Opinion
JOHNSON, J. The issue in this case is whether evidence seized in a lawful search incident to a lawful arrest based upon an outstanding warrant should be suppressed if the police invented the ground for the traffic stop which led to the discovery of the warrant. The trial court ruled it did not need to decide whether the police made up their claim defendant’s car had a “burnt out” right brake light because any taint arising from the alleged unlawful stop was dissipated by the discovery of the arrest warrant prior to the search.
[1141]If it indeed happened, fabricating the grounds for a traffic stop and repeating this fabrication under oath at a suppression hearing “strikes at the very core of our system of law.”1 The subsequent discovery of lawful grounds to arrest and search defendant does not dissipate the taint of such a flagrant violation of defendant’s constitutional rights and society’s necessary trust in its law enforcement officials. Nor is this violation, if it occurred, one for which the suppression of evidence is too drastic a remedy. Quite the opposite is true. Failing to invoke the most drastic remedy available to a court would have the effect of legitimizing deceitful conduct on the part of the police and permitting them to conduct a traffic stop for any reason or no reason at all in contravention of leading United States and California Supreme Court opinions.2 Accordingly, we will reverse the judgment and remand the cause to the trial court to rehear defendant’s suppression motion and make a factual determination as to whether at the time of the traffic stop defendant’s car had a burnt-out brake light as the officers claim, or if they could reasonably believe it was burnt out.
FACTS AND PROCEEDINGS BELOW
Two Bell Gardens police detectives assigned to the gang and narcotics unit stopped a car driven by Guillermo Rodriguez because of an allegedly “burnt out” brake light.3 There is no evidence the officers issued Rodriguez a traffic citation. Instead they ran a warrant check and found an outstanding no-bail warrant for Rodriguez’s arrest. After taking Rodriguez into custody on the warrant the officers searched the car and discovered a bag containing methamphetamine. Rodriguez was subsequently charged with possession for sale, and transportation of, a controlled substance.
At the hearing on Rodriguez’s motion to suppress evidence of the drugs his employer testified without contradiction that when he picked up Rodriguez’s car at the police impound lot three days after the arrest both taillights and brake lights were operational.
[1142]The trial court declined to make a factual determination as to whether the car’s taillights and brake lights were working when the police stopped Rodriguez. The court stated it found “the existence of the outstanding warrant is a sufficient basis to support the search, so the motion to suppress is denied.”
After the trial court denied his motion to suppress, Rodriguez pled no contest to the charges. The trial court entered a judgment of conviction and signed a certificate of probable cause. Rodriguez filed a timely appeal.
DISCUSSION
I. IF THE EVIDENCE IN THIS CASE WAS OBTAINED THROUGH AN UNLAWFUL TRAFFIC STOP THE EVIDENCE MUST BE SUPPRESSED.
In Wong Sun v. United States4 the United States Supreme Court made it clear not all evidence discovered after an illegal arrest or detention must be suppressed. Although it ruled the evidence against one of the defendants in Wong Sun must be suppressed the court stated it was not holding “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”5
The concept of purging the taint “attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its costs.”6 A decision whether to suppress evidence seized after an unlawful detention followed by a lawful arrest involves a balancing of the need to deter police conduct which results in a person’s illegal detention with the state’s legitimate interest in enforcing outstanding arrest warrants. “ ‘The question is whether the evidence was obtained by the government’s exploitation of the illegality or whether the illegality has become attenuated so as to dissipate the taint.’ ”7 Relevant factors in this attenuation analysis “include the temporal proximity of the Fourth Amendment violation to the procurement of the [1143]challenged evidence, the presence of intervening circumstances, and the fiagrancy of the official misconduct.”8 These factors have been applied in virtually every federal and state case involving a search following an alleged unlawful traffic stop.9
Applying this test to the present case the first and second factors cancel each other out. Although there is no evidence as to how long it took the officers to run the warrant check in this case, as a general rule these checks take only a few minutes. Furthermore, nothing happened in the time between the stop and the discovery of the warrant which changed the dynamics of the situation in a way one can say “purged” the stop of its alleged illegality. Thus the relatively short time between Rodriguez’s detention and the search weighs in favor of suppression.10 On the other hand discovery of the outstanding warrant for Rodriguez’s arrest was clearly a significant “intervening circumstance.”11 Thus, assuming the traffic stop was unlawful, the decision whether to suppress the resulting evidence turns on the “fiagrancy of the official misconduct.”
The prosecution usually prevails on the “fiagrancy” factor because even if the constable blundered in determining he had a valid reason to detain the defendant there is rarely evidence “the constable crumbled hallowed protections due the accused.”12 This case is different, however. Here there is credible evidence the officers may have invented a justification for the traffic stop in order to have an excuse to run warrant checks on the driver and passenger. As Rodriguez’s employer testified, when he picked up the car from the impound lot three days after Rodriguez’s arrest the brake lights and taillights were in working order. It is also worth noting the Bell Gardens police who stopped Rodriguez were not patrol officers—whose duties normally include enforcing traffic laws—but detectives assigned to the gang and narcotics unit—whose duties would not normally include issuing citations for minor traffic offenses. Finally, there is the undisputed fact the officers did not issue Rodriguez a citation for the broken brake light. By this analysis, we do not mean to imply we believe the officers in this case cooked up a reason to stop Rodriguez in order to investigate possible drug or gang activity. This is a [1144]question of fact for the trial court to determine on remand. Our point is that a material question of fact exists as to the legality of the stop and the trial court must resolve it.13
In discussing the three factors relevant to an inquiry under Wong Sun the United States Supreme Court singled out as “particularly” important “the purpose and flagrancy of the official misconduct.”14 It is difficult to imagine a more flagrant example of official misconduct than perjury by a police officer. As our Supreme Court has stated: “Perjury is qualitatively different from ordinary search and seizure or Miranda violations. It ‘involve[s] a corruption of the truth-seeking function of the trial process.’ ”15 The court spelled out its reasons for holding “[pjeijury by law enforcement officials is particularly pernicious.”16 “Our entire criminal justice system,” the court stated, “is built around the belief, and necessity, that law enforcement officers will testify truthfully. Courts generally believe the testimony of such persons rather than that of the accused. . . . Deliberate, cynical perjury by law enforcement officials strikes at the very core of our system of law. It manipulates and thereby perverts the entire judicial process.”17
It could be argued the perjury in this case, if there was perjury, did not occur at the time the detectives stopped defendant’s vehicle but at the suppression hearing months later and therefore was too attenuated to count as a factor in the suppression determination. We do not find this argument persuasive. The Fourth Amendment contemplates the officer conducting a search or seizure will be able to justify it when called upon by a magistrate to do so. If the seizure is to take place under a warrant the officer is called upon to provide a justification in an affidavit presented to a neutral magistrate. No one would dispute perjury in a search warrant affidavit regarding the facts establishing probable cause would justify suppression of the evidence seized under the warrant. United States v. Leon so held.18 In the case of a warrantless seizure the suppression hearing is the equivalent of the affidavit [1145]for a warrant as it is the first opportunity for the officer to present his justification for the seizure and for a review of that justification by a neutral magistrate.
For the reasons discussed above, we conclude the evidence seized in the case before us is subject to exclusion under the test set out in Wong Sun.
Nevertheless, even if the officers had no lawful reason to stop defendant, the People maintain we should follow the United States Supreme Court’s lead in Hudson v. Michigan19 and not apply the exclusionary rule in this case. As we shall explain, Hudson is distinguishable from the present case for several reasons.
In Hudson the court stated: “Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”20 In the case of the knock-and-announce rule, the court held, the interest in protection against “unreasonable searches and seizures,” which is the basis for the rule,21 would not be served by suppressing evidence obtained under a valid search warrant. The rule is too uncertain to provide the police clear advance notice of what is required of them in a given situation; the police have no incentive to violate the rule; and there are other ways of preventing violations of the rule which do not involve the substantial social costs of suppression of relevant and validly obtained evidence 22
The prime purpose of the exclusionary rule is not to punish the officers who violated the defendant’s Fourth Amendment rights but to provide a means of deterring police misconduct in the future.23 But deterrence of future violations of the knock-and-announce rule presupposes police officers can learn something from past challenges—successful and unsuccessful—to their observance of the rule.24 The Hudson court concluded the educational value of trial and appellate courts’ ex post facto evaluations of knock-and-announce compliance is of little value in instructing future police conduct because the [1146]court’s “ ‘reasonable wait time’ standard” is “not easily applied,” and “necessarily uncertain.”25 “How many seconds’ wait are too few?” the court asked rhetorically. Came the response, the answer “is necessarily vague.”26 In other words, officers wanting to know how long they need to wait before forcing entry can as well consult “the Magic Eight Ball” as past court decisions.
Of particular relevance to our case, the court contrasted the hazy requirements of the knock-and-announce rule with “the warrant or Miranda requirements, compliance with which is readily determined (either there was or was not a warrant; either the Miranda warning was given, or it was not).”27 Similarly, in our case, either the defendant’s brake light was working or it was not.28
As the Hudson court further concluded, suppressing evidence in an effort to deter violations of the knock-and-announce rule is not worth the cost to society of possibly letting a guilty person go free because the police have no incentive to violate the rule in the first place.29 The only possible benefit to the officers from not complying with the knock-and-announce rule, the court explained, is preventing the possible destruction of evidence or avoiding life-threatening resistance by the occupants of the premises. But if the officers have even a “ ‘reasonable suspicion’ ” either or both of these dangers exist they are not required to follow the knock-and-announce procedure anyway.30 On the other hand, in addition to the usual social costs of excluding relevant incriminating evidence, the court foresaw applying the exclusionary rule to knock-and-announce violations “would generate a constant flood of alleged failures to observe the rule” which would be “difficult for the trial court to determine and even more difficult for an appellate court to review.”31 Another adverse consequence of employing the exclusionary rule would be to further confound the police in their attempt to comply with the knock-and-notice requirement which, as we noted above, the court admitted was already “uncertain” and “not easily applied.”32 To avoid the risk of the evidence seized being excluded at trial police officers “would be inclined to wait longer than the law requires” before forcing entry thereby running the risk of the [1147]evidence being destroyed before it could be seized or the occupants preparing to meet the officers with violence.33
On the other hand, the United States Supreme Court and our high court have recognized suppression of evidence is a reasonable response to an unlawful detention short of arrest,34 including traffic stops.35 In Terry v. Ohio, which set the Fourth Amendment standards for investigatory detentions, the court made it clear the violation of those standards would be subject to the exclusionary rule. “For the issue is not the abstract propriety of the police conduct [in conducting a stop-and-frisk], but the admissibility against petitioner of the evidence uncovered by the search and seizure.”36 The court went on to state “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.’ ”37 Clearly, the police have the same incentive to lie or “bend the truth” in justifying a traffic stop as they do in justifying a warrant—the overriding desire to “ ‘ “ferret[] out crime.” ’ ”38 And, as in the case of an invalid warrant, “suppression is appropriate ... if the officers were dishonest or reckless” in justifying their grounds for the stop or “could not have harbored an objectively reasonable” suspicion the defendant had committed a crime 39
Finally, the Hudson court found there are other means of deterring violations of the knock-and-announce rule assuming such deterrence is necessary. Among these alternatives are civil rights actions against the offending officers and their municipalities, reforms in the education, training and supervision of officers and “various forms of citizen review.”40'
We view Hudson's discussion of alternatives to the exclusionary rule as dictum. It is by no means the first time the court has pondered the continuing [1148]value of suppressing evidence as a deterrent to police misconduct.41 In any event, Hudson does not signal a majority of the court is ready to scrap the exclusionary rule. As Justice Kennedy states in his concurring opinion, which provided the fifth vote to affirm Hudson’s conviction: “[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.”42
We conclude, therefore, if the trial court finds the officers’ justification for stopping defendant’s car was a ruse it must suppress the evidence of drugs obtained in the subsequent search 43
II. ON REMAND THE TRIAL COURT MUST MAKE A FACTUAL DETERMINATION WHETHER THE POLICE STOPPED DEFENDANT’S VEHICLE BECAUSE IT HAD A BURNT-OUT BRAKE LIGHT.
It is beyond dispute stopping the driver of a vehicle for a traffic violation constitutes a “seizure” for purposes of the Fourth Amendment.44 Therefore, in order for such a stop to be lawful it must be based at least on a “reasonable suspicion” the driver has committed a traffic law violation or some other criminal activity is afoot45
Reasonable suspicion a law has been violated can be based on less than probable cause to believe a violation has occurred but it cannot be based on mere speculation or hunch.46 Moreover, the reasonableness of an officer’s stopping a vehicle is judged against an objective standard: would the facts available to the officer at the moment of the stop “ ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate[?]”47 Subjective good faith on the part of the officer is not enough.48 If the officer [1149]turns out to have been mistaken the mistake must be one which would have been made by a reasonable person acting on the facts known to the officer at the time of the stop. Under the foregoing test, a traffic stop will not violate the Fourth Amendment if the officer making the stop reasonably suspects the violation of a traffic law even if later investigation dispels that suspicion.
On remand the trial court is to determine whether the officers testified truthfully in stating the taillight was not illuminated on Rodriguez’s vehicle when they detained him.
Such a determination could be based, for instance, on the trial court’s disbelief of the apparently disinterested witness’s testimony to the effect the taillight was functioning perfectly when he retrieved the vehicle a few days after the incident. But assuming the trial court believes the testimony the taillight was functioning properly shortly after the officers said it wasn’t, the burden is on the prosecution to produce evidence explaining how it could have failed during the time the officers were following appellant’s car or for some other reason they could have “reasonably believed” the light was “burnt out.” On the other hand, if the trial court finds the officers lied to Rodriguez when they stopped his vehicle and told him his taillight was out and subsequently committed perjury at the first suppression hearing, for reasons explained above the court should suppress the evidence found in the vehicle and vacate the judgment.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to conduct a new evidentiary hearing and make a factual determination as to whether at the time of the traffic stop defendant’s car had a bumt-out brake light or the officers could reasonably have suspected it had a bumt-out brake light. If the court determines the brake light was bumt-out at the time of the traffic stop or the officers could have reasonably suspected the brake light was burnt out, it shall reinstate the judgment. If the court determines the brake light was not burnt out at the time of the traffic stop and no reasonable person could have believed otherwise it shall grant the defendant’s suppression motion and proceed in accordance with the law. The defendant is entitled to be present at the rehearing of the suppression motion.
Zelon, J., concurred.
People v. Beardslee (1991) 53 Cal.3d 68, 110 [279 Cal.Rptr. 276, 806 P.2d 1311].
See Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868]; In re Tony C. (1978) 21 Cal.3d 888 [148 Cal.Rptr. 366, 582 P.2d 957],
Vehicle Code section 24603 requires every vehicle manufactured and first registered on or after January 1, 1958, must be equipped with two stoplamps which, when activated, are “plainly visible and understandable from a distance of 300 feet to the rear both during normal sunlight and at nighttime . . . .” (Veh. Code, § 24603, subd. (e).) Absent evidence to the contrary we will assume defendant’s vehicle fell within this requirement. Vehicle Code section 24252, subdivision (a) states: “All lighting equipment . . . installed on a vehicle shall at all times be maintained in good working order.”
Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407].
Wong Sun v. United States, supra, 371 U.S. at pages 487-488, citation omitted.
Brown v. Illinois (1975) 422 U.S. 590, 609 [45 L.Ed.2d 416, 95 S.Ct. 2254] (conc. opn. of Powell, J.).
People v. Boyer (2006) 38 Cal.4th 412, 448 [42 Cal.Rptr.3d 677, 133 P.3d 581],
People v. Boyer, supra, 38 Cal.4th at page 448; and see Brown v. Illinois, supra, 422 U.S. at pages 603-604.
See, for example, U.S. v. Green (7th Cir. 1997) 111 F.3d 515, 521 and cases cited; State v. Page (2004) 140 Idaho 841 [103 P.3d 454, 459] and cases cited.
Brown v. Illinois, supra, 422 U.S. at page 603; U.S. v. Green, supra, 111 F.3d at page 521.
U.S. v. Green, supra, 111 F.3d at page 521.
People v. Beardslee, supra, 53 Cal.3d at page 111.
The fact the officers did not issue Rodriguez a citation and may not have even had a citation book goes only to the credibility of their reason for stopping Rodriguez. If Rodriguez did indeed have a burnt-out brake light the officers’ subjective motivation for the stop is irrelevant under Whren v. United States (1996) 517 U.S. 806, 813 [135 L.Ed.2d 89, 116 S.Ct. 1769]. (Vice officers stopped defendant for speeding and failing to signal a turn. (Id. at p. 810.))
Brown v. Illinois, supra, 422 U.S. at pages 603-604.
People v. Beardslee, supra, 53 Cal.Sd at page 110, quoting United States v. Agurs (1976) 427 U.S. 97, 104 [49 L.Ed.2d 342, 96 S.Ct. 2392],
People v. Beardslee, supra, 53 Cal.3d at page 110.
People v. Beardslee, supra, 53 Cal.3d at page 110.
United States v. Leon (1984) 468 U.S. 897, 926 [82 L.Ed.2d 677, 104 S.Ct. 3405].
Hudson v. Michigan (2006) 547 U.S._[165 L.Ed.2d 56, 126 S.Ct. 2159].
Hudson v. Michigan, supra, 547 U.S. at page_[126 S.Ct. at page 2164].
Wilson v. Arkansas (1995) 514 U.S. 927, 931-936 [131 L.Ed.2d 976, 115 S.Ct. 1914],
Hudson v. Michigan, supra, 547 U.S. at page_[126 S.Ct. at pages 2165-2168].
Arizona v. Evans (1995) 514 U.S. 1, 14 [131 L.Ed.2d 34, 115 S.Ct. 1185]; Illinois v. Krull (1987) 480 U.S. 340, 347 [94 L.Ed.2d 364, 107 S.Ct. 1160].
See United States v. Leon, supra, 468 U.S. at page 918. (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect ... it must alter the behavior of individual law enforcement officers or the policies of their departments.”)
Hudson v. Michigan, supra, 547 U.S. at page _ [126 S.Ct. at pages 2162, 2163, 2166].
Hudson v. Michigan, supra, 547 U.S. at page _ [126 S.Ct. at page 2163].
Hudson v. Michigan, supra, 547 U.S. at page _ [126 S.Ct. at page 2166].
See discussion at pages 1148-1149, below.
Hudson v. Michigan, supra, 547 U.S. at page _ [126 S.Ct. at page 2166].
Hudson v. Michigan, supra, 547 U.S. at page _ [126 S.Ct. at page 2166]; see Wilson v. Arkansas, supra, 514 U.S. at page 936.
Hudson v. Michigan, supra, 547 U.S. at page _ [126 5.Ct. at page 2166].
Hudson v. Michigan, supra, 547 U.S. at pages _ [126 S.Ct. at pages 2166, 2162].
Hudson v. Michigan, supra, 547 U.S. at page_[126 S.Ct. at page 2166].
Florida v. J. L. (2000) 529 U.S. 266, 274 [146 L.Ed.2d 254, 120 S.Ct. 1375]; In re Tony C., supra, 21 Cal.3d at page 899.
Delaware v. Prouse (1979) 440 U.S. 648, 663 [59 L.Ed.2d 660, 99 S.Ct. 1391]; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878 [45 L.Ed.2d 607, 95 S.Ct. 2574]; People v. Williams (1999) 20 Cal.4th 119, 138 [83 Cal.Rptr.2d 275, 973 P.2d 52]; People v. Loewen (1983) 35 Cal.3d 117, 129 [196 Cal.Rptr. 846, 672 P.2d 436].
Terry v. Ohio, supra, 392 U.S. at page 12.
Terry v. Ohio, supra, 392 U.S. at page 12, quoting Mapp v. Ohio (1961) 367 U.S. 643, 655 [6 L.Ed.2d 1081, 81 S.Ct. 1684].
United States v. Leon, supra, 468 U.S. at page 914.
United States v. Leon, supra, 468 U.S. at page 926.
Hudson v. Michigan, supra, 547 U.S. at page_[126 S.Ct. at page 2168].
See, e.g., Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357, 368-369 [141 L.Ed.2d 344, 118 S.Ct. 2014]; Illinois v. Gates (1983) 462 U.S. 213, 261, footnote 15 [76 L.Ed.2d 527, 103 S.Ct. 2317]; United States v. Janis (1976) 428 U.S. 433, 449, footnote 21 [49 L.Ed.2d 1046, 96 S.Ct. 3021],
Hudson v. Michigan, supra, 547 U.S. at page_[126 S.Ct. at page 2170],
This result would have no bearing on defendant’s prosecution on the outstanding arrest warrant. (People v. McGaughran (1979) 25 Cal.3d 577, 583 [159 Cal.Rptr. 191, 601 P.2d 207].)
Ornelas v. United States (1996) 517 U.S. 690, 693 [134 L.Ed.2d 911, 116 S.Ct. 1657]; People v. Wells (2006) 38 Cal.4th 1078, 1082-1083 [45 Cal.Rptr.3d 8, 136 P.3d 810].
People v. Wells, supra, 38 Cal.4th at page 1083.
People v. Wells, supra, 38 Cal.4th at page 1083.
Terry v. Ohio, supra, 392 U.S. at page 22.
Terry v. Ohio, supra, 392 U.S. at page 22.