A new section to California’s Vehicle Code (CVC) added by AB 2773 in 2022, section §2806.5, became operative on January 1, 2024. It says that peace officers making traffic stops must state and document the reason for the stop before questioning a driver. The purpose of the new law, which clarifies the parameters of pretextual stops, was clarified by Division One of California’s First District Court of Appeal on September 18, when a unanimous three-judge panel ruled that all pretextual stops are not illegal.

The new law was enacted “to counteract concerns that police engage in a widespread practice of stopping individuals for racially biased reasons.” According to the Policing Project at the New York University School of Law, out of the 20 million traffic stops made in the U.S. each year, a great deal of them have “little to do with traffic safety.” Instead, many of the stops are excuses or “pretexts” for conducting searches as the police “go fishing” for other crimes.

The First Circuit’s unanimous opinion in The People v. Adrian Osvaldo Valle, authored by Retired Presiding Justice Peter J. Siggins, sitting by assignment, with concurrences by Acting Presiding Justice Kathleen Banke and Justice Monique Langhorner Wilson, began with the facts.

Brett Wright, a police officer in the Santa Rosa Police Department’s Special Enforcement Team, recognized Adrian Osvaldo Valle as a former gang member when the defendant was filling his car at a gas station. He also noticed that Valle’s car did not have a front license plate. Although he did not suspect Valle of any criminal activity at that time, the missing plate prompted him to follow Valle and make a traffic stop.

Wright’s partner, fearful for his partner’s safety, called for backup from the police department’s canine unit. He wanted the police dogs to conduct an open-air sniff of Valle’s vehicle for possible weapons. The officers then followed Valle to an area known for gang activity where Valle’s gang and its rival were known to be feuding. With their lights and sirens activated, the officers followed Valle’s car for about a quarter of a mile, then stopped him and told him why he was being followed and stopped. The officers also ordered a background check that contained Valle’s criminal history including previous arrests for drugs and firearms and a felony conviction. The canine officer arrived shortly thereafter, and his dogs began to sniff. The dogs alerted the officer that he had smelled something at Valle’s car door. The entire time from seeing Valle to the dog sniff was only seven minutes.

When Wright looked in the car window, he saw “the possible presence of a firearm.” Valle moved to suppress the search, and Contra Costa County Judge David B. Flinn, sitting on assignment to the Sonoma Superior Court, granted his motion believing that under CVC §2806.5 Wright and his partner’s actions were “very clearly a pretextual stop.”

Flinn continued, “What the People miss in their argument is there was no reason not to write the citation at the gas station. This was a designed stop, they let him drive while they called for the canine. And I think that the court must take judicial notice of the Legislature in California and this year’s session … that make pretextual stops illegal. .. But I find that it was an undue detention and a delayed detention. The entire process could have been completed…well before the dog was assembled for searching. It was a pretextual stop under any possible case. It would be unreasonable to even think that this happened this way. It was pretextual and it was a prolonged delay.”

The people appealed. Justice Siggins began by discussing the appellant’s argument. He cited Rodriguez v. United States (2015) 575 U.S. 348, 353 in which the U.S. Supreme Court granted certiorari to consider “whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.” That case answered the question “no,” because “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s (Fourth Amendment) shield against unreasonable seizures.” A “prolonged stop” is therefore unlawful if it exceeds the time reasonably required to issue a ticket.

Here, however, Siggins found no evidence that the events that occurred at the gas station when the officers called for the canine unit should be included in the timing of the traffic stop. Therefore they reversed Flinn’s ruling that the timeframe began at the gas station. In fact, all police activity took only seven minutes which did not “unduly prolong” the traffic stop. The opinion said that backup was called because of “valid officer safety concerns… (thus)…There is simply no evidence that the stop which led to the seizure was unconstitutionally prolonged.”

Siggins then turned to the question of whether CVC §2806.5 applied to the stop and the key issue of whether the stop was pretextual. The people first argued that the law was not in effect because the stop occurred prior to January 1, 2024. However, Flinn made his ruling on other grounds, that “pretextual stops are illegal” under both the new law and past laws.

This was an error, as the opinion pointed out that “The United States Supreme Court has long held that, under the Fourth Amendment, “the constitutional reasonableness of traffic stops” does not depend “on the actual motivations of the individual officers involved.” (Whren v. United States (1996) 517 U.S. 806, 813. He summarized, “Thus, the only pertinent inquiry is whether the officer had an objective basis for conducting the traffic stop.” The missing front license plate provided this basis, and this reason was given to Valle.

The opinion concluded that the new law “has no impact on the legality of pretextual stops or the admissibility of evidence obtained during such stops.” He said that all stops, pretextual or not, remain subject to federal constitutional limitations, and thus he reversed Flinn’s ruling and remanded it for proceedings that match the appellate court’s opinion.