People v. McGaughran

TOBRINER, J., Concurring and Dissenting.

I concur in the majority’s conclusion that the running of a warrant check, in itself, does not violate an individual’s constitutional rights and that, as a consequence, the police may validly conduct such a warrant check during the time an individual is properly detained for a traffic violation. (Ante, p. 584.) I dissent, however, from the majority’s determination that on the *596facts of this case the trial court erred in upholding the validity of the brief 10-minute detention and warrant check at issue here. On the basis of the record before us, I have concluded that specific and articulable facts known or apparent to the police officer in question caused him reasonably to suspect that some activity relating to crime had taken place and that defendant was involved in that activity and hence constitutionally justified his brief extended detention of defendant.

“[W]e have consistently held that circumstances short of probable cause to make an arrest may still justify an officer’s stopping pedestrians or motorists on the streets for questioning.” (People v. Mickelson (1963) 59 Cal.2d 448, 450 [30 Cal.Rptr. 18, 380 P.2d 658]. See also People v. Martin (1956) 46 Cal.2d 106, 108 [293 P.2d 52]; People v. Blodgett (1956) 46 Cal.2d 114, 117 [293 P.2d 57]; People v. Simon (1955) 45 Cal.2d 645, 650 [290 P.2d 531].) The federal rules governing police investigations and arrests are in accord, for as the United States Supreme Court recognized in Terry v. Ohio (1968) 392 U.S. 1, 22 [20 L.Ed.2d 889, 906-907, 88 S.Ct. 1868], “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.”

We have recently elaborated on the grounds necessary to justify such an investigative stop or detention. In In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957], we held that “in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . ., to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. . . .” (Fn. omitted.)

To summarize the circumstances involved in the case before us: Officer Thomas witnessed defendant commit the traffic violation of driving in the *597wrong direction on a one-way street. As Officer Thomas drove up behind defendant, he saw defendant’s passenger lean over the back of the seat, apparently moving something on the rear floorboard. When officer Thomas approached defendant to question him, the officer noted that although defendant had been driving on the one-way street which crosses the Redwood High School parking lot, defendant was obviously not a high school student but a far older person. On Thomas’s request for identification, defendant produced a driver’s license showing a San Francisco address. Appearing somewhat confused, defendant explained that he was looking for the Marin County Juvenile Hall, a facility which Thomas knew was distant from that locality. At that point Thomas initiated the radio check for outstanding arrest warrants which the majority here rule “constitutionally unreasonable.”

On the basis of the above-mentioned facts the trial court held Officer Thomas’ action lawful and admitted subsequently discovered contraband. As the trial court explained, “obviously the facts of this case are like any . . . questions of search and seizure, and the magistrate must consider the totality of the circumstances which is, as they testified; number one, . . . whether they are acting honestly and in good faith in the manner in which they proceeded, and taking the totality of the circumstances, I believe they did act reasonably . . . .” (Italics added.) I would affirm the trial court.

In People v. Gale (1973) 9 Cal.3d 788, 795-799 [108 Cal.Rptr. 852, 511 P.2d 1204], we held that the reasonableness of the duration of a detention must be governed by an examination of the “totality of the circumstances.” In the present case, Officer Thomas himself articulated the combination of specific factors upon which he based his decision to detain defendant: “The fact that they were confused, were from San Francisco, were in an area of the high school which has high drug traffic, and were not of high school age.” Officer Thomas had witnessed defendant’s traffic violation, and justifiably mistrusted defendant’s claim to be looking for the distant Marin County Juvenile Hall. Furthermore, Thomas understandably felt “some trepidation or concern or suspicion” at observing defendant’s passenger “actually lean over the seat”; as Officer Thomas testified, “it is not uncommon to glance back, but it is very uncommon for someone to actually lean over the seat.” While a “furtive gesture” or a San Francisco address alone may not suffice to sustain a detention, nevertheless the combination of factors apparent to Officer Thomas in the present case reasonably deepened Thomas’ suspicion; because Officer Thomas “fairly entertained growing doubts as to the veracity of defend*598ant and his companion” (People v. Harris (1975) 15 Cal.3d 384, 389 [124 Cal.Rptr. 536, 540 P.2d 632], cert. den. (1976) 425 U.S. 934 [48 L.Ed.2d 175, 96 S.Ct. 1664]), Officer Thomas properly extended his investigation.

In light of the totality of these suspicious circumstances, Officer Thomas reasonably detained defendant for a short period for purposes of investigation. In People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95-96 [41 Cal.Rptr. 290, 396 P.2d 706], we recognized that “a police officer in the discharge of his duties may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of those duties.” (Italics added.) As Officer Thomas testified in the present case, his original intention on witnessing defendant’s traffic violation was to detain defendant “for purposes of investigation.” Clearly Thomas did not exceed reasonable bounds in interpreting his duty to include a few minutes’ detention to conduct a warrant check, particularly in light of his well-grounded suspicions as to defendant’s bona lides. The warrant check itself, as defendant himself concedes, constituted no invasion of defendant’s privacy. The 10-minute period at issue did not expose defendant to more than minor inconvenience or embarrassment:1 certainly defendant’s detention did not involve the personally offensive and stigmatizing treatment of an arrest or search.2

The detention in the case before us involves a minor and unintrusive law enforcement procedure. Although I agree that the police should not be permitted unduly to detain a motorist to conduct an extended warrant or record inquiry, I believe that the detention in the instant case falls within constitutional bounds. In weighing the competing interests here—a *599function inherent in all judgment—I cannot believe that a fleeting moment of delay to a motorist, provided that it is indeed of very limited duration, is so massive an intrusion as to foreclose the quite legitimate procedure of law enforcement which the warrant check constitutes.

Richardson, J., concurred.

According to testimony at trial, Officer Thomas remained in his patrol car during the warrant check, and defendant and his passenger “were in their vehicle talking.” The curiosity of passersby focused on defendant’s predicament only after defendant had been arrested and handcuffed.

This court’s prior decisions in People v. Superior Court (Simon) (1972) 7 Cal.3d 186 [101 Cal.Rptr. 837, 496 P.2d 1205] and People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559] are clearly distinguishable. In those cases we held that probable cause to arrest a traffic offender, “no matter how persuasive, is neither a necessary nor a sufficient condition” for a warrantless search of his vehicle or person for contraband. (3 Cal.3d 807, 815; 7 Cal.3d 186, 191.) To justify such a search, we concluded, there must be independent probable cause to believe that contraband is present.

By contrast in the instant case we are concerned with neither a search of the driver’s person nor a search of his vehicle and, as I have explained, circumstances short of probable cause may suffice to justify defendant’s extended detention. Thus, the majority err in applying the constitutional standard of Kiefer to the minimal intrusion which the present defendant may have experienced.