"The people are such as are born upon the soil, by whom and for whom in the first place the Government was ordained...."
Walther v. Rabolt (1866) 30 Cal. 185, 189

[2] The people of the State of California are supreme and have the undoubted right to protect themselves and to preserve the form of government...
Steiner v. Darby (1948) 88 Cal.App.2d 481
Laws are enacted by and for the people.
In re Porterfield (1946) 28 Cal.2d 91 



Article I:  Declaration of Rights

Sec. 1.

All men are by nature free and independent, and have certain unalienable rights, among which are those of enjoying and defending life and liberty: acquiring, possessing and protecting property: and pursuing and obtaining safety and happiness.

Sec. 2.
All political power is inherent in the people.  Government is instituted for the protection, security and benefit of the people;

Sec. 21.

This enumeration of rights shall not be construed to impair or deny others, retained by the people.

Common as the event may be, it is a serious thing to arrest a citizen. and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the laws of the land.   There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen.   Obedience to law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.
Town of Blacksburg v. Beam (1916) 104 S.C. 146, 88 S.E. 441
Allen v. State (Wis. 1924) 197 N.W. 808, 810-11

So-called "traffic stops" are for movING and non-movING violations of the Vehicle Code.   Getting stopped for speeding is a MOVING violation.   Getting stopped for overly tinted windows or a expired tag or cracked windshield are not MOVING violations.   The former is for a NON-PERMITTED VERB while the latter is for a NON-PERMITTED NOUN.

MovING violations will typically involve dangerous, reckless, or potentially harmful conduct to people, animals, or property.   A non-movING violation typically does not involve any danger, reckless, or potentially harmful conduct to people, animals, or property.   Speeding for example could be dangerous or reckless.   An expired tab is not.   No license plate is not.

So this...

...is very different than this

One constitutes a VERB and the other constitutes a NOUN.


SPEEDING and other MOVING violations

Vehicle = Thing = Noun
Motor Vehicle = Thing = Noun
License Plate = Thing = Noun
Tab = Thing = Noun
Tinted Window = Thing = Noun

So this...

...is either for a VERB or NOUN violation.

According to the State Legislature, the law making branch of State government, the so-called "traffic stop" or "traffic enforcement stop" is an arrest and they've provided the procedures that apply to law enforcement employees who enforce the Vehicle Code. 

The State Legislature has also only authorized arrests for crime.   Hence, when a law enforcement employee "stops" someone they're in fact subjecting them to an "arrest".   Again, the rules are in the Vehicle Code itself and the word provided by the law makers is "arrest" not "detention", "traffic stop", "traffic enforcement stop", or "seizure".   No one other than the Legislature has the authority to add or replace a word in any law of code section.  It's objectionable to use any word not used in any law or code section provided by the law makers. 

An arrest is the initial stage of a criminal prosecution.   It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement,  whether or not trial or conviction ultimately follows.
UNITED STATES v. ROBINSON, 414 U.S. 218 (1973)
To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime.
Serna v. Superior Court, 40 Cal.3d 239
If an arrest and detention were the same thing the California Supreme Court would not have used two words that mean the same thing.   In legal parlance that's knows as "surplusage".  They also placed the word "and" between the two which represents they're not synonymous.   Additionally, note that the Cal Supreme Court recognizes and acknowledges that arrest PRECEDES detention.   An ARREST is the effort made to cause the cessation of movement.   DETENTION is the name of the CLAMP that prevents movement once it ceases.  

So before you can be issued one of these...

...your movement has to stop.   No one stops when they see a police car unless they see something like this...

...in their mirror.

The biker is movING and the law enforcement employee is attempting the ARREST of the movING or VERB.

This is the RESULT of the effort to cause one to cease movING...



You can't be HELD until your movement is ARRESTED.  Hence, an arrest is CONDUCT THAT CURTAILS A VERB.  

Due to our lack of familiarity of these issues, we're permitting THE CART BEFORE THE HORSE.  Case in point;  REASONABLE SUSPICION preceding PROBABLE CAUSE.   The origin of the term REASONABLE SUSPICION is in the seminal federal case Terry v. Ohio which is below in it's entirity.

Well that's NOT how the US Supreme Court ruled in the Terry v. Ohio decision.   Even IF someone is flailing about with a butcher knife, PROBABLE CAUSE precedes REASONABLE SUSPICION and I'd argue that reasonable suspicion has no applicability when it's observable that someone is flailing about with a butcher knife because it's OBSERVABLE which eliminates SUSPICION, they're DOING IT IN PLAIN VIEW OF A WITNESS.

REASONABLE SUSPICION represents an UNKNOWN VARIABLE.   SUSPICION represents INVESTIGATION to satisfy one way or the other whether what the party is SUSPICIOUS of is correct or incorrect.   PROBABLE CAUSE represents MORE KNOWN THAN UNKNOWN.

I have a suggestion, call the PD and make sure you get the name of whomever and ask this question:   Are the officers of the Shakopee police department authorized to arrest without a warrant for noncriminal conduct?  

If they attempt to qualify you just let em know you're an educator and are following up on a question by one of your students.   Whomever fields that question will make themselves a SUBPOENABLE FACT WITNESS if you should get "stopped" for a petty misdemeanor. 

U.S. Supreme Court

TERRY v. OHIO, 392 U.S. 1 (1968)

No. 67.
Argued December 12, 1967.
Decided June 10, 1968.

A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner.   He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times.  Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store.   The officer approached the three, identified himself as a policeman, and asked their names.   The men "mumbled something," whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol.   The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton's outside overcoat pocket.   He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner's or Chilton's outer garments until he felt the guns.  The three were taken to the police station. Petitioner and Chilton were charged with carrying [392 U.S. 1, 2]   concealed weapons.   The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed.   The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that "no substantial constitutional question" was involved. Held:

      1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9.

      2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12.

      3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques; and this Court's approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.

      4. The Fourth Amendment applies to "stop and frisk" procedures such as those followed here. Pp. 16-20.

      (a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16.

      (b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16.

      5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous [392 U.S. 1, 3]   regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.

      (a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20.

      (b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22.

      (c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22.

      (d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

      (e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26.

      (f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27.

      6. The officer's protective seizure of petitioner and his companions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30.

      (a) The actions of petitioner and his companions were consistent with the officer's hypothesis that they were contemplating a daylight robbery and were armed. P. 28.

      (b) The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30.

      7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.

Affirmed. [392 U.S. 1, 4] 

Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day.

Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan.

Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.

Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys' Assn., and by James R. Thompson for Americans for Effective Law Enforcement.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary.   1 Following [392 U.S. 1, 5]   the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton,  2 by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue.   He had never seen the two men before, and he was unable to say precisely what first drew his eye to them.   However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years.   He explained that he had developed routine habits of observation over the years and that he would "stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in this case when I looked over they didn't look right to me at the time."

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet [392 U.S. 1, 6]   away from the two men.   "I get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores.   The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window.   He rejoined his companion at the corner, and the two conferred briefly.   Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner.   The two men repeated this ritual alternately between five and six times apiece - in all, roughly a dozen trips.   At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation.   This man then left the two others and walked west on Euclid Avenue.   Chilton and Terry resumed their measured pacing, peering, and conferring.   After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.

By this time Officer McFadden had become thoroughly suspicious.   He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police officer to investigate further. He added that he feared "they may have a gun."    Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who had conferred with them earlier on the street corner.  Deciding that the situation was ripe for direct action. Officer McFadden approached the three men, identified [392 U.S. 1, 7]   himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source.   When the men "mumbled something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker's store.   As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz.   He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz.    The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns.   So far as appears from the record, he never placed his hands beneath Katz' outer garments.   Officer McFadden seized Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.

On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest.   The trial court rejected this theory, stating that it "would be stretching the facts beyond reasonable comprehension" to find that Officer [392 U.S. 1, 8]   McFadden had had probable cause to arrest the men before he patted them down for weapons.   However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis of his experience, "had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action." Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed.   The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search for evidence of crime.   The frisk, it held, was essential to the proper performance of the officer's investigatory duties, for without it "the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible."

After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty.   The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no "substantial constitutional question" was involved.  We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643 (1961).

We affirm the conviction.
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." This inestimable right of [392 U.S. 1, 9]   personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

We have recently held that "the Fourth Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351 (1967), and wherever an individual may harbor a reasonable "expectation of privacy," id., at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222 (1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925).   The question is whether in all the circumstances of this on-the-street encounter, his right to personal security was violated by an unreasonable search and seizure.

We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity - issues which have never before been squarely [392 U.S. 1, 10]   presented to this Court.   Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to "stop and frisk" - as it is sometimes euphemistically termed - suspicious persons.

On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.   For this purpose it is urged that distinctions should be made between a "stop" and an "arrest" (or a "seizure" of a person), and between a "frisk" and a "search." 3   Thus, it is argued, the police should be allowed to "stop" a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity.   Upon suspicion that the person may be armed, the police should have the power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal "arrest," and a full incident "search" of the person.   This scheme is justified in part upon the notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity," 4 which can properly be imposed upon the [392 U.S. 1, 11]   citizen in the interest of effective law enforcement on the basis of a police officer's suspicion. 5 

On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. 6 It is contended with some force that there is not - and cannot be - a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest.   The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent [392 U.S. 1, 12]   in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in "the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14 (1948).   This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation's cities. 7 

In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street.   The State has characterized the issue here as "the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as `stop and frisk')." 8 But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure.   Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391 -393 (1914).   Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere "form of words." Mapp v. Ohio, 367 U.S. 643, 655 (1961).   The rule also serves another vital function - "the imperative of judicial integrity." Elkins [392 U.S. 1, 13]   v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.   Thus in our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents.   A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.

The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections.   Moreover, in some contexts the rule is ineffective as a deterrent.   Street encounters between citizens and police officers are incredibly rich in diversity.   They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation.   Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. 9   Doubtless some [392 U.S. 1, 14]   police "field interrogation" conduct violates the Fourth Amendment.   But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, 10 it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations.   The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, 11 will not be [392 U.S. 1, 15]   stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime.   No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.   Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere.   Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.   When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.   And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.

Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. [392 U.S. 1, 16]    Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman's power when he confronts a citizen without probable cause to arrest him.

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden "seized" Terry and whether and when he conducted a "search."   There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the Constitution. 12   We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime - "arrests" in traditional terminology.   It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.   And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure [392 U.S. 1, 17]   performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." 13   It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. 14 

The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and between a "frisk" and a "search" is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen.   And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. 15   This Court has held in [392 U.S. 1, 18]   the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. [392 U.S. 1, 19]   United States, 282 U.S. 344, 356 -358 (1931); see United States v. Di Re, 332 U.S. 581, 586 -587 (1948).   The scope of the search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367 -368 (1964); Agnello v. United States, 269 U.S. 20, 30 -31 (1925).

The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central inquiry under the Fourth Amendment - the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. "Search" and "seizure" are not talismans.   We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a "technical arrest" or a "full-blown search."

In this case there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to a "search" when he took hold of him and patted down the outer surfaces of his clothing.   We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner's personal security as he did. 16   And in determining whether the seizure and search were "unreasonable" our inquiry [392 U.S. 1, 20]   is a dual one - whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.


If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether "probable cause" existed to justify the search and seizure which took place.   However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367 -368 (1964).   But we deal here with an entire rubric of police conduct - necessarily swift action predicated upon the on-the-spot observations of the officer on the beat - which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. 17 

Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it is necessary "first to focus upon [392 U.S. 1, 21]   the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen," for there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 18   The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. 19   And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts [392 U.S. 1, 22]   available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96 -97 (1964). 20 Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e. g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple "`good faith on the part of the arresting officer is not enough.' . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio, supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.   It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions.   He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone.   Nor is there anything suspicious about people [392 U.S. 1, 23]   in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in.   But the story in quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation.   We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.   American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. [392 U.S. 1, 24]    Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. 21 

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.   When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking.   Even a limited search of the outer clothing for weapons constitutes a severe, [392 U.S. 1, 25]   though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However, this argument must be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause to make an arrest; nor does he deny that police officers in properly discharging their investigative function may find themselves confronting persons who might well be armed and dangerous.   Moreover, he does not say that an officer is always unjustified in searching a suspect to discover weapons.   Rather, he says it is unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable cause to make an arrest.   When that point has been reached, petitioner would concede the officer's right to conduct a search of the suspect for weapons, fruits or instrumentalities of the crime, or "mere" evidence, incident to the arrest.

There are two weaknesses in this line of reasoning, however.   First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.   The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to [392 U.S. 1, 26]   arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).   Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full" search, even though it remains a serious intrusion.

A second, and related, objection to petitioner's argument is that it assumes that the law of arrest has already worked out the balance between the particular interests involved here - the neutralization of danger to the policeman in the investigative circumstance and the sanctity of the individual.   But this is not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different.   An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. 22   The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for [392 U.S. 1, 27]   the purpose of prosecuting him for a crime. Petitioner's reliance on cases which have worked out standards of reasonableness with regard to "seizures" constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court, supra.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). 23   And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception [392 U.S. 1, 28]   and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a "stick-up."   We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior.   The actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a daylight robbery - which, it is reasonable to assume, would be likely to involve the use of weapons - and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point.   Thus, when Officer McFadden approached the three men gathered before the display window at Zucker's store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief.   We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the [392 U.S. 1, 29]   scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v. United States, 389 U.S. 347, 354 -356 (1967). The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that "limitations upon the fruit to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930); see, e. g., Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206, 216 -221 (1960).   Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).

We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons.   These limitations will have to be developed in the concrete factual circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367 (1964).   The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions.   He did not place his hands in their pockets or under the outer surface of their garments until he had [392 U.S. 1, 30]   felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.


We conclude that the revolver seized from Terry was properly admitted in evidence against him.   At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.   The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts.   We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. [392 U.S. 1, 31]    Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.


MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court's opinion in Katz v. United States and the concurring opinion in Warden v. Hayden.


[ Footnote 1 ] Ohio Rev. Code 2923.01 (1953) provides in part that "[n]o person shall carry a pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his person."   An exception is made for properly authorized law enforcement officers.

[ Footnote 2 ] Terry and Chilton were arrested, indicated, tried, and convicted together. They were represented by the same attorney, and they made a joint motion to suppress the guns.   After the motion was denied, evidence was taken in the case against Chilton.   This evidence consisted of the testimony of the arresting officer and of Chilton. It was then stipulated that this testimony would be applied to the case against Terry, and no further evidence was introduced in that case.   The trial judge considered the two cases together, rendered the decisions at the same time and sentenced the two men at the same time.   They prosecuted their state court appeals together through the same attorney, and they petitioned this Court for certiorari together. Following the grant of the writ upon this joint petition, Chilton died.   Thus, only Terry's conviction is here for review.

[ Footnote 3 ] Both the trial court and the Ohio Court of Appeals in this case relied upon such a distinction. State v. Terry, 5 Ohio App. 2d 122, 125-130, 214 N. E. 2d 114, 117-120 (1966). See also, e. g., People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32, 252 N. Y. S. 2d 458 (1964), cert. denied, 379 U.S. 978 (1965); Aspen, Arrest and Arrest Alternatives: Recent Trends, 1966 U. Ill. L. F. 241, 249-254; Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942); Note, Stop and Frisk in California, 18 Hastings L. J. 623, 629-632 (1967).

[ Footnote 4 ] People v. Rivera, supra, n. 3, at 447, 201 N. E. 2d, at 36, 252 N. Y. S. 2d, at 464.

[ Footnote 5 ] The theory is well laid out in the Rivera opinion:

      "[T]he evidence needed to make the inquiry is not of the same degree of conclusiveness as that required for an arrest.   The stopping of the individual to inquire is not an arrest and the ground upon which the police may make the inquiry may be less incriminating than the ground for an arrest for a crime known to have been committed. . . .

            . . . . .

      "And as the right to stop and inquire is to be justified for a cause less conclusive than that which would sustain an arrest, so the right to frisk may be justified as an incident to inquiry upon grounds of elemental safety and precaution which might not initially sustain a search.   Ultimately the validity of the frisk narrows down to whether there is or is not a right by the police to touch the person questioned. The sense of exterior touch here involved is not very far different from the sense of sight or hearing - senses upon which police customarily act." People v. Rivera, 14 N. Y. 2d 441, 445, 447, 201 N. E. 2d 32, 34, 35, 252 N. Y. S. 2d 458, 461, 463 (1964), cert. denied, 379 U.S. 978 (1965).

[ Footnote 6 ] See, e. g., Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. C. & P. S. 402 (1960).

[ Footnote 7 ] See n. 11, infra.

[ Footnote 8 ] Brief for Respondent 2.

[ Footnote 9 ] See L. Tiffany, D. McIntyre & D. Rotenberg, Detection of Crime: Stopping and Questioning, Search and Seizure, Encouragement and Entrapment 18-56 (1967).   This sort of police conduct may, for example, be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous. Or the police may be seeking to mediate a domestic [392 U.S. 1, 14]   quarrel which threatens to erupt into violence.   They may accost a woman in an area known for prostitution as part of a harassment campaign designed to drive prostitutes away without the considerable difficulty involved in prosecuting them.   Or they may be conducting a dragnet search of all teenagers in a particular section of the city for weapons because they have heard rumors of an impending gang fight.

[ Footnote 10 ] See Tiffany, McIntyre & Rotenberg, supra, n. 9, at 100-101; Comment, 47 Nw. U. L. Rev. 493, 497-499 (1952).

[ Footnote 11 ] The President's Commission on Law Enforcement and Administration of Justice found that "[i]n many communities, field interrogations are a major source of friction between the police and minority groups." President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 183 (1967). It was reported that the friction caused by "[m]isuse of field interrogations" increases "as more police departments adopt `aggressive patrol' in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not readily evident." Id., at 184. While the frequency with which "frisking" forms a part of field interrogation practice varies tremendously with the locale, the objective of the interrogation, and the particular officer, see Tiffany, McIntyre & Rotenberg, supra, n. 9, at 47-48, it cannot help but be a severely exacerbating factor in police-community tensions. [392 U.S. 1, 15]    This is particularly true in situations where the "stop and frisk" of youths or minority group members is "motivated by the officers' perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets." Ibid.

[ Footnote 12 ] In this case, for example, the Ohio Court of Appeals stated that "we must be careful to distinguish that the `frisk' authorized herein includes only a `frisk' for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by the requirements of the Fourth Amendment, and probable cause is essential." State v. Terry, 5 Ohio App. 2d 122, 130, 214 N. E. 2d 114, 120 (1966). See also, e. g., Ellis v. United States, 105 U.S. App. D.C. 86, 88, 264 F.2d 372, 374 (1959); Comment, 65 Col. L. Rev. 848, 860, and n. 81 (1965).

[ Footnote 13 ] Consider the following apt description:

      "[T]he officer must feel with sensitive fingers every portion of the prisoner's body. A thorough search must be made of the prisoner's arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet." Priar & Martin, Searching and Disarming Criminals, 45 J. Crim. L. C. & P. S. 481 (1954).

[ Footnote 14 ] See n. 11, supra, and accompanying text.

We have noted that the abusive practices which play a major, though by no means exclusive, role in creating this friction are not susceptible of control by means of the exclusionary rule, and cannot properly dictate our decision with respect to the powers of the police in genuine investigative and preventive situations. However, the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security caused by those practices.

[ Footnote 15 ] These dangers are illustrated in part by the course of adjudication in the Court of Appeals of New York. Although its first decision in this area, People v. Rivera, 14 N. Y. 2d 441, 201 N. E. 2d 32, 252 N. Y. S. 2d 458 (1964), cert. denied, 379 U.S. 978 (1965), rested squarely on the notion that a "frisk" was not a "search," see nn. 3-5, supra, it was compelled to recognize in People v. Taggart, [392 U.S. 1, 18]   20 N. Y. 2d 335, 342, 229 N. E. 2d 581, 586, 283 N. Y. S. 2d 1, 8 (1967), that what it had actually authorized in Rivera and subsequent decisions, see, e. g., People v. Pugach, 15 N. Y. 2d 65, 204 N. E. 2d 176, 255 N. Y. S. 2d 833 (1964), cert. denied, 380 U.S. 936 (1965), was a "search" upon less than probable cause. However, in acknowledging that no valid distinction could be maintained on the basis of its cases, the Court of Appeals continued to distinguish between the two in theory. It still defined "search" as it had in Rivera - as an essentially unlimited examination of the person for any and all seizable items - and merely noted that the cases had upheld police intrusions which went far beyond the original limited conception of a "frisk."   Thus, principally because it failed to consider limitations upon the scope of searches in individual cases as a potential mode of regulation, the Court of Appeals in three short years arrived at the position that the Constitution must, in the name of necessity, be held to permit unrestrained rummaging about a person and his effects upon mere suspicion. It did apparently limit its holding to "cases involving serious personal injury or grave irreparable property damage," thus excluding those involving "the enforcement of sumptuary laws, such as gambling, and laws of limited public consequence, such as narcotics violations, prostitution, larcenies of the ordinary kind, and the like." People v. Taggart, supra, at 340, 214 N. E. 2d, at 584, 283 N. Y. S. 2d, at 6.

In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. Cf. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Mr. Justice Jackson, dissenting). Compare Camara v. Municipal Court, 387 U.S. 523, 537 (1967).   This seems preferable to an approach which attributes too much significance to an overly technical definition of "search," and which turns in part upon a judge-made hierarchy of legislative enactments in the criminal sphere. Focusing the inquiry squarely on the dangers and demands of the particular situation also seems more likely to produce rules which are intelligible to the police and the public alike than requiring the officer in the heat of an unfolding encounter on the street to make a judgment as to which laws are "of limited public consequence."

[ Footnote 16 ]   We thus decide nothing today concerning the constitutional propriety of an investigative "seizure" upon less than probable cause for purposes of "detention" and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.   We cannot tell with any certainty upon this record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred.

[ Footnote 17 ] See generally Leagre, The Fourth Amendment and the Law of Arrest, 54 J. Crim. L. C. & P. S. 393, 396-403 (1963).

[ Footnote 18 ]   This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. See Beck v. Ohio, 379 U.S. 89, 96 -97 (1964); Ker v. California, 374 U.S. 23, 34 -37 (1963); Wong Sun v. United States, 371 U.S. 471, 479 -484 (1963); Rios v. United States, 364 U.S. 253, 261 -262 (1960); Henry v. United States, 361 U.S. 98, 100 -102 (1959); Draper v. United States, 358 U.S. 307, 312 -314 (1959); Brinegar v. United States, 338 U.S. 160, 175 -178 (1949); Johnson v. United States, 333 U.S. 10, 15 -17 (1948); United States v. Di Re, 332 U.S. 581, 593 -595 (1948); Husty v. United States, 282 U.S. 694, 700 -701 (1931); Dumbra v. United States, 268 U.S. 435, 441 (1925); Carroll v. United States, 267 U.S. 132, 159 -162 (1925); Stacey v. Emery, 97 U.S. 642, 645 (1878).

[ Footnote 19 ] See, e. g., Katz v. United States, 389 U.S. 347, 354 -357 (1967); Berger v. New York, 388 U.S. 41, 54 -60 (1967); Johnson v. United States, 333 U.S. 10, 13 -15 (1948); cf. Wong Sun v. United States, 371 U.S. 471, 479 -480 (1963). See also Aguilar v. Texas, 378 U.S. 108, 110 -115 (1964).

[ Footnote 20 ] See also cases cited in n. 18, supra.

[ Footnote 21 ] Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960.   Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the person.   The remaining two murders were perpetrated by knives. See Federal Bureau of Investigation, Uniform Crime Reports for the United States - 1966, at 45-48, 152 and Table 51.

The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. See, e. g., President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power.

[ Footnote 22 ] See generally W. LaFave, Arrest - The Decision to Take a Suspect into Custody 1-13 (1965).

[ Footnote 23 ] See also cases cited in n. 18, supra.

MR. JUSTICE HARLAN, concurring.

While I unreservedly agree with the Court's ultimate holding in this case, I am constrained to fill in a few gaps, as I see them, in its opinion.   I do this because what is said by this Court today will serve as initial guidelines for law enforcement authorities and courts throughout the land as this important new field of law develops.

A police officer's right to make an on-the-street "stop" and an accompanying "frisk" for weapons is of course bounded by the protections afforded by the Fourth and Fourteenth Amendments.   The Court holds, and I agree, that while the right does not depend upon possession by the officer of a valid warrant, nor upon the existence of probable cause, such activities must be reasonable under the circumstances as the officer credibly relates them in court.   Since the question in this and most cases is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk reasonable.

If the State of Ohio were to provide that police officers could, on articulable suspicion less than probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would have little doubt that action taken pursuant to such authority could be constitutionally reasonable. Concealed weapons create an immediate [392 U.S. 1, 32]   and severe danger to the public, and though that danger might not warrant routine general weapons checks, it could well warrant action on less than a "probability."   I mention this line of analysis because I think it vital to point out that it cannot be applied in this case. On the record before us Ohio has not clothed its policemen with routine authority to frisk and disarm on suspicion; in the absence of state authority, policemen have no more right to "pat down" the outer clothing of passers-by, or of persons to whom they address casual questions, than does any other citizen.   Consequently, the Ohio courts did not rest the constitutionality of this frisk upon any general authority in Officer McFadden to take reasonable steps to protect the citizenry, including himself, from dangerous weapons.

The state courts held, instead, that when an officer is lawfully confronting a possibly hostile person in the line of duty he has a right, springing only from the necessity of the situation and not from any broader right to disarm, to frisk for his own protection.   This holding, with which I agree and with which I think the Court agrees, offers the only satisfactory basis I can think of for affirming this conviction. The holding has, however, two logical corollaries that I do not think the Court has fully expressed.

In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person [392 U.S. 1, 33]   addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection.   I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.

Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence.   Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.

The facts of this case are illustrative of a proper stop and an incident frisk.   Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so.   When he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry "mumbled something." Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.

I would affirm this conviction for what I believe to be the same reasons the Court relies on.   I would, however, make explicit what I think is implicit in affirmance on [392 U.S. 1, 34]   the present facts. Officer McFadden's right to interrupt Terry's freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime.   Once that forced encounter was justified, however, the officer's right to take suitable measures for his own safety followed automatically.

Upon the foregoing premises, I join the opinion of the Court.

MR. JUSTICE WHITE, concurring.

I join the opinion of the Court, reserving judgment, however, on some of the Court's general remarks about the scope and purpose of the exclusionary rule which the Court has fashioned in the process of enforcing the Fourth Amendment.

Also, although the Court puts the matter aside in the context of this case, I think an additional word is in order concerning the matter of interrogation during an investigative stop.   There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.   However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him.   Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. In my view, it is temporary detention, warranted by the circumstances, which chiefly justifies the protective frisk for weapons. Perhaps the frisk itself, where proper, will have beneficial results whether questions are asked or not.   If weapons are found, an arrest will follow. [392 U.S. 1, 35]   If none are found, the frisk may nevertheless serve preventive ends because of its unmistakable message that suspicion has been aroused. But if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the process.

MR. JUSTICE DOUGLAS, dissenting.

I agree that petitioner was "seized" within the meaning of the Fourth Amendment.   I also agree that frisking petitioner and his companions for guns was a "search."   But it is a mystery how that "search" and that "seizure" can be constitutional by Fourth Amendment standards, unless there was "probable cause" 1 to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.

The opinion of the Court disclaims the existence of "probable cause."   If loitering were in issue and that [392 U.S. 1, 36]   was the offense charged, there would be "probable cause" shown.   But the crime here is carrying concealed weapons; 2 and there is no basis for concluding that the officer had "probable cause" for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of "probable cause." We hold today that the police have greater authority to make a "seizure" and conduct a "search" than a judge has to authorize such action. We have said precisely the opposite over and over again. 3   [392 U.S. 1, 37] 

In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause.   At the time of their "seizure" without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that "probable cause" was indeed present. The term "probable cause" rings a bell of certainty that is not sounded by phrases such as "reasonable suspicion."   Moreover, the meaning of "probable cause" is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100 -102:

      "The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of `probable cause' before a magistrate was required.

      . . . . .

      "That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even `strong reason to suspect' was not adequate to support a warrant [392 U.S. 1, 38]   for arrest. And that principle has survived to this day. . . .

      ". . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen."

The infringement on personal liberty of any "seizure" of a person can only be "reasonable" under the Fourth Amendment if we require the police to possess "probable cause" before they seize him.   Only that line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the officer's personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.   "In dealing with probable cause, . . . as the very name implies, we deal with probabilities.   These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175 .

To give the police greater power than a magistrate is to take a long step down the totalitarian path.   Perhaps such a step is desirable to cope with modern forms of lawlessness.   But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. [392 U.S. 1, 39]    Until the Fourth Amendment, which is closely allied with the Fifth, 4 is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand.   That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime.   The decision to enter it should be made only after a full debate by the people of this country.

[ Footnote 1 ] The meaning of "probable cause" has been developed in cases where an officer has reasonable grounds to believe that a crime has been or is being committed. See, e. g., The Thompson, 3 Wall. 155; Stacey v. Emery, 97 U.S. 642 ; Director General v. Kastenbaum, 263 U.S. 25 ; Carroll v. United States, 267 U.S. 132 ; United States v. Di Re, 332 U.S. 581 ; Brinegar v. United States, 338 U.S. 160 ; Draper v. United States, 358 U.S. 307 ; Henry v. United States, 361 U.S. 98 .   In such cases, of course, the officer may make an "arrest" which results in charging the individual with commission of a crime.  But while arresting persons who have already committed crimes is an important task of law enforcement, an equally if not more important function is crime prevention and deterrence of would-be criminals. "[T]here is no war between the Constitution and common sense," Mapp v. Ohio, 367 U.S. 643, 657 .   Police officers need not wait until they see a person actually commit a crime before they are able to "seize" that person.   Respect for our constitutional system and personal liberty demands in return, however, that such a "seizure" be made only upon "probable cause."

[ Footnote 2 ] Ohio Rev. Code 2923.01.

[ Footnote 3 ] This Court has always used the language of "probable cause" in determining the constitutionality of an arrest without a warrant. See, e. g., Carroll v. United States, 267 U.S. 132, 156 , 161-162; Johnson v. United States, 333 U.S. 10, 13 -15; McDonald v. United States, 335 U.S. 451, 455 -456; Henry v. United States, 361 U.S. 98 ; Wong Sun v. United States, 371 U.S. 471, 479 -484.   To give power to the police to seize a person on some grounds different from or less than "probable cause" would be handing them more authority than could be exercised by a magistrate in issuing a warrant to seize a person. As we stated in Wong Sun v. United States, 371 U.S. 471 , with respect to requirements for arrests without warrants:  "Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained." Id., at 479. And we said in Brinegar v. United States, 338 U.S. 160, 176 :

      "These long-prevailing standards [for probable cause] seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.   They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.   But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.   The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring [392 U.S. 1, 37]   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."

And see Johnson v. United States, 333 U.S. 10, 14 -15; Wrightson v. United States, 95 U.S. App. D.C. 390, 393-394, 222 F.2d 556, 559-560 (1955).

[ Footnote 4 ] See Boyd v. United States, 116 U.S. 616, 633 :

      "For the `unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man `in a criminal case to be a witness against himself,' which is condemned in the Fifth Amendment, throws light on the question as to what is an `unreasonable search and seizure' within the meaning of the Fourth Amendment." [392 U.S. 1, 40] 

So in order to be subjected to a traffic case, you FIRST have to be ARRESTED, or if you prefer, your MOVEMENT has to be arrested.   Then the law enforcement employee will decide to issue a NOTICE TO APPEAR or not.   When the law enforcment employee issues a NOTICE TO APPEAR it begins a legal process that involves the Traffic Court.   The Traffic Court will be alerted to what the law enforcement officer did because a copy of the NOTICE TO APPEAR is sent to the court for processing.   A court clerk eventually recieves the copy and then opens or makes a CASE FILE with a number identifying the case and setting a court date by which you'll choose to pay the fine by or choose to have your day in court.   If you choose to have your day in court there will be a "hearing" named ARRAIGNMENT.   An arraignment is a simple administrative step in a criminal case.  This is where you'll be "read the charge/charges", and then be asked how you wish plea.   So this can only occure when the law enforcement employee makes a decision to issue a NOTICE TO APPEAR.  

Without that paper being prepared and issued by the law enforcement employee, there is no court case nor arraigngnment for you to attend.   The name of the form issued by the law enforcement employee is;


And sometimes:


Regardless, the question is:  Is a NOTICE TO APPEAR an accusatory pleading?  If the NOTICE TO APPEAR is not an accusatory pleading, there is no case against you and you are not required to do anything regarding paying a fine or going to court and you can not be punished.   Presumptiive it is an accusatory pleading because you wind up having to pay or go to court where it may be determined you broke the rule the law enforcement employee alleged you did on the NOTICE TO APPEAR.   But is it?  

Here are some Points & Authroities concerning what that form is and isn't:

An accusatory pleading is a necessary prerequisite to the court's jurisdiction.
Serna v Superior Court (1985) 40 Cal.3d 239
City of San Diego v. Municipal Court (1980) 102 Cal.App.3d 775

Only the People may file an accusatory pleading.
Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
People v. Smith (1975) 53 Cal.App.3d 655
People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193

Thus the theme which runs throughout the criminal procedure in this state is that all persons should be protected from having to defend against frivolous prosecutions and that one major safeguard against such prosecutions is the function of the district attorney in screening criminal cases prior to instituting a prosecution.

Due process of law requires that criminal prosecutions be instituted through the regular processes of law. These regular processes include the requirement that the institution of any criminal proceeding be authorized and approved by the district attorney.
People v. Municipal Court (Pellegrino) (1972), 27 Cal.App.3d 193


Presumptively the officer who issues the NOTICE TO APPEAR ensures a copy gets to the District Attorney for their evaluation.   The District Attorney is required to file an accusatory pleading before the court acquires jurisdiction.   A court clerk is not an attorney.  A peace officer is not an attorney. 

Arguably the NOTICE TO APPEAR is both a notice and a report in that it conveys information and allegation about a violation or violations of the Vehicle Code.   That NOTICE can not be a complaint because the officer would usurp the authority of the District Attorney who’s authorized to initiate criminal actions.    The officer who stops and issues a NOTICE TO APPEAR is the State’s witness. 

    [4]  Whether or not the People provide a prosecuting attorney, the citing officer who testifies as to the circumstances of the citation is a witness, no more, no less.
    People v. Marcroft (1992) 6 Cal.App.4th Supp. 1
    Appellate Department, Superior Court, Orange

The State's witness is not the prosecutor.   The State's witness is incompetent to prosecute a criminal case because they're not an attorney.   Specifically they're not the District Attorney nor an Assistant District Attorney.   The Disttict Attorney is who represents the people in criminal cases.   They review reports and evaluatre whether there's sufficien evidence to prepare and file a criminal case.    If the District Attorney doesn't fule a criminal case then you can not have a trial because there's nothing for the court to resolve, if there's no problem then there's nothing for the court to do.

No one bothers to aske whether the process is used is valid.   The only reason it "works" the way it does is do to people acting in agreement it's legit, it's valid, none of the government employees are cheating and they know what they're doing.  Everyone presumes the validity of the process.  

Again, without that NOTICE TO APPEAR being issued there will be no court proceeding.   The court proceeding begins with what they law enforcement officer did.


Article 1. Arrests .......................................... 40300 - 40313

The provisions of this chapter shall govern all peace officers in making arrests for violations of this code without a warrant for offenses committed in their presence,
    40500. (a)
Whenever a person is arrested for any violation of this code not declared to be a felony, or for a violation of an ordinance of a city or county relating to traffic offenses and he is not immediately taken before a magistrate, as provided in this chapter, the arresting officer shall prepare in triplicate a written notice to appear in court or before a person authorized to receive a deposit of bail, containing the name and address of the person, the license number of his or her vehicle, if any, the name and address, when available, of the registered owner or lessee of the vehicle, the offense charged and the time and place when and where he shall appear. If the arrestee does not have a driver's license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee...
    40504. (a)
The officer shall deliver one copy of the notice to appear to the arrested person and the arrested person in order to secure release must give his or her written promise to appear in court... Thereupon, the arresting officer shall forthwith release the person arrested from custody.

The provisions of chapter 2, of division 17, contemplate that the offender is under arrest from the time of his apprehension until he is released upon giving his written promise to appear. (See 40300 - 40300.5 and 40500 - 40504; People v. Wohlleben (1968) 261 Cal.App.2d 461, 463-465 [67 Cal.Rptr. 826]; and People v. Randolph (1957) 147 Cal.App.2d Supp. 836, 840-841 [306 P.2d 98].)   Neither offense observed falls within the provisions of section 40302 or 40304 of the Vehicle Code.   It was, therefore, the officer's duty, in the absence of the existence of the warrant, to release the defendant upon his giving a written promise to appear (40504; People v. Wohlleben, supra, 261 Cal.App.2d 461, 464).   When and until circumstances appear which would warrant the officer's keeping the violator in custody the application of the rule of Marsh (supra, 20 N.Y.2d 98, at p. 102), as noted in Graves (supra, 263 Cal.App.2d 719, at p. 732), which limits the right to search, is more appropriate.   [13] In other words, the traffic offender who is entitled to be released upon his written promise to appear may not even be searched for weapons unless the officer suspects that he is dangerous, or has, as in Graves, reasonable cause for suspecting that the offender is guilty of a crime, rather than a simple traffic infraction.
People v. Weitzer
, 269 Cal.App.2d 274
[Crim. No. 6776. First Dist., Div. One. Jan. 30, 1969.]


    835.    An arrest is made by an actual restraint of the person, or by submission to the custody of an officer.

Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520

When the plaintiff has shown that he was arrested, imprisoned or restrained of his liberty by the defendant, "the law presumes it to be unlawful."
People v. McGrew (1888) 77 Cal. 570

Even where police officers stop a moving vehicle for a brief detention, it is sufficient to constitute an arrest.
5 Amer. Jurisprudence, 2d, “Arrest,” sect. 1, p. 296.

When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. (Kaupp v. Texas, supra,  538 U.S. at p. 630.)   Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime. (Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.)
People v. Celis (2004) 33 Cal.4th 667

The Vehicle Code however, refers to the person awaiting citation as "the arrested person."
People v. Hubbard (1970) 9 Cal.App.3d 827

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.)
People v. McGaughran (1979) 25 Cal.3d 577
[Crim. No. 20293. Supreme Court of California. October 25, 1979.]

Constitution of the State of California

Article I:  Declaration of Rights

Sec. 15

No person shall be imprisoned for debt,...

NOTE:   A so-called "traffic stop" for an infraction is imprisonment for a FINE ONLY violation result in monetary DEBT.   People are being imprisoned for a debt BEFORE it’s even been established in court that they’re a “judgement debtor”.   

22 California Jurisprudence 2nd

p. 37 - 47


I.  In General

2.   Definition and Nature. 

        The essential element and false imprisonment is the restraint of the person;

        19.6.  An infraction is not punishable by imprisonment.

Again,  the so-called "traffic stop" is an arrest and the conduct by the law enforcement employee begins a criminal action when issuing a NOTICE TO APPEAR.   So without the compulsory restraint and the issuance of the NOTICE TO APPEAR, there can be nothing to fi because no one broke any rule..  

If the District Attorney, who represents the plaintiff, that being the People, does not file an accusatory pleading the court does not acquire jurisdiction over ether the subject matter or the party and there is nothing for the court to do.   An accusatory pleading is a complaint.   There's rules for complaints.   Complaints consist of certain and specific information.   Criminal complaints are the province and jurisdiction of the District Attorney and to a limited extent City Attorneys. 

Only the People may file an accusatory pleading.
Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228
People v. Smith (1975) 53 Cal.App.3d 655
People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193

Not the :


By definition, this...

...is not an accusatory pleading nor is it a criminal complaint.   It is mere NOTICE, NOTICE and CRIMINAL ALLEGATION
are two completely different things.   NOTIFYING that a horse race will be happening on Saturday is different than the
ALLEGATION the race will be rigged.   The arresting officer who issues one of those forms is legally incompetent to
a crime and prepare a criminal  case.   What the law enforcement employee places on one of those forms is a
as the
court held in the Marcroft decision, the issuing officer is merely the State's witness, nothing more.   They have
no authority to
file a criminal case and prosecute it.  

And remember, according to the California Court of Appeals, the California Judicial Council;

The classification of minor traffic violations as noncriminal infractions is receiving increasing attention in recent years, not only in California but in other jurisdictions, as a basis for more realistic treatment of the problem in the courts.   Leading authorities in the field of criminal law are proposing that the historic distinction between petty and serious offenses be defined more systematically to facilitate enforcement of lesser violations of police regulations.1   The system under study involves the creation of a category of non-criminal offenses for which the sentence authorized upon conviction would be a fine or other civil penalty, such as the suspension of a license or attendance at a school for traffic violators.2   Jail would not be authorized as a sanction.   Existing provisions of law on arrest, evidence, presumptions and defenses in misdemeanor cases would apply to traffic infractions and judges would conduct trials within the present framework or criminal procedure but without all the paraphernalia of jury trial. Other modifications to eliminate inappropriate criminal procedures on arraignment, bail and plea might be considered in order to reduce the number of appearances required of defendants who wish to appear on their traffic citations.   No constitutional amendment would be required and the proposal could be adopted in California by appropriate amendments to the codes.

...and the Legislature who makes the law, infractions are not crimes.   Therefore, a so-called "traffic stop" is an arrest for noncriminal conduct.   That's either legal or illegal. 

Would it be in your best interest to determine to a certainty whether the Legislature authorized a warrantless arrest for noncriminal conduct?  

“The state constitution is the supreme law of the state,...”.  “If there is any difference in meaning between the constitution and a statute, the constitution must prevail,...”.
13 Cal.Jur.3d (Rev) 4, Part 1, p. 25

Personal liberty, which is guaranteed to every citizen under our constitution and laws, consists of the right to locomotion, -  to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only restrained as the rights to others may make it necessary for the welfare of all other citizens.   One may travel along the public highways or in public places;  and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under law, not onlytheir persons, but in their safe conduct.   The constitution and the laws are framed for the public good, and the protection of all citizens from the highest to the lowest; and no one may be restrained of his liberty, unless he transgressed some law.   Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all rights which our constitution guarantees.
Pinkerton v. Verberg (1979) 99 S.Ct. 2627

Thus in [13 Cal.3d 551] determining that California citizens are entitled to greater protection under the California Constitution against unreasonable searches and seizures than that required by the United States Constitution, we are embarking on no revolutionary course. Rather we are simply reaffirming a basic principle of federalism -- that the nation as a whole is composed of distinct geographical and political entities bound together by a fundamental federal law but nonetheless independently responsible for safeguarding the rights of their citizens.

"Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution."
People v. Brisendine (1975) 13 Cal.3d 528
[Crim. No. 16520. Supreme Court of California. February 20, 1975.]

A statutory privilege cannot override a defendant's constitutional right.   If that right would be thwarted by enforcement of a statute, the state... must yield.
Vela v. Superior Ct. (1989) 208 Cal.App.3d. 141

A statutory privilege cannot override a defendant's constitutional right.
People v. Reber (1986) 177 Cal.App.3d. 523

We thus require citizens to apprise themselves not only of statutory language but also of legislative history, subsequent judicial construction, and underlying legislative purposes (People v. Grubb (1965) 63 Cal.2d 614, 620 [47 Cal.Rptr. 772, 408 P.2d 100]). (See generally Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court (1960) 109 U. Pa. L.Rev. 67.)
Walker v. Superior Court (1988) 47 Cal.3d 112

A detention can never be based solely on a hunch, rumor, intuition, instinct, or curiosity. (Wardlow (2000) 528 U.S. 119, 123-124; Tony C. (1978) 21 Cal.3d 888; Raybourn (1990) 218 Cal.App.3d 308.)   Rather, you must have specific facts justifying your suspicion and you must be able to articulate these to a court.   The court will then decide if these facts-based on the "totality of circumstances" including your training and experience--were enough to make your suspicion objectively reasonable. (Wright (1988) 206 Cal.App.3d 1107; Lloyd (1992) 4 Cal.App.4th 724, 733.)

If an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.
In re Justin K. (2002) 98 Cal.App.4th 695

Every officer knows, or should know, that he needs a warrant which correctly identifies the arrestee, or probable cause, to arrest a particular individual.
Julian C. LEE, Plaintiff-Appellee, v. Jake GREGORY, United States of America, Defendants-Appellants, The Federal Bureau of Investigation, Defendant (2004) No. 02-57132, United States Court of Appeals, Ninth Circuit

By its definition, probable cause can only exist in relation to criminal conduct.   It follows that civil disputes cannot give rise to probable cause.   The Ninth Circuit, as well as the Seventh and Eighth Circuits, have recognized that probable cause can only exist in relation to criminal conduct.
Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th Cir. 1989);
Peterson v. City of Plymouth, 60 F.3d 469 (8th Cir.1995);
Moore v. Marketplace Restaurant, 754 F.2d 1336 (7th Cir.1985);
Thomas v. Sams, 734 F.2d 185 (5th Cir.1984).
Allen v. City of Portland (1995) 73 F.3d 232 (9th Cir.)

It is clearly established, of course, that an arrest without probable cause violates the Constitution. See McKenzie, 738 F.2d at 1007.   Thus, the relevant question in this case is "whether a reasonable officer could have believed [Kennedy's warrantless arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); see Kraus v. County of Pierce, 793 F.2d 1105, 1109 (9th Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987); see also Floyd, 765 F.2d at 5; Bilbrey v. Brown, 738 F.2d 1462, 1466-67 (9th Cir.1984).   ...if there is only one reasonable conclusion a jury could reach on this issue, a directed verdict would have been proper. Cf. Anderson, 483 U.S. at 641, 107 S.Ct. at 3040 (qualified immunity issue can be argued as a matter of law on summary judgment).
Kennedy v. Los Angeles Police Dept., 901 F.2d 702 (9th Cir.1989)

The primary purpose of a constitution is to place limitations upon the legislative authority as well as upon the powers of its co-ordinate branches of government.
Allen v. State Board of Equalization (1941) 43 Cal.App.2d 90

Both the police we honor and the criminals we prosecute are subject to the same binding Constitution.
SMITH v. CITY OF HEMET (2005) 394 F.3d 689, 9th Cir. (en banc)

Obviously, administrative agencies, like police officers must obey the Constitution and may not deprive persons of constitutional rights.
Southern Pac. Transportation Co. v. Public Utilities Com. (1976) 18 Cal.3d 308
[S.F. No. 23217. Supreme Court of California. November 23, 1976.]
It is elementary that public officials must themselves obey the law.
Wirin v. Parker (1957) 48 Cal.2d 890
In re Red Light Photo Enforcement Cases (2008) Cal.App.4th
An officer who acts in violation of the Constitution ceases to represent the government.
Brookfield Construction Company v. Stewart, 284 F. Supp. 94 (1964), United States District Court District of Columbia.

Judge has obligation to impose contempt and swiftly punish those who attempt to win by disobeying rules.
Betsworth v. W.C.A.B. (1994) 26 Cal.App.4th 586

Constitutional provisions for the security of person and property should be liberally construed. It is the duty of the courts to be watchful of constitutional rights against any stealthy encroachments thereon.
Boyd v. U.S., 116 U.S. 635.

It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U.S. 616 , 6 Sup. Ct. 524, in Weeks v. United States, 232 U.S. 383 , 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 Sup. Ct. 182) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution [255 U.S. 298, 304]   by these two amendments. The effect of the decisions cited is:  That such rights are declared to be indispensable to the 'full enjoyment of personal security, personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen-the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous, executive officers.
GOULED v. U.S., 255 U.S. 298 (1921)

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used. When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power.
Cook vs. Iverson, 122, N.M. 251

"Of course, ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law."
In re McCowan (1917) 177 C. 93

“The state constitution is the supreme law of the state,...”.  “If there is any difference in meaning between the constitution and a statute, the constitution must prevail,...”.
13 Cal.Jur.3d (Rev) 4, Part 1, p. 25

"A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be. [Fn. omitted.]" (Lucas v. Colorado General Assembly, supra, 377 U.S. 713, 736-737 [12 [2 Cal.3d 797] L.Ed.2d 632, 647]; Jordan v. Silver (1965) 381 U.S. 415 [14 L.Ed.2d 689, 85 S.Ct. 1572] (concurring opinion).)   
Westbrook v. Mihaly (1970) 2 Cal.3d 765

A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors.
Burks v. United States (1961) 287 F.2d 117, 9th Cir.


        13951(b)(1)  "Crime" means a crime or public offense,...

...infractions are not crimes...

...the Legislature did not intend to classify infractions as crimes...
People v. Sava (1986) 190 Cal.App.3d 935

...Hanson violated Stevens' right not to be arrested in the absence of probable cause to believe Stevens had committed a crime, and that right was clearly established and would be known to a reasonable officer in the circumstances.
Stevens v. Rose (2002), 298 F3d 880, 9 th Cir.

Even if the officer is not expected to know the law of all 50 states, surely he is expected to know the California Vehicle Code...
Even if the officer is not expected to know the law of all 50 states, surely he is expected to know the California Vehicle Code,...

It is settled that the streets of a city belong to the people of a state and the use thereof is an inalienable right of every citizen of the state.
Whyte v. City of Sacramento (1924) 65 Cal. App. 534
Escobedo v. State Dept. of Motor Vehicles (1950) 35 Cal.2d 870

"…the right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts."
People v. Horton (1971) 14 Cal.App.3d 930
...traffic stops are technically “arrests”...
"Investigative Detentions", Spring 2010 POINT OF VIEW, ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE. p. 1

A traffic arrest occurs when an officer stops a vehicle after seeing the driver commit an
infraction. ...the purpose of the stop is to enforce the law, not conduct an investigation.

[2] " '[I]n 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. [Citations.]' " (In re James D. (1987) 43 Cal.3d 903 , 914 [239 Cal.Rptr. 663, 741 P.2d 161]; cf. Scott v. United States (1978) 436 U.S. 128, 138 [56 L.Ed.2d 168, 178, 98 S.Ct. 1717].)
People v. Renteria (1992) 2 Cal.App.4th 440
[No. B055019. Second Dist., Div. Six. Jan 7, 1992.]

...Hanson violated Stevens' right not to be arrested in the absence of probable cause to believe Stevens had committed a crime, and that right was clearly established and would be known to a reasonable officer in the circumstances.
Stevens v. Rose (2002) 298 F3d 880, 9th Cir.

A police officer may lawfully arrest a person without a warrant if such a person has committed a public offense in the officer's presence...
[2c] If the judicial officer finds that probable cause has not been established, the defendant must be discharged from custody.
In re Walters (1975) 15 Cal.3d 738

Defendant makes a prima facie case of unlawful arrest when he establishes that arrest was made without a warrant, and burden rests on prosecution to show proper justification.
People v. Holguin (1956) 145 Cal.App.2d. 520

The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances.
People v. Williams (1999) 20 Cal. 4th 119

"Every fact which, if controverted, plaintiff must prove to maintain his action must be stated in the complaint"
Jerome v. Stebbins (1859) 14 C. 457:
Green v. Palmer (1860) 15 C. 411, 76 Am.Sec. 492;
Johnson v. Santa Clara County (1865) 28 C. 545

There is a constitutional right to be free from criminal prosecution based upon evidence that was illegally obtained by the government.
Devereaux: v. Abbey, 263 F.3d 1070 (9th Cir. 2001, en banc)

People v. Barnett (2012), NO. MS303415A,

THE COURT:  ... an arrest, a detention for a traffic stop even for an infraction must be based on probable cause.   And I agree with you,...
Certified Transcript, p. 6, Line 3 - 6

THE COURT:   The entire Supreme Court, all nine justices written by Justice Scalia indicates there must be probable cause for a traffic arrest...
Certified Transcript, p. 6, Lines 20 - 22

THE COURT:  He's asking if you're familiar with 22350.   He’s calling it a crime.   It’s not a crime.
It's an infraction.
Certified Transcript, p. 39, Lines 5 - 7

THE COURT:   ...and you"re correct, Mr. Barnett, 22350, speeding is not a crime.   It’s not an arrestable offense.
Certified Transcript, p. 49, Lines 2 -3

State of Minnesota vs. John Thomas Myser, Jr. (2012), No. 70-VB-11-23469,
Hon. Diane M. Hanson

THE COURT:   The charge in this case is speeding.   It is a petty misdemeanor under Minnesota law, it is not a criminal offense, it is a noncriminal traffic violation.
Reporter’s Transcript p. 3

DEFENDANT:   Did you witness any criminal activity?
OFFICER:   What you were doing was a petty misdemeanor and it is not a crime.
Reporter’s Transcript p. 26

An officer is not entitled to qualified immunity when, acting in his discretionary capacity, he violates clearly established constitutional or federal law of which a reasonable person would have known.
Koch v. Rugg (2000) 221 F.3d 1283 (11th Cir.)

"...an officer may be held liable in damages to any person injured in consequence of a breach of any of the duties connected with his
office...   The liability for nonfeasance, misfeasance, and for malfeasance in office is in his 'individual', not his official capacity..."
70 Am. Jur. 2nd Sec. 50, VII Civil Liability



The state has the authority to regulate the use of public highways for business purposes.
Morel v. Railroad Commission of California (1938) 11 Cal.2d 488

AUTOMOBILE.   A vehicle for the transportation of persons or property on the highway, carrying its own motive power and not operated upon fixed tracks.  Blashfield's Cyclopedia of Automobile Law, vol. 1, c. 1, 2.

Etymologically, the term might include any self-propelled vehicle, as an electric street car, or a motor boat, but in popular and legal usage it is confined to a vehicle for the transportation of persons or property on terrestrial highways, carrying its own motive power and not operated upon fixed tracks.   Bethlehem Motors Corporation v. Flynt, 178 N.C. 399, 100 S.E. 693, 694. Synonymous with "motor vehicle." State v. Ferry Line Auto Bus Co., 99 Wash. 64, 168 P. 893, 894.   "Car" as substitute or synonym. Monroe's Adm'r v. Federal Union Life Ins. Co., 251 Ky. 570, 65 S.W.2d 680, 681.   Taxicabs included. Navy Gas & Supply Co. v. Schoech, 105 Colo. 374, 98 P.2d 860, 864, 126 A.L.R. 1225.   Trolley vehicles or trolley busses excluded. City of Dayton v. Lie Brosse, 62 Ohio St. 232, 23 N.E.2d 647, 650.
Black’s Law Dictionary, 4th Ed. 1951, p. 169 - 170

FRANCHISE.  A special privilege conferred by government on individuals, and which does not belong to the citizens of the country generally by common right. Angell & A. Corp. 4.  A particular privilege conferred by grant from government, and vested in individuals. 3 Kent, Comm. 458.
The Cyclopedic Law Dictionary, 2nd Ed., 1922, p. 431

FUGATOR . A driver.  Fugatores carrucarum, drivers of wagons. Fleta, lib. 2, c. 78.
The Cyclopedic Law Dictionary, 2nd Ed., 1922, p. 440
Black's Law Dictionary, 1st Ed., p. 525
Black's Law Dictionary, 4th Ed., p. 800
Bouvier's Law Dictionary, 8th. Ed., 1914, p. 1322

FUGATOR and his assistant



Vol. 4




p. 826


    15.  In General. -  “The right of regulation by the state of the business of common carriers, especially of those to whom has been granted the right of eminent domain, is beyond discussion.   The doctrine is now become so well-established as to be 1 of the fundamentals of the law.”   And, it is been declared, the contract clause of the federal Constitution does not interpose any obstacle to the exertion of this power.   This is merely a conspicuous example of the legitimate exercise the police power over property held in private ownership but devoted by the owners to a public use.



Vol.  9




p. 664


    7.  In General. - It is a universally recognized, fundamental principle of law that common carriers, in view of their public functions, are subject to governmental control and regulation. This is merely 1 of the illustrations of legitimate exercise of the police power over property held in private ownership, but devoted to public use.



Vol. 34




    1.  Scope. -   The history of the legislation of this state with reference to the transportation of persons and property on the public highways of the state for compensation discloses two distinct lines of statutes.   One such line was enacted for the purpose of regulating the business of transportation by motor vehicles of persons or property for hire or compensation on the public highways.  Examples are the Highway Carriers Act, the City Carriers Act, the Household Goods Carriers Act, and various sections of the Public Utilities Act relating to motor carriers.   On the other hand, the Motor Vehicle Transportation License Tax Act was enacted as a step in the second line, which consists of certain acts and constitutional provisions that are primarily revenue measures, designed to secure for the state a fair return for the use of its highways in transporting persons or property for compensation.

    2.  In General.  -   An adequate transportation system is essential to the welfare of the state, and an important part of that system is the service rendered by highway carriers.   Among the purposes of regulation are the preservation of the highways for the public benefit and use, consistent with the needs of commerce, without unnecessary congestion or wear and tear; maintenance of a full and unrestricted flow of traffic by auto carriers over the highways; maintenance of adequate, regular, and reliable service by such carriers at reasonable rates and charges; and prevention of discrimination among shippers.   To these ends it is necessary to regulate the use of the highways by those transporting property thereon for commercial purposes.

    3.  Basis of Authority.  -   It is a recognized principle that the use of the public highways for the purpose of transacting business thereon is a privilege the state may grant or withhold in its discretion and on which it may impose such conditions as it sees fit.



Title 49
Volume 4
Parts 200 to 399

Revised as of October 1, 1999
Page 859 - 865



Subpart A -- General Applicability and Definitions

Sec. 390.5  Definitions.

    Driver means any person who operates any commercial motor vehicle.

    Interstate commerce means trade, traffic, or transportation in the United States--
        (1) Between a place in a State and a place outside of such State (including a place outside of the United States);
        (2) Between two places in a State through another State or a place outside of the United States; or
        (3) Between two places in a State as part of trade, traffic, or transportation
    Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term ``interstate commerce.''
    Motor vehicle means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property,

    Operator -- See driver.



Chapter 1905

Section I. Section 9603 of the Revenue and Taxation Code is amended to read:

    9603. "Operator" includes:                       

(a) Any person engaging in the transportation of persons or property for hire or compensation by or upon a motor vehicle upon any public highway in this State, either directly or indirectly.
        (b) Any person who for compensation furnishes any motor vehicle for the transportation of persons or property under a lease or rental agreement when such person operates the motor vehicle furnished or exercises any control of, or assumes. any responsibility for the operation of the vehicle irrespective of whether the vehicle is driven by such person or the person to whom the vehicle is furnished, or engages either in whole or in part in, the transportation of persons or property in the motor vehicle furnished.

    "Operator" does not include any of the following:

(a) Any person transporting his own property in a motor vehicle owned or operated by him unless he makes a specific charge for the transportation.

        (f) Any registered owner of a pleasure vehicle who, while operating the vehicle, transports persons to his work or to a place through which he passes on the way to his work, whether for or without compensation, if he is not in the business of furnishing such transportation.
        Stats. 1955, ch. 1905, p. 3515 - 3516.

The Supreme Court of California held:  An analysis of the legislative history discloses the fact that all the statutes dealing with the regulation of transportation agencies refer to persons in the business of transportation of persons or property upon the public highways for hire or compensation .... We are satisfied that the purpose of the enactment of the License Tax Act of 1933 was to secure a fair return to the state for the use of its public highways not only from carriers, both common carriers and private contract carriers, but also from the larger class of persons who fairly answer to the description of "operator" therein defined as taxable and who receive compensation, either directly or indirectly, from the use of the public highways.


Title 18, UNITED STATES CODE, Sec. 31
Sec. 31. Definitions

    When used in this chapter the term  - 
        ''Motor vehicle'' means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo.   ''Used for commercial purposes'' means the carriage of persons or property for any fare, fee, rate, charge or other consideration, or directly or indirectly in connection with any business, or other undertaking intended for profit;

Blashfield, AUTOMOBILE LAW AND PRACTICE 3d Ed (1998)

Section 465.4.  Classification as Pleasure Cars or Commercial Vehicles

    "A classification of motor vehicles, based on whether they are used for business or commercial purposes, or merely kept for pleasure or family use, a license being imposed in one case and not in the other, is a proper one. [27. La.--Gulf States Utilities v. Traigle, 1975, 310 So.2d. 78. Ohio.--Fisher Bros. Co. v. Brown, 146 N.E. 100, 111 Ohio St. 602. Or.--Kellaher v. City of Portland, 110 P. 492, 112 P. 1076, 57 Or. 575. Tenn.--Ogilvie v. Hailey, 210 S.W. 645, 141 Tenn. 392. Vt.--State v. Caplan, 135 A. 705, 100 Vt. 140.]   "Thus a county ordinance levying a tax for the privilege of using the county roads, and fixing no license tax on an automobile used by the owner or his family for other than commercial purposes is not unreasonable and arbitrary in the imposition of the tax on vehicles used for commercial purposes. [28 Ala.--Hill v. Moody, 93 So. 422, 207 Ala. 325.]"


    Commercial Vehicle

        260. (a) A “commercial vehicle” is a motor vehicle of a type required to be registered under this code used or maintained for the transportation of persons for hire, compensation, or profit or designed, used, or maintained primarily for the transportation of property.
                (b) Passenger vehicles and house cars that are not used for the transportation of persons for hire, compensation, or profit are not commercial vehicles.  This subdivision shall not apply to Chapter 4 (commencing with Section 6700) of Division 3.

“The activity licensed by state DMVs  -  the operation of motor vehicles  -  is itself integrally related to interstate commerce”.
Seth Waxman, Solicitor General
U.S. Department of Justice
Reno v. Condon, 528 U.S. 141, January 12, 2000
Supreme Court of the United States

NOTE:  All the members of the US Supreme Court agreed that Reno was correct and ruled in the federal government's favor.

"Section 250 . . . "(a) It is a misdemeanor for any person to drive a motor vehicle upon a highway unless he then holds a valid operator's or chauffeur's license . . . .."  . . . . driving privileges – of which the  license is but evidence (People v. Noggle (1935), 7 Cal.App.2d 14, 17,  [45 P.2d 430, 432]).
People v. Higgins (1948) 97 Cal.App.2d Supp. 938

“A chauffeur, within the sense defined in Veh. Code 71, is one who is paid compensation for his services.”
Hutton v. California Portland Cement Co. (1942), 50 CA2d. 684

"... Section 1 [of the Motor Vehicle Act] excludes from the definition of the term 'operator' everyone 'who solely transports by motor vehicle ... his or its own property, or employees, or both, and who transports no persons or property for hire or compensation.'"
Bacon Service Corporation v. Huss (1926), 199 Cal. 21

Therefore it becomes necessary at the outset of a consideration of the problem herein presented to distinguish between a right which arises as the result of a contractual obligation and a right acquired by a license granted under the inherent police power of the state.

It is conceded that every citizen has a right to follow any lawful business or profession which is not injurious to the public or a menace to the health, safety or welfare of society, free from regulation by the exercise of the police power of the state except in cases of necessity for such health, safety or welfare, and when its authority is so interposed in behalf of the public it must be by means reasonably necessary for the accomplishment of that purpose.

A license has none of the elements of a contract and does not confer an absolute right but a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed.

In accordance with such general rule this court stated in the case of Gregory v. Hecke, 73 Cal.App. 268 [238 P. 787]:

"No person can acquire a vested right to continue, when once licensed, in a business, trade or occupation which is subject to legislative control under the police powers." (Citing Hurtado v. California, 110 U.S. 516 [4 S.Ct. 111, 28 L.Ed. 232]. See 12 Am.Jur. 694, p. 371; 16 C.J.S. 224, p. 647.)
Rosenblatt v. California (1945), 69 Cal.App.2d 69

A license proper is a permit to do business which could not be done without the license.

A license in its proper sense is a permit to do business which could not be done without the license.
CITY OF SONORA v. J. B. CURTIN (1902), 137 Cal. 583

The Garcia court quoted Lambert v. California (1957) 355 U.S. 225, 227 [78 S.Ct. 240, 242][involving registration for convicted felons] as follows:  “‘Many [registration] laws are
akin to licensing statutes in that they pertain to the regulation of business activities.
People v. Garcia (2001) 25 Cal.4th 744

Registration laws are common and their range is wide. Cf. Bryant v. Zimmerman, 278 U.S. 63 ; United States v. Harriss, 347 U.S. 612 ; United States v. Kahriger, 345 U.S. 22 . Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities.
Lambert v. California (1957) 355 U.S. 225

"We have said, and we reiterate, that a license is merely a privilege to do business and is not a contract  between the authority granting it and the grantee, nor is it a property right. See syllabus by the court, No. 4,  Prettyman Inc. v. Florida Real Estate Commission ex rel. Branham, 92 Fla. 515, 109 So. 442."
Mayo et al. v. Market Fruit Co. of Sanford, Inc. (1949) 40 So.2d 555

"A license is merely a per mission to do what is unlawful at common law, or is made so by some statute or ordinance, including the one authorizing or requiring the license."
Laundry License Case, 22 Fed. 701, (D. Or. 1885)

A statutory or constitutional provision relating to property tax has no application to a license fee required to be paid before an automobile may be operated on the public highways;  the latter being an "occupation, privilege, or excise tax."
State v. Collins (1917), 94 Wash. 310

A classification of motor vehicles, based on whether they are used for business or commercial purposes, or merely kept for pleasure or family use, a license fee being imposed in one case and not in the other, is a proper one.
Ohio - Fisher Bros. Co. v. Brown, 146 N.E. 100, III Ohio St. 602.

"This law does not impose tax on motor vehicles and motor-cycles as property, nor is it a tax on the person for the ownership of the vehicle.    It is a tax on the privilege of using the vehicle upon the public roads.   It is in the nature of a toll for the use of the highway.   Not the vehicle, but the privilege of using the vehicle, is taxed.
State v. Lawrence (1914), 108 Miss. 291

Automobile is the generic name which has been adopted by popular approval for all forms of self-propelling vehicles for use upon highways and streets for general freight and passenger service.

"The word 'automobile' has a well-fixed significance in the popular understanding.   It is understood to refer to a wheeled vehicle, propelled by gasoline, steam, or electricity, and used for the transportation of persons and merchandise."
"An automobile may be defined as a wheeled vehicle, propelled by steam, electricity, or gasoline, and used for the transportation of persons or merchandise.   The courts, without making clear distinctions, have generally used the terms automobile, motor vehicle,
motor car,...
THE LAW OF AUTOMOBILES, by C. P. BERRY of the ST. LOUIS BAR, 3rd Ed., 1921, p. 2

And so courts have, in this connection, distinguished "licensed" vocations from vocations "lawful per se."
U.S. v. McFarland, 28 App. D.C. 552, (1907);
Peginis v. Atlanta, 132 Ga. 302, (1909)

But, as has been said, "a license law ... assumes the illegality of the business, and denounces penalties upon those who pursue it without previously protecting themselves by procuring a license."
State v. Parker Distilling Co., 236 Mo. 219 (1911)

A license is merely a permit or privilege to do what otherwise would be unlawful.   The purpose of it is to regulate and control the manner in which the business is conducted, and prevent its being carried on in such a way as to ignore the public interest.
Palmetto Fire Ins. Co. v. Beha, 13 F.2d 500 (S.D. N.Y. 1926)

A license is generally issued to an individual on account of his peculiar fitness for the business, trade or profession which he is licensed to carry on, for the purpose of identification and regulation, and in either case to allow the license to be transferred would be to thwart the purpose and intent of the law.
THE LAW OF AUTOMOBILES, by C. P. BERRY of the ST. LOUIS BAR, 3rd Ed., 1921, p. 107

"License" is frequently used in a secondary sense to mean the written document which is generally issued to the licensee upon his fulfilling all the requirements of the law relating to the licensed vehicle, business or occupation.   It is not essential to the authority or privilege itself, and is issued principally as a matter of evidence.
Elmore v. Overton, 104 Ind. 548, 555, 4 N. E. 197, 54 Am. Rep. 343;
Moore v. St. Paul, 61 Minn. 427, 429, 63 N. W. 1087;
United States v. Cutting, 70 U. S. (3 Wall.) 441, 443, 18 L. ed. 241;
Connecticut Breweries Co. v. Murphy, 81 Conn. 145, 70 Atl. 450

A license of an automobile for carrying persons for hire does not create any contract between the city and the licensee, and the acceptance of the same does not impose any obligation upon the licensee to follow the business covered by the license.
Chicago v. Gall (1915), 195 111. App. 41

DRIVER.   One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals.
    2. Frequent accidents occur in consequence of the neglect or want of skill of drivers of public stage coaches, for which the employers are responsible.
    3. The law requires that a driver should possess reasonable skill and be of good habits for the journey; if, therefore, he is not acquainted with the road he undertakes to drive; 3 Bingh. Rep. 314, 321;  drives with reins so loose that he cannot govern his horses; 2 Esp. R. 533; does not give notice of any serious danger on the road; 1 Camp. R. 67; takes the wrong side of the road; 4 Esp. R. 273; incautiously comes in collision with another carriage;  1 Stark. R. 423; 1 Campb. R. 167; or does not exercise a sound and reasonable discretion in travelling on the road, to avoid dangers and difficulties, and any accident happens by which any passenger is injured, both the driver and his employers will be responsible. 2 Stark. R. 37; 3 Engl. C. L. Rep. 233; 2 Esp. R. 533; 11. Mass. 57; 6 T. R. 659; 1 East, R. 106; 4 B. & A. 590; 6 Eng. C. L. R. 528; 2 Mc Lean, R. 157. Vide Common carriers Negligence; Quasi Offence.
Bouvier’s Law Dictionary, 1856, p 153

COMMON CARRIERS.   A common carrier is one whose regular business or calling it is to carry chattels for all persons who may choose to employ and remunerate him. Schouler. BaUm. 297.
    Everyone who offers to the public to carry persons, property or messages, excepting only telegraphic messages, is a common carrier or whatever he thus offers to carry. Civil Cod. Cal. 2168.
    A common carrier is one who holds himself out to the public to carry persons or freight for hire. 24 Conn. 479.
    At common law, a common carrier is an insurer of the goods intrusted to him, and be is responsible for all losses of the same, save such as are occasioned by the act of God or the public enemy. 15 Minn.279, (Gil. 208.)
    Common carriers are of two kinds, - by land, as owners of stages, stage-wagons, railroad cars, teamsters, cartmen, draymen, and porters;  and by water, as owners of ships,
steam-boats, barges, ferrymen, lightermen, and canal boatmen. 2 Kent, Comm. 597.

COMMON CARRIERS OF PASSENGERS.  Common carriers of passengers are such as undertake for hire to carryall persons indifferently who may apply for passage. Thomp. Carr. p. 26. n. 1.
Black’s Law Dictionary, 1st Ed. 1891, p. 230 - 231

DRIVER.   One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals.
Black’s Law Dictionary, 1st Ed. 1891, p. 395

CARRIER.  One who undertakes to transport persons or property from place to place, by any means of conveyance, and with or without compensation.

Common and private carriers.   Carriers are either common or private.   Private carriers are persons who undertake for the transportation in a particular instance only, not making it their vocation, nor bolding themselves out to the public as ready to act for all who desire their services. Allen v. Sackrider, 37 N. Y. 341.   To bring a person within the description of a common carrier, he must exercise it as a public employment;  be must undertake to carry goods for persons generally;  and he must hold himself out as ready to transport goods for hire, as a business, not as a casual occupation, pro hac vice.  Alexander v. Greene, 7 Hill (N. Y.) 564, Bell v. Pidgeon, (D. C.) 5 Fed. 634:  Wyatt v. Irr. Co., 1 Colo. App. 480, 29 Pac. 906.   A common carrier may therefore be defined as one who, by virtue of his calling and as a regular business, undertakes for hire to transport persons or commodities from place to place, offering his services to all such as may choose to employ him and pay his charges. Iron Works v. Hurlbut, 158 N. Y. 34. 52 N. E. 665. 70 Am. St. Rep. 432: Dwight v. Brewster. 1 Pick. (Mass.) 53. 11 Am. Dec. 133;  Railroad Co. v. Waterbury Button Co., 24 Conn. 479: Fuller v. Bradley. 25 Pa. 120: McDuffee v. Railroad Co.. 52 N. H. 447, 13 Am. Rep. 72;  Piedmont Mfg. Co. v. Railroad Co., 19 S. C. 364.   By statute in several statestes it is declared that eyery one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.  Civ. Code Cal. 2168; Civ. Code Mont. 2870; Rev. St. Okl. 1903 700: Civ. Code N. D. 1903. 1899.   Common carriers are of two kinds, - by land, as owners of stages, stage-wagons, railroad cars, teamsters, cartmen, draymen, and porters: and by water, as owners of ships, steam-boats, barges, ferrymen, lightermen, and canal boatmen. 2 Kent. Comm. 597. - Common carriers of passengers.   Common carriers of passengers are such as undertake for hire to carry all persons indifferently who may apply for passage.  Gillingham v. Railroad Co.. 35 W. Va.. 588.  14 S. E. 243, 14 L. R. A. 798,  29 Am. St. Rep. 827; Electric Co. v. Simon, 20 Or. 60. 25 Pac. 147, 10 L.  R. A. 251, 23 Am. St. Rep. 86: Richmond v. Southern Pac. Co., 41 Or. 54., 67 Pac. 947, 57 L. R. A. 616, 93 Am. St. Rep. 694.
Black’s Law Dictionary, 2nd Ed. 1910, p. 172

CARTMEN.  Carriers who transport good and merchandise in carts, usually for short distances, for hire.
Black’s Law Dictionary, 2nd Ed. 1910, p. 173

DRIVER.   One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not a street railroad car.  See Davis v. Petrinovich, 112 Ala. 654, 21 South. 344. 36 L. R. A. 615: Gen. St. Conn. 1902.  2038; Isaacs v. Railroad Co., 47 N. Y. 122. 7 Am. Rep. 418.
Black’s Law Dictionary, 2nd Ed. 1910, p. 398

DRIVER.   One employed in conducting a coach, carriage, wagon, or other vehicle, with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not a street railroad car.  See Davis v. Petrinovich, 112 Ala. 654, 21 South. 344. 36 L. R. A. 615:  Gen. St. Conn. 1902.  2038; Isaacs v. Railroad Co., 47 N. Y. 122. 7 Am. Rep. 418.
Black’s Law Dictionary, 3rd Ed. 1933, p. 622

DRIVE-IT-YOURSELF CARS.   A term used to describe automobiles which their owners, as a regular business, rent out for hire without furnishing drivers. City of Rockford v. Nolan, 316 Ill. 60, 146 N. E. 564. See, also, Welch v. Hartnett, 127 Misc. 221, 215 N. Y. S. 540 ; White v. Holmes, 89 Fla. 251, 103 So. 623 ; Blashfield's Cyclopedia of Automobile Law, p. 2802.
Black’s Law Dictionary, 3rd Ed. 1933, p. 622

DRIVER.   One employed in conducting or operating a coach, carriage, wagon, or other vehicle,
with horses, mules, or other animals, or a bicycle, tricycle, or motor car, though not a street railroad car.   A person actually doing driving, whether employed by owner to drive or driving his own vehicle.  Wallace v. Woods, 340 Mo. 452, 102 S.W.2d 91, 97.
Black’s Law Dictionary, 4th Ed. 1951, p. 585

“Automobile owned by individual not in business is ‘consumer goods’”. 
In re Rave, 7 UCC rep. Serv 258.
“An automobile purchased for personal and family use was ‘consumer goods’”. 
Bank of Boston v. Jones, 4 UCC Rep. Serv. 1021, 236 A.2d. 484

“The use of an automobile by its owner for purposes of traveling to and from his work is a personal, as opposed to a business use as that term is defined in the California Commercial Code 9109(1), and the automobile will be classified as ‘consumer goods’ rather than equipment.   The phraseology of 9102(2) defining goods used or bought for use primarily in business seems to contemplate a distinction between the collateral automobile ‘in business’ and the mere use of the collateral automobile for some commercial, economic or income producing purpose by one not engaged in ‘business’”.
In re Barnes, 11 USS rep. Serv. 697 (1972)   

“Under the UCC 9-109 there is a real distinction between goods purchased for personal use and those purchase for business use.   The two are mutually exclusive and the principal use to which the property is put should be considered as determinitive”.
James Talcott, Inc. v. Gee, 5 UCC rep. Serv. 1028, 266 Cal.App.2d. 384, 72 Cal.Reptr. (1968).
“The use to which an item is put rather than its physical characteristics determine whether it should be classified as ‘consumer goods’ under UCC 9-109(1) or ‘equipment’ under UCC 9-109(2)”. 
Grimes v. Massey Ferguson, Inc., 23 UCC Rep. Serv. 655, 355 So. 2d. 338 (Ala., 1978)

“The term ‘household goods’..includes everything about the house that is usually held and enjoyed therewith and that tends to the comfort and accommodation of the household”. 
Lawwill v. Lawwill, 515 P.2d. 900, 903, 21 Ariz.App.75 , 19A Words and Phrases - Permanent Edition (West) pocket part 94.
“Automobile purchased for the purpose of transporting buyer to and from his place of employment was ‘consumer goods’ as defined in UCC 9-109". 
Mallicoat v. Volunteer Finance & Loan Corp., 3 UCC Rep. Serv.  1035, 415 S.W.2d. 347 (Tenn.App., 1966)
“A carriage is peculiarly a family or household article.   It contributes in a large degree to the health, convenience, comfort and welfare of the householder or of the family”. 
Arthur v. Morgan., 113 U.S. 495, 500, 5 S.Ct. 241, 243 (S.D.Ny 1884)

The term "motor vehicle" includes a motor truck, (Veh. Code, 410), a truck tractor, (Veh. Code, 655), a snow mobile (Veh. Code, 557), a motorcycle, (Veh. Code, 400; Harrison v. Cal. State Auto. Assn. Inter-Ins. Bureau (1976) 56 Cal.App.3d 657, 663 (6) [128 Cal.Rptr. 514]), a mobile crane or mobile truck crane (Colby v. Liberty Mutual Ins. Co. (1966) 220 Cal.App.2d 38, 44-45 (5) [33 Cal.Rptr. 538]; Donahue Constr. Co. v. Transport Indem. Co. (1970) 7 Cal.App.3d 291, 300 [86 Cal.Rptr. 632]), a motorized forklift, (Travelers Indem. Co. v. Colonial Ins. Co. (1966) 242 Cal.App.2d 227, 236 - 238 (6-8) [51 Cal.Rptr. 724] fn. 1 and a bulldozer (Lambert v. Southern Counties Gas Co. (1959) 52 Cal.2d 347, 351 [340 P.2d 608].) [75 Cal.App.3d Supp. 7]

Section 23102, subdivision (a) of the Vehicle Code states that it is unlawful to drive a vehicle while under the influence of intoxicating liquor.   If the Legislature had intended to limit the application of the statute to situations where the vehicle's motor was running, it could have easily added language to that effect.   Since the Legislature did not add such language, it is certainly not our province to do so. (Code Civ. Proc., 1858; Estate of McDill (1975) 14 Cal.3d 831, 838 [122 Cal.Rptr. 754, 537 P.2d 874].)
People v. Jordan, 75 Cal.App.3d Supp. 1
[Crim. A. No. 115226. Appellate Department, Superior Court, Santa Barbara. October 17, 1977.]







        13951(b)(1)  "Crime" means a crime or public offense,...

...infractions are not crimes...

...the Legislature did not intend to classify infractions as crimes...
People v. Sava (1986) 190 Cal.App.3d 935

‘Courts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority.' " Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1696-1697.)
Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011), Cal.App.4th
[No. D058445. Fourth Dist., Div. One. Nov. 2, 2011.]
"Courts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority. [Citation.]" (Jordan v. Retirement Board (1939) 35 Cal.App.2d 653, 658 [96 P.2d 973].)
Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689

Courts must take a statute as they find it, and if its operation results in inequality or hardship in some cases, the remedy therefor lies with the legislative authority. (Bock v. City of Oakland, 19 Cal.App.2d 115 [64 Cal.2d 1098].)
Jordan v. Retirement Board (1939) 35 Cal.App.2d 653, 658

Counsel for appellant has cited us to other charter provisions and presented supposititious cases that might happen thereunder, the application to which of the interpretation given in the Edwards case, he claims, would work an inequality and render the decision unreasonable and illogical. Assuming this to be true, courts must take a statute as they find it. A law may work an inequality or hardship in some cases but there are few laws, as said in the Edwards case, that do not. The case last mentioned has been decided and acquiesced in for more than twenty-five years. If subject to the criticism of appellant it could have been changed. [2] While we do not agree with counsel that the decision is unreasonable and illogical, where a decision of a court of last resort has been acted upon for a long period of time, as here, it ought not and as a rule will not be disturbed where contractual relations or rights are resting upon the decision. The law should remain a settled guide and not be subject to flexible and restless precepts. To overthrow the Edwards case would no doubt raise serious questions between municipalities which should remain settled by the precedent for all time. Moreover, the Edwards case having been approved by the Supreme Court it ought to be followed by us until set aside by that body.
Bock v. City of Oakland, 19 Cal.App.2d 115
[Civ. No. 10098. First Appellate District, Division One. February 4, 1937.]

[4]  Put another way, courts must take a statute as they find it, and it is their duty to construe it as it stands enacted. (Electric L. & P. Co. v. San Bernardino, 100 Cal. 348 [34 P. 819].)   Their interpretation must be based on the language used.   They have no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. (Seaboard Acceptance Corp. v. Shay, 214 Cal. 361 [5 P.2d 882].)
Callahan v. San Francisco, (1945) 68 CA2d. 286
Courts are not at liberty to extend application of law to subjects not included within it.
Spreckles v. Graham (1924) 194 C. 516