Filed 6/6/13 (pub. order by Supreme Ct. 8/28/13)



               IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                 FOR THE COUNTY OF VENTURA
                                         APPELLATE DIVISION


 THE PEOPLE OF THE STATE OF                        )
 CALIFORNIA,                                       )
                                                   )
                  Plaintiff and Respondent,        ) (Ventura County Superior Court Case
                                                   ) Number 2010028438)
                  vs.                              )
                                                   )
 DAVID BURTON,                                     )
                                                   )
                  Defendant and Appellant.
                                                   )

BY THE COURT:*

      APPEAL from a judgment from the trial court in the Superior Court of Ventura County,
Kent M. Kellegrew, Judge. Affirmed.

                                         STATEMENT OF CASE
        Appellant contests his convictions for violating Vehicle Code Sections 23152(a),
23152(b), and special allegations of Vehicle Code Sections 23578, 23575(a)(1), 23577(a)(1).
Appellant was arrested on August 10, 2010. Criminal charges were filed against Appellant on
December 22, 2010. A pretrial motion to suppress evidence, Penal Code Section 1538.5, was
heard and denied by the Honorable Judge Ryan Wright on February 2, 2012. Jury trial
commenced on February 7, 2012 and the jury returned verdicts of guilty and true findings on the
special allegations on February 10, 2012. This appeal ensued.


______________________________
      * Nancy L. Ayers and Matthew P. Guasco, Judges.


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                                    GROUNDS ON APPEAL
      Appellant contests the denial of his motion to suppress. Appellant asks this court to rule
that the Fourth Amendment of the United States Constitution mandates that a warrantless
misdemeanor arrest is only reasonable when the misdemeanor is committed, „in the officer‟s
presence.‟ For the reasons stated below, we decline to do so.
                                    FACTUAL SUMMARY
      There are no real factual disputes between Appellant and Respondent. The issue on appeal
is limited to whether Vehicle Code Section 40300.5 violates the provisions of the Fourth
Amendment because it allows for the arrest, under certain circumstances, of a misdemeanant
suspected of driving under the influence when the offense was not committed in the officer‟s
presence. A summary of the testimony offered at the suppression hearing reveals that a civilian
witness observed Appellant acting erratically, and concluded that Appellant appeared intoxicated
or drunk. The same witness saw appellant, get in a red truck and drive on to the freeway. The
witness called police and provided them with Appellant‟s license plate number and a description
of what he had observed.    Twenty minutes later Officer Haumann located the red truck that
matched the description provided by the witness. Appellant was standing near the truck.
Officer Haumann noticed signs of intoxication and smelled the odor of alcohol coming from
Appellant. Appellant was unsteady on his feet and swayed as he walked. Appellant was
ultimately arrested for violating Vehicle Code Section 23152(a) after Officer Haumann
confirmed that Appellant had been driving the truck recently.


                                          DISCUSSION
                                   STANDARD OF REVIEW
      The factual findings of the trial court are to be upheld if they are supported by „substantial
evidence.‟ People v. Lebya (1981) 29 Cal. 3d 591, 596-597. People v Madrid (2008) 168
Cal.App. 4th 1050.   A reviewing court takes a de novo approach to analyzing whether the trial

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court selected the appropriate standard of law and applied the facts to the law correctly. People
v. Williams (1988) 45 Cal. 3d 1268, 1301.
                                       CALIFORNIA LAW
      Vehicle Code Section 40300.5 allows officers to make a warrantless arrest of a suspected
misdemeanant when the officer had reasonable cause to believe that a person has been driving
under the influence of an alcoholic beverage when one of the following conditions has been met:
       (c) The person will not be apprehended unless immediately arrested;
       (d) The person may cause injury to himself or herself or damage property unless
               immediately arrested;
       (e) The person may destroy or conceal evidence of the crime unless immediately
               arrested.
Vehicle Code Section 40300.5 expands the provisions of Penal Code Section 836(a)(1) which
limits misdemeanor warrantless arrests to „public offense(s’) which the officer has probable
cause to believe were „committed in the officer’s presence,’ ( with certain exceptions to the
presence requirement, such as restraining order violations, domestic violence arrests, and certain
airport arrests.) The trial court relied upon the exceptions stated above in holding that
Appellant‟s arrest was lawful. California courts have upheld the provisions of warrantless
arrests for misdemeanors not committed in the officer‟s presence as long as the arrest was
supported by adequate probable cause. People v. Trapane (1991) 1 Cal. App 4th, Supp. 10, and
People v. Donaldson (1995) 36 Cal. App. 4th 532. “There is no federal constitutional
requirement that a misdemeanor be committed in an officer‟s presence to justify a warrantless
arrest.” People v. Trapane, supra at. P. 13.
                                 THE FOURTH AMENDMENT
      Although Appellant cites Atwater v. City of Lago Vista (2001) 532 U.S. 318 as authority
for favoring Appellant‟s position, we find to the contrary. In a lengthy discussion of the
historical application of the Fourth Amendment to the States, and to particular types of arrests,
the Court states:

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               The record thus supports Justice Powell's observation that "there is no
               historical evidence that the Framers or proponents of the Fourth
               Amendment, outspokenly opposed to the infamous general warrants and
               writs of assistance, were at [*340] all concerned about warrantless arrests
               by local constables and other peace officers." Id., at 429 (concurring
               opinion). We simply cannot conclude that the Fourth Amendment, as
               originally understood, forbade peace officers to arrest without a warrant
               for misdemeanors not amounting to or involving breach of the peace.
               (Atwater v. City of Lago Vista, supra, pp. 339-340.)

       The Supreme Court declined to create a rule forbidding warrantless misdemeanor arrests

except in cases of breach of the peace, recognizing that legal commentary has repeatedly, and

routinely, recognized the constitutionality of warrantless arrests for misdemeanor offenses.

               Small wonder, then, that today statutes in all 50 States and the District of
               Columbia permit warrantless misdemeanor arrests by at least some (if not
               all) peace officers without requiring any breach of the peace, as do a host
               of congressional enactments. The American Law Institute has long
               endorsed the validity of such legislation, see American Law Institute,
               Code of Criminal Procedure § 21(a), p. 28 (1930); American Law
               Institute, Model Code of Pre-Arraignment Procedure § 120.1(1)(c), p. 13
               (1975), and the consensus, as stated in the current literature, is that statutes
               "removing the breach of the peace limitation and thereby permitting arrest
               without warrant for any misdemeanor committed in the arresting officer's
               presence" have "'never been successfully challenged and stand as the law
               of the land.'" 3 W. LaFave, Search and Seizure § 5.1(b), pp. 13-14, and n.
               76 (1996) (quoting Higbee v. San Diego, 911 F.2d 377, 379 (CA9 1990))
               (emphasis in original; footnote omitted). This, therefore, simply is not a
               case in which the claimant can point to "a clear answer [that] existed in
               1791 and has been generally [**1553] adhered to by the traditions of our
               society ever since." (County of Riverside v. McLaughlin, 500 U.S. 44, 60,
               114 L. Ed. 2d 49, 111 S. Ct. 1661 (1991) (SCALIA, J.); Atwater V. City
               of Lago Vista, supra at p. 345.)

      Appellant acknowledges that the concluding language in Atwater v. City of Lago Vista,

supra, (cited as authority for his position that the Fourth Amendment proscribes warrantless

arrests for misdemeanors not committed in the officer‟s presence,) “If an officer has probable

cause to believe that an individual has committed even a very minor criminal offense in his

presence, he may, without violating the Fourth Amendment, arrest the offender,” is dicta.


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Counsel for Appellant referred to the language at oral argument as “persuasive dicta.” Given

the fact that the seatbelt violation, in the Atwater case, which we note is the equivalent of a

California infraction, was, in fact, committed in the officer‟s presence, we feel compelled to

give the language requiring „in the presence,‟ little weight in light of the lengthy discussions

concerning the authority to make warrantless arrests on misdemeanor offenses in the preceding

discussions set forth in Atwater, supra.

       Appellant also cites Virginia v. Moore (2008) 553 U.S. 164 as authority for his position

that Vehicle Code Section 40300.5 is unconstitutional. Reliance on Virginia v. Moore, which

cites Atwater, supra, extensively, is also misplaced. After a lengthy historical discussion of the

application of the Fourth Amendment, the Court concluded that the States are free to enact more

restrictive statutes than those required by the Fourth Amendment. The law subject of appeal in

the Moore case was a Virginia statute which forbade custodial arrest for driving on a suspended

license. (Moore was arrested after being seen driving and it was discovered his license was

suspended. A custodial search revealed contraband.)

               We are convinced that the approach of our prior cases is correct, because
               an arrest based on probable cause serves interests that have long been seen
               as sufficient to justify the seizure. Whren, supra, at 817, 116 S. Ct. 1769,
               135 L. Ed. 2d 89; Atwater, supra, at 354, 121 S. Ct. 1536, 149 L. Ed. 2d
               549. Arrest ensures that a suspect appears to answer charges and does not
               continue a crime, and it safeguards evidence and enables officers to
               conduct an in-custody investigation. See W. LaFave, Arrest: The Decision
               to Take a Suspect Into Custody 177-202 (1965). (Virginia v. Moore,
               supra at p. 174.)

       Again, any language referring to „in the presence‟ is mere dicta not supported by the logic
of the Supreme Court decision.
              When the constitutional validity of an arrest is challenged, it is the function of the
              court to determine whether the facts available to the officers at the moment of
              arrest would „warrant a man of reasonable caution in the belief that an offense had
              been committed.‟ (Carroll v. United States (1925) 267 U.S. 132, 162.)


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       The federal Standard has always been a objective analysis of what facts were known to

the officer at the time of the arrest.

                The constitutional validity of the search in this case, then, must depend upon the
                constitutional validity of the petitioner's arrest. Whether that arrest was
                constitutionally valid depends in turn upon whether, at the moment the arrest was
                made, the officers had probable cause to make it -- whether at that moment the
                facts and circumstances within their knowledge and of which they had reasonably
                trustworthy information were sufficient to warrant a prudent man in believing that
                the petitioner had committed or was committing an offense. Brinegar v. United
                States, 338 U.S. 160, 175-176; Henry v. United States, 361 U.S. 98, 102. "The
                rule of probable cause is a practical, nontechnical conception affording the best
                compromise that has been found for accommodating . . . often opposing interests.
                Requiring more would unduly hamper law enforcement. To allow less would be
                to leave law-abiding citizens at the mercy of the officers' whim or caprice."
                Brinegar v. United States, supra, at 176. (Beck v. Ohio (1964) 379, U.S. 89, 92.)

                                           CONCLUSION


       Careful reading of the language of both cases cited by Appellant in support of his
argument that Vehicle Code Section 40300.5 is unconstitutional and in violation of the Fourth
Amendment convince us of the error of this argument. Rather, we find that the Fourth
Amendment supports arrests for misdemeanors when there is objective and reasonable probable
cause to justify the arrest, regardless of the „in the presence‟ requirement outlined in Penal Code
Section 836(a)(1). We note that if we were to accept Appellant‟s logic, the exceptions provided
in Penal Code Section 836 to the „in the presence‟ requirement, would likewise be deemed
unconstitutional.    We decline to agree that the exceptions to Penal Code Section 836(a)(1)
designated in Vehicle Code Section 40300.5 are unconstitutional. Since we find no error, we
also decline to opine whether suppression of evidence seized pursuant to an unlawful arrest
would be an appropriate remedy for a hypothetical constitutional violation. The trial court
properly selected the rule of law and there is no error in its application of the facts to the rule of
law.
                                               ORDER

       The judgment is AFFIRMED.



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       Counsel:

        Gregory D. Totten, District Attorney and W. Taylor Waters, Deputy District Attorney,
for Plaintiff and Respondent.

       Stephen P. Lipson, Public Defender and Kenneth N. Hamilton, Deputy Public Defender,
for Defendant and Appellant.




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