Professional Documents
Culture Documents
necessary to effectuate the purpose of the stop. (Florida v. Royer, supra, at p. 500; see
also Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 [describing a detention as
limited in duration, scope and purpose].)
The distinction between a detention and an arrest may in some instances create
difficult line-drawing problems. (United States v. Sharpe, (1985) 470 U.S. 675, 685; see
also United States v. Torres-Sanchez, (9th Cir. 1996) 83 F.3d 1123, 1127 [there is no
bright-line for determining when an investigatory stop crosses the line and becomes an
arrest]).
[3] This much is clear: A brief stop and pat-down of someone suspected of criminal
activity is merely an investigative detention requiring no more than a reasonable
suspicion. (Terry v. Ohio, supra, 392 U.S. at pp. 6-7.) People v. Celis (2004) 33 Cal. 4th
667
[6] The basic premise behind consensual encounters is that a citizen may consent
voluntarily to official intrusions upon interests protected by the Constitution. If the
citizen acts in reasonable submission to a show of authority, then his actions are not
voluntary or consensual.
Where consensual, consent may be withdrawn at any time (People v. Gurtenstein,
(1977) 69 Cal.App.3d 441, 451 [138 Cal. Rptr. 161]).
The citizen participant in a consensual encounter may leave, refuse to answer questions
or decline to act in the manner requested by the authorities.
...if the manner in which the request was made constituted a show of authority such that
appellant reasonably might believe he had to comply, then the encounter was
transformed into a detention. People v. Franklin, 192 Cal. App. 3d 935
Show of Authority
...evidence also supports the conclusion Ms. Spicer's freedom of movement was
restrained by a show of authority (Mendenhall, supra, 446 U.S. at p. 553 [64 L.Ed.2d at
p. 508]; Royer, supra, 460 U.S. at p. 501 [75 L.Ed.2d at p. 239, 103 S. Ct. at p. 1326]; In
re Tony C. (1978) 21 Cal.3d 888, 895 [148 Cal. Rptr. 366, 582 P. 2d 957]). She was
confronted by a uniformed officer almost immediately after the car in which she was
riding was stopped. Without any explanation or prefatory remarks, the officer
requested her driver's license.
The nature of the questions asked by the officer during a contact are also relevant to the
seizure issue (see: Wilson, supra, 34 Cal.3d at pp. 790-791; Mendenhall, supra, 446 U.S.
at p. 554). An unequivocal verbal command is far more likely to produce the perception
of restricted liberty than a mere approach (People v. Jones, (1979) 96 Cal.App.3d 820 ,
825-826 [158 Cal. Rptr. 415]), casual banter (People v. Warren, supra, 152 Cal.App.3d
and restrained [460 U.S. 491, 512] [Royer's] liberty. Ibid. It is simply wrong to
suggest that a traveler feels free to walk away when he has been approached by
individuals who have identified themselves as police officers and asked for, and
received, his airline ticket and driver's license.
Berkemer v. McCarty, 468 U.S. 420 (1984)
[N]ot all personal intercourse between policemen and citizens involves seizures of
persons. Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a seizure has
occurred.
Terry v. Ohio, 392 U.S., at 19, n. 16.
See also United States v. Mendenhall, 446 U.S. 544, 551 -557 (1980) (opinion of
Stewart, J.); id., at 560, n. 1 (POWELL, J., concurring in part); United States v. Herbst,
641 F.2d 1161, 1166 (CA5), cert. denied, 454 U.S. 851 (1981); United States v. Berd, 634
F.2d 979, 984-985 (CA5 1981); United States v. Turner, 628 F.2d 461, 462-465 (CA5
1980), cert. denied, 451 U.S. 988 (1981); United States v. Hill, 626 F.2d 429, 432-433,
and n. 6 (CA5 1980); United States v. Fry, 622 F.2d 1218, 1220-1221 (CA5 1980);
United States v. Elmore, 595 F.2d 1036, 1038-1042 (CA5 1979), cert. denied, 447 U.S.
910 (1980)
[9] It is axiomatic, of course, that warrantless searches are per se unreasonable under
the California and federal Constitutions with only a few carefully circumscribed
exceptions, and that the People have the burden of proving that any search without a
warrant comes within one of those exceptions (People v. Dalton, (1979) 24 Cal. 3d 850,
855 [157 Cal. Rptr. 497, 598 P.2d 467], and cases cited.) see generally 2 LaFave, Search
and Seizure (1978) 5.3 (a)).
People v. Laiwa, (1983) 34 Cal.3d 711
A 17-year-old boy enjoyed, and was entitled to assert, rights under the Cal. Const., Art. I,
13, protecting persons against unreasonable searches and seizures.
In re Scott K., (1979) 24 Cal. 3d 395
...a detention occurs if the suspect is not free to leave at will -- if he is kept in the officer's
presence by physical restraint, threat of force, or assertion of authority (see e.g., Restani
v. Superior Court, (1970) 13 Cal.App.3d 189, 197 [91 Cal. Rptr. 429]). But the definition
is under-inclusive: actual or threatened physical restraints are the characteristics of a
full-blown arrest (Pen. Code, 835), and an officer will frequently use more subtle
methods to detain a suspect whom he wishes simply to question about possible criminal
activity. The definition is also over-inclusive: either through fear or respect, many
persons who are not in fact under detention nevertheless do not feel free to leave at will
when a uniformed police officer indicates a desire to talk with them.
In re Tony C., 21 Cal. 3d 888
[Crim. No. 20142. Supreme Court of California. August 24, 1978]
Show of Authority in relation to so-called Traffic Stops
The Legislature has identified the POLICE CONTACT where you're issued a NOTICE TO
APPEAR as an ARREST, not a traffic stop. The POLICE CONTACT is a
COMPULSORY RESTRAINT on your freedom. When done without a WARRANT it is
PRESUMED ILLEGAL.
Defendant makes a prima facie case of unlawful arrest when he establishes that arrest
was made without a warrant, and burden rests on prosecution to show proper
justification. People v. Holguin, (1956) 145 Cal.App.2d. 520 [302 P.2d. 635]
It is the fact of the lawful arrest which establishes the authority to search,...
United States v. Robinson, (1973) 414 U.S. 218
written promise to appear in court... Thereupon, the arresting officer shall forthwith
release the person arrested from custody.
Vehicle Code, section 40504, subdivision (a), commands that when a traffic offender
such as defendant herein gives his written promise to appear by signing two copies of
the citation, Thereupon the arresting officer shall forthwith release the person
arrested from custody. (Italics added.)
People v. McGaughran, 25 Cal. 3d 577
[Crim. No. 20293. Supreme Court of California. October 25, 1979.]
...the violator is, during the period immediately preceding his execution of the promise
to appear, under arrest. (People v. Weitzer, (1969) 269 Cal.App.2d 274, 294 [75 Cal.
Rptr. 318]; People v. Valdez, (1966) 239 Cal. App. 2d 459, 462 [48 Cal. Rptr. 840].) fn. 2
The Vehicle Code however, refers to the person awaiting citation as the arrested
person. fn. 3
People v. Hubbard, (1970) 9 Cal. App. 3d 827
A detention is a seizure of the person which is subject to Fourth Amendment protection.
[Citation.] (Id. at pp. 993-994.) An arrest is also a seizure subject to Fourth
Amendment protections (see: Wilson v. Superior Court, (1983) 34 Cal. 3d 777, 784 [195
Cal. Rptr. 671, 670 P.2d 325] [the three levels of police contacts subject to Fourth
Amendment protections are consensual encounter, investigative detention, and
arrest]).
People v. Velasquez, (1993) 21 Cal.App.4th 555
When the plaintiff has shown that he was arrested, imprisoned or restrained of his
liberty by the defendant, the law presumes it to be unlawful.
People v. McGrew, 20 Pac. 92 (1888); Knight v. Baker, 133 P. 544 (1926)
One more thing before we begin: In addition to investigative detentions, there are two
other types of temporary seizures. The first (and most common) is the traffic stop.
Although traffic stops are technically arrests when (as is usually the case) the officer
witnessed the violation and, therefore, had probable cause, traffic stops are subject to
the same rules as investigative detentions.6
Fn 6. See People v. Hubbard, (1970) 9 Cal. App. 3d 827, 833 [[T]he violator is, during
the period immediately preceding his execution of the promise to appear, under
arrest.]; People v. Hernandez, (2008) 45 Cal. 4th 295, 299 [traffic stops are treated as
detentions].
and DENYING fundamental rights, after all, he/she swore an oath not to.
officers are REQUIRED TO KNOW THE LAW!
Police
Even if the officer is not expected to know the law of all 50 states, surely he is expected
to know the California Vehicle Code The People v. Jesus Santos Sanchez Reyes, (2011)
196 Cal. App. 4th 856
Every officer knows, or should know, that he needs a warrant which correctly identifies
the arrestee, or probable cause, to arrest a particular individual.
Julian C. LEE, Plaintiff-Appellee, v. Jake GREGORY, United States of America,
Defendants-Appellants, The Federal Bureau of Investigation, Defendant (2004), No. 0257132, United States Court of Appeals, Ninth Circuit
We thus require citizens to apprise themselves not only of statutory language but also of
legislative history, subsequent judicial construction, and underlying legislative purposes
(People v. Grubb, (1965) 63 Cal.2d 614, 620 [47 Cal. Rptr. 772, 408 P.2d 100]; see
generally Amsterdam, The Void-for-Vagueness Doctrine in the Supreme Court (1960)
109 U. Pa. L. Rev. 67.) Walker v. Superior Court, (1988) 47 Cal. 3d 112
...an officer may be held liable in damages to any person injured in consequence of a
breach of any of the duties connected with his office... The liability for nonfeasance,
misfeasance, and for malfeasance in office is in his individual, not his official
capacity... 70 Am. Jur. 2nd Sec. 50, VII Civil Liability
Personal liberty, which is guaranteed to every citizen under our constitution and laws,
consists of the right to locomotion,- to go where one pleases, and when, and to do that
which may lead to one's business or pleasure, only restrained as the rights to others may
make it necessary for the welfare of all other citizens. One may travel along the public
highways or in public places; and while conducting themselves in a decent and orderly
manner, disturbing no other, and interfering with the rights of no other citizens, there,
they will be protected under law, not only their persons, but in their safe conduct. The
constitution and the laws are framed for the public good, and the protection of all
citizens from the highest to the lowest; and no one may be restrained of his liberty,
unless he transgressed some law. Any law which would place the keeping and safe
conduct of another in the hands of even a conservator of the peace, unless for some
breach of the peace committed in his presence, or upon suspicion of felony, would be
most oppressive and unjust, and destroy all rights which our constitution guarantees.
Pinkerton v. Verberg, 78 Mich. 573; 44 NW 579 (1889)
The privilege against self-incrimination is neither accorded to the passive resistant, nor
the person who is ignorant of his rights, nor to one indifferent thereto. It is a fighting
clause. Its benefits can be retained only by sustained combat. It cannot be claimed by
an attorney or solicitor. It is valid only when insisted upon by a belligerent claimant in
person. United States v. Johnson, 76 F. Supp. 538
Our holding today is based exclusively on Article I, section 13, of the California
Constitution, which requires a more exacting standard for cases arising within this state.
In Cooper v. California (1967) 386 U.S. 58, 62 [17 L. Ed. 2d 730, 734, 87 S. Ct. 788], the
Supreme Court recognized this well-known principle: Our holding, of course, does
not affect the State's power to impose higher standards on searches and seizures than
required by the Federal Constitution if it chooses to do so.
In short, the Supreme Court has clearly recognized that state courts are the ultimate
arbiters of state law,...
This court has always assumed the independent vitality of our state Constitution.
Thus in [13 Cal. 3d 551] determining that California citizens are entitled to greater
protection under the California Constitution against unreasonable searches and seizures
than that required by the United States Constitution, we are embarking on no
revolutionary course. Rather we are simply reaffirming a basic principle of federalism -that the nation as a whole is composed of distinct geographical and political entities
bound together by a fundamental federal law but nonetheless independently responsible
for safeguarding the rights of their citizens.
Rights guaranteed by this Constitution are not dependent on those guaranteed by the
United States Constitution. People v. Brisendine, 13 Cal. 3d 528
[Crim. No. 16520. Supreme Court of California, February 20, 1975.]
...under the California Constitution (Cal. Const., Art. I, 13) the evidence seized was the
product of an unlawful search. We agree, and conclude the judgment must be reversed.
...the established rule that it is the People, rather than the defendant, who bear the
burden of justifying a warrantless seizure (Badillo v. Superior Court, (1956) 46 Cal. 2d
269, 272 [294 P. 2d 23]).
Of course, our past decisions do clearly affirm that, while not controlling, the United
States Supreme Court's interpretation of similar provisions of the federal Constitution,
like our sister state courts' interpretations of similar state constitutional provisions, will
provide valuable guidance in the interpretation of our state constitutional guarantees
(see: e.g., Gay Law Students Assn. v. Pacific Tel. & Tel. Co., (1979) 24 Cal.3d 458, 469
[156 Cal. Rptr. 14, 595 P.2d 592]; Gabrielli v. Knickerbocker, supra, 12 Cal.2d 85, 89).
People v. Longwill, 14 Cal. 3d 943
[Crim. No. 17773. Supreme Court of California, August 7, 1975]
In Favorem Libertatas