United States v. Choudhry

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10810
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00179-PJH
AZIM CHOUDHRY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted
July 28, 2006—San Francisco, California

Filed August 25, 2006

Before: Gilbert S. Merritt,* Andrew J. Kleinfeld, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

*The Honorable Gilbert S. Merritt, Senior Judge, United States Court
Appeals for the Sixth Circuit, sitting by designation.

10217
 UNITED STATES v. CHOUDHRY 10219

COUNSEL

Mark Rosenbush, San Francisco, California, for the
defendant-appellant.

Derek D. Owens, Special Assistant United States Attorney,
and Barbara J. Valliere, Assistant United States Attorney,
United States Attorney’s Office, San Francisco, California,
for the plaintiff-appellee.
10220 UNITED STATES v. CHOUDHRY
OPINION

PAEZ, Circuit Judge:

Azim Choudhry (“Choudhry”) appeals the district court’s
denial of his pre-trial motion to suppress evidence. Upon
observing a vehicle parked illegally, two San Francisco police
officers performed an investigatory traffic stop of the vehicle,
in which Choudhry was a passenger. During a subsequent
search of the vehicle, the officers discovered a gun under the
front passenger seat. Choudhry was indicted for possession of
a firearm by a felon, a violation of 18 U.S.C. § 922(g). Alleg-
ing that the search and seizure violated the Fourth Amend-
ment, Choudhry filed a motion to suppress the gun.

In challenging the lawfulness of the stop, Choudhry argued
that a civil parking offense that is enforced through an admin-
istrative process could not, standing alone, justify an investi-
gatory stop. Choudhry also argued that the other
circumstances surrounding the stop were insufficient to sup-
port a finding of reasonable suspicion and that the stop there-
fore violated the Fourth Amendment. Other than noting the
parking violation as one fact in its analysis of the events lead-
ing up to the stop, the district court did not address the merits
of Choudhry’s argument regarding the parking violation.
Although we affirm the denial of the motion to suppress, we
do so on a narrower ground than the one advanced by the dis-
trict court. Because parking infractions constitute traffic viola-
tions under California’s Vehicle Code and local laws enacted
pursuant to the Vehicle Code, and because the officers had the
authority to enforce the particular violation at issue, we hold
that a civil parking violation under California’s Vehicle Code
falls within the scope of the Supreme Court’s decision in
Whren v. United States, 517 U.S. 806 (1996). Accordingly,
we conclude that the parking violation provided the officers
with reasonable suspicion to conduct an investigatory stop of
the vehicle. In light of our disposition, we need not address
 UNITED STATES v. CHOUDHRY 10221
the other factors that the district court relied upon to deny the
motion.

I. BACKGROUND

Just after midnight on February 7, 2005, San Francisco
Police Officers Silver and Chan were patrolling Bernal
Heights Boulevard. The officers observed a vehicle parked
illegally near the entrance of Bernal Heights Park, an area
designated as a no-stopping/tow-away zone between the hours
of 10 PM and 6 AM every day.1 Because the officers were
unable to determine whether the car was occupied, Officer
Silver used the police car’s spotlight to illuminate the vehicle
from behind. In response to the sudden spotlight, the vehicle’s
occupants, Sonja Alvarado (“Alvarado”) and Choudhry, made
“hurried movements.” According to Officer Silver, these
movements led the officers to believe that either a sexual
encounter or “some other possibly illegal act” was taking
place. In a declaration filed in opposition to the motion, Offi-
cer Silver explained that the officers decided to investigate
further and turned on their emergency lights “in order to con-
duct an investigatory stop.” Alvarado, the driver of the vehi-
cle, turned on the vehicle’s engine and began to pull away.
After both police officers exited their patrol car and com-
manded her to stop, she did.

While Officer Chan questioned Alvarado, Officer Silver
spoke with Choudhry through the passenger side window.
Having determined that Alvarado’s license had been sus-
1
The car was parked in violation of The City and County of San Fran-
cisco Municipal Code, Traffic Code (“San Francisco Traffic Code” or
“S.F. Traffic Code”) § 32. That section requires the Board of Supervisors
to pass resolutions designating restricted parking or stopping areas and to
erect signs giving notice of those areas. It further states: “Any person vio-
lating any of the class of resolutions now or hereinafter in effect, which
are referred to in the following subsections of this Section, shall be guilty
of an infraction.” Subsection (b) refers to “[r]esolution[s] prohibiting park-
ing on any street or alley.” S.F. Traffic Code § 32(b).
10222 UNITED STATES v. CHOUDHRY
pended and that there were two active warrants outstanding
for her arrest, Officer Chan placed Alvarado under arrest.
Because Officer Silver recognized the “faint odor of burnt
marijuana,” he suspected that Choudhry possessed marijuana
and ordered Choudhry out of the car. As Officer Silver per-
formed a pat-down search, Choudhry admitted that he had
marijuana in the pocket of his pants. Officer Silver found
marijuana in Choudhry’s front pants pocket and placed
Choudhry in the police car. Choudhry then informed Officer
Silver that he had found a gun, which he had placed inside
Alvarado’s car. Officer Silver discovered the gun under the
passenger seat where Choudhry had been sitting.

The Grand Jury subsequently indicted Choudhry for a vio-
lation of 18 U.S.C. § 922(g), possession of a firearm by a
felon. Claiming that the detention and search violated the
Fourth Amendment, Choudhry filed a motion to suppress the
evidence that the officers seized as a result of the stop. As he
does in this appeal, Choudhry advanced two central argu-
ments in support of his motion: first, Choudhry argued that
because California has decriminalized parking offenses, the
police could not perform an investigatory stop on the basis of
the parking violation alone; and second, Choudhry asserted
that the other circumstances surrounding the stop were insuf-
ficient to constitute reasonable suspicion.

The district court denied Choudhry’s motion. In its oral
decision, the court declined to determine whether the parking
violation was enough, standing alone, to justify the stop.
Instead, the court concluded that the totality of the circum-
stances surrounding the stop were sufficient for the officers to
have formed an articulable, reasonable suspicion that Alva-
rado and Choudhry were engaged in criminal activity. The
district court relied on the following circumstances: (1) the
parking violation, (2) Alvarado’s brief attempted “flight,” (3)
the couple’s hurried movements after the officers turned on
the spotlight, and (4) Officer Silver’s belief that Bernal
Heights was a high-crime area.
 UNITED STATES v. CHOUDHRY 10223
After the district court denied his suppression motion,
Choudhry entered a conditional plea of guilty to the indict-
ment, preserving his right to appeal the denial of his motion.
The district court sentenced Choudhry to 57 months and he
timely appealed. On appeal, Choudhry re-asserts that the
parking violation was insufficient alone to justify an investi-
gatory stop and the totality of the circumstances did not con-
stitute reasonable suspicion.

II. JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo whether the police had reasonable suspicion
to make an investigatory stop, a mixed question of law and
fact. See United States v. Manzo-Jurado, 452 F.3d 1028, 1033
(9th Cir. 2006). We may affirm the denial of the motion to
suppress on any basis supported by the record. See United
States v. Henderson, 241 F.3d 638, 649 n.1 (9th Cir. 2000).
We review the district court’s findings of fact for clear error.
See United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th
Cir. 2000).

III. DISCUSSION

A.

[1] The officers’ investigatory stop of Alvarado’s vehicle
implicates the Fourth Amendment “because stopping an auto-
mobile and detaining its occupants constitute a seizure . . .
even though the purpose of the stop is limited and the result-
ing detention quite brief.” Delaware v. Prouse, 440 U.S. 648,
653 (1979) (internal quotation marks omitted). Investigatory
traffic stops are akin to the on-the-street encounters addressed
in Terry v. Ohio, 392 U.S. 1 (1969); accordingly, the same
objective standard applies: a police officer may conduct an
investigatory traffic stop if the officer has “reasonable suspi-
cion” that a particular person “has committed, is committing,
or is about to commit a crime.” Lopez-Soto, 205 F.3d at 1104.
10224 UNITED STATES v. CHOUDHRY
Officers have reasonable suspicion when “specific, articul-
able facts . . . together with objective and reasonable infer-
ences, form the basis for suspecting that the particular person
detained is engaged in criminal activity.” Id. at 1105 (internal
quotation marks omitted). The reasonable suspicion analysis
takes into account the totality of the circumstances. United
States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.
2000) (en banc). “This process allows officers to draw on
their own experience and specialized training to make infer-
ences from and deductions about the cumulative information
available to them.” United States v. Arvizu, 534 U.S. 266, 273
(2002).

[2] A traffic violation alone is sufficient to establish reason-
able suspicion. Whren, 517 U.S. at 810; United States v. Wil-
lis, 431 F.3d 709, 714-17 (9th Cir. 2005). In Whren, the Court
held that, in general, “the decision to stop an automobile is
reasonable where the police have probable cause to believe
that a traffic violation has occurred.” 517 U.S. at 810; Willis,
431 F.3d at 715 (“Whren stands for the proposition that if the
officers have probable cause to believe that a traffic violation
occurred, the officers may conduct a traffic stop.”).2 The
Court rejected the petitioner’s argument that the standard
should be different where “civil traffic regulations” are con-
cerned. See 517 U.S. at 810-11.

B.

[3] Whether Whren applies to parking violations under Cal-
ifornia’s civil-administrative enforcement scheme is a matter
of first impression in this court. We conclude that it does and
that, here, the parking violation justified the investigatory stop
of Alvarado’s vehicle. In so holding, we note that our conclu-
sion is consistent with the decisions of our sister circuits that
2
In Lopez-Soto, we considered and rejected the argument that Whren
altered the standard for traffic stops from “reasonable suspicion” to “prob-
able cause.” See 205 F.3d at 1104.
 UNITED STATES v. CHOUDHRY 10225
have considered Whren’s application to parking violations.
See Flores v. City of Palacios, 381 F.3d 391, 402-03 (5th Cir.
2004); United States v. Copeland, 321 F.3d 582, 594 (6th Cir.
2003); United States v. Thornton, 197 F.3d 241, 248 (7th Cir.
1999).

[4] In 1992, the California Legislature significantly
amended the California Vehicle Code (“Vehicle Code”) to
establish a separate civil administrative scheme for enforcing
parking violations. Section 40200(a) mandates that “any”
non-misdemeanor parking violation “is subject to a civil pen-
alty” to be enforced through “the civil administrative proce-
dures set forth in this article.” Cal. Veh. Code § 40200(a). The
new enforcement scheme provides for civil penalties for park-
ing violations and delinquent payments, but no criminal sanc-
tions. See, e.g., id. § 40220 (“Collection of unpaid parking
penalty . . .”).3 Legislative intent, California court decisions,
and the interpretation of the California Attorney General all
confirm that parking violations are “[n]o longer . . . treated as
infractions within the criminal justice system; instead, they
are treated as civil offenses subject to civil penalties and
administrative enforcement.” Tyler v. County of Alameda, 40
Cal. Rptr. 2d 643, 645 (Ct. App. 1995); see also Cal. Stats.
1992, c. 1244 § 1(b), 1992 Cal. Adv. Legis. Serv. 1244 (Deer-
ing) (“Criminal penalties are not appropriate sanctions for
standing and parking violations; and criminal procedures are
not necessary for the fair enforcement of those violations.”);
82 Op. Att’y Gen. Cal. 47 (1999) (adopting the interpretation
in Tyler). The Vehicle Code authorizes municipalities to
3
Following the 1992 amendments, parking violations are subject to
fines. In instances of delinquent or non-payment, municipalities may
assess late payment penalty fines, see id. § 40203.5, or, when unpaid pen-
alties exceed $400, may enforce collection through entering a civil judg-
ment, see id. §§ 40220, 40221. At no point, however, may a municipality
impose penal sanctions. In fact, the 1992 amendment to section 40220
deleted subsection (c)), which allowed the processing agency to “[f]ile a
criminal complaint with the court” if fees remained unpaid. See id.
§ 40220, Notes 1992 Amend. (West 2005).
10226 UNITED STATES v. CHOUDHRY
establish parking enforcement agencies and to contract with
public and private agencies to process parking citations. See,
e.g., Cal. Veh. Code §§ 40200.5, 40200.6. As discussed in
detail below, however, California law also allows police offi-
cers to enforce parking violations. See id. § 40202(a) (outlin-
ing how the “peace officer or person authorized to enforce
parking laws” must proceed when an unoccupied vehicle is
parked illegally); People v. Hart, 86 Cal. Rptr. 2d 762, 766
(Ct. App. 1999) (noting that a police officer was authorized
to enforce a parking violation where the illegally parked vehi-
cle was occupied).

[5] In Whren, the Court held that when police have proba-
ble cause to believe that a traffic violation has occurred, the
decision to stop an automobile is reasonable. 517 U.S. at 810.
The defendants in Whren argued that, in the context of “civil
traffic regulations,” the Fourth Amendment standard should
be different—namely, that the standard should consider
whether a reasonable officer would have made a stop based
on the particular violation, not whether the officer observed
any violation. Id. The Court rejected this argument. Instead,
it held that a traffic violation was sufficient to justify an
investigatory stop, regardless of whether (i) the violation was
merely pretextual, id. at 811-12, (ii) the stop departed from
the regular practice of a particular precinct, id. at 814-15, or
(iii) the violation was common and insignificant, id. at 818-
19. Thus, under Whren, so long as Officers Silver and Chan
had reasonable suspicion to believe that Alvarado “violated
the traffic code,” the stop was “reasonable under the Fourth
Amendment [and] the evidence thereby discovered admissi-
ble.” Id. at 819.

Choudhry seeks to distinguish Whren on two related
grounds. First, he argues that Whren does not apply because
the reasonable suspicion inquiry centers on criminal activity
—that is, he asserts that Whren is limited to conduct for which
the individual may be arrested. Second, he argues that in Cali-
fornia, parking laws are distinct from other traffic laws
 UNITED STATES v. CHOUDHRY 10227
because of California’s separate civil-administrative scheme
for enforcing parking penalties. We find neither argument
persuasive.

1.

[6] In separating civil parking violations and criminal activ-
ity, Choudhry reads Whren more narrowly than that decision
and our circuit law permit. Although the reasonable suspicion
inquiry does center on suspected criminal activity, Whren
carves out an exception in the context of traffic stops, i.e., a
stop is “reasonable” where an officer suspects an individual
has committed a traffic violation. 517 U.S. at 810. Whren is
not limited to “criminal” traffic code violations. In fact, the
case specifically contemplated the opposite: at the outset of its
opinion, the Court noted that it was addressing the petitioners’
appeal in the scope of “civil traffic violation[s].” Id. at 808.4
The Court explicitly declined to distinguish among different
types of traffic code violations, be they standing or moving
violations. See id. at 818-19. Indeed, we have interpreted
Whren as applying generally to traffic code violations. See
Willis, 431 F.3d at 715 (describing Whren as sanctioning all
stops where the officers have cause to “believe that the peti-
tioner violated the traffic code”);5 cf. Miranda v. City of Cor-
4
Choudhry argues that the Court’s use of the term “civil” is dicta
because the Court did not address whether the specific provisions at issue
were criminal or civil. We are not persuaded. At the very least, the inclu-
sion of “civil” at multiple points in Whren indicates that the Court viewed
the traffic violations as civil offenses and that the Court’s reasoning there-
fore applies to traffic regulations enforced through civil-administrative
procedures. See Whren, 517 U.S. at 808, 810. Moreover, “[w]e do not treat
considered dicta of the Supreme Court lightly.” Montero-Camargo, 208
F.3d at 1132 n.17.
5
The dissent in Willis did not dispute the majority’s interpretation of
Whren, but disagreed with the court’s conclusion that the standard had
been met in that case. See 431 F.3d at 723 (Fletcher, W., J., dissenting)
(noting that in light of Whren, “police may make an ordinary ‘traffic stop’
whenever they have sufficient reason to believe that a traffic law has been
violated”).
10228 UNITED STATES v. CHOUDHRY
nelius, 429 F.3d 858, 864 & n.4 (9th Cir. 2005) (noting that
although a “non-criminal” traffic violation did not justify
impoundment, it was “sufficient justification for police offi-
cers to seize a vehicle for a traffic stop”). Thus, Whren does
not distinguish between traffic violations enforced through a
civil-administrative process and traffic violations subject to
criminal enforcement.

2.

Choudhry’s argument must turn not on the distinction
between civil and criminal traffic violations, but on whether
a parking violation, which is enforced through a civil-
administrative scheme, should be considered a traffic viola-
tion within the scope of Whren. In light of the administrative
process used to enforce parking penalties in California, there
is some force to Choudhry’s argument that parking violations
are distinct from criminal traffic infractions. On balance, how-
ever, his argument fails. The structure of the California Vehi-
cle Code, the authority of law enforcement officers to enforce
the Vehicle Code, and the specific authority granted to San
Francisco City and County police officers to enforce the vio-
lation at issue lead us to conclude that Whren controls Choud-
hry’s case.6

[7] Although California has enacted a civil administrative
process to enforce parking penalties, it has not removed park-
ing regulation from the division of the Vehicle Code that cov-
ers moving traffic violations. See Cal. Veh. Code §§ 22500-
26. This organizational structure demonstrates that while the
legislature intended to decriminalize parking penalties, it still
6
Our analysis here mirrors the analytical framework employed by the
Sixth Circuit in Copeland. In Copeland, the Sixth Circuit held that Whren
applied to a traffic stop based on a parking violation because the regula-
tion was “set forth under the general traffic laws of the Michigan Vehicle
Code” and “officers may enforce any of the regulations subsumed in [the
relevant] section by virtue of a stop.” 321 F.3d at 594.
 UNITED STATES v. CHOUDHRY 10229
considered parking regulation as part of the general “traffic
laws.” A structural analysis of the Code is informative. The
general rules governing parking regulation, as well as the pro-
visions granting local authorities the power to establish park-
ing restrictions pursuant to the Vehicle Code, are contained in
Division 11, Rules of the Road. See Cal. Veh. Code
§§ 22500-26. Among other rules, Division 11 covers moving
violations, which include laws governing such matters as
turns, stop signs, and vehicle speed. Notably, the Vehicle
Code has separate divisions entitled Equipment of Vehicles
(Div. 12, §§ 24000-28150), Safety Regulations (Div. 14.8,
§§ 34500-20.5), and Drivers’ Licenses (Div. 6, §§ 12500-
15325). Had the legislature intended to treat parking regula-
tion as entirely distinct from other traffic offenses, it could
have separated them in a similar way. Instead, the legislature
determined that a separate civil-administrative scheme was
the preferred method for processing and enforcing civil penal-
ties for parking violations. To distinguish parking violations
from other traffic violations, as Choudhry urges we do, would
necessarily require us to rely on logic the Supreme Court con-
sidered, but rejected, in Whren: that different “types” of traf-
fic violations could be distinguished in justifying a traffic
stop. See Whren, 517 U.S. at 818-19.

[8] Nor does California case law suggest a distinction in the
authority to enforce parking and traffic violations under the
Vehicle Code; rather, decisions by the California Court of
Appeal recognize the general authority of police officers to
“detain and cite a person for violating the Vehicle Code.”
Hart, 86 Cal. Rptr. 2d at 766 (emphasis added); see also Peo-
ple v. Brown, 72 Cal. Rptr. 2d 793, 794 (Ct. App. 1998) (“A
police officer may legally stop a motorist he suspects of vio-
lating the Vehicle Code for the purpose of issuing a citation.”
(emphasis added)). In Hart, the court considered the validity
of a detention that occurred during the citation of a driver for
a parking violation when the driver was present in the car.
The court noted that although the Vehicle Code outlines the
procedures for citing an unattended illegally parked vehicle,
10230 UNITED STATES v. CHOUDHRY
see Cal. Veh. Code § 40202, it does not contain a provision
governing the procedures for “giving notice” when an ille-
gally parked vehicle is occupied, Hart, 86 Cal. Rptr. 2d at
766. Citing the general authority of police officers to “detain
and cite” individuals for Vehicle Code violations, the court
held that a detention in such a situation was appropriate. Id.7

[9] Here, the officers had the express authority to enforce
this specific parking violation. Alvarado had parked the vehi-
cle in an area designated by signs as a no parking/tow-away
zone between the hours of 10:00 PM and 6:00 AM. California
Vehicle Code section 22651 allows “[a]ny peace officer . . .
engaged in directing traffic or enforcing parking laws and reg-
ulations” to remove a vehicle “[w]henever any vehicle is
parked or left standing where local authorities, by resolution
or ordinance, have prohibited parking and have authorized
7
In Choudhry’s attempt to distinguish Hart, he misreads the Vehicle
Code. First, Choudhry argues that, in Hart, the defendant violated a provi-
sion found in the “criminal infractions” section of the Vehicle Code (Cal.
Veh. Code § 22500(f)), while Alvarado’s parking violation fell under sec-
tion 40200. Alvarado did not violate section 40200 or a similar provision,
as Choudhry’s analysis would suggest. She violated section 32 of the San
Francisco Traffic Code. San Francisco derives its authority to restrict
“stopping, standing, or parking” on its roads in part from a different provi-
sion in the same Vehicle Code chapter at issue in Hart. See Cal. Veh.
Code § 22507(a). The parking enforcement scheme covers “any” non-
misdemeanor parking violation. See id. § 40200. Section 22500(f) is not
a misdemeanor. Accordingly, both the violations at issue here and in Hart
are enforced under section 40200.7
Second, during oral argument, Choudhry argued that Hart is distin-
guishable because Alvarado violated the San Francisco Traffic Code, not
the California Vehicle Code. The distinction Choudhry draws, however,
is not supported by the structure of the Vehicle Code. As noted above, the
San Francisco Traffic Code provision at issue was adopted pursuant to the
Vehicle Code. Section 40000.1 of the Vehicle Code treats violations of the
code and violations of laws adopted pursuant to the code similarly: “it . . .
constitutes an infraction for any person to violate, or fail to comply with,
any provision of this code, or any local ordinance adopted pursuant to this
code.” Section 40200 places parking violations under the civil enforce-
ment scheme, but otherwise does not alter section 40000.1.
 UNITED STATES v. CHOUDHRY 10231
removal of vehicles.” Cal. Veh. Code § 22651(n). Section 130
of the San Francisco Traffic Code is such an ordinance: it
grants police officers the authority to remove or cause to have
removed “any vehicle that is parked or left standing unat-
tended in violation of California Vehicle Code or the San
Francisco Traffic Code and where signs are posted giving
notice of removal for such a violation.” S.F. Traffic Code
§ 130. Vehicle Code section 22651(n), in combination with
the local code provision, confirms that the officers were
within their authority to enforce Alvarado’s parking violation.
Thus, while California utilizes distinct civil procedures to
enforce penalties for parking violations, parking regulation
nonetheless falls within the scope of Whren’s holding.

IV. CONCLUSION

[10] Because the parking violation alone provided the offi-
cers with a sufficient basis to conduct an investigatory stop of
Alvarado’s vehicle, we need not address the totality of the cir-
cumstances analysis on which the district court relied to deny
Choudhry’s motion. For the above reasons, we agree with the
district court that the stop did not violate the Fourth Amend-
ment. We therefore affirm the denial of Choudhry’s motion to
suppress and his conviction.

AFFIRMED.