DUFFY, J., Dissenting. The majority finds a sufficient record that San Jose Police Officer Lira had a reasonable suspicion to make the traffic stop that ultimately resulted in respondent Jeffrey J. Arburn’s arrest for driving under the influence. I respectfully disagree.
[1487]“[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.” (In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957], superseded on other grounds by Cal. Const., art. I, § 28.) In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 122 S.Ct. 744]; see also People v. Souza (1994) 9 Cal.4th 224, 239 [36 Cal.Rptr.2d 569, 885 P.2d 982].)
The totality of the circumstances here do not justify the detention. The sole undisputed evidence—namely, Officer Lira’s two written statements (one sworn and the other unsworn) presented "at the Department of Motor Vehicles (DMV) hearing—was that bn March 31, 2005, at 5:00 p.m., Officer Lira, while stopped at a stop sign on Forest Avenue (facing east) at the intersection of Bascom Avenue, observed (1) by looking to his left, that Arburn’s vehicle was proceeding south on Bascom; (2) that Arburn was traveling “at about the speed limit”; (3) that Arburn’s vehicle was “weaving in lane # 2, S/B from the controlled intersection at Bascom/Forest”; (4) that Arburn’s vehicle “almost hit the west curb of Bascom Ave.”; and (5) that Arburn “immediately turned into a parking lot of a business on the west side of Bascom Ave.” after passing him. Officer Lira then initiated the traffic stop that ultimately led to Arburn’s arrest.
But for the incomplete state of the record presented at the DMV hearing, I might well agree with my colleagues that the traffic stop was proper. However, the evidence supporting the detention omitted potentially important information, such as (1) the nature and extent of the officer’s training and experience investigating cases of driving under the influence; (2) the specifics underlying Officer Lira’s statement that he observed Arburn’s vehicle “weaving” (i.e., the number of times that the car weaved, and the amount of drift within the lane for each weave); and (3) the precise meaning of the officer’s observation that the vehicle “almost hit the west curb of Bascom Ave.” (i.e., how close the vehicle came to hitting the curb, and the lateral distance that the vehicle drifted from the center of the lane to the location near the curb). All that may be gleaned from the record is that respondent, while proceeding at the speed limit, drove poorly for a brief period of time and over a short distance. In sum, this showing does not demonstrate that Officer Lira had “a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu, supra, 534 U.S. at p. 273.)
[1488]The majority cites four cases in which detentions were found to have been justified: People v. Bracken (2000) 83 Cal.App.4th Supp. 1 [99 Cal.Rptr.2d 481] (Bracken); People v. Russell (2000) 81 Cal.App.4th 96 [96 Cal.Rptr.2d 568] (Russell); People v. Perez (1985) 175 Cal.App.3d Supp. 8 [221 Cal.Rptr. 776] (Perez); and People v. Perkins (1981) 126 Cal.App.3d Supp. 12 [179 Cal.Rptr. 431] (Perkins). Although my colleagues acknowledge that there are factual differences between those cases and the circumstances here, they find them not to be legally significant. (Maj. opn., ante, at p. 1485.) I respectfully disagree with that conclusion.
In Perez, supra, 175 Cal.App.3d Supp. 8, the driver, at 2:15 in the morning, caught the attention of the officer because of his “ ‘pronounced weaving’ ” within the lane on an interstate highway over a distance of approximately three-quarters of a mile. (Id. at p. Supp. 10.) Based upon this “pronounced weaving” that “continue[d] for a substantial distance,” the court in Perez held that the temporary detention of the defendant was lawful. (Id. at p. Supp. 11.) The facts here are quite different: the stop occurred late in the afternoon as a result of a momentary weave within the motorist’s lane on a city street.1
Similarly, in Bracken, supra, 83 Cal.App.4th at page Supp. 3, the basis for the detention was the citing officer’s observation that the defendant’s vehicle had weaved within its lane for approximately one-half mile. The court— citing Perez—concluded that the officer’s observation of the defendant’s “vehicle weaving] within its lane for a considerable distance” provided justification for the traffic stop. (Bracken, supra, at p. Supp. 4.) Here, unlike Bracken, the detention was not founded upon Arburn’s vehicle having weaved within its lane for a distance even approaching one-half mile.
The Perez court noted that the motorist’s weaving “continue[d] for a substantial distance.” (Perez, supra, 175 Cal.App.3d at p. Supp. 11.) In Bracken, supra, 83 Cal.App.4th at page Supp. 4, the court noted that the weaving occurred “for a considerable distance.” I agree with the majority that “the lack of evidence that Arburn was observed weaving over a ‘substantial’ or ‘considerable’ distance does not prevent a finding of reasonable suspicion.” (Maj. opn., ante, at p. 1485, fn. omitted.) (Indeed, the Perez court did not define “substantial,” and the Bracken court did not define “considerable.”) [1489]But by the same token, the momentary weaving within the motorist’s own lane—of itself, and even where the record discloses (ambiguously) that the driver “almost hit the . . . curb”—is unlikely to satisfy the reasonable suspicion requirement for a detention.2
The officer in Perez had extensive training and experience in dealing with motorists under the influence of drugs and alcohol. (Perez, supra, 175 Cal.App.3d at p. Supp. 11.) And the Bracken court noted that the officer had five and one-half years’ experience and had qualified as an expert in prior drunk driving cases. (Bracken, supra, 83 Cal.App.4th at p. Supp. 4.) Here, there was no evidence of the length of time Officer Lira had served with the highway patrol, what type of training he had received, or what experience he had, if any, in investigating cases of driving under the influence. While I agree with the majority that the existence of a record concerning the officer’s experience in addressing such cases is not determinative (Maj. opn., ante, at p. 1485), I nonetheless view its absence here to be of some significance, particularly in light of the minimal information concerning the officer’s observations preceding the traffic stop.
In Russell, supra, 81 Cal.App.4th at page 98, the defendant contended that evidence found in a vehicle should have been suppressed because “it was improperly obtained as a result of an unreasonably prolonged detention.” The court only briefly addressed the defendant’s “suggestion]” (id. at p. 102) that the traffic stop was unjustified, concluding summarily—based upon the officer’s observation at 7:00 a.m. that the subject vehicle was traveling approximately 10 miles under the speed limit on an interstate highway and was “repeatedly drifting] around within its lane and sometimes out of its lane” (id. at p. 99, fn. omitted)—that the erratic driving justified the traffic stop. (Id. at p. 102.) The repeated drifting of the slow-moving vehicle in Russell is plainly distinguishable from the momentary weave of the Arburn vehicle observed by Officer Lira.
And in Perkins, supra, 126 Cal.App.3d at page Supp. 14, the court held that the detention was justified, where the defendant drove his vehicle 20 miles under the speed limit and was “weaving abruptly from one side of his lane to the other.” The individual circumstances here are distinguishable from, and significantly less extreme than, the evidence of erratic driving found in Perkins.
[1490]The events that Officer Lira observed immediately before detaining Arburn were not sufficient for the officer to have had “specific and articulable facts causing him to suspect” that Arburn was involved in “some activity relating to crime.” (In re Tony C., supra, 21 Cal.3d at p. 893.) The cases cited by the majority do not support a contrary conclusion. As one court has aptly noted: “[I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” (U.S. v. Lyons (10th Cir. 1993) 7 F.3d 973, 976, overruled on another ground in U.S. v. Botero-Ospina (10th Cir. 1995) 71 F.3d 783, 786-787.) I therefore agree with the trial court that Arburn’s detention was constitutionally infirm arid would affirm the judgment entered on the order granting of the petition for writ of mandate.
Two cases that distinguished Perez in which the detentions were held unlawful—and in which the facts were much more similar to the case here than those in Perez—are instructive. In U.S. v. Colin (9th Cir. 2002) 314 F.3d 439, the court held the traffic stop unlawful because there was neither “ ‘pronounced weaving,’ ” nor a “weave for a ‘substantial distance’ ” (id. at p. 446); rather, the vehicle simply “touchfed] the right fog line and the center yellow line each for 10 seconds, after legitimate lane changes.” (Ibid.) In State v. Binette (Tenn. 2000) 33 S.W.3d 215, 219, the defendant’s vehicle at least touched the yellow line on multiple occasions, but the court held that the detention was unjustified, finding no evidence of “pronounced weaving or hard swerving.”
The majority notes: “ ‘Weaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop.” (Maj. opn., ante, at pp. 1485-1486.) But the record does not support the majority’s implication that Officer Lira observed Arburn’s vehicle weaving for one block, or for a distance even approaching it.