Warrantless Arrests
Criminal evidence cannot be used against a person arrested for DUI without a warrant unless the State of California properly justifies the arrest – the decision to stop an automobile without a warrant is reasonable where the police have Probable Cause to believe a traffic violation has occurred.
Arrests in most criminal cases, including DUI, are made without a warrant. The first principle of California criminal defense law advocacy is that the State has the burden to justify a warrantless search and seizure, Coolidge v. New Hampshire (1971) 403 U.S. 443, 455, People v. Williams (1988) 45 Cal.3d 1268, 1297 [Williams I], because warrantless searches and seizures are presumptively illegal. Katz v. United States (1967) 389 U.S. 347, 357, People v. Laiwa (1983) 34 Cal.3d 711, 725. Specifically, warrantless liberty infringements are “per se unreasonable,” People v. Osband (1996) 13 Cal.4th 622, 673, unless the State can show the narrow exception which applies thereto. Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750.
To effectuate that allocation of burdens, a major procedural device has been recognized as inhering in the nature of that allocation: the major pleading effort, upon written motion, is initially on the State of California to advance its justification for a warrantless liberty infringement. Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96-97. California’s Supreme Court tardily boarded that long departed train and finally gave its weighty imprimatur to the compelled and established rule. People v. Williams (1999) 20 Cal.4th 119, 136 [Williams II].
The result “[i]f the prosecution fails to carry its burden [of justification for the warrantless infringement], the defendant need do nothing more to be entitled to suppression of the primary evidence (against the accused).” Williams I, supra @1300 [emphasis added].
Although the defendant usually has the initial responsibility of raising the suppression issue, “when [he so raises], he makes ‘a prima facie case’ when he establishes that the arrest or search was made without a warrant and … ‘the burden then rests upon the prosecution to show proper justification.'” People v. Manning (1973) 33 Cal.App.3d 586, 600; see also Williams II, supra @134.
While that burden shift by “warrantlessness” is clear, and has always been the law for those who did not succumb to the temporary contrary heresy, it still causes some confusion in some quarters, as it appears “too pro-defendant.”
Why would we have a system favoring someone other than the police or government power? Because the Americans who wrote our United States Constitution said so.
“Therefore, when the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion.” Williams II, supra, @130 [emphasis added]. “The Court of Appeal in Wilder correctly criticized the trial court for ‘erroneously . . . requir[ing the defendant] to assert specific attacks upon the warrantless seizure . . . before [the prosecution] articulated its justification for the seizure.'” Id., @134 [quoting, and citing approvingly, Wilder, supra; emphasis added]. “The assertion of a warrantless search or seizure obligates the prosecution to justify the actions of law enforcement, but it does not raise every possible suppression issue that a defendant may want to assert.
Drunk driving defendants who challenge some specific aspect of a search or seizure other than the lack of the warrant must specify the nature of that challenge at the outset.” Id., @135 [emphasis added]. “[W]e hold that when defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. Id., @136 [emphasis added]. “[I]n the case of a warrantless search or seizure, defendants are not required to anticipate the prosecution’s justifications. Law enforcement personnel, not defendants, are in the best position to know what justification, if any, they had for proceeding without a warrant.” Id., @136 [emphasis added].
The case applies with searches or full-blown arrests. And since a detention is a seizure, if it cannot be justified, even its fruits must be suppressed. People v. Shields (1988) 205 Cal.App.3d 1065, 1068, 1072-1073, Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.
A person has been detained whenever, in view of all the circumstances, a reasonable person in his position would believe that he is not free to leave. Wilson, supra @790, citing United States v. Mendenhall (1980) 446 U.S. 544, 554; In re James D. (1987) 43 Cal.3d 903, 913.
For some time in American history, it has been clear that not only “detention” standards are at work for vehicular traffic stops and searches. Justice Scalia, not a liberal by any stretch of the imagination, wrote for a unanimous U.S. Supreme Court, where the issue was the lawfulness of a traffic stop, that “the decision to stop an automobile [without a warrant] is reasonable where the police have probable cause to believe a traffic violation has occurred.”Whren v. United States (1996) 517 U.S. 806, 810. This is in accord with Maryland v. Wilson (1997) 519 U.S. 408, 413: a traffic stop means there is “probable cause to believe that the driver has committed a minor vehicle offense….” And only then “Officer Soto had probable cause….” Whren, supra @810. Petitioners say “the Fourth Amendment test for traffic stops should be, not the normal one … of whether probable cause existed to justify the [traffic] stop; but [something higher].” Id. @810. “But only an undiscerning reader (!) would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation has occurred.” Id. @811. “[T]here was no reason to doubt probable cause for the traffic stop.” Id., @812. “Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.” Id. @813. “Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable cause….” Id. @816. “[E]very Fourth Amendment case, since it turns upon a ‘reasonableness’ determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause.” Id. @817. “…[A] random traffic stop…involves police intrusion without probable cause that is its traditional justification. Our opinion in Prouse expressly distinguished the case from a stop based precisely on what is at issue here: ‘probable cause to believe [a traffic violation has been committed].'” Id. “[T]hey involve seizures without probable cause. Where probable cause has existed….” Id., @818. “The making of a traffic stop out of uniform …is governed by the usual rule that probable cause to believe the law has been broken [is required].” Id., @818. “For the run-of-the-mine case, which this [traffic stop] surely is, we think there is no realistic alternative to the traditional common law rule that probable cause justifies a search and seizure.” Id. @819.
Our Supreme Court used the term “probable cause” 14 times to define the quantum of evidence necessary to justify a traffic stop. Americans must presume the U.S. Supreme Court used magical language purposefully, particularly when repeating the same magical language so many times in the same landmark opinion.
The thing to remember is that a search or seizure without individualized suspicion of wrongdoing is ordinarily unreasonable. Chandler v. Miller (1997) 520 U.S. 305, 308. The bottom line is that a police decision to stop a vehicle without a warrant is only reasonable where the police actually have probable cause to believe a traffic violation has occurred.
Rick Mueller is a San Diego DUI Attorney who has been practicing DUI law since 1983. He received his Juris Doctor degree from Chicago Kent College of Law and is also a licensed attorney in Illinois.
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