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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Jesus DIEGO, Defendant and Appellant.

Cr. 39800.

Decided: July 21, 1981

Wilbur F. Littlefield, County Public Defender, Dennis A. Fischer, James P. McGarry, and Leighton A. Nugent, Deputy Public Defenders, for defendant and appellant. John K. Van De Kamp, County Dist. Atty., Donald J. Kaplan and Richard W. Gerry, Deputy Dist. Attys., for plaintiff and respondent.

We transferred this matter from the Appellate Department of the Superior Court, County of Los Angeles, to consider the application of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R. 974 (hereinafter Miranda) to misdemeanors.1  As we will explain, Miranda is applicable to felonies and misdemeanors alike but has no application to the instant case.

We view the evidence in the light most favorable to the order admitting the subject statements as is required by the familiar rule governing appellate review.  (E. g., People v. Carter (1980) 108 Cal.App.3d 127, 129, 166 Cal.Rptr. 304.)   Appellant was driving a car which had no front license plate, a violation of the Vehicle Code.   A deputy sheriff effected a traffic stop and during the course of issuing a citation, received a police radio report that appellant's license had been suspended for “lack of insurance.”   The deputy asked appellant “․ if he knew that his driver's license was suspended.”   The officer testified:  “He told me that he knew his driver's license had been suspended.   It was because of an accident.   He didn't have insurance, and I asked him if it had been reinstated and he said that it had not.”   The officer also asked “․ him if he did have insurance at that time.   He said he did not.”   Although the officer testified that after this questioning, he “placed appellant under arrest,” he actually only cited appellant to appear in court since it was his department's policy to utilize the citation procedure.

Appellant argued that he was in custody when the subject questions were asked.   The trial court ruled as follows:  “[T]he Court will also allow in the admission in the form of—in response to a question, ‘Did you know your license was suspended?’   His answer was, ‘Yes.’   Just as if somebody came out of a window of a house, having committed a burglary, and the cops said, ‘Did you just burglarize that place?’   And he says ‘Yes,’ whereupon he is arrested.   I don't see any big difference․”  Thus, the trial court expressly determined that appellant was only temporarily detained, i. e., his freedom was not deprived in any significant way, when this single question 2 was asked.

 Preliminarily, we dispose of the People's theory that notwithstanding the question of whether Miranda has application to misdemeanors generally, it should have no application to misdemeanor motor vehicle violations.   Such a distinction would serve no rational purpose.   The United States Supreme Court's observation that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears” (Coolidge v. New Hampshire (1971) 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, 580) is equally apposite in the context of Miranda.   Where a misdemeanant is formally arrested and taken into custody or otherwise deprived of his freedom in a significant way, the Miranda safeguards come into play.   Misdemeanants, just as felons, may be the subjects of “custodial interrogation” and had the United States Supreme Court intended that their holding be applicable to felonies only, it surely would have said so.   Similarly, our own Supreme Court which, prior to Miranda had extended similar prophylactic safeguards in People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361 (hereinafter Dorado), has never drawn such a distinction between felonies and misdemeanors.   In fact, in the recent case of People v. Rucker (1980) 26 Cal.3d 368, 383, 162 Cal.Rptr. 13, 605 P.2d 843 our Supreme Court said, “For example, even though one of the central issues in a prosecution for driving under the influence of alcohol [a misdemeanor] is the sobriety of the accused, the privilege [against self-incrimination] would forbid the state from compelling an accused to disclose verbally how much he had to drink or how he felt․”  The most probable reason that no appellate opinion in this state addresses this distinction is that the courts of this state recognize the obvious:  that the distinction is not controlling.

We come then to the real issue in this case—whether Miranda warnings and waivers were required as conditions precedent to the introduction of appellant's inculpatory roadside statements.   In Dorado, our Supreme Court was quick to point out that “[n]othing that we have said, of course, should be interpreted to restrict law enforcement officers during the investigatory stage from securing information from one who is later accused of the crime or from obtaining answers to their questions․”  (Dorado, supra, 62 Cal.2d at p. 354, 42 Cal.Rptr. 169, 398 P.2d 361.)   Indeed, even Miranda itself said that “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding.   It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.   In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.”  (Miranda, supra, 384 U.S., at 477–478, 86 S.Ct. at 1629–1630, 16 L.Ed.2d at 725–726, fn. omitted.)

In People v. Manis (1969) 268 Cal.App.2d 653, 74 Cal.Rptr. 423 (hereinafter, Manis) after a comprehensive analysis of the applicability vel non of Miranda to temporary detentions, the court held “․ that persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive.”  (Manis, supra, at p. 669, 74 Cal.Rptr. 423, fn. omitted;  People v. Carter, supra, 108 Cal.App.3d at 131, 166 Cal.Rptr. 304.)   Focusing on the distinctions between “transitory restraint” and “more permanent restraint,” the Manis court, in essence, equated temporary detention with transitory restraint which did not require Miranda warning and waiver as a condition to the admissibility of the detainee's statements.  (People v. Hubbard (1970) 9 Cal.App.3d 827, 833, 88 Cal.Rptr. 411 [accord].)

In People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205, our Supreme Court said:  “The second preliminary matter we must consider is the precise point in time at which a traffic violator is ‘arrested.’   A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place [citation], and the temporary restraint of the suspect's movements incident to that investigation will not ordinarily be deemed an arrest.   But when the officer determines there is probable cause to believe that an offense has been committed and begins the process of citing the violator to appear in court [citation], an ‘arrest’ takes place at least in the technical sense:  ‘The detention which results [during the citation period] is ordinarily brief, and the conditions of restraint are minimal.   Nevertheless the violator is, during the period immediately preceding his execution of the promise to appear, under arrest.  [Citations.]  Some courts have been reluctant to use the term “arrest” to describe the status of the traffic violator on the public street waiting for the officer to write out the citation [citations].   The Vehicle Code, however, refers to the person awaiting citation as “the arrested person.”  (Emphasis added.)   Viewing the situation functionally, the violator is being detained against his will by a police officer, for the purpose of obtaining his appearance in connection with a forthcoming prosecution.   The violator is not free to depart until he has satisfactorily identified himself and has signed the written promise to appear.’  [Citation.]”

 Thus, while technically “arrested,” but functionally detained, for the license plate infraction, the deputy received a report that appellant's driver's license had been suspended.   This report, however, did not require him to believe that he had probable cause to actually take appellant into custody and effect a formal misdemeanor arrest therefor.   The record does not indicate that the deputy believed that he had probable cause to do so prior to the questioning.  (Cf. People v. Carter, supra, 108 Cal.App.3d at p. 130, 166 Cal.Rptr. 304.)   Nor is probable cause to arrest determinative.   “[P]robable cause to arrest, like arrest itself, may play a significant role in the application of the [Miranda] rule but, unlike actual arrest, probable cause to arrest is not in all cases, synonymous with the restraint contemplated by the Miranda doctrine․”  (People v. Blouin (1978) 80 Cal.App.3d 269, 283, 145 Cal.Rptr. 701.)

 “When an arrest has not yet taken place, the factors considered in deciding whether custody has attached are many.   Among the most important are:  (1) the site of the interrogation;  (2) whether the investigation has focused on the suspect;  (3) whether the objective indicia of arrest are present;  and (4) the length and form of the questioning.”  (People v. Herdan (1974) 42 Cal.App.3d 300, 306–307, 116 Cal.Rptr. 641, fns. omitted;  People v. Blouin, supra, 80 Cal.App.3d at pp. 282–283, 145 Cal.Rptr. 701;  In re Danny Christopher E. (1981) 121 Cal.App.3d 44, 50, 174 Cal.Rptr. 123.)   Here, of course, the investigation had focused upon appellant in the sense that he was the driver of the car stopped for the traffic citation who, according to the information from police channels, had some adverse action taken with respect to his license.   However, the brief and casual questioning took place on a public street at 4 p. m. in the afternoon.   This is hardly incommunicado interrogation within the police station.   The record surely does not portray a sustained, coercive, and accusatorial confrontation.   While the officer had received information concerning the suspension of appellant's license, the officer had no way of determining whether appellant was aware of such suspension.   While not free to depart until the citation procedure had been completed, appellant was not handcuffed or subjected to any cursory search for weapons.   The citation procedure and the temporary restraint incident thereto bears little, if any, resemblance to true arrest and its objective indicia.  (See People v. Superior Court (Simon), supra, 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 496 P.2d 1205.)

Appellant was technically under arrest only until he satisfactorily identified himself and signed the written promise to appear.   We hold that he was not truly in custody nor deprived of his freedom in any significant way.   His restraint must be deemed “transitory” since it dissipated eo instante upon the execution of his written promise to appear.   Substantial evidence supports the trial court's determination and not having demonstrated that the trial court's ruling was erroneous as a matter of law, we are bound thereby.  (People v. Carter, supra, 108 Cal.App.3d 127, 130, 166 Cal.Rptr. 304.)

The judgment is affirmed.


1.   The appellate department determined that the issue had not been directly decided by the appellate courts of this state and said, “We think it is high time that the trial courts are given guidance in this crucial area of the law.”   We do not share in the appellate department's lack of confidence in the trial courts of this state.   It is simply too late in the day to believe that the trial courts are reading a misdemeanor exception into the Miranda rule.

2.   By admitting only the first inculpatory answer, the trial court is presumed to have not considered the remaining answers to the questions.   In any event, once the initial answer was given, the remaining answers were surplusage.

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur. Hearing denied; BIRD, C.J., dissenting.

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