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Probable cause-to make an arrest
( Johnson v. Lewis )

Probable cause probable cause to make an arrest
(Johnson v. Lewis)

All of plaintiff’s asserted causes of action hinge upon the validity of her arrest. She has neither alleged, nor pointed to evidence of, conduct that would support a tort cause of action independent of a determination that the arrest was unlawful. Accordingly, we turn first to plaintiff’s claim that the arrest was unlawful because Lewis lacked probable cause to arrest her.

In claiming that there are triable issues of material fact with respect to whether Lewis had probable cause to arrest her, plaintiff focuses on the offense for which she was ultimately cited, reckless driving. (Veh. Code, § 23103.) However, the question of probable cause to arrest is not so circumscribed.

Probable cause means that the arresting officer was aware of facts that would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime. (People v. Harris (1975) 15 Cal.3d 384, 389.) If an officer has probable cause to believe a person is guilty of a crime, probable cause is not vitiated and an arrest remains valid even if the officer purports to arrest the person for the wrong crime. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1262-1265; People v. Goldberg (1984) 161 Cal.App.3d 170, 179; People v. Lewis (1980) 109 Cal.App.3d 599, 609; In re Donald L. (1978) 81 Cal.App.3d 770, 775.)

Lewis first noticed plaintiff when she drove to within a few feet of his van, cut in front of him nearly hitting the van, and sped off down the crowded highway before he could catch up with her. By her own admission, plaintiff was driving at 70 to 75 miles an hour when she first noticed Lewis behind her. When asked if that was exceeding the speed limit, she said, “Sure.” Driving in excess of the speed limit establishes a prima facie case of a speeding violation. (Veh. Code, §§ 22351, subd. (b), 40000.1, 41100.) That subjected plaintiff to arrest and citation with a notice to appear (Pen. Code, § 836, subd. (a); Veh. Code, § 40500) for a crime that under the circumstances of this case posed an immediate danger to persons or property.

While Lewis was behind plaintiff in traffic, he activated his red light and siren. Plaintiff was thereby obligated to “immediately drive to the right-hand edge or curb of the highway, clear of any intersection, and thereupon shall stop and remain stopped.” (Veh. Code, § 21806, subd. (a)(1).) Her failure to do so, speeding off instead, was an infraction that subjected her to arrest and citation (Veh. Code, § 40000.1, 40500) for a crime that posed an immediate danger to persons or property.

Instead of pulling over, plaintiff moved to the next lane and accelerated. She led Lewis on what she calls a chase. Although plaintiff did not look at her speedometer and could not estimate how fast she was driving, Lewis estimated that plaintiff reached speeds of 90 to 95 miles per hour. Plaintiff made several lane changes and several speed changes in attempting to get away from Lewis. Throughout the chase, there was traffic around plaintiff. This behavior gave Lewis probable cause to cite plaintiff for reckless driving (Veh. Code, § 23103), a crime that posed an immediate danger to persons or property.

Plaintiff did not deny the behavior that led Lewis to stop her. In fact, she admitted the conduct but offered explanations for her conduct. Thus, plaintiff admitted that she was speeding but said she was just keeping with the flow of traffic. When Lewis activated his red light and siren, plaintiff thought he might be a peace officer but also thought he could be a private person in a fit of road rage; so she did not drive to the right hand side of the road and stop but instead fled from him. When, as here, the facts known to an officer are sufficient to constitute probable cause to arrest, the possibility of an innocent explanation does not vitiate probable cause and does not render an arrest unlawful. (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477.)

Plaintiff asserts reckless driving requires that the driver “intentionally did something with knowledge that injury to another was probable or acted with a wanton and reckless disregard for the safety of others and in reckless disregard of the consequences of [her] acts.” (People v. Schumacher (1961) 194 Cal.App.2d 335, 338.) The assertion does not help plaintiff for two reasons.

First, the validity of an arrest is measured by whether the facts known to the officer support a reasonable suspicion of criminal activity, not whether the facts are sufficient to convict. (People v. Hill (1974) 12 Cal.3d 731, 749, overruled on another ground in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5.) Plaintiff’s own testimony described conduct in which she led Lewis on a chase, during which she made numerous quick lane changes and speed changes while surrounded by other motorists. This conduct amply supported a reasonable suspicion of reckless driving.

Second, Lewis unquestionably had probable cause to arrest plaintiff for speeding and for failing to pull over and stop when he activated his red light and siren. Accordingly, even if Lewis had erred in citing plaintiff for reckless driving, the arrest was still valid. (People v. Rodriguez, supra, 53 Cal.App.4th at pp. 1262-1265; People v. Goldberg, supra, 161 Cal.App.3d at p. 179; People v. Lewis, supra, 109 Cal.App.3d at p. 609; In re Donald L., supra, 81 Cal.App.3d at p. 775.)

Plaintiff claims there are triable issues of fact with respect to Lewis’s motivation and good faith in stopping her. We disagree.

Probable cause is measured by an objective rather than subjective standard. (People v. Rodriguez, supra, 53 Cal.App.4th at p. 1266.) Where, as here, an officer has probable cause to make an arrest, we will not inquire into his subjective motivations. (Ibid.)

In any event, we cannot agree with plaintiff that Lewis’s motivation is questionable. In stopping her and ultimately issuing a traffic citation, Lewis’s actions were entirely consistent with a law enforcement motivation. He did not do or say anything which would indicate any motivation other than law enforcement. He did not, for example, make sexual comments to plaintiff or attempt to ask her for a date. He did not attempt to solicit a bribe. He did not try to steal any of her property. In short, there is nothing in the record that would suggest Lewis had any motivation other than enforcement of the traffic laws.

Next, plaintiff cites Penal Code sections 830.37 and 836 for the proposition that her arrest was unlawful because, as an arson investigator, Lewis lacked the authority to make an off-duty arrest for a traffic violation. Not so.

Subdivision (a) of Penal Code section 836 states in pertinent part: “A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 or Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur: [¶] (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence. . . .” Penal Code section 830.37 extends peace officer status to arson investigators and provides that their authority “extends to any place in the state for the purpose of performing their primary duty or when making an arrest pursuant to Section 836 as to any public offense with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of that offense . . . .” [Italics added.] The broad scope of this statutory authority authorized Lewis to make an off-duty arrest for a traffic violation that posed an immediate danger to persons or property. (See Inouye v. County of Los Angeles (1994) 30 Cal.App.4th 278, 284 [construing identical language in Pen. Code, § 830.31].) And the undisputed facts demonstrated that plaintiff’s driving posed such a danger.

Nevertheless, Lewis’s employer had a departmental policy against arson investigators making off-duty traffic arrests. But here we are not concerned with whether an employer can restrict administratively a statutory peace officer’s authority to arrest or whether discipline can be imposed for the violation of such a policy. The issue is whether plaintiff can maintain an action in tort on the basis that her arrest was unlawful. In this respect, the trial court correctly concluded that local policy cannot override the authority granted by the Legislature. (See Inouye v. County of Los Angeles, supra, 30 Cal.App.4th at pp. 284-285.) Plaintiff was arrested on probable cause by a peace officer with statutory authority to effectuate the arrest. Therefore, the arrest cannot form the basis for a cause of action in tort. (Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 843-844.)

Plaintiff argues the totality of Lewis’s conduct, including his conduct after plaintiff stopped her car, rendered her arrest unlawful. Again, we disagree.

After plaintiff stopped on the side of the road, Lewis told her to get out of the car, put handcuffs on her, did a pat down search for weapons, placed plaintiff in the back of Deputy Maubach’s patrol car, and asked for and received permission to search plaintiff’s car.

Before plaintiff stopped her car, she had led Lewis on a high speed chase on a busy freeway. When plaintiff finally stopped, Lewis was entitled to use handcuffs and detain her in the back of a patrol car. (Pen. Code, §§ 835, 835a.) Upon arresting her, he was entitled to conduct a pat down search for weapons. (In re Ian C. (2001) 87 Cal.App.4th 856, 860; In re Humberto O. (2000) 80 Cal.App.4th 237, 243; In re Charles C. (1999) 76 Cal.App.4th 420, 424-425.) And plaintiff presented no evidence to dispute that she consented to the search of her car. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558-1559.) There was nothing in Lewis’s conduct after he arrested plaintiff that would vitiate the validity of the arrest and render it unlawful.

In sum, Lewis was a peace officer who, pursuant to Penal Code sections 830.37 and 836, had the statutory authority to make an arrest on probable cause that a traffic offense posing a danger to persons or property was committed in his presence. The record, including plaintiff’s own description of the events, establishes the probable cause which was necessary for an arrest by Lewis. Hence, we reject plaintiff’s contention that there are triable issues of material fact with respect to the validity of the arrest.

Johnson v. Lewis C043427frivolous appeals

Jul 07 2004

C043427
[PDF] [DOC]

Johnson v. Lewis C043427 7/7/04 CA3

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