THE PEOPLE, Plaintiff and Respondent, v. LARRY SANCHEZ McGAUGHRAN, Defendant and Appellant, 25 Cal. 3d 577

Opinion MOSK, J. Defendant was convicted of burglary committed by breaking into a locked automobile with intent to steal. (Pen. Code, § 459.) On this appeal from the judgment, he contends primarily that the superior court should have granted his pretrial motion to suppress the evidence on the ground of illegal search and seizure. (Pen. Code, § 1538.5.) We conclude that his point is well taken and the judgment must be reversed. The operative facts are without dispute.

Early on a" weekday afternoon Police Officer Thomas of the City of Larkspur, Marin County, was on patrol in a marked vehicle in the vicinity of Redwood High School. He observed a Plymouth automobile proceeding in the wrong direction on a one-way public street that crosses the high school parking lot. Because of the violation, the officer drove up behind the vehicle and activated his red flashing light. As he did, he saw the person in the front passenger position turn around and reach over the back of the seat towards the floor.

Both cars then stopped at the curb, and Thomas approached the driver of the Plymouth, defendant McGaughran. Thomas explained why he had stopped the car, and asked for identification. Defendant produced his driver’s license, showing his address to be in San Francisco. Thomas thereupon asked for the driver’s license of the passenger, Walter Acosta; it was presented, and also showed a San Francisco address. The two men told Thomas they were lost and were looking for the Marin County Juvenile Hall, a facility that the officer knew was several miles away. This discussion took three or four minutes.

Thomas then returned to his patrol car and initiated a radio check for outstanding arrest warrants in both names. Some 10 minutes later the dispatcher called back and reported an Alameda County burglary warrant for defendant and two traffic warrants for Acosta. Upon learning of the pending charges against the two men, Thomas called for assistance and requested a confirmation of the warrants. Officer Fischer arrived in 5 minutes in response to the call, and the warrants were confirmed by radio some 20 to 25 minutes later.

Defendant was then arrested on the burglary warrant, pat-searched, and seated in Fischer’s patrol car. He asked Fischer to return to the Plymouth to retrieve his jacket and wallet. Fischer complied, and found the wallet lying open on the dashboard, disclosing a methadone treatment card from San Francisco. On the back seat he saw an open canvas bag containing several screwdrivers, a set of small wrenches, and a pair of pliers. Thomas questioned Acosta about his outstanding traffic warrants.

The latter replied that if he were allowed to make a telephone call he could raise the necessary bail, and defendant said in such event he would release the Plymouth to Acosta so that he could return to San Francisco. A quick inspection of the car revealed no weapons, and Acosta was permitted to drive it to the Larkspur police station, preceded by Thomas and followed by Fischer in their respective vehicles.

After they arrived at the station, Fischer searched under the front seat of the Plymouth and found a citizens band radio that had been stolen earlier the same day from a car parked about a mile from the scene of the arrest. Examination of that car revealed one door had been broken open, and defendant’s fingerprints were on the door. The present prosecution arises from that burglary. I At the outset it will be helpful to narrow the scope of the problem by noting what is not involved in this case. First, in contrast to such cases as Delaware v.

Prouse (1979) 440 U.S. 648 [59 L.Ed.2d 660, 99 S.Ct. 1391], and In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957], the issue here is not whether Officer Thomas lawfully stopped defendant for the purpose of investigating criminal activity. Defendant acknowledges that he was traveling in the wrong direction on a one-way street, and that it was proper for the officer to stop him for the traffic violation. (Veh. Code, § 21657.) The question, instead, is whether the period of time during which Thomas thereafter conducted the warrant check on defendant and Acosta was a lawful detention.

Second, just as this is not a “stop” case, so also it is not a “search” case. In distinction to People v. Grace (1973) 32 Cal.App.3d 447 [108 Cal.Rptr. 66], Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237 [93 Cal.Rptr. 155], and People v. Lingo (1970) 3 Cal.App.3d 661 [83 Cal.Rptr. 755], during the detention herein Officer Thomas did not undertake to search either the driver’s person or his car.

Indeed, in conducting a warrant check the officer does not “search” at all in the constitutional sense: the object of the inquiry—an outstanding arrest warrant—is not a personal document that an individual legitimately expects will remain private, such as his bank statements (Burrows v. Superior Court (1974) 13 Cal.3d 238, 242-248 [118 Cal.Rptr. 166, 529 P.2d 590]); rather, it is a court order recorded in the government’s own files compiled from official reports of law enforcement agencies and the Department of Motor Vehicles, and is retrieved by use of state and local police communications systems.

Third, this is not a case in which an unlawful detention led merely to the discovery of an outstanding warrant and the defendant’s arrest thereon. In that event the illegality is no bar to a prosecution on the pending charge, for a defendant is not immunized from criminal liability simply because he was arrested on a warrant that had been improperly issued or executed. (See, e.g., Frisbie v. Collins (1952) 342 U.S. 519, 522 [96 L.Ed. 541, 545-546, 72 S.Ct. 509]; People v.

Bradford (1969) 70 Cal.2d 333, 344 [74 Cal.Rptr. 726, 450 P.2d 46].) It is only when the arrest on the warrant thus discovered results in the seizure and use of incriminating evidence against the arrestee that he can invoke, as defendant does here, the exclusionary rule. (See, e.g., Willett v.

Superior Court (1969) 2 Cal.App.3d 555, 559 [83 Cal.Rptr. 22].) Fourth, the traffic violation justifying the stop herein was not of the limited class of offenses for which the officer is either required or authorized to take the defendant into custody and transport him before a magistrate for the filing of a complaint. (Veh. Code, §§ 40301-40303; see People v.

Superior Court (Simon) (1972) 7 Cal.3d 186, 199-200 [101 Cal.Rptr. 837, 496 P.2d 1205].) In those cases the right to custody manifestly includes the right to detain for a warrant check.* * We deal here, by contrast, with one of that much larger class of traffic violations for which the offender cannot be taken into custody and removed from the scene. In such instances, provided the offender satisfactorily identifies himself (see Simon at p. 201 of 7 Cal.3d), the officer must simply prepare a written notice to appear (i.e., a citation or “ticket”) reciting the particulars of the violation (Veh.

Code, § 40500, subd. (a)), and must release the offender when he signs a written promise to appear (id., § 40504, subd. (a)). Fifth, as the record will disclose, the warrant check in the case at bar was not conducted during the period of temporary detention that is permissible even after a traffic stop in the latter class of cases. That period, although brief, is not insignificant. To begin with, it must necessarily include the time required by the officer to write out the citation and obtain the offender’s promise to appear pursuant to the above-mentioned statutes.

Other code provisions imply that it will include more. Thus upon demand of a police officer every motorist must present for “examination” both his driver’s license (Veh. Code, § 12951, subd. (b)) and the registration card of the vehicle (id., § 4462, subd. (a)).

If the officer reasonably believes the vehicle is in a dangerously unsafe condition, he may in addition submit it to appropriate “inspection” and “tests.” (Id., §§ 2804, 2806.) And although not specifically compelled by law, certain other steps customarily taken as matters of good police practice are no less intimately related to the citation process: for example, the officer will usually discuss the violation with the motorist and listen to any explanation the latter may wish to offer; and if the vehicles of either are exposed to danger, the officer may require the driver to proceed to a safer location before the investigation continues. (See generally People v.

Mack (1977) 66 Cal.App.3d 839, 848 [136 Cal.Rptr. 283]; People v. Grace (1973) supra, 32 Cal.App.3d 447, 452; People v. Lingo (1970) supra, 3 Cal.App.3d 661, 663-664.) Each of the foregoing steps, of course, requires a certain amount of time to accomplish. Nor is much less time consumed if the officer in his discretion (see Pen.

Code, § 849, subd. (b)(1)) decides not to issue a citation but instead to release the motorist with a warning against committing future violations of the same kind: the officer is still entitled to examine the driver’s license and registration, carry out any appropriate equipment inspection and tests, and satisfy himself that the motorist fully understands the conduct to be avoided before permitting him to go his way.

In either event, therefore, the law contemplates that the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop, If a warrant check can be completed within that same period, no reason appears to hold it improper: because it would not add to the delay already lawfully experienced by the offender as a result of his violation, it would not represent any further intrusion on his rights. II By the foregoing process of exclusion, we reach the precise issue in the case at bar.

It is undisputed that Officer Thomas initially detained defendant for a period of “about three or four minutes” to advise him why he had been stopped, to examine the driver’s licenses of both defendant and Acosta, and to discuss their explanation that they were lost. It is also undisputed that Thomas did not in fact issue a citation to defendant for driving in the wrong direction on the one-way street, and indeed never intended to do so. The street in question is a two-way thoroughfare on either side of the Redwood High School parking lot, but while it crosses that lot it becomes one way only.

Thomas admitted at the hearing that the traffic pattern was confusing, that although he had seen a number of other drivers make the same “mistake” as defendant, he had never cited any of them; and that it was his “personal policy” in this situation to give the errant motorists “the benefit of the doubt” and “let them off with a warning.” In the circumstances, a brief explanation of the unusual traffic pattern and a warning against repeating the mistake would have completed Thomas’ duties as he conceived them.

Instead of promptly releasing defendant and his companion with such a warning, Thomas returned to his patrol car and detained them for an additional period while he placed a call over police radio to inquire whether there were outstanding warrants in either name, and waited for an answer to that call.

It is undisputed that this second period of detention lasted “approximately ten minutes.” Narrowed to the facts of the case, accordingly, the issue is whether a police officer who (1) has stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (2) has already detained the offender for the period necessary to perform his functions arising from the violation, can thereafter lawfully detain him for an additional period of time solely for the purpose of conducting a warrant check. The answer must be in the negative, and it is given both by statute and by Constitution.

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.) The statute leaves no room for

interpretation: it plainly and unequivocally provides that when the officer has completed his duties flowing from the violation, no further detention—whether for a warrant check or otherwise—is permissible: the motorist must then be released “forthwith.” We recognize that defendant here was not in fact cited for the violation and that Officer Thomas proposed simply to release him with a warning.

But it would be irrational to assume that the Legislature intended to afford less protection to persons whose transgressions are so minor or so excusable that the arresting officer determines they should not even be prosecuted: clearly they too must be released “forthwith” when the officer has investigated the incident and given his warning. In both cases the intent of the Legislature is manifest, and must be obeyed. The statute, moreover, implements settled constitutional doctrine.

It is now beyond question that “just as a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope (Terry v. Ohio, 392 U.S. 1, 18 [20 L.Ed.2d 889, 903, 88 S.Ct. 1868, 1878]), so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.” (Willett v. Superior Court (1969) supra, 2 Cal.App.3d 555, 559; accord, People v.

Harris (1975) 15 Cal.3d 384, 390 [124 Cal.Rptr. 536, 540 P.2d 632].) In Willett an officer saw the defendant driving with a nonfunctioning taillight and properly stopped him to issue an equipment warning. (Veh. Code, § 2806.) After examining his driver’s license and registration, however, the officer did not promptly issue the warning and release the defendant; instead, he called for police assistance and further detained both the defendant and his two passengers while conducting a warrant check on all three.

The inquiry in due course revealed the defendant was a registered narcotics offender who had failed to keep his registered address current, and he was placed under arrest for that offense (now Health & Saf. Code, § 11594). As an incident to the arrest the officers searched the car and found illicit drugs, and the defendant was charged with their possession. The Court of Appeal ordered suppression of the evidence thus found, reasoning in relevant part that “The officers were not justified in detaining Willett beyond what was reasonably necessary to issue him a routine equipment warning.

The search of Willett’s car was based upon his arrest on information learned well after his detention had exceeded constitutional limitations.” (2 Cal.App.3d at p. 559.) Similarly, in the case at bar the event that made the initial detention permissible was defendant’s conceded violation of the one-way traffic pattern. All that was “reasonably necessary” to deal with the offense, however, was for Officer Thomas to examine defendant’s license and registration, explain the violation, and then issue either a citation or a warning.

The additional period of detention for the purpose of seeking out unrelated arrest warrants in the name of defendant or his passenger was not “reasonably necessary” to that process, and hence “exceeded constitutional limitations” under the foregoing rule. Ill In the alternative, the Attorney General contends that the additional detention for a warrant check was permissible here because Officer Thomas reasonably suspected that defendant and Acosta were involved in criminal activity. (People v. Herrera (1975) 52 Cal.App.3d 177, 181 [124 Cal.Rptr. 725] [burglary]; People v.

Junious (1973) 30 Cal.App.3d 432, 437 [106 Cal.Rptr. 344] [loitering about a school for criminal purposes]; People v. Wickers (1972) 24 Cal.App.3d 12, 16 [100 Cal.Rptr. 732] [robbery].) We recently summarized the rule 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 [citation], 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.) (In re Tony C. (1978) supra, 21 Cal.3d at p. 893.) In the case at bar Officer Thomas listed the following circumstances when asked why he ran a warrant check on defendant and Acosta: (1) the men were not local residents, but were from San Francisco; (2) they appeared to be lost; (3) they were in the vicinity of a high school but were not of high school age; (4) a substantial traffic in illegal drugs was known to exist at the high school in question; and

(5) Acosta turned and reached over the back seat when Thomas activated his flashing light. The Attorney General contends these circumstances reasonably support a suspicion that defendant and Acosta were involved in the sale of narcotics at Redwood High School. The argument is unconvincing. To begin with, the first three circumstances noted are wholly innocent. The fact that the occupants of the car were residents of a neighboring county is not only devoid of any sinister significance, but may well explain the further fact that they seemed to be lost.

Nor is it relevant that they were lost—or found—in the vicinity of a high school. They were not, for example, loitering in its restrooms, locker rooms, playgrounds, or similar portions of the school premises normally frequented only by students (cf. Pen. Code, § 653g); rather, they were driving on a public thoroughfare that happens to cross the school property. There is nothing suspicious in the sight of adults—whether teachers, parents, or ordinary citizens—passing through public areas adjacent to high schools, either on school business or merely en route to another destination.

The next circumstance mentioned by Officer Thomas—that an illicit drug traffic was known to exist at Redwood High School—invokes the “high crime area” rationale. But we have warned that “the justification is so easily subject to abuse that this fact alone should not be deemed sufficient to support the intrusion.” (In re Tony C. (1978) supra, 21 Cal.3d at p. 897.) The contrast between the case at bar and People v. Junious (1973) supra, 30 Cal.App.3d 432, is instructive. There two officers had information that several ice cream vendors around Dorsey High School were dealing in narcotics.

The officers, seated in their parked patrol car, began watching the defendant in the cab of an ice cream truck stationed at the curb near Dorsey during school hours. In a period of 20 minutes 7 to 10 juveniles walked up to the truck, spoke with the defendant, but left without purchasing any ice cream. There were three compartments in the truck from which ice cream could be dispensed, but the defendant never opened any of them.

Moreover, it was raining throughout this period and none of the youths had raincoats; one of the officers testified it seemed “very odd” that the youths “were standing out in the rain and . . . were getting soaking wet, but no one was buying any ice cream.” {Id. at p. 437.) The Court of Appeal held that these circumstances supported the officers’ reasonable suspicion that the defendant was loitering about the school for criminal purposes.

When the officers thereupon asked the defendant for identification, he had none to show that he was in fact an employee of the ice cream company in question, and the driver’s license he produced did not give his current address. The Court of Appeal concluded (at p. 438) that these additional suspicious circumstances, when coupled with the foregoing rational suspicion that the defendant was loitering in a high crime area with unlawful intent, justified a brief detention for a warrant check.

No comparable combination of circumstances was shown here: defendant and Acosta promptly and fully identified themselves, and they were not found parked at the curb and engaged in suspicious dealings with juveniles.

Indeed, on cross-examination Officer Thomas was specifically asked, “In fact, . . . you didn’t see these individuals loitering?” He replied, “No, at the time I saw the subjects they were leaving the area.” To vest this conduct with sinister significance would in eífect make it lawful for the police to detain for a warrant check every hapless driver who is stopped for a traffic infraction on a street that happens to be “in the vicinity of” a high school—wherever the officer may choose to draw that geographical line.

Yet as long as such streets remain open to the public their mere use cannot be deemed a suspicious event, whatever the reputation of the local school. The final circumstance relied on by Officer Thomas—the observed movement of Acosta in turning and reaching over the back of the seat—invokes the “furtive gesture” rationale. But in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449], we rejected a claim that a remarkably similar gesture furnished probable cause to search a vehicle for contraband after an ordinary traffic stop.

We there analyzed in detail the dangers of giving too much weight to such gestures, recognizing they are usually totally innocuous and unrelated to any criminal activity. (Id. at pp. 817-823.) We concluded that such a gesture can be deemed suspicious only when there are additional facts known to the officer that reasonably give it a guilty connotation, such as “prior reliable information or . . . the officer’s personal observation of contraband or a deliberate act of concealment under otherwise suspicious circumstances.” (Id. at pp. 819-820.) And we criticized as largely inadequate the “additional facts” relied on for this purpose in a number of Court of Appeal decisions. (Id. at pp. 824-827.) In the present case Officer Thomas obviously had no “prior reliable information” that defendant and Acosta were planning to engage in criminal activity, nor did he observe the latter deliberately hide a package or box apparently containing narcotics as in People v.

Doherty (1967) 67 Cal.2d 9, 21-22 [59 Cal.Rptr. 857, 429 P.2d 177]. On the contrary, Thomas admitted on cross-examination that he did not see what Acosta placed on the rear floor of the car; when Officer Fischer later inquired what the object was, Acosta explained it was his lunch—and in fact Fischer subsequently found a brown paper bag in that location containing the typical residue of a picnic meal. Nor were there any other facts known to Thomas that reasonably invested this gesture with a guilty meaning.

It is true that Kiefer is a search case; but its principle is not so narrow that it cannot fairly be invoked to bar an investigative detention of the occupants of an automobile predicated on a similar unsupported “furtive gesture,” and it has been so applied. (People v. Williams (1971) 20 Cal.App.3d 590, 592 [97 Cal.Rptr. 815].) In the case at bar we have discussed the allegedly suspicious circumstances seriatim simply because we cannot discuss them simultaneously.

Like the trial court, however, in determining their sufficiency we view them not in isolation but in their totality, taking account of the effect that each may have in supporting the others. (See People v.

Gale (1973) 9 Cal.3d 788, 795-799 [108 Cal.Rptr. 852, 511 P.2d 1204].) Having done so, we conclude for the reasons stated herein that when Officer Thomas extended the detention beyond the period necessary to perform his duties arising from the traffic stop, he did not do so on “specific and articulable facts” that could support a rational suspicion that defendant and his companion were involved in “some activity relating to crime.” {In re Tony C. (1978) supra, 21 Cal.3d at p. 893.) It follows that the additional detention cannot be sustained on this ground.

The evidence here challenged was the direct product of exploitation of the unlawful detention, and should have been suppressed. It was essential to the case against defendant, and the ensuing conviction therefore cannot stand. Accordingly, we need not reach defendant’s further contention that Officer Fischer had no probable cause to search his car at the police station. The judgment is reversed. Clark, J., and Manuel, J., concurred. The car was owned by defendant’s wife. Only that 10-minute detention is before us.

If it was valid, Officer Thomas had probable cause to arrest defendant and Acosta on the outstanding warrants and could lawfully detain them for the additional 20 to 25 minutes necessary to confirm those warrants. Even the right to custody, of course, is qualified by the requirement of the cited statutes (see also Pen.

Code, § 849, subd. (a)) that the defendant be taken before the magistrate “without unnecessary delay.” A reasonable detention for a warrant check will ordinarily be deemed a “necessary” delay, but the possibility of excessive detention remains in unusual cases. “Indeed, such a violator may entirely avoid the necessity for appearing in court: he may choose to deposit the prescribed bail by mail (§ 40510) and, by failing thereafter to appear, forfeit that amount in lieu of fine (§ 40512).” (Simon at p. 199 of 7 Cal.3d.) These two documents are also the source of most of the information needed by the officer to complete the citation. {Id., § 40500, subd. (a).) As defendant concedes, to the foregoing period of time may lawfully be added the few moments necessary for the officer to return to his vehicle with the driver’s identification and initiate the warrant check by use of radio or computer terminal.

The Attorney General and the amici curiae supporting him vigorously claim that warrant checks are in fact completed in less time than an officer ordinarily needs to carry out his functions after a traffic stop. They allege in particular that because of modem communications systems and advances in computer technology the usual response time to a warrant check is now from a few seconds to less than four minutes, depending on the method used and the number of inquiries being processed.

Defendant replies that such allegations are beyond the scope of properjudicial notice, and holds up the present case as typical of the delays experienced in conducting warrant checks. We are inclined to believe that reality lies somewhere between these two extremes: i.e., that under ideal conditions warrant checks can now be swiftly completed, but that in a still significant number of places in the state—presumably diminishing with the spread of the new technology—the ideal is not yet attained.

The proceeding before us evidently falls into the latter category, but nothing we say here is intended to foreclose proof of the Attorney General’s claim in an appropriate case. The Attorney General also relies on a series of four decisions of the Court of Appeal holding that after a stop for a traffic violation it is not unreasonable for the officer to detain the motorist “for a short period of time” to run a warrant check. (People v. Gilliam (1974) 41 Cal.App.3d 181, 188 [116 Cal.Rptr. 317]; People v. Bremmer (1973) 30 Cal.App.3d 1058, 1061-1062 [106 Cal.Rptr. 797]; People v.

Brown (1969) 272 Cal.App.2d 448, 450 [77 Cal.Rptr. 438]; People v. Elliott (I960) 186 Cal.App.2d 185, 189 [8 Cal.Rptr. 795].) The rule is sound if the “short period” is construed to' mean no more than the time needed by the officer to perform his functions as discussed herein. It is true the rule was criticized in People v. Grace (1973) supra, 32 Cal.App.3d 447, 453, footnote 3, on the belief that its “inevitable result” will be that in every case the officer will delay completing his duties until he receives a response to his warrant inquiry.

We are unwilling to engage in such a wholesale presumption of official misconduct; but we agree that if in any individual case the defendant can prove the officer did in fact delay completion of his duties for this purpose, the rule will be inoperative. This is no more than a corollary of the rule itself. The Attorney General attempts to distinguish Willett by the fact that the warrant check there took 40 minutes rather than 10 minutes. But the difference is one of degree, not of kind.

Although the court was understandably disturbed by the long response time shown in the record, it grounded its' decision squarely on constitutional principles. The same principles are no less applicable here. After the officer in Kiefer switched on his red flashing light, the woman passenger in the front seat “turned and put her arm over the back of the seat, then faced forward again, bent down toward the floor, and reassumed a normal sitting position.” (Id. at p. 811.)