"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
 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
CONSTITUTIONOF THE STATEOF CALIFORNIA
Article I: Declaration of Rights
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.
All political power is inherent
in the people. Government is instituted for the protection,
security and benefit of the people;
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.
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.
...is very different than this
One constitutes a VERB and the other constitutes a NOUN.
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
...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...
DETAIN - DETENTION - DETAINED - HELD
= MOVEING HAS CEASED
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 theTerry 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
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)
TERRY v. OHIO.
CERTIORARI TO THE SUPREME COURT OF OHIO.
Argued December 12, 1967.
Decided June 10, 1968.
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
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
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
identified himself as a policeman, and asked their names. The
"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
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
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
police station. Petitioner and Chilton were charged with carrying [392
U.S. 1, 2] concealed weapons. The defense moved
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
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:
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.
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.
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.
The Fourth Amendment applies to "stop and frisk" procedures such as
those followed here. Pp. 16-20.
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.
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.
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.
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.
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.
The officer here was performing a legitimate function of investigating
suspicious conduct when he decided to approach petitioner and his
companions. P. 22.
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.
search for weapons in the absence of probable cause to arrest must be
strictly circumscribed by the exigencies of the situation. Pp. 25-26.
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.
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.
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.
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.
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
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
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
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
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
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
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
We affirm the conviction.
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.
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
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
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
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
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
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
[ 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,
[ 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:
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. . . .
. . . . .
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
[ 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
[ Footnote 13 ] Consider the following
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
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
[ 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
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
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:
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.
. . . . .
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
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
[ 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 :
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 :
`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,
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;
NOTICE TO APPEAR
NOTICE TO APPEAR - CITATION
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
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.
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
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.
CALIFORNIA VEHICLE CODE
DIVISION 17. OFFENSES AND PROSECUTION
CHAPTER 2. PROCEDURE ON ARRESTS
40300. 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.  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.]
CALIFORNIA PENAL CODE
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
No person shall be imprisoned for debt,...
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;
CALIFORNIA PENAL CODE §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
charge a crime and prepare a criminal case. What the law
enforcement employee places on one of those forms is a
REBUTTABLE PRESUMPTION. What's on that form is OBJECTIONABLE for ASSUMES FACTS NOT IN EVIDENCE. Again,
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;
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.
COUNCIL REPORT TO THE GOVERNOR AND THE LEGISLATURE, CHAPTER 1 - A
SYSTEM FOR CLASSIFYING MINOR TRAFFIC VIOLATIONS AS NONCRIMINAL TRAFFIC
INFRACTIONS, p. 31
...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
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.) CALIFORNIA PEACE OFFICERS LEGAL SOURCE BOOK, SEARCH AND SEIZURE - PERSONS, Ch. 2
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.
CALIFORNIA GOVERNMENT CODE
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... CLEMENT v. J & E SERVICE INC., No. 05-56692, March 11, 2008, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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,... THE PEOPLE v. JESUS SANTOS SANCHEZ REYES (2011) 196 Cal.App.4th 856
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.
“Arrests”, Spring 2009, POINT OF VIEW, ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE, p. 1
 " '[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,
SUPERIOR COURT OF CALIFORNIA, COUNTY OF MONTEREY,
HON. ALBERT MALDONADO, JUDGE DEPARTMENT 7,
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
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,
STATE OF MINNESOTA, DISTRICT COURT, COUNTY OF SCOTT, FIRST JUDICIAL DISTRICT,
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
Now ask the question: WHAT IS THE NATURE OF THE VERB THE DRIVER LICENSE PERMITS?
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
BAILMENTS TO CHAMPERTY
III. REGULATION AND CONTROL.
§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.
CALIFORNIA JURISPRUDENCE 2nd
BOUNTIES TO CARRIERS
II. STATE CONTROL AND REGULATION.
§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.
CALIFORNIA JURISPRUDENCE 2d
II. REGULATION, GENERALLY
I. IN GENERAL
§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.
CODE OF FEDERAL REGULATIONS
Title 49 Volume 4 Parts 200 to 399
Revised as of October 1, 1999 Page 859 - 865 TITLE 49
CHAPTER III -- FEDERAL HIGHWAY ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION
PART 390 -- FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 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.
STATUTES OF CALIFORNIA 1955 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
"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. HELEN I. PONTIUS v. G. T. McLAIN et al.(1931), 113 Cal. App. 452, Civ. No. 350, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT
Title 18, UNITED STATES CODE, Sec. 31
PART I - CRIMES
CHAPTER 2 - AIRCRAFT AND MOTOR VEHICLES
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)
Ch. 465 CLASSIFICATION OF MOTOR VEHICLES
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.]"
CALIFORNIA VEHICLE CODE
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
Seth Waxman, Solicitor General
U.S. Department of Justice BRIEF FOR THE PETITIONERS 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. CITY AND COUNTY OF SAN FRANCISCO v. LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY et al. (1887), 74 Cal. 113
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
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
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
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.]
MOTOR VEHICLES = USED FOR COMMERCIAL PURPOSES
CONSUMER GOODS = NOT USED FOR COMMERCIAL PURPOSES
EVIDENCE OF PERMI$$ION TO DO COMMERCE U$ING THE $TREET$ AND HIGHWAY$
CALIFORNIA GOVERNMENT CODE
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.  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.]
 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