Watching Nudity Not Probable Cause to Arrest for San Diego DUI

Watching Nudity Not Probable Cause to Arrest for San Diego DUI

San Diego surfers may tell you there’s a greater chance of being bit by a hippo than by a “shark.”

There’s an even greater chance of the police busting you for DUI if you’re sitting in your car looking at a nude photograph on a laptop while sipping on some alcohol, especially if you’re pretty much legally parked near dusk in a neighborhood with worrisome or nosy neighbors who like to call “911.”

That’s what happened to San Diego County DUI Law Center‘s client. Called in for “watching pornography.”

Fortunately for the gentleman who enjoys looking at pretty nude photographs, he hired San Diego DUI & DMV defense attorney and California DUI Lawyers Association Specialist Rick Mueller.

The case was ultimately won. Another victory was notched. It was not going to be his “$15,000 mistake.”

But not before the lover of life went to jail for enjoying his right to look at nudity on his laptop in his vehicle on a public street.

A guy in Florida may drive on Alligator Alley naked, with 3 women, but this client was not naked. And he was not involved in the performance of any sexual activity. He simply was exercising his right to look at nude photographs that he had in his possession.

He never asked the police for “help” and this unlawful detention was not “consensual.”

You see, once the cops smelled alcohol, the bowling ball was thrown down the alley. Field sobriety tests were going to be asked of the driver. The portable Preliminary Alcohol Screening (PAS) breath test was given. Cops claimed he was DUI or drunk; that’s all that matters to them it seems.

A DUI arrest was going to be made. The heavy ball was going to hit the thin pin at the end of the alley.

Shouldn’t the police know that a citizen has the absolute right to simply view pornography, as long as it is not child pornography? That’s what the United States Supreme court ruled. Thank you, California DUI Lawyers Association President Donald Bartell for these specific case citations:

U.S. v. Williams 553 U.S. 285 – See head note 5 which indicates that you cannot criminalize material involving adults.

Stanley v. Georgia 394 U.S. 557 – See head note 10 that an individual has the right to read what he wants. Note child pornography has been found to be an exception.

This reporting party did not indicate this was child pornography so no crime has been committed.

The client was a simple man, not a child pervert. The nude photos were of adults.

Nudity or “porn” is really pretty much everywhere.

Nudity began with mankind. Think “Adam & Eve.” It never went away. It’s not going away.

Nudity did not start here in the 1920’s:

Get with it, Mr. SDPD Police Officer. Turn on your TV. Look at your smartphone.

See a movie. Nudity (and even some vulgarity) is found with Bunny & Maude in “The Big Lebowski.”

Generally, what is the California law when it comes to not committing a misdemeanor DUI in a San Diego police officer’s presence?


A. Federal Courts Are The Final Interpreters of The Fourth Amendment, Not The State Courts.

It has long been held that federal courts trump state courts in determining and interpreting federal constitutional rights. That is, state courts are superseded by a federal courts determination of a laws constitutionality when a law imposes on a federal constitutional right. In regards to a state courts interpretation of the Fourth Amendment, a federal right, the federal courts position is unmistakably apparent:

“The fact that the California Supreme Court expressed its disagreement with the United States Supreme Court several years after the officers broke into Hopkins’ home and that it took a different view of the Fourth Amendment than this circuit and the United States Supreme Court does not alter our conclusion in this case. It is federal courts that are the final arbiters of federal constitutional rights, not the state courts. State courts will not be the final arbiters of important issues under federal constitution.”
(Hopkins v. Bovicino, (2009) U.S.App.9th 9023, 9046)

Simply put, any state court interpretation which violates the United States Supreme Court interpretation of the Fourth Amendment must be deemed unconstitutional.

B. California Vehicle Code Section 40300.5 Violates Current Supreme Court Interpretation of The Fourth Amendment’s Requirement of Presence.

A basic tenet of constitutional law is that seizures, be they arrests, Terry type stops, or consensual encounters must be “reasonable”. In assessing the “reasonableness” requirement of the Fourth Amendment, the current United States Supreme Court, as well as all of its predecessor courts, have looked to the Common law as it existed at or near the time of the framing and adoption of the Constitution. In the context of misdemeanor arrests, the common law was quite clear:

‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. III, 612.

The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury’s Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (K. B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. 585 (K. B. 1827).
This has also been the prevailing rule under state constitutions and statutes. “The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals.” United States v. Watson, 423 U.S. 411 (1976).

Even in the most heinous of circumstances, military desertion, the rule regarding arrests has been upheld. “By the common law of England, neither a civil officer nor a private citizen had the right, without a warrant, to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale, P. C. 587-590; 2 Hale, P. C. 76-81; 4 Bl. Comm. 292, 293, 296; Wright v. Court, 6 Dowl. & R. 623; S. C. 4 Barn. & c. 596.” Kurtz v. Moffitt, 115 U.S. 487 (1885).

The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. Kurtz v. Moffitt, 115 U.S. 487, 6 S. Ct. 148; “So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence.” John Bad Elk v. United States, 177 U.S. 529 (1900).

The U.S. Supreme Court recently undertook an analysis of the “reasonableness” requirement of the Fourth Amendment in regards to custodial arrest in Atwater v. City of Lago Vista, 532 U.S. 318 (2001).
Atwater explained: in assessing what is meant by the language of the Fourth Amendment, it is well established that we look to “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing” Wilson v. Arkansas, 514 U.S. 927, 931 (1995). This examination “sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable” Payton v. New York, 445 U.S. 573, 591 (1980).

Such an evaluation of the common law is had through the reading of cases from the time and treatise on the topic. This was done in Atwater in attempting to determine whether or not misdemeanor arrests must be for “breach of the peace” offenses. With regards to the ‘presence’ requirement at issue here, Atwater is quite enlightening.

One of the earliest cases cited is Queen v. Tooley 2 Ld. Raym. 1296 (Q.B. 1710) holding “[the] constable cannot arrest, but when he sees an actual breach of the peace; and if the affray be over, he cannot arrest.” This clearly establishes the principle that the offense must be in the officer’s presence. This position was propounded by both Sir William Blackstone and Sir Edward East, two of the greatest commentators on English Common Law. See, e.g. 1 E. East, Pleas of the Crown Section 71 (1803) “A constable. . . may lawfully interpose upon his own view” in a criminal situation. (Emphasis added).

The Atwater court went on to quote other sources standing for the proposition that the misdemeanor must be in the presence of the officer. R. Burn, The Justice of the Peace 271 (1837) (an arrest without warrant must be “committed in his view”) (Emphasis in original); J. Chitty, A Practical Treatise on Criminal Law 20 (5th ed. 1847) (by virtue of his office, a constable may apprehend the supposed offender for some “misdemeanors less than felony committed in his view”); W. Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (an officer “may arrest any person who in his presence commits a misdemeanor”).

Lest there be any doubt as to the presence requirement for misdemeanor arrests, the court cited several sources, which themselves compiled cases. All of these sources stress that an officer of the law had the common-law right to arrest for a misdemeanor, so long as said misdemeanor was committed in the officer’s presence. See Arrest Without a Warrant 22 Mich. L. Rev. 541 (1924); 1 J. Bishop, New Criminal Procedure Sec. 181 (4th ed. 1895); W. Clark, Handbook of Criminal Procedure Sec. 12 (2d ed. 1918); J. Beale, Criminal Pleading and Practice Sec. 21 (1899).

More contemporary sources relied upon in Atwater have upheld this view of the common law requirement of ‘presence.’ J. Landynski, Search and Seizure and the Supreme Court 19-48 (1966) (The common law support for Fourth Amendment arrest rules in misdemeanor circumstances require the offense be “committed in the presence of the arresting officer” at p. 45); 3 W. La Fave, Search and Seizure Sec. 5.1(b) (1996).

The presence requirement found by the Atwater court was not a novel finding. The Supreme Court has often found that the Fourth Amendment reflected the common law in requiring that the misdemeanor be committed in the officer’s presence. Such were the holdings in U.S. v. Watson, 423 U.S. 411 (1976); Carroll v. U.S., 267 U.S. 132 (1925) (“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence.”); and John Bad Elk v. U.S., 177 U.S. 529 (1900) [“So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence. 1 Arch. Crim. Pr. *535 & Pl. 7th Am. ed. 103, note (1); also page 861 and following pages; 2 Hawk. P. C. 129, § 8; 3 Russell on Crimes, 6th ed. 83, 84, 97; 1 Chitty’s Crim. L.* p 15; 1 East, P. C. chap. 5, p. 328; Derecourt v. Corbishley, 5 El. & Bl. 188; Fox v. Gaunt, 3 Barn & Ad. 798; Reg. v. Chapman, 12 Cox C. C. 4; Rafferty v. People, 69 Ill. 111, 18 Am. Rep. 601; S. C. on a subsequent writ, 72 Ill. 37.”].

One Supreme Court decision went so far as to stress this requirement in the negative, i.e., that an arrest without presence is forbidden. “By the common law of England, neither a civil officer nor a private citizen had the right, without a warrant, to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale, P. C. 587-590; 2 Hale, P. C. 76-81; 4 Bl. Comm. 292, 293, 296; Wright v. Court, 6 Dowl. & R. 623; S. C. 4 Barn. & c. 596.” Kurtz v. Moffitt, 115 U.S. 487 (1885); See also Welsh v. Wisconsin, 466 U.S. 740 (1984).

Based on this historical view, the treatise and the prior decisions of the court itself, the Atwater justices held “If an officer has probable cause to believe that an individual has committed even a minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater, supra.

Thus, it is obvious that presence is a requirement under the Fourth Amendment’s term of “reasonableness” in the case of misdemeanor arrests without a warrant. In this case, there is no denial of the pertinent facts: (1) there was no warrant, (2) there was no crime committed by The Subject in the officer’s presence and (3) an arrest was made.

Therefore, this arrest violated the FEDERAL prohibition, rendering it unconstitutional, and all evidence may not be considered and must therefore be suppressed.

C. 40300.5 Is Inapplicable To The Situation At Bar

Assuming arguendo that 40300.5 is not unconstitutional, it still is inapplicable to this case. It is a basic axiom of statutory interpretation that laws are given their plain meaning, and that statutes are to be read in harmony with each other.

“When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it.” (People v. Overstreet (1986) 42 Cal.3d 891, 895.). “If the statute is clear, the Legislature is presumed to have meant what it said and the plain meaning of the language governs.” (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1251.).

Furthermore, in looking at the meaning and or depth of the statute, the Legislative history is to be considered.

“[A] statute is not to be read in isolation; it must be construed with related statutes and considered in the context of the statutory framework as a whole.” (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 986; citing People v. Craft (1986) 41 Cal.3d 554, 560.)

Applying this formula to this statute is simple in that the intent of 40300.5 is spelled out in 40300.6:

Section 40300.5 shall be liberally interpreted to further safe roads and control of driving while under the influence of an alcoholic beverage or any drug in order to permit arrests to be made pursuant to that section within a reasonable time and distance away from the scene of a traffic accident.

It is indisputable that section 40300.5 was enacted to cover accident cases. In this case, The Subject was not involved in an accident. Respondent was found parked. Based on a reading of a variety of cases, and Websters Dictionary, a “traffic accident” is defined as follows: an unexpected happening, involving one or more vehicles, resulting in the loss of control of the vehicle with the potential for harm to persons or property or by an intentional act intended to cause the same. An accident, according to California case law requires an intentional act, McNabb v. DMV (1993) 20 CA4th 832.

Therefore, section 40300.5 can not be relied upon by the prosecution in this particular matter given that there was no evidence of an accident.

D. None of The 40300.5 Factors Exist In This Case

If the court rejects the foregoing arguments, there is still no probable cause to arrest in this matter as none of the 40300.5 exceptions apply. The Subject was sitting, not doing anything wrong on the road, and without evidence of being illegally parked.

The Commissioner agreed that neither sub section (a) nor subsection (b) were applicable in The Subject’s case. Simply put, there was no accident, with an inference that the vehicle could have been legally parked.

Looking the remaining three subsections of VC 40300.5, none are applicable to the case at bar. The first two sought to be relied upon deal with the flight risk of The Subject and the danger such flight could cause. However, the officer had The Subject’s information as well as possession of The Subject. Clearly there was no risk that The Subject would not be apprehended. Further, there is a Penal Code Section which specifically deals with this situation; 647(f). This is indeed the misdemeanor which might have been committed in the officer’s presence for which the officer might have been able to make an arrest.

A final state argument may be destruction of evidence through metabolic process. However, this is a GUESS OR A HUNCH. As everyone must concede, no matter what avenue is forwarded by the government to justify an arrest, it can not be based on hunches or guesses, but must rely upon PROBABLE CAUSE.

Alcohol does burn off over time. The process of elimination depends on a number of factors; drinking start time, end time, speed of consumption, none of which is truly known. Ultimately one would not know if The Subject was in fact in the elimination phase. This makes it pure guess work as to whether alcohol was being metabolized. This is not probable cause.

Further, the metabolization of alcohol as an excuse to circumnavigate the various warrant requirements of the Fourth Amendment has been addressed and REJECTED by the United States Supreme Court. In Welsh v. Wisconsin, supra, the Court looked to whether or not such ‘destruction of evidence’ would create an exigency in a DUI arrest. Finding “…arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while the police obtained a warrant.” Id 754.

This position was recently reaffirmed in this Circuit in Hopkins v. Bonvicini supra.

Given all of this, there can be no legitimate argument made by the State that the Subject met any of the 40300.5 criteria.

This illegal arrest was a violation of the United States Constitution, and resulted in suppression of evidence.

The poor client was found without any evidence that he committed a crime in the San Diego Police Department DUI officer’s presence.

In the end, justice was served.

The next time, Officer, just turn your back on someone simply watching adult nudity.

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