"FROM THE CLASSROOM"
By: Ray Hill, Professor Emeritus, SRJC
"Traffic Stop Leads To Gun, Drug Arrest" - by Press Democrat reporter Colin Atagie 11/16/2022.
“A Santa Rosa traffic stop escalated to a cocaine investigation after a police officer found one suspicious thing after another in a suspect’s car Monday afternoon, officials said. At 2:25 p.m., the officer pulled over Rudolfo Silva, 33, in the 1200 block of North Dutton Avenue because the Santa Rosa man’s car had tinted windows, according to the Santa Rosa Police Department. The officer noticed an opened can of White Claw alcoholic seltzer water in the car and checked if the driver was intoxicated or had more open containers of alcohol, officials said. He next found a Glock 17 handgun between the driver’s seat and center console, according to police. It was loaded with nine hollow-point bullets, and a magazine with eight rounds was in the glove compartment, officials said. A coin purse containing cocaine was under the driver’s seat and the suspect had more drugs in his pocket, police said. The cocaine’s total weight was 9 grams. Silva was arrested on suspicion of being a felon in possession of guns and drugs and he is in custody in lieu of $30, 000 bail”.
This is an example of a typical stop that occurs in our jurisdictions every day. Whether this stop was motivated by traffic enforcement, assignment to a special enforcement detail, vehicle presence in a high crime area, or curiosity and beat knowledge, it is of no matter under case law. As long as there is reasonable suspicion to make the traffic stop, any ulterior motive of police officers is irrelevant (Arkansas v. Sullivan (2001) 532 U.S. 769).
Here is a great "tinted window" case decision on point.
A San Diego Police officer stopped the defendant’s car because he believed the windows were illegally tinted. The officer testified it was difficult to see the occupants inside the Ford Expedition because of the darkness of the tinting. “We don’t call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance ... rather if an officer forms an opinion in a commonsense examination of a vehicle that light is obstructed in the fashion contemplated by the statute, such evidence will be sufficient to support the stop”.
The fact the officer may have conducted a pretext stop (tinted windows) in furtherance of a DEA drug investigation didn’t render a detention unlawful. “The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred”. “The fact that a traffic violation is a pretext for the stop is irrelevant” (U.S. v. Wallace (2000) 213 F 3d 1216).
So that brings us to the subject (and associated controversy in some jurisdictions) surrounding pretext stops. Lets first look at the law and then we will examine recent policy changes in some jurisdictions surrounding this investigative tactic.
Case Law
A pretext stop occurs when a police officer makes a traffic stop as the basis to investigate an unrelated offense for which reasonable suspicion or probable cause is lacking (“hidden agenda”). Examples:
Washington D.C. vice officers became suspicious of a vehicle in a “high drug area”. When the driver turned without signaling, the officers made a traffic stop. Upon approach, rock cocaine was observed in defendant's lap. Defendant argued the officers used the traffic violation as a ruse to investigate drug activity and no reasonable vice officer would be enforcing traffic laws (the officers did not carry a citation book!). An ulterior motive doesn’t invalidate a lawful traffic detention. “Traffic stops made by plainclothes officers in unmarked cars is not an extreme practice” (U.S. v. Whren (1996) 517 U.S. 806).
San Diego S.O. case - “The fact a patrol officer may have a subjective desire to search for drugs or other evidence is irrelevant”. “The legal issue is whether any officer could have stopped the vehicle in the first place” (Peo. v. Uribe, (1993 12 Cal. App. 4th 1432).
CHP case – “A police officer may legally stop a motorist that he (she) suspects of violating the Vehicle Code regardless of the state of mind of the officer” (Peo. v. Grant (1990) 217 Cal. App. 3d 145).
Gilroy P.D. case – “We conclude that if in the course of a traffic stop, the police do no more than they are legally authorized to do, a defendant's claim that the stop was nevertheless a pretext to conduct an otherwise unjustifiable search must fail" (Peo. v. Miranda (1993) 17 Cal. App. 4th 917).
Walnut Creek P.D. case - While investigating a robbery call, an officer observed a vehicle with expired registration. The officer testified that he "was looking for any Vehicle Code violation so he could stop the car". The detention yielded robbery evidence. There was an “objective reason for the stop” and the officer's “subjective investigative motive” was irrelevant (Peo. v. King (1994) 1DCA #A060701).
Bakersfield P.D. case – An officer observed a vehicle he recognized as having been involved in drug sales case two years prior. He stopped the car for having no front license plate. The officer received consent to search and drugs were found. The officer admitted his chief motivation for stopping the car was to look for drugs. The officer had an objective reason to stop the car because a V.C. violation was present (Peo. v. Todd (1994) 5DCA #F0200720).
San Francisco P.D. case – A traffic stop after observing a civil parking violation was lawful. Parking violations are subject to general traffic laws (40200(a) CVC. (U.S. v. Choudhry (2006) 461 F 3d 1097).
Bottom Line: As long as an officer has reasonable suspicion to detain for a traffic violation it is not unconstitutional for the officer to keep his or her “eyes, ears, or thoughts open" for other violations Any subject intent doesn’t count. I remember a comment by one of my legal update mentors, DeVallis Rutledge, former DDA for the Orange County and the Los Angeles County District Attorney’s Office when discussing the United States Supreme Court decision in Whren (1996). “The courts don’t tell us which vehicle violation we can enforce or not enforce”. “We can enforce all of them!”
Please refer also to Bob Phillips, “The Fourth Amendment – Search and Seizure – An Update”, 22nd Edition, Pages 251-252 & 257-266.
Mandatory State Reporting Requirement on “Stop Data” to the California Department of Justice (12525.5 (a)(1) Government Code)
The reasons and nature of your traffic stops and other interactions must be documented under the Racial and Identity Profiling Act of 2015 (AB 953). Most all of you are already recording “stop data” per agency policy (according the DOJ, over 550 agencies are already in compliance with the law). As of 4/1/23, all California agencies, regardless of the number of sworn personnel employed, will be required to establish a reporting database to record criteria on all stops, AB 953 further identifies the types of activities that are subject to California’s review on racial and identify profiling. “These activities include, but are not limited to, traffic or pedestrian stops, or actions during a stop, such as asking questions, frisks, consensual and nonconsensual searches of a person or any property, seizing any property, removing vehicle occupants during a traffic stop, issuing a citation, and making an arrest.” 13519.4 (e) P.C.).
The Legislature explained that “racial or identity profiling alienates people from law enforcement, hinders community policing efforts, and causes law enforcement to lose credibility and trust among the people whom law enforcement is sworn to protect and serve” (Pen. Code, § 13519.4 (d)(3).) The Legislature further found that “[t]he working men and women in California law enforcement risk their lives every day. The people of California greatly appreciate the hard work and dedication of peace officers in protecting public safety”. “The good name of these officers should not be tarnished by the actions of those few who commit discrimination” (13519.4(d)(1) P.C.).
The California Attorney Generals Office maintains a database of reported information and works in conjunction with an appointed Racial and Identity Profiling Advisory Board to assist the AG, independent researchers, and the public in tracking and analyzing whether racial or identity profiling exists, and to what extent. These records are public and open to examination.
Please refer to 12525.5 (a)(1) Government Code for seven criteria (“stop data”) that must be recorded and reported for each stop (13519.4(e) P.C.). Further references are:
Department Policies Limiting or Restricting “Pretext Stops”
“Do you hear that grinding, shrieking sound? That’s the sound of police work as we know it grinding to a halt. No, crime is still very much alive; however, common sense may, in fact, be dead. This year, California’s new law, AB 953, the “Racial and Identity Profiling Act of 2015” will go into effect. With its implementation will come a crippling set of new regulations and requirements for every officer in the field”
(“Proactive Police Work is Dying Right Before Our Eyes”, Common Sense, Los Angeles Police Protective League, Mark Cronin, Editor, November 2017).
Prompted by local incidents, media coverage, social review and political decisions, some jurisdictions have administratively restricted or banned the practice of routine pretext stops. The reasons for this ban are based on the belief that such law enforcement activities are arbitrary, a reflection of an officer’s implicit or explicit bias, and such stops tend to involve disparate treatment of Latino and African American motorists.
A primary example is the Los Angeles Police Department’s Special Order #3 (3/9/22) which bans the practice of pretext stops unless an officer has “articulable information regarding a more serious crime” or “a violation significantly interferes with public safety”. When officers do anticipate a stop for a minor traffic violation they must record themselves on their body worn cameras stating the reasons for the stop and why a more serious violation was suspected”. Failure to comply with this policy can result in remedial training or further disciplinary action.
Similar restrictions/bans are being discussed or implemented in Oakland, San Diego, San Francisco, Culver City and Berkeley. This is may be the wave of the future in some jurisdictions.
In a 2003, pursuant to a Federal District Court settlement in a lawsuit brought by the ACLU, the California Highway Patrol has prohibited its officers from using minor traffic violations as pretext to stop and search vehicles. This includes asking drivers for permission to search their vehicle without an alternate search basis
Conclusion
So the case law is still on your side. However, you are professionally bound by your jurisdiction’s policies and procedures (wording in the LAPD policy states that such stops are restricted “despite being approved by the United States Supreme Court”). Your department policy is your reality!
As stated by the majority in the Whren decision, “We of course agree with the petitioner that the Constitution prohibits selective enforcement of the law based upon considerations such as race”. Such conduct violates the 14th Amendment Due Process Clause and subjects an officer to criminal and civil liability (Title 18 Sect. 242 USC / Title 42 Sect. 1983 USC).
I teach “pretext stops” as a legal investigatory technique when based upon a law enforcement or crime prevention motive (crimes recently occurred in an area, a suspicious report, circumstances of the driving do not fit the time and place of observation (“beat knowledge”), or assignment to a special enforcement team. For example, the folks at Santa Rosa P.D. are trying to bring a halt the plague and proliferation of “side shows”. To this end, pretext stops are an important tool towards deterring both participants and spectators and maintaining both neighborhood and public safety. On Thanksgiving Eve during a yearly public gathering called “Blackout Wednesday”, the proactive patrol work of our colleagues at Petaluma P.D. resulted in 86 traffic stops, nine DUI arrests and 20 citation issued in and around the downtown bar/restaurant district. DUI crosses all lines of race, gender, ethnicity and identity!
I still believe in the basic presumption that the officers I have worked with and have taught over the last 56-years years did maintain their legal, moral and ethical obligation not to let a racial or ethnic bias motive enter into the way they performed their daily duties. A few bad apples can spoil the basket. It is also undisputed that today’s law enforcement officers work under an increased level of scrutiny – body worn cameras, patrol car installed cameras and recorders, civilian oversight and review, public use of cell phone cameras recording our daily activities and requirements to document “stop data” and use/display of force.
We have no reason not to stay constitutional!
Stay Safe,
RH
“I will never act officiously or permit personal feelings, prejudices, political beliefs, aspirations, animosities or friendships to influence my decisions” (Law Enforcement Code of Ethics).
