Supreme Court of California Justia
Citation 45 Cal. 4th 295, 196 P.3d 806, 86 Cal. Rptr. 3d 105

People v. Hernandez

Filed 12/11/08 (this opinion should precede companion case, S149728, also filed 12/11/08)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S150038
v.
Ct.App.
3
C051224/C051602
GEORGE LEE HERNANDEZ,
Sacramento
County
Defendant and Appellant.
) Super. Ct. Nos. 05F00765/03F04161

An officer who sees a vehicle displaying a temporary operating permit in
lieu of license plates may not stop the vehicle simply because he or she believes
that such permits are often forged or otherwise invalid. To support a stop the
officer must have a reasonable suspicion that the particular permit is invalid.
Otherwise, any car with such a permit could be stopped without particularized
cause.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sheriff’s deputy Anthony Paonessa saw defendant Hernandez driving a
pickup truck with no license plates, but displaying a temporary operating permit in
the rear window.


Any vehicle driven on the roadway must display valid license plates or a
valid temporary permit. (Veh. Code, §§ 4156, 5200, 5201, 5202.)1 Nothing about
defendant’s permit appeared amiss and Deputy Paonessa saw no other violations.
Nevertheless, Paonessa decided to effect a traffic stop. He discounted the
presence of the apparently valid permit because, in his experience, such permits
are “very often” forged or have been issued for a different vehicle, or the vehicle
itself is stolen.
Deputy Paonessa told Hernandez he was stopped because he had no license
plates. Hernandez replied that he had a temporary permit in the rear window.
Paonessa then asked for Hernandez’s driver’s license, registration, and proof of
insurance. Hernandez “appeared nervous. His speech was very rapid and abrupt,
and his hands were shaking very badly.”
In response to Deputy Paonessa’s questions, Hernandez said he was on
probation, but he would not identify the offense. After he repeatedly refused to
get out of the truck, Paonessa sprayed him with pepper spray. When Hernandez
continued to resist, Paonessa and his partner then pulled him from the truck and
handcuffed him.
After Hernandez’s motion to suppress evidence2 was denied, a jury
convicted him of obstructing an officer in the performance of his duties,3 resisting

1
Vehicle Code section 4156 provides: “Other provisions of this code
notwithstanding, the department in its discretion may issue a temporary permit to
operate a vehicle when a payment of fees has been accepted in an amount to be
determined by, and paid to the department, by the owner or other person in lawful
possession of such vehicle. The permit shall be subject to such terms and
conditions and shall be valid for such period of time as the department shall deem
appropriate under the circumstances.”
2
Penal Code section 1538.5.
3
Penal Code section 69.
2


arrest,4 being under the influence of methamphetamine,5 and driving under the
influence of drugs.6
The Court of Appeal reversed the judgment and remanded.
We affirm the judgment of the Court of Appeal.7
II. DISCUSSION
In ruling on a motion to suppress, the trial court finds the historical facts,
then determines whether the applicable rule of law has been violated. “We review
the court’s resolution of the factual inquiry under the deferential substantial-
evidence standard. The ruling on whether the applicable law applies to the facts is
a mixed question of law and fact that is subject to independent review.
[Citation.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1134 (Saunders.) This
case turns on a question of law.
The Fourth Amendment protects against unreasonable searches and
seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) “A
detention is reasonable under the Fourth Amendment when the detaining officer
can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may
be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
Ordinary traffic stops are treated as investigatory detentions for which the officer
must be able to articulate specific facts justifying the suspicion that a crime is

4
Penal Code section 148, subdivision (a)(1).
5
Health and Safety Code section 11550, subdivision (a).
6
Vehicle Code section 23152, subdivision (a).
7
The Attorney General’s petition for review was untimely. We refused to
grant relief from default. Nevertheless, we determined to grant review on our own
motion in order to decide this matter in conjunction with the closely related case of
In re Raymond C. (Dec. 11, 2008, S149728) __Cal.4th __.
3


being committed. (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083; People v.
Superior Court (Simon) (1972) 7 Cal.3d 186, 200.)
“[E]xcept in those situations in which there is at least articulable and
reasonable suspicion that a motorist is unlicensed or that an automobile is not
registered, or that either the vehicle or an occupant is otherwise subject to seizure
for violation of law, stopping an automobile and detaining the driver in order to
check his driver’s license and the registration of the automobile are unreasonable
under the Fourth Amendment. . . . [P]ersons in automobiles on public roadways
may not for that reason alone have their travel and privacy interfered with at the
unbridled discretion of police officers.” (Delaware v. Prouse (1979) 440 U.S.
648, 663.)
Law enforcement officers may “draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that ‘might well elude an untrained person.’
[Citations.]” (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).)
However, officers are not entitled to rely on mere hunches. (Arvizu, supra,
534 U.S. at p. 273.) The failure here is that, although Deputy Paonessa knew that
some people driving with a temporary permit may be violating the law, he could
point to no articulable facts supporting a reasonable suspicion that Mr. Hernandez,
in particular, may have been acting illegally.
Our recent decision in Saunders, supra, 38 Cal.4th 1129, is distinguishable.
There an officer stopped a pickup because its front license plate was missing and
the registration tabs on the rear license plate were expired. Even though an
apparently current temporary permit was displayed in the rear window, we
concluded that the investigative stop did not run afoul of the Fourth Amendment
because the officer had no other ready means to verify the vehicle’s compliance
with the law. (Saunders, at p. 1131.)
4
Saunders’s truck had an expired registration tab and no front license plate.
We pointed out that “[w]e have not yet decided whether an officer may stop a
vehicle that has an expired registration tab but also displays a temporary operating
permit.” We noted that there were conflicting opinions in the Courts of Appeal.
However, we did not resolve the conflict because Saunders’s front license plate
was missing, and the lack of a front license plate had “long been recognized as a
legitimate basis for a traffic stop.” (Saunders, supra, 38 Cal.4th at pp 1135-1136.)
Without a traffic stop the officer could not determine whether the
temporary operating permit applied only to the expired registration or to the
missing license plate as well. “Moreover, the officer’s suspicion that the vehicle
was in violation of section 5200 was supported by the Department of Motor
Vehicles procedures for replacing lost, stolen, or mutilated plates. Under those
procedures, a registered owner must surrender or mail in ‘the remaining plate(s).’
[Citation.] Yet, as both parties testified, the pickup still displayed its rear license
plate, which supported the inference that the registered owner had not initiated the
process of replacing the missing plate.” (Saunders, supra, 38 Cal.4th at p. 1137.)
Thus, in Saunders the officer confronted an anomalous situation. The pickup had
one license plate and a temporary permit. Under DMV regulations, those
circumstances would appear to be mutually exclusive. As a result, the officer had
ample justification to stop the truck to investigate. (Ibid.)
Here, both of defendant’s truck’s plates were missing. Accordingly, there
was no ambiguity regarding his apparently valid temporary permit. Nevertheless,
the Attorney General contends that Deputy Paonessa was entitled to rely on his
experience that temporary permits are often invalid, and thus he was entitled to
stop defendant, even though there was no objective indication that defendant was
violating the law.
5
To accept the Attorney General’s argument would be to depart from settled
California and federal precedent requiring particularized suspicion. This we
decline to do. Courts from other jurisdictions also seem uniformly to have
concluded that permitting officers to stop any car with temporary permits would
be to countenance the exercise of the unbridled discretion condemned in Delaware
v. Prouse, supra, 440 U.S. at page 663. (See United States v. Wilson (4th Cir.
2000) 205 F.3d 720; Bius v. State (Ga.Ct.App. 2002) 563 S.E.2d 527; State v.
Childs (Neb. 1993) 495 N.W.2d 475; State v. Aguilar (N.M.Ct.App. 2007) 155
P.3d 769; State v. Chatton (Ohio 1984) 463 N.E.2d 1237; State v. Butler
(S.C.Ct.App. 2000) 539 S.E.2d 414; State v. Lord (Wis. 2006) 723 N.W.2d 425;
see also People v. Nabong (2004) 115 Cal.App.4th Supp. 1.)
The Attorney General contends it is significant that defendant’s truck was
an older model, “which presumably would have had already been issued license
plates . . . .” He faults the Court of Appeal for having “failed to address why an
older vehicle lacking license plates, as distinguished from a new car, would not
objectively contribute to an officer’s reasonable belief that a violation of law has
occurred, thus justifying a vehicle stop.”
The short answer to the Attorney General’s argument is that the age of
defendant’s truck was not mentioned at the suppression hearing, where Deputy
Paonessa simply described defendant’s vehicle as a “brown pickup truck.” Asked
to describe it further, he said it was a “brown Toyota pickup truck.”
In a variant of this argument, the Attorney General contends that a vehicle
that has been issued license plates must display the plates even if a temporary
operating permit has been issued. Again, this assumes that defendant’s was an
older model that had been issued plates, an assumption not supported by the record
of the suppression hearing.
6
Moreover, license plates once issued can be lost or damaged, requiring
replacement (Saunders, supra, 38 Cal.4th at p. 1137), and the Vehicle Code does
provide that a vehicle may be driven without plates, if it displays a valid
temporary permit (Veh. Code, § 5202). Therefore, the age of the vehicle, without
additional particularized suspicion, would not have supported the stop.
III. Disposition
We affirm the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hernandez
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 146 Cal.App.4th 773
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S150038
Date Filed: December 11, 2008
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Michael A. Savage

__________________________________________________________________________________

Attorneys for Appellant:

Robert Derham, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Stan A. Cross and Michael P. Farrell, Assistant Attorneys General, Janet
Neeley, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert Derham
1010 B Street, Suite 217
San Rafael, CA 94901
(415) 485-2945

Peter W. Thompson
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-7876


Review on the court's own motion after the Court of Appeal reversed a judgment of conviction of criminal offenses. present the following issue: If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 12/11/200845 Cal. 4th 295, 196 P.3d 806, 86 Cal. Rptr. 3d 105S150038Review - Criminal Appealclosed; remittitur issued

PEOPLE v. DEAN (S160418)


Parties
1Office Of The San Joaquin County District Attorney (Pub/Depublication Requestor)
Represented by Kevin Hicks
San Joaquin County District Attorney's Office
222 E. Weber Avenue, Suite 202
Stockton, CA

2Hernandez, George Lee (Defendant and Appellant)
5501 Sky Parkway
Sacramento, CA 95823

Represented by Robert Derham
Law Office of Robert Derham
1010 "B" Street, Suite 217
San Rafael, CA

3The People (Plaintiff and Respondent)
Represented by Peter William Thompson
Office of the Attorney General
P.O. Box 944255
Sacramento, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Disposition
Dec 11 2008Opinion: Affirmed

Dockets
Feb 6 2007Request for depublication filed (initial case event)
  District Attorney of San Joaquin County (non-party) by Kevin A. Hicks, Deputy District Attorney - San Joaquin County
Feb 6 2007Case start date (depublication request)
 
Feb 8 2007Filed letter from:
  Robert Derham, counsel for appellant, in opposition to depub request
Feb 20 2007Received:
  Letter from Kevin A. Hicks, Deputy D.A. of San Joaquin County reply to appellant's opposition to depub
Feb 21 2007Received untimely petition for review
  Respondent People by Peter W. Thompson, Deputy Attorney General - Sacramento (Received in Sacramento)
Feb 23 2007Application for relief from default filed
  Respondent People Peter W. Thompson, Deputy A.G. - Sacramento
Feb 27 2007Application for relief from default denied (case still open)
  Original petition returned to the Attorney General
Mar 12 2007Record requested
  via email
Mar 21 2007Received Court of Appeal record
  #C051602 - one doghouse #C051224 - one doghouse
Mar 21 2007Review granted on court's own motion (criminal case)
  (See Cal. Rules of Court, rule 8.512(c)(1).) Respondent is directed to serve and file a brief on the merits. Additional briefing is to be served and filed in a timely fashion. (See Cal. Rules of Court, rule 8.520.) votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
Mar 23 2007Change of contact information filed for:
  appellant, George Hernandez
Apr 18 2007Opening brief on the merits filed
  The People, Respondent by Peter W. Thompson, counsel
May 3 2007Received additional record
  two doghouses
May 15 2007Request for extension of time filed
  Appellant requests an extension of time to June 17, 2007 to file appellants opening brief on the merits. by Robert Derham, counsel
May 21 2007Extension of time granted
  to June 17, 2007 to file appellants answer brief on the merits.
May 24 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, robert Derham is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Jun 25 2007Answer brief on the merits filed
  George Lee Hernandez, appellant by Robert Derham, counsel
Jul 13 2007Reply brief filed (case fully briefed)
  The People, respondent by Peter Thompson, Deputy Attorney General
Jul 18 2007Compensation awarded counsel
  Atty Derham
Dec 17 2007Filed:
  letter from counsel for respondent dated December 14, 2007, to notify the court that counsel will be unvailable for oral arguements from May 5, 2008 thru May 20, 2008.
Mar 14 2008Received additional record
  two doghouses ( vol;ume 2 & 3 )
Aug 6 2008Request for judicial notice granted
  Appellant's request for judicial notice on pages 16-18, of appellant's answer brief, filed June 25, 2008 is granted.
Aug 20 2008Case ordered on calendar
  to be argued Tuesday, October 7, 2008, at 9:00 a.m., in Riverside County
Sep 2 2008Request for Extended Media coverage Filed
  The California Channel by James Gualtieri
Sep 5 2008Request for Extended Media coverage Granted
  The request for media coverage, filed by the California Channel on September 2, 2008, is granted, subject to the conditions set forth in rule 1.150, of the California Rules of Court.
Oct 1 2008Request for Extended Media coverage Filed
  Calif. State University, San Bernardino-Palm Desert Campus Mike Singer, Photographer
Oct 1 2008Request for Extended Media coverage Filed
  The Desert Sun Mike Snyder, photographer
Oct 3 2008Request for Extended Media coverage Granted
  The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7 and 8, 2008, filed by the California State University, San Bernardino-Palm Desert Campus photographer on September 26, 2008, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 3 2008Request for Extended Media coverage Granted
  California State University, San Bernardino-Palm Desert Campus, photographer
Oct 3 2008Request for Extended Media coverage Granted
  The request for extended media coverage of the Supreme Court's Oral Argument Special Session on October 7, and 8, 2008, filed on October 1, 2008, by The Desert Sun to serve as pool photographer is granted, subject to the condtions set forth in rule 1.150,California Rules of Court.
Oct 7 2008Cause argued and submitted
 
Dec 10 2008Notice of forthcoming opinion posted
 
Dec 11 2008Opinion filed: Judgment affirmed in full
  Opinion by Corrigan, J. -----joined by George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin & Moreno, JJ.
Jan 12 2009Remittitur issued (criminal case)
 
Jan 14 2009Compensation awarded counsel
  Atty Derham
Jan 16 2009Received:
  receipt for remittitur from Court of Appeal, Third Appellate District

Briefs
Apr 18 2007Opening brief on the merits filed
 
Jun 25 2007Answer brief on the merits filed
 
Jul 13 2007Reply brief filed (case fully briefed)
 
Brief Downloads
application/pdf icon
hernandez2.pdf (435506 bytes) - Attorney General's opening brief
application/pdf icon
hernandez3.pdf (843756 bytes) - Hernandez's brief
application/pdf icon
hernandez4.pdf (290861 bytes) - Attorney General's reply brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 23, 2011
Annotated by allen gleckner

Facts:

A Sheriff’s Deputy saw Defendant driving a pickup truck with a temporary operating permit in the rear window instead of license plates, which is allowed under CA Veh. Code, §§ 4156. 5200, 5201, 5202. The Deputy effected a traffic stop even though the Deputy stated that nothing about the permit seemed amiss and there were no other violations. The Deputy’s justification was that the temporary permits are often used improperly.

The Deputy, after noticing that Defendant appeared “nervous” with his speech being “very rapid and abrupt, and his hands [ ] shaking very badly,” the Deputy and his partner pulled the Defendant from the truck after pepper spraying him due to his resistance. (page 1-2).

Procedural History:

“After [Defendant’s] motion to suppress evidence was denied, a jury convicted him of obstructing an officer in the performance of his duties, resisting arrest, being under the influence of methamphetamine, and driving under the influence of drugs.

The Court of Appeal reversed the judgment and remanded.” (page 2-3).

Issues:

Can an officer effect a traffic stop because a vehicle has only a temporary operating permit absent any indication the permit is invalid based on the officer’s belief that temporary operating permits are “very often” forged or otherwise invalid?

Holding:

The Court of Appeal’s reversal of the trial court’s denial of the motion to suppress is upheld.

Analysis:

“An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid. To support a stop the officer must have a reasonable suspicion [under Terry v. Ohio, 392 U.S. 1 (1968)] that the particular permit is invalid. Otherwise, any car with such a permit could be stopped without particularized cause.” (page 1).

Under People v. Wells, 28 Cal. 4th 1078, 1082-1083 (2006), ordinary traffic stops require an officer to have a specific articulable suspicion that a crime is being committed. See also Deleware v. Prouse, 440 U.S. 648, 663 (1979). There must be something specific to the vehicle being stopped that leads the officer to have a reasonable suspicion that the vehicle being stopped is committing a crime. The court also distinguishes People v. Saunders, 38 Cal. 4th 1129 (2006), which held that a stop was valid where the vehicle was missing a front license plate and the rear plate’s tabs were expired, but the vehicle had a temporary operating permit. The court held that the stop was necessary to see if the permit covered both the missing plate and the expired tabs and because, under normal DMV procedures, a car should not have both one of its license plates and a temporary permit.

Tags:
Motion to suppress, temporary operating permit, license plates, traffic stop, reasonable suspicion

Links:

- CA Veh. Code, §§ 4156 (http://law.justia.com/codes/california/2010/veh/4150-4166.html), 5200, 5201, 5202 (http://law.justia.com/codes/california/2010/veh/5200-5206.html)

- Terry v. Ohio, 392 U.S. 1 (1968) (http://scholar.google.com/scholar_case?case=17773604035873288886)

- People v. Wells, 28 Cal. 4th 1078, 1082-1083 (2006) (http://scholar.google.com/scholar_case?case=13407676577264111752)

- Deleware v. Prouse, 440 U.S. 648, 663 (1979) (http://scholar.google.com/scholar_case?case=671964346320770416)

- People v. Saunders, 38 Cal. 4th 1129 (2006) (http://scholar.google.com/scholar_case?case=11960376642814857952)

Annotation by Allen Gleckner

Jun 10, 2009
Annotated by diana teasland

Written by Michael Cocrell

I. Summary

The plaintiff-respondent, State of California, sought review of a California Court of Appeal decision permitting the suppression of evidence stemming from a traffic stop. The police officer in the underlying case stopped a vehicle driven by defendant-appellant, George Lee Hernandez, after seeing a temporary operating permit displayed in lieu of a license plate. Nothing about the permit suggested it was a forgery or otherwise out of order. The police officer nonetheless conducted the stop because, in his experience, temporary operating permits were often forged in order to avoid detection of a number of unlawful activities. The officer discovered evidence that defendant-appellant was driving under the influence of methamphetamine as a consequence of the stop.

The California Supreme Court held that, without more, the officer’s experience was not sufficient to create reasonable particularized suspicion under the Fourth Amendment to the United State Constitution. The Court distinguished situations in which something about the permit or vehicle otherwise appeared out of order from the instant case where the officer merely had personal experience discovering forged or falsified permits.

II. Disposition

The California Supreme Court affirmed the decision of the California Court of Appeal, Third Appellate District, reversing defendant-appellant’s conviction and remanding.

III. Headnotes

Headnote 1—Fourth AmendmentSearch and SeizurePolice Conduct Automotive StopsParticularized Suspicion

An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid.

Headnote 2—Standards of ReviewFactual DeterminationsMotion to Suppress

In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard.

Headnote 3—Standards of ReviewLegal DeterminationsMotion to Suppress

The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.

Headnote 4—Fourth AmendmentSearch and SeizurePolice Conduct Automotive StopsParticularized Suspicion

Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed.

Headnote 5—Fourth AmendmentSearch and SeizurePolice ConductDiscretion and Experience

Law enforcement officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. However, officers are not entitled to rely on mere hunches.

Headnote 6— Fourth AmendmentSearch and SeizurePolice Conduct Automotive StopsParticularized SuspicionVehicle Characteristics

License plates once issued can be lost or damaged, requiring replacement, and the Vehicle Code does provide that a vehicle may be driven without plates, if it displays a valid temporary permit. Therefore, the age of the vehicle, without additional particularized suspicion, would not have supported the stop

IV. Tags

Search, seizure, vehicle stop, car stop, reasonable suspicion, particularized suspicion, police, police discretion

V. Parties

Plaintiff-Respondent—People of the State of California
Plaintiff-Respondent’s Counsel— Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Stan A. Cross and Michael P. Farrell, Assistant Attorneys General, Janet Neeley, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General.

Mr. Thompson appearing for plaintiff-respondent at oral argument.

Defendant-Appellant—George Lee Hernandez
Defendant-Appellant Counsel—Robert Derham (by appointment)

Opinion Judge—Corrigan, J., for a unanimous court.
Concurring Judges—George, C.J.; Kennard, J.; Baxter, J.; Werdegar, J.; Chin, J.; Moreno, J.

VI. Briefs and Related Filings

1. Plaintiff-Respondent’s Opening Brief on the Merits

2. Defendant-Appellant’s Answer

3. Plaintiff-Respondent’s Reply Brief

4. Docket

Special thanks to Peter Thompson, counsel for the plaintiff-respondent, and Robert Derham, counsel for the defendant-appellant, for providing copies of briefs and related filings.

VII. Additional Sources Addressing Related Issues

1. Cal. Jur. 3d Automobiles § 55, License plates--Display (2009)

2. 7A Am. Jur. 2d Automobiles § 106—Carrying and display of license—Lawfulness of police demand for driver's license

3. 6A C.J.S. Arrest § 43—Determination from totality of circumstances

4. 79 C.J.S. Searches § 101—Investigative Stops

5. 61A C.J.S. Motor Vehicles § 1332—Stopping of automobile and questioning of occupants—Checking of license and registration

6. Commentary by the Alameda County District Attorney’s Office

7. Southern California Defense Blog discussion of the relationship between Hernandez and it’s companion case, In re Raymond C. (Dec. 11, 2008, S149728) 45 Cal.4th 303

8. Criminal Justice Legal Foundation Blog review of Hernandez

9. California Criminal Lawyer Blog review of Hernandez

VIII. Full-Text Opinion

[NB: All of the cases and statutes cited in the court’s opinion have been hyperlinked to their most readily accessible location. Statute links are immediately accessible through Justia.com without a login. To access hyperlinked cases, users must create a free account at the Public Library of Law. Cases dated before 1997 may be procured through a free account at FindLaw.com (static links unavailable) or through traditional print and pay sources.]

Opinion by Corrigan, J., expressing the unanimous view of the court.

[1]An officer who sees a vehicle displaying a temporary operating permit in lieu of license plates may not stop the vehicle simply because he or she believes that such permits are often forged or otherwise invalid. To support a stop the officer must have a reasonable suspicion that the particular permit is invalid. Otherwise, any car with such a permit could be stopped without particularized cause.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sheriff’s deputy Anthony Paonessa saw defendant Hernandez driving a pickup truck with no license plates, but displaying a temporary operating permit in the rear window.

Any vehicle driven on the roadway must display valid license plates or a valid temporary permit. (Veh. Code, §§ 4156, 5200, 5201, 5202.) Nothing about defendant’s permit appeared amiss and Deputy Paonessa saw no other violations. Nevertheless, Paonessa decided to effect a traffic stop. He discounted the presence of the apparently valid permit because, in his experience, such permits are “very often” forged or have been issued for a different vehicle, or the vehicle itself is stolen.

Deputy Paonessa told Hernandez he was stopped because he had no license plates. Hernandez replied that he had a temporary permit in the rear window. Paonessa then asked for Hernandez’s driver’s license, registration, and proof of insurance. Hernandez “appeared nervous. His speech was very rapid and abrupt, and his hands were shaking very badly.”

In response to Deputy Paonessa’s questions, Hernandez said he was on probation, but he would not identify the offense. After he repeatedly refused to get out of the truck, Paonessa sprayed him with pepper spray. When Hernandez continued to resist, Paonessa and his partner then pulled him from the truck and handcuffed him.

After Hernandez’s motion to suppress evidence was denied, a jury convicted him of obstructing an officer in the performance of his duties, resisting arrest, being under the influence of methamphetamine, and driving under the influence of drugs.

The Court of Appeal reversed the judgment and remanded.
We affirm the judgment of the Court of Appeal.

II. DISCUSSION

[2]In ruling on a motion to suppress, the trial court finds the historical facts, then determines whether the applicable rule of law has been violated. “We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. [3]The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Saunders (2006) 38 Cal.4th 1129, 1134 (Saunders.) This case turns on a question of law.

The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) [4]Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200.)

“[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. . . . [P]ersons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” (Delaware v. Prouse (1979) 440 U.S. 648, 663.)

[5]Law enforcement officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.]” (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).)

However, officers are not entitled to rely on mere hunches. (Arvizu, supra, 534 U.S. at p. 273.) The failure here is that, although Deputy Paonessa knew that some people driving with a temporary permit may be violating the law, he could point to no articulable facts supporting a reasonable suspicion that Mr. Hernandez, in particular, may have been acting illegally.

Our recent decision in Saunders, supra, 38 Cal.4th 1129, is distinguishable. There an officer stopped a pickup because its front license plate was missing and the registration tabs on the rear license plate were expired. Even though an apparently current temporary permit was displayed in the rear window, we concluded that the investigative stop did not run afoul of the Fourth Amendment because the officer had no other ready means to verify the vehicle’s compliance with the law. (Saunders, at p. 1131.)

Saunders’s truck had an expired registration tab and no front license plate. We pointed out that “[w]e have not yet decided whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit.” We noted that there were conflicting opinions in the Courts of Appeal. However, we did not resolve the conflict because Saunders’s front license plate was missing, and the lack of a front license plate had “long been recognized as a legitimate basis for a traffic stop.” (Saunders, supra, 38 Cal.4th at pp 1135-1136.)

Without a traffic stop the officer could not determine whether the temporary operating permit applied only to the expired registration or to the missing license plate as well. “Moreover, the officer’s suspicion that the vehicle was in violation of section 5200 was supported by the Department of Motor Vehicles procedures for replacing lost, stolen, or mutilated plates. Under those procedures, a registered owner must surrender or mail in ‘the remaining plate(s). [Citation.] Yet, as both parties testified, the pickup still displayed its rear license plate, which supported the inference that the registered owner had not initiated the process of replacing the missing plate.” (Saunders, supra, 38 Cal.4th at p. 1137.) Thus, in Saunders the officer confronted an anomalous situation. The pickup had one license plate and a temporary permit. Under DMV regulations, those circumstances would appear to be mutually exclusive. As a result, the officer had ample justification to stop the truck to investigate. (Ibid.)

Here, both of defendant’s truck’s plates were missing. Accordingly, there was no ambiguity regarding his apparently valid temporary permit. Nevertheless, the Attorney General contends that Deputy Paonessa was entitled to rely on his experience that temporary permits are often invalid, and thus he was entitled to stop defendant, even though there was no objective indication that defendant was violating the law.

To accept the Attorney General’s argument would be to depart from settled California and federal precedent requiring particularized suspicion. This we decline to do. Courts from other jurisdictions also seem uniformly to have concluded that permitting officers to stop any car with temporary permits would be to countenance the exercise of the unbridled discretion condemned in Delaware v. Prouse, supra, 440 U.S. at page 663. (See United States v. Wilson (4th Cir. 2000) 205 F.3d 720; Bius v. State (Ga.Ct.App. 2002) 563 S.E.2d 527; State v. Childs (Neb. 1993) 495 N.W.2d 475; State v. Aguilar (N.M.Ct.App. 2007) 155 P.3d 769; State v. Chatton (Ohio 1984) 463 N.E.2d 1237; State v. Butler (S.C.Ct.App. 2000) 539 S.E.2d 414; State v. Lord (Wis. 2006) 723 N.W.2d 425; see also People v. Nabong (2004) 115 Cal.App.4th Supp. 1.)

The Attorney General contends it is significant that defendant’s truck was an older model, “which presumably would have had already been issued license plates . . . .” He faults the Court of Appeal for having “failed to address why an older vehicle lacking license plates, as distinguished from a new car, would not objectively contribute to an officer’s reasonable belief that a violation of law has occurred, thus justifying a vehicle stop.”

The short answer to the Attorney General’s argument is that the age of defendant’s truck was not mentioned at the suppression hearing, where Deputy Paonessa simply described defendant’s vehicle as a “brown pickup truck.” Asked to describe it further, he said it was a “brown Toyota pickup truck.”

In a variant of this argument, the Attorney General contends that a vehicle that has been issued license plates must display the plates even if a temporary operating permit has been issued. Again, this assumes that defendant’s was an older model that had been issued plates, an assumption not supported by the record of the suppression hearing.

Moreover, [6]license plates once issued can be lost or damaged, requiring replacement (Saunders, supra, 38 Cal.4th at p. 1137), and the Vehicle Code does provide that a vehicle may be driven without plates, if it displays a valid temporary permit (Veh. Code, § 5202). Therefore, the age of the vehicle, without additional particularized suspicion, would not have supported the stop.

III. Disposition

We affirm the judgment of the Court of Appeal.