (People v. Grant (1990) 217 Cal.App.3d 1451, 1455 [ 266 Cal.Rptr. 587 ].) For instance, patrol cars are now equipped with laptop computers, enabling an officer to quickly confirm proffered oral identification. (See, e.g., U.S. Dept. of Justice, Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics, 1999: Data for Individual State and Local Agencies of 100 or More Officers (Nov. 2000) pp. vi, xvi, 157-158, 193-194, 205-206, 242.) *639 Alternatively, the officer could relay the information to the dispatcher, who, in turn, could verify the offender’s identity. Or, the officer could “ask another person at the scene whose identity has been verified to vouch for the citee’s identity.” ( Monroe, supra, 12 Cal.App.4th 1174, 1199 (dis. opn. of Smith, J.).) All of these techniques allow the arresting officer to corroborate the proffered oral identification or reject it on objective, rather than subjective, grounds.

Here, defendant furnished his name and date of birth to the officer. Only after arresting, handcuffing, searching and placing defendant in the back of the patrol car did the officer even attempt to corroborate defendant’s oral identification on the laptop computer mounted in his patrol car. As it turned out, defendant’s oral identification was quite accurate. When the means are readily available, an officer’s failure to at least attempt to corroborate the proffered oral identification before placing the offender in custodial arrest is unreasonable per se. (See State v. Satterwhite (1997) 123 Ohio App.3d 322 [ 704 N.E.2d 259, 261 ] [holding that officer’s failure to even attempt to verify the defendant’s identity before making an arrest under a cite-and-release statute was objectively unreasonable].)

An objective reasonableness standard of review is also in accord with the Vehicle Code’s cite-and-release “honor system.” (Simon, supra, 7 Cal.3d at p. 201 .) The entire legislative framework operates on the assumption that the offender will either honor his “promise to appear” in court or will mail the fine payment. (§ 40500 et seq.) Likewise, when an offender is stopped on a highway, he is trusted to furnish a valid driver’s license or accurate oral identification. Oral identification may be false; documentary evidence may be fraudulent. In either case, the officer must, after corroboration, trust the citee’s proffered identification or be able to articulate an objective reason for disbelieving it. The absence of a license—particularly in circumstances where no license is required—does not fatally undermine the violator’s credibility. (See Simon, supra, 7 Cal.3d at p. 195 .)

In the unlikely event that the officer has no readily available way to corroborate the offender’s identity, I, like the majority, would hold that the officer’s judgment in believing or disbelieving the offender is largely in the officer’s discretion.

II.

Every court that has approved sweeping search powers in conjunction with broad authority to arrest for minor offenses has acknowledged the potential for abuse. Of course, everyone who has not spent the last 20 years sealed in an ivory tower knows the problem is real. (But see Atwater, supra, 532 U.S. at pp. 351, 353 & fn. 12 [appen.] [121 S.Ct. at pp. 1556, 1557].) A *640 Gallup Poll released in December 1999 indicated more than half of the Americans polled believed police actively engage in racial profiling, and 81 percent of them said they disapprove of the practice. (U.S. Dept, of Justice, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned (Nov. 2000) p. 4 (DOJ).) Anecdotal evidence and empirical studies confirm that what most people suspect and what many people of color know from experience is a reality: there is an undeniable correlation between law enforcement stop-and-search practices and the racial characteristics of the driver. (See DOJ, supra, at p. 5; Brazil & Berry, Color of Driver Is Key to Stops in 1-95 Videos, Orlando Sentinel Tribune (Aug. 23, 1992) p. Al; Harris, The Stories, the Statistics and the Law: Why “Driving While Black” Matters (1999) 84 Minn. L.Rev. 265, 279, 280-281, 295.)

Empirical data on stop-and-search practices in Maryland, New Jersey and New York also confirm statistically significant disparities between the rates at which people of color are stopped and searched and the rates for Whites in similar circumstances. (DOJ, supra, at pp. 1-9.) Nor has California been immune. Questions have been raised about the disparate impact of stop-and-search procedures of the California Highway Patrol. (McCormick et al., Racial Bias in CHP Searches, S.F. Chronicle (July 15, 2001) p. A-l.) The practice is so prevalent, it has a name: “Driving while Black.”

Both the Atwater majority and the majority here suggest pretextual stops can be adequately remedied by challenging them as “being based on invalid criteria, such as race, religion, or other arbitrary classification.” 6 (Maj. opn, ante, at p. 622.) Such a suggestion overlooks the fact that most victims of pretextual stops will barely have enough money to pay the traffic citation, much less be able to afford an attorney. Even if a pretextual stop victim is able to convince an attorney to handle the case pro bono, the defendant’s chances of even obtaining discovery are slight, for he must first make “a credible showing of different treatment of similarly situated persons [of other races]” (United States v. Armstrong (1996) 517 U.S. 456, 470 [ 116 S.Ct. 1480, 1489 , 134 L.Ed.2d 687 ])—a hurdle that has proved to be higher in .the lower courts than one would initially suspect. (See, e.g., U.S. v. Bell (8th Cir. 1996) 86 F.3d 820, 823 [holding that the defendant did not meet the Armstrong standard because he did not present evidence about the number of *641 White bicyclists who ride their bicycles between sunset and sunrise, although he did show that (1) all persons arrested for riding their bicycle without a headlamp that month were Black and that (2) 98 percent of all bicycles in the Des Moines, Iowa, area, populated predominantly by White people, did not have headlamps].) Such evidence will be hard to come by, not because there is “a dearth of horribles demanding redress,” but because, logically, such incidents are rarely reported. (Atwater, supra, 532 U.S. at p. 353 [ 121 S.Ct. at p. 1557 ].) Most pretextual stops and searches will prove fruitless for the police; they will have no evidence to justify an arrest and will simply release the victim. Although a cognizable injury has occurred, the victim will have little incentive to spend the time, money, and energy required to pursue such a claim. Additionally, the victim of such an incident may not be entitled to relief “beyond barring prosecution of the traffic charge.” (1 LaFave, Search and Seizure (2002 stipp.) § 1.4, p. 25.) Quite simply, the equal protection clause is of little help to victims of pretextual stops and searches.

“The insult remains.” (State v. Overby (1999) 1999 N.D. 47 [ 590 N.W.2d 703, 708 ] (conc. opn. of Vande Walle, C. J.).) To dismiss people who have suffered real constitutional harms with remedies that are illusory or nonexistent allows courts to be complacent about bigotry while claiming compassion for its victims. Judges go along with questionable police conduct, proclaiming that their hands are tied. (U.S. v. Herring (D.Or. 1999) 35 F.Supp.2d 1253, 1258 .) If our hands really are tied, it behooves us to gnaw through the ropes.

Conclusion

In the spring of 1963, civil rights protests in Birmingham united this country in a new way. Seeing peaceful protesters jabbed with cattle prods, held at bay by snarling police dogs, and flattened by powerful streams of water from fire hoses galvanized the nation. Without being constitutional scholars, we understood violence, coercion, and oppression. We understood what constitutional limits are designed to restrain. We reclaimed our constitutional aspirations. What is happening now is more subtle, more diffuse, and less visible, but it is only a difference in degree. If harm is still being done to people because they are black, or brown, or poor, the oppression is not lessened by the absence of television cameras.

I do not know Mr. McKay’s ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes—places where no resident would be arrested for riding the “wrong way” on a bicycle whether he had his driver’s *642 license or not. Well ... it would not get anyone arrested unless he looked like he did not belong in the neighborhood. That is the problem. And it matters. “[T]he rule of law implies equality and justice in its application.” (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 171 [ 92 S.Ct. 839, 848 , 31 L.Ed.2d 110 ].) If we are committed to a rule of law that applies equally to “minorities as well as majorities, to the poor as well as the rich,” we cannot countenance standards that permit and encourage discriminatory enforcement. (Ibid.)

According to Atwater , a full custodial arrest for a trivial infraction is constitutionally permissible. Broad powers to search incident to an arrest have a long common law and constitutional history. (Taylor, Two Studies in Constitutional Interpretation, supra, at pp. 28-29.) However, if full custodial arrest is authorized for trivial offenses, the power to search should be constrained. If broad searches incident to arrest are permitted, the power to effect a full custodial arrest should be limited. To permit both full custodial arrest for minor offenses and virtually unlimited authority to search incident to such an arrest allows officers to push past the boundaries of the Fourth Amendment. When officers may arrest for minor offenses, conduct virtually unlimited searches, and are granted unbounded and unreviewable discretion to select the target of such enforcement activity, the resulting search cannot be constitutionally permissible.

It is certainly possible to argue that the rationale of Atwater can be extended to encompass what happened here. The question is why we should do so. It is clear the Legislature could not authorize the kind of standardless discretion the court confers in this case. Why should the court permit officers to do indirectly what the Constitution directly prohibits? How can such an action be deemed constitutionally reasonable? And if we insist it is, can we make any credible claim to a commitment to equal justice and equal treatment under law?

Well .... No. Not exactly.

All statutory references are to the Vehicle Code unless otherwise indicated.

Section 21650.1 provides: “A bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.”

The Legislature recognizes that bike riders need not have a driver’s license. “When a minor is cited for an offense not involving the driving of a motor vehicle, the minor shall not be taken into custody pursuant to subdivision (a) of Section 40302 solely for failure to present a driver’s license.” (§ 40302.5.) Nor is the arrest of an adult who does not have a license in his possession mandatory. “If the arrestee does not have a driver’s license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee to place a right thumbprint ... on the notice to appear.” (§ 40500, subd. (a).)

In a 1993 study conducted by the United States Department of Transportation, 50 percent of all vehicles monitored (71 percent on urban interstates and 80 percent on rural interstates) were violating the speed limit. (U.S. Dept, of Transportation, National Maximum Speed Limit—Fiscal Year 1993: Travel Speeds, Enforcement Efforts, and Speed-Related Highway Safety Statistics (Oct. 1995) tables 1, 3.) Add to this the traffic enforcement judgment calls—following too closely, touching lane divider lines, failing to signal, driving too slowly, and driving exactly the speed limit when an officer deems the speed unsafe for the conditions—and it becomes clear this is a game the police invariably win. In fact, driving in accordance with all traffic regulations can also be considered a suspicious circumstance. (See, e.g., United States v. Smith (11th Cir. 1986) 799 F.2d 704, 706-707 [criticizing use of drug courier profile that included driving “in accordance with all traffic regulations” as a factor].)

The Atwater majority suggests that state legislatures are in the best position to cure concerns about discriminatory enforcement. They can constrain officer discretion by statute. However, the fines and forfeitures collected for minor violations are a source of revenue for state and local governments. Whether their interest is in revenue or aggressive community policing, governments have no incentive to leave people alone. That is why we have a Constitution. “[The courts] are entrusted with [duties] as guardians of the Bill of Rights to apply limitations upon the legislature’s power.” (U.S. v. Ferguson (6th Cir. 1993) 8 F.3d 385, 398 (dis. opn. of Jones, J.).)

I am of the opinion that the Fourth Amendment’s reasonableness requirement, when read as broadly as it was written, includes within it a distaste for the discriminatory evils that the equal protection clause of the Fourteenth Amendment was designed to prevent. Moreover, one need not resort to the equal protection clause to challenge pretextual police conduct, when such inequitable behavior is inherently “unreasonable” under the Fourth Amendment. After all, “[tjhe security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society.” (Wolf v. Colorado (1949) 338 U.S. 25, 27 [ 69 S.Ct. 1359, 1361 , 93 L.Ed. 1782 ], italics added.)