PEOPLE v. KING

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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Marlon Julius KING et al., Defendants and Appellants.

No. A060701.

Decided: November 22, 1994

Julie Schumer, under appointment by the Court of Appeal, Orinda, William P. Cole, Krech & Cole, under appointment by the Court of Appeal, Oakland, Jean Allen, under appointment by the Court of Appeal, San Francisco, Victor Blumenkrantz, under appointment by the Court of Appeal, Berkeley, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Asst. Atty. Gen., Ann K. Jensen, Christina V. Kuo, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Marlon King, Salema Dickerson, Earl Joseph, and Rodney Canada were convicted by jury of robbery (Pen.Code, § 211) 1 and destruction of telephone lines (§ 591).   On appeal, they contend the court erred in denying their motion to suppress the evidence 2 found after a traffic stop.   They argue the stop was an illegal pretext to search for evidence of the robbery.   Concluding the motion was properly denied, we affirm.   King, Joseph, and Canada also assert that section 654 3 compels a stay of their sentences for destruction of telephone lines.   We agree and modify their sentences accordingly.

FACTS 4

On July 21, 1992, shortly before midnight, Officer Hartley of the Walnut Creek Police Department received a dispatch concerning an armed robbery that had just occurred at a nearby motel.   The dispatch reported that three Black men, dressed in dark clothing, were involved and that they escaped on foot heading south from the motel.   A weapon was reportedly used.

As Officer Hartley drove toward the motel, he noticed a blue Toyota 4–Runner heading away from that location.   Hartley saw two occupants, a Black female driver and a Black male passenger.   The Toyota attracted Hartley's attention because it was driving away from the general direction of the motel, was the only car on the road at that late hour, and one occupant was a Black man.   He followed the car for just over half a mile and noticed nothing suspicious about the driving pattern.   He asked the dispatcher for the robbery suspects' ages, but none were known.   He was looking for any Vehicle Code violation so he could stop the car to investigate the robbery.

The Toyota's registration had expired, and Officer Hartley stopped it on that basis.   His intention, however, was also to investigate the robbery.   In fact, Hartley testified that investigating the robbery was his foremost concern.

Hartley radioed for backup as soon as he pulled the Toyota over, then used his loudspeaker to order the driver out of the car.   He told the driver (defendant Dickerson) to produce her identification and asked whether anyone else was in the car.   Hartley did not ask Dickerson about the expired registration because she began talking about it immediately after getting out of the car.   He told her both that he had pulled her over for an expired registration and that he was investigating an armed robbery and would appreciate her cooperation.

During the conversation between Hartley and Dickerson, Officer Norwood arrived and approached Hartley.   A few seconds later, the passenger (defendant Joseph) left the car carrying a baby and headed towards Officer Hartley.   Hartley had not previously seen the baby.   He ordered Joseph back into the car.   Officer Norwood then told Hartley that he saw someone in the back seat of the Toyota.

Hartley turned around and, for the first time, saw another man in the back seat.   Joseph and the back-seat passenger (defendant Canada) were ordered out of the car.   As they complied, Sergeant Bennett arrived at the scene.   He had information the robbery suspects wore black or dark shirts and one wore brown pants.

Sergeant Bennett approached the car to make sure no one else was in it.   From outside, he saw a third Black man (defendant King) hiding underneath some clothes in the back cargo area and ordered him to come out.   King was wearing brown pants.   The car was searched, revealing, among other things, a bag containing a large number of loose dollar bills.

Officer Hartley did not cite Dickerson for driving with an expired registration.   Asked whether he had planned to cite her, Hartley answered he “hadn't really thought about it.”

DISCUSSION

I. Validity of Traffic Stop

Defendants contend the stop of their vehicle for an expired registration was an unconstitutional pretext for investigating the robbery without reasonable suspicion they were the robbers.   We conclude that, viewed objectively, the stop was legally authorized.

The issue we consider here is what standard to apply in deciding whether police action constitutes a pretextual stop requiring suppression of evidence.  “The subject of pretextual arrests presents some of the most intriguing historical, conceptual and practical issues in the often problematic area of fourth amendment jurisprudence.   By definition, a pretextual arrest occurs when the police employ an arrest based on probable cause as a device to investigate or search for evidence of an unrelated offense for which probable cause is lacking.”  (U.S. v. Trigg (7th Cir.1989) 878 F.2d 1037, 1038–1039.)

The question whether an officer's ulterior investigatory motive has any bearing on the validity of an otherwise legal detention or search has generated considerable discussion and diverse viewpoints.   Much of the recent debate was prompted by United States Supreme Court decisions limiting the Fourth Amendment analysis, in various contexts, to “ ‘․ an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time,’ Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), and not [depending] on the officer's actual state of mind at the time the challenged action was taken.”  (Maryland v. Macon (1985) 472 U.S. 463, 470–471, 105 S.Ct. 2778, 2782–2783, 86 L.Ed.2d 370 [rejecting defense argument that purchase by detective of obscene magazines was a search because purchase made as part of a pornography investigation];  see also United States v. Villamonte–Marquez (1983) 462 U.S. 579, 584 & fn. 3, 103 S.Ct. 2573, 2577 & fn. 3, 77 L.Ed.2d 22 [customs officers' boarding of vessel in reliance on statute, with roots circa 1790, authorizing document inspection not invalidated because officers were acting on drug tip and were accompanied by state policeman].)

A recent California case, People v. Miranda (1993) 17 Cal.App.4th 917, 21 Cal.Rptr.2d 785 provides an insightful overview of how other, primarily federal, jurisdictions have attempted to “harmonize the concept of pretextual arrests with the Supreme Court's pronouncements․”  (Id. at p. 924, 21 Cal.Rptr.2d 785.)   As Miranda notes, three approaches or tests have emerged:  one focusing, despite the Supreme Court's statements, on the officer's subjective motivation, and two distinct objective tests (called “majority” and “minority” by the Miranda court) focusing on the objective reasonableness of the officer's actions.  (Id. at pp. 924–925, 21 Cal.Rptr.2d 785.)

Courts applying a subjective test look to the “motivation or primary purpose of the arresting officers.”  (United States v. Smith (9th Cir.1986) 802 F.2d 1119, 1124;  see, e.g., U.S. v. Daniel (D.Nev.1992) 804 F.Supp. 1330, 1335 [unsafe U-turn was mere pretext for traffic stop where officers' primary purpose was to search car and interrogate occupants in effort at “ ‘gang suppression’ ”];  People v. Aguilar (1991) 228 Cal.App.3d 1049, 1052, 279 Cal.Rptr. 246 [arrest for driving with suspended license, after traffic stop, was invalid because done for “ ‘an investigatory police motive’ ”].) 5

The majority objective test looks simply to the legal authorization for the officer's actions, treating as irrelevant both the officer's subjective motivation and the degree to which the questioned conduct would have been unusual absent the investigatory motive.  “[S]o long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.”  (U.S. v. Causey (5th Cir.1987) 834 F.2d 1179, 1184, fn. omitted;  accord, U.S. v. Trigg, supra, 878 F.2d at p. 1041;  U.S. v. Cummins (8th Cir.1990) 920 F.2d 498, 501;  People v. Miranda, supra, 17 Cal.App.4th at pp. 924–925, 21 Cal.Rptr.2d 785.)

The minority objective test, apparently originating in United States v. Smith (11th Cir.1986) 799 F.2d 704, seeks to simplify the analysis by declaring the officer's subjective intent irrelevant.   Instead it focuses on standard local practice and asks “not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.”  (Id. at p. 709, emphasis in original;  accord, U.S. v. Cannon (9th Cir.1994) 29 F.3d 472, 476;  U.S. v. Guzman (10th Cir.1988) 864 F.2d 1512, 1517.)  “In essence, the ‘reasonable officer’ test asks courts to determine whether the arresting officer's conduct deviated from the usual practice of a ‘reasonable officer.’   To do this in a given case, the court must inquire into how police normally treat the particular Vehicle Code violation on which the stop was based.   This ‘usual practice’ is then elevated to a standard of procedure which the ‘reasonable officer’ would have followed.”  (People v. Miranda, supra, 17 Cal.App.4th at p. 928, 21 Cal.Rptr.2d 785;  see, e.g., U.S. v. Guzman, supra, 864 F.2d at p. 1518 [constitutionality of stop depends upon whether “police officers in New Mexico are required to and/or do routinely stop most cars they see in which the driver is not wearing his seat belt ․”].)

 We agree with the recent California appellate decisions (People v. Miranda, supra, 17 Cal.App.4th at p. 925, 21 Cal.Rptr.2d 785;  People v. Uribe (1993) 12 Cal.App.4th 1432, 1438, 16 Cal.Rptr.2d 127) and most federal courts that the subjective motivation of an arresting officer is irrelevant in determining the propriety of a traffic stop.   Inquiry into subjective motivation is neither a desirable nor accurate way of resolving the question of validity.   It is undesirable because it would result in suppression of evidence obtained through otherwise legal means purely because the officers involved had an “unacceptable” state of mind.   As the United States Supreme Court has stated, “[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”  (Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168.)

We also agree with the court in People v. Miranda, supra, 17 Cal.App.4th at pages 926–929, 21 Cal.Rptr.2d 785, that the majority objective test, which focuses solely on whether the detention was legally authorized, is better suited to analysis of assertedly pretextual traffic stops than the minority approach, which inquires whether the stop would normally have been made absent an additional investigatory motive.

The minority approach, although formally objective, tends to involve an inquiry into whether the particular officer concerned would have made the stop without an additional desire to investigate;  in other words, it is “not very different from that which would be undertaken if a subjective approach were employed.”  (See U.S. v. Trigg, supra, 878 F.2d at p. 1042 (conc. opn. of Ripple, J.);   accord, People v. Miranda, supra, 17 Cal.App.4th at p. 929, 21 Cal.Rptr.2d 785;  see, e.g., U.S. v. Valdez (11th Cir.1991) 931 F.2d 1448, 1451 [stop pretextual under reasonable officer test because officers involved “would have been uninterested in pursuing Valdez' violation of the right-of-way absent their hope of finding evidence of violation of the narcotics laws.”].)

Trial courts would be subjected to extensive testimony about what officers from a given department do, and are trained to do, under various circumstances.   Often the quest for clarity and consistency will be futile, because officers are called upon to exercise discretion depending on myriad circumstances including day of the week, time of the day, location, staffing conditions, etc.

Furthermore, it is not apparent why police officers should be precluded from making an otherwise valid traffic stop merely because by doing so they would be departing from routine.   Whether to detain a particular driver for a minor, common violation is not necessarily a matter of uniform, unchanging practice.   Taken to its logical conclusion, the “reasonable officer” test would invalidate a traffic stop that departs from routine practice even where there is no allegation or evidence of a pretextual purpose.

The minority test originates in the perceived “need to restrain the arbitrary exercise of discretionary police power․”  (U.S. v. Guzman, supra, 864 F.2d at p. 1516.)   It is feared that under the majority objective test, “thousands of everyday citizens who violate minor traffic regulations would be subject to unfettered police discretion as to whom to stop.” 6  (Ibid.)   As has been noted elsewhere, however, while discretionary exercise of police power may be unconstitutional in certain circumstances, judicial review under the Constitution has not been extended to “discretionary exercise of the arrest power, a power that is contingent upon a prior determination of probable cause․”  (U.S. v. Trigg, supra, 878 F.2d at p. 1041.)

 Moreover, police conduct in initiating a traffic stop is not unfettered;  rather, it is subject to a number of both statutory and common law limitations.   For example, if the citizens of a jurisdiction do not want particular vehicle or driving regulations enforced through traffic stops, they may limit police discretion through appropriate legislation.  (See, e.g., Veh.Code, § 27315, former subd. (k) [deleted 1992:  police not authorized to stop vehicle for safety belt violation alone].)   Like all other detentions, a traffic stop cannot be initiated absent a reasonable suspicion authorizing such action.

Nor is police conduct following a traffic stop without limit.   The fear that officers might use a lawful, but pretextual, traffic stop as a springboard to other invasive procedures has been laid to rest by the development of a Fourth Amendment jurisprudence that circumscribes police conduct following such a stop, a jurisprudence ably outlined by the court in People v. Miranda, supra, 17 Cal.App.4th at pages 926–927, 21 Cal.Rptr.2d 785.

Defendants argue here that the adoption of an objective standard will severely limit, if not eliminate, the theory of pretext as a basis for attacking a search or seizure.   Defendants are correct.   Given the evolution of constitutional protections, the notion of pretextual detentions and arrests has been rendered a vestigial organ in the body of Fourth Amendment analysis.7  A review of the history of the pretext concept reveals the concerns from which it arose have been otherwise addressed.

The notion of “pretext” stops and arrests is rooted in Justice Butler's concluding paragraph in United States v. Lefkowitz (1932) 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (hereafter Lefkowitz ), which reads in part:  “An arrest may not be used as a pretext to search for evidence.”  (See generally 1 LaFave, Search and Seizure (2d ed.1987) § 1.4(e), pp. 90–97.)   An understanding of the state of Fourth Amendment jurisprudence at the time Justice Butler wrote that sentence is crucial to understanding not only Justice Butler's concern then but our conclusion of its irrelevance today.

At the time Lefkowitz was written, officers had far greater latitude to conduct searches incident to arrest and detention.  (See Agnello v. United States (1925) 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145.)   In addition, the common law rules often appeared in conflict or their distinctions rested upon subtle factual differences.  (Compare, e.g., Marron v. United States (1927) 275 U.S. 192, 198–199, 48 S.Ct. 74, 76–77, 72 L.Ed. 231 with Go–Bart Co. v. United States (1931) 282 U.S. 344, 356–358, 51 S.Ct. 153, 158, 75 L.Ed. 374.)   As a result, law enforcement officers lacked clear guidelines for their conduct, and citizens were subject to searches and seizures clearly impermissible by today's standards.

Long after Lefkowitz, Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 uniformly limited the scope of a premises search incident to arrest.  Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 and New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 provided similar limitations in the context of automobile searches incident to arrest.   Nearly 50 years elapsed between Lefkowitz and the Supreme Court's prohibition on warrantless home entry to effect arrest.   (Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.)   The following year, Steagald v. United States (1981) 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 prohibited entry into a home without a search warrant in order to arrest a non-occupant.   In the area of detentions, Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 curtailed what had been common “stop and frisk” practices without reasonable suspicion that criminal activity was afoot and that the individual might be armed and dangerous.

 In California, a person properly detained must be issued a citation and released upon production of satisfactory identification unless probable cause to arrest develops during the detention.  (People v. Monroe (1993) 12 Cal.App.4th 1174, 1182, 16 Cal.Rptr.2d 267.)   This provision would have directed the outcome for defendants here had the circumstances developed differently.   Had Ms. Dickerson provided satisfactory identification, the case law dictates she should have been given a ticket for expired registration tags and sent upon her way.   Further police scrutiny here was only permissible because the officers properly observed additional facts that permitted further investigation.

 A traffic stop alone does not confer upon officers the right to search a stopped car.   Although officers may rightfully observe from their vantage point anything in plain view (People v. Kilpatrick (1980) 105 Cal.App.3d 401, 408, 164 Cal.Rptr. 349, disapproved on other grounds in People v. Bustamante (1981) 30 Cal.3d 88, 102, 177 Cal.Rptr. 576, 634 P.2d 927), the search of the car or a particular portion thereof may proceed only if one of several additional factors arises:  a reasonable and articulable suspicion the occupant is dangerous and may gain control of a weapon (Michigan v. Long (1983) 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201;  People v. King (1989) 216 Cal.App.3d 1237, 1239, 265 Cal.Rptr. 370), the arrest of an occupant of the car (New York v. Belton, supra, 453 U.S. at pp. 462–463, 101 S.Ct. at p. 2865), probable cause to believe the car contains contraband (United States v. Ross (1982) 456 U.S. 798, 800, 102 S.Ct. 2157, 2160, 72 L.Ed.2d 572), or the lawful impoundment of the car (South Dakota v. Opperman (1976) 428 U.S. 364, 372, 96 S.Ct. 3092, 3098–3099, 49 L.Ed.2d 1000;  Colorado v. Bertine (1987) 479 U.S. 367, 371–372, 107 S.Ct. 738, 741, 93 L.Ed.2d 739).   Clearly, a lawful traffic stop is not carte blanche for an officer to engage in other unjustified action as portended by the defense here.

The court's plurality opinion in Coolidge v. New Hampshire (1971) 403 U.S. 443, 469, 91 S.Ct. 2022, 2090, 29 L.Ed.2d 564 held that the seizure of an item in plain view must be “inadvertent,” that is, the officer must not have anticipated its discovery.   In Horton v. California (1990) 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112, the Supreme Court revisited this question and determined that “inadvertence” is not necessary to a lawful plain-view seizure.   In doing so, the court employed an analysis similar to our own:  “First, evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.   The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement․  [¶] Second, the suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it ‘particularly describ[es] the place to be searched and the persons or things to be seized,’ [citations and footnote omitted], and that a warrantless search be circumscribed by the exigencies which justify its initiation.   [Citations.]”  (Id. at pp. 138–140, 110 S.Ct. at pp. 2308–2309.)

The notion of pretextual arrests or detentions as a useful analytical tool has been superseded by both the United States Supreme Court's repeated pronouncement that the subjective state of mind of the officer is irrelevant to Fourth Amendment questions and the development of various protections to insure careful judicial review whereby each incremental intrusion upon reasonable expectations of privacy must be justified.   The conscientious protection of important Fourth Amendment freedoms is an integral part of American jurisprudence.   However, care must be used before otherwise relevant evidence of criminal conduct is excluded.   Rules in this area should be clear and fair, striking the pivotal balance between legitimate law enforcement practices and public protection from unreasonable search and seizure.

 We note that here, police officers did what they are supposed to do:  operate within the law to catch those who break it.   It is undisputed the vehicle in this case was being operated without a valid registration, establishing probable cause to believe a Vehicle Code violation 8 was occurring.   It is also undisputed that a police officer may stop a motorist for investigation and citation when such a violation is observed.  (People v. Franklin (1985) 171 Cal.App.3d 627, 633, 217 Cal.Rptr. 529.)   These officers were careful not to exceed the scope of their authority.9  We agree with the reasoning in People v. Miranda, supra, 17 Cal.App.4th at pages 928–929, 21 Cal.Rptr.2d 785 that such conduct does not merit the punishment of evidentiary exclusion.

II. Other Contentions

 The motel clerk testified the robbers ripped out telephone lines as they left with the money.   King, Joseph, and Canada received prison terms for this violation of section 591, concurrent with their sentences for robbery.   They contend their sentences for destruction of telephone lines should have been stayed pursuant to section 654.   The Attorney General concedes the point, and we agree.   Destruction of the lines was part of the same indivisible transaction as the robbery and pursuant to one criminal objective.  (People v. Hopkins (1975) 44 Cal.App.3d 669, 677, 119 Cal.Rptr. 61.)

In a supplemental brief Dickerson also argued the jury instruction on reasonable doubt, CALJIC No. 2.90, was constitutionally deficient.   The United States Supreme Court recently decided this issue adversely to the claim.  (Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.)

DISPOSITION

The judgments against King, Joseph, and Canada are modified to reflect a stay, pursuant to Penal Code section 654, of their sentences on count two, violation of Penal Code section 591.   As modified, the judgments are affirmed.   The judgment against Dickerson is affirmed.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Section 1538.5.

3.   Section 654 provides:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

4.   The facts set out herein are taken from testimony given at the hearing on defendants' suppression motions.

5.   People v. Aguilar, supra, 228 Cal.App.3d 1049, 279 Cal.Rptr. 246 also discusses the effect of an investigatory motive on the validity of impounding and searching a vehicle, issues not presented in the present case and upon which we express no opinion.

6.   This is an interesting observation when one recalls that the general obligation of police officers is to enforce the law.

7.   See United States v. Villamonte–Marquez, supra, 462 U.S. at page 584, footnote 3, 103 S.Ct. at page 2577, footnote 3.   Further, we are mindful of the Supreme Court's apparent preservation of pretext in dictum in the context of administrative searches.  (New York v. Burger (1987) 482 U.S. 691, 716–717, fn. 27, 107 S.Ct. 2636, 2651–2652, fn. 27, 96 L.Ed.2d 601.)   We express no opinion as to the effect of pretext on administrative searches which are excepted from both search warrant and probable cause requirements.

8.   Vehicle Code, section 40001, subdivision (b)(1).

9.   Naturally, if officers do exceed the proper scope of their authority after an initial stop, a defendant could rightfully complain of that impropriety.   Defendants' appellate briefing here has focused exclusively on the validity of the initial stop, and we limit our Fourth Amendment review to that issue.

CORRIGAN, Associate Justice.

MERRILL, Acting P.J., and CHIN, J., concur.

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