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Too many people get convicted of DUI without realizing the right DUI lawyer can make that liklihood significantly less. That's where Barry G. Sands comes in for you. Protect your rights, know your options.
In California, being charged with a DUI (driving under the influence) or DWI (driving while intoxicated) is a criminal offense. Many motorists have difficulty accepting the reality that a conviction for drunk driving comes with harsh penalties, including a California criminal record, stiff fines, loss of driving privileges, increased insurance rates, possible jail time and possible loss of your professional license.
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Indio is crawling with law enforcement officers looking to make a DUI arrest. In fact, now there are even task forces exclusively dedicated to catching drunk drivers. Whether at a DUI checkpoint or a routine traffic stop, if you are stopped by law enforcement, you need to know how to conduct yourself.
There are countless reasons a police officer might stop your vehicle. Maybe you were driving over the speed limit, maybe you were tired and began drifting out of your lane, or maybe your registration was expired. Law enforcement can stop your vehicle for any suspected traffic violation. As long as there is reasonable suspicion, or it is at a lawful checkpoint, police can stop you.
If you are stopped, here's what you need to know:
If the officer asks you to step out of your vehicle for field sobriety testing:
When is it lawful for police to search your car?
HORIZONTAL GAZE NYSTAGMUS (HGN) 1. CONDITIONS WHICH MAY INTERFERE WITH SUSPECT’S PERFORMANCE ON HGN.
A. Wind, dust, etc., irritating the suspect’s eyes (P. VIII.-16).
B. Visual or other distractions (always face the suspect away from rotating lights, strobe lights and traffic passing in close proximity) (P. VIII.-16).
2. ADMINISTRATIVE PROCEDURES.
A. Eyeglasses—have suspect remove eyeglasses (P. VIII.-6).
B. Verbal Instructions (P. VIII.-7).
1. “I am going to check your eyes.”
2. “Keep your head still and follow this stimulus with your eyes only.”
3. “Keep following the stimulus with your eyes until I tell you to stop.”
C. Position stimulus 12 to 15 inches from suspect’s nose and slightly above eye level.
D. Check for Equal Tracking—move stimulus smoothly across suspect’s entire field of vision. If eyes don’t track together (one lags behind the other), possible medical disorder, injury, or blindness.
E. Check for Equal Pupil Size—if pupils are not the same size, may indicate head injury.
F. Check for lack of smooth pursuit (high speed). (P. VIII.-7).
1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE
3. Stimulus must be moved steadily.
4. Speed/Timing: For each eye check, 2 seconds out, 2 seconds back.
5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to perform this check on both eyes & to repeat is 16 seconds.
6. If eyes cannot follow a moving object smoothly, count this clue.
G. CHECK FOR DISTINCT NYSTAGMUS AT MAXIMUM DEVIATION (slow speed) (P. VIII.-7).
1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE.
3. Move stimulus until subject’s eye has gone as far as possible eye to the side (No white should be showing in the corner of subject’s eye).
4. Speed/Timing: Hold the subject’s eye in that extreme position (max deviation) for at least 4 seconds.
5. Tester must conduct at least 2 passes for each eye NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds.
6. Jerkiness must be distinct at maximum deviation to score this clue.
H. CHECK ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES (P. VIII.-8).
1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE.
3. Speed/Timing: Should take 4 seconds to move stimulus from subject’s nose to shoulder (45 degrees is presumed to line up with every test subject’s shoulder).
4. When you first observe eye jerking, stop and verify that this jerking continues. NOTE: When tester first observes subject’s eye jerking, check to ensure that some white of the eye is still showing closest to ear. If no white is showing, the tester has probably gone past the 45 degree mark.
5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds.
6. If nystagmus is observed prior to 45 degrees, score this as a clue.
3. TOTAL THE CLUES (P. VIII.-8).
A. Total of 6 clues; 3 for each eye.
B. 4 or more clues equals a 77% likelihood that subject is over .10% BAC.
4. VERTICAL NYSTAGMUS—Used to detect impairment due to drugs like PCP, CNS depressants, etc. (P. VIII.-9).
1. Position stimulus horizontally (parallel to the ground) about 12 to 15 inches in front of the subject nose.
2. Instruct subject to hold his head still, and follow the stimulus with his eyes only.
3. Raise the stimulus until the suspect’s eyes are elevated as far as possible.
4. Hold for approximately 4 seconds.
5. Watch closely for evidence of the eyes jerking.
WALK & TURN (WAT) (Heel-to-Toe)
1. TEST CONDITIONS.
A. Test requires a designated straight line.
NOTE: this criterion is in conflict with (2)(A)(1) immediately below (P. VIII.-12).
B. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-12).
C. Subjects over 65 years old, or persons with back, leg or middle ear problems have difficulty performing this test (P. VIII.-12).
D. Subjects wearing shoes with heels more than 2 inches high should be given the opportunity to remove them prior to testing (P. VIII.-12).
E. Tester should limit his movement which may distract the suspect during the test (P. VIII.-12).
F. Conditions which may interfere with suspect’s performance on WAT include wind/weather conditions, suspect’s age, weight, and suspect’s footwear (P. VIII.-18).
2. ADMINISTRATIVE PROCEDURES (Begins at P. VIII.-9).
A. INSTRUCTION PHASE: Give the test subject following verbal instructions.
1. “Place your left foot on the line.” (real or imaginary) (Demonstrate)
2. “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.” (Demonstrate)
3. “Place your arms down at your sides.” (Demonstrate)
4. “Keep this position until I tell you to begin. Do not start to walk until told to do so.” (P. VIII.-10)
5. “Do you understand the instructions so far?” Make sure the suspect indicates understanding.
6. “When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.” (Demonstrate 3 heel-to-toe steps.)
7. “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.” (Demonstrate)
8. “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”
9. “Once you start walking, don’t stop until you have completed the test.”
10. “Do you understand the instructions?” Make sure suspect understands.
11. “Begin, and count your first step from the heel-to-toe position as ‘One.’”
B. PERFORMANCE/GRADING THE WALK & TURN (P. VIII.-11).
1. Suspect Cannot Keep His Balance While Listening To The Instructions.
i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart).
ii. Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position.
2. Suspect Starts Before Instructions Are Finished.
3. Suspect Stops While Walking.
i. Record this clue if suspect pauses for several seconds.
ii. Do not record this clue if the suspect is merely walking slowly.
4. Suspect Does Not Touch Heel-to-Toe—gap between heel and toe must be more than ½ inch.
5. Suspect Steps Off The Line—at least one foot of the suspect must be entirely off the line.
6. Suspect Uses Arms To Balance—arm(s) must be raised more than 6 inches from sides for this clue.
7. Suspect Makes Improper Turn.
i. Suspect removes front foot from the line while turning.
ii. Suspect does not follow directions as demonstrated (i.e., spins or pivots around).
8. Suspect Uses Incorrect Number of Steps—either more or fewer steps in either direction.
NOTE: If suspect has difficulty at some point performing this test, continue the test from that particular point on, not from the beginning of the test (P. VIII.-12).
NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-18).
NOTE: If suspect cannot do test, record as if all eight clues were observed (P. VIII.-11).
3. TOTAL THE CLUES (P. VIII.-12).
1. Total of 8 clues.
2. The presence of 2 or more clues equals a 68% likelihood that subject is over .10% BAC.
ONE-LEG STAND (OLS)
1. TEST CONDITIONS.
A. Tester should remain as motionless as possible during the test so as not to interfere with suspect’s performance (P. VIII.-14).
B. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-14).
C. Suspects over 65 years old, or 50 pounds or more overweight or with back, leg or middle ear problems have difficulty performing this test (P. VIII.-14).
D. Suspects wearing shoes with heels more than 2 inches high should be given the opportunity to remove their shoes prior to testing (P. VIII.-14).
NOTE: Nothing is mentioned about conditions and factors that may interfere with suspect’s performance.
2. ADMINISTRATIVE PROCEDURES.
A. INSTRUCTION PHASE—INITIAL POSITIONING & VERBAL INSTRUCTIONS (P. VIII.-12).
1. “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate).
2. “Do not start to perform the test until I tell you to do so.”
3. “Do you understand the instructions so far?” Make sure the suspect indicates understanding. (P. VIII.-13)
4. “When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.” (Demonstrate one leg stance.)
5. “You must keep both legs straight, arms at your side.”
6. “While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three, until told to stop.” (Demonstrate and count as follows: “one thousand and one, one thousand and two, one thousand and three, etc.”)
7. “Keep your arms at your sides at all times and keep watching the raised foot.”
8. “Go ahead and perform the test.”
NOTE: The tester should always time the 30 seconds. (P. VIII.-13) The test should be discontinued after 30 seconds regardless of what number the suspect is still counting at. (P. VIII.-13 & 14)
B. PERFORMANCE/GRADING THE OLS TEST (P. VIII.-13).
1. Suspect Sways While Balancing—side-to-side or back-and-forth motion while in one-leg stand position.
2. Suspect Uses Arms To Balance—arms must be raised more than 6 inches from sides to count this clue. (P. VIII.-14)
3. Suspect Hopping (to maintain balance)—resorts to hopping in order to maintain balance.
4. Suspect Puts Foot Down—not able to maintain one-leg position, but puts foot down one or more times during 30 second count.
NOTE: If suspect puts his foot down, instruct suspect to pick his foot back up and to continue counting from the point at which the foot touched the ground (P. VIII.-13 & 14).
NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-19).
NOTE: If suspect cannot do test, or puts his foot down more than 3 times, record as if all four clues were observed (P. VIII.-14 & 19).
3. TOTAL THE CLUES (P. VIII.-14).
A. Total of 4 clues—The presence of 2 or more clues equals a 65% likelihood that subject is over .10% BAC.
DMV APS HEARINGS & PROCEDURES
THE ADMINISTRATIVE PER SE (APS) SUSPENSION ACTION
Often referred to as the “stop and snatch” law, the Administrative Per Se (APS) Suspension law is intended to promptly remove drunk drivers from the road.
The 30-day temporary license that accompanies every Order (discussed below) obviously defeats this legislative goal, but it is necessary to avoid due process challenges to the summary taking of one’s driving privilege without the opportunity to contest the action.
Grounds for Issuance of an APS Order There are several possible grounds for a person to be served with an Administrative Per Se Suspension (APS) Order:
Drives with a 0.01% or higher BAC while under 21 years of age. CVC §13353.2(a)(2).
Drives with a 0.01% or higher BAC while on DUI Probation. CVC §§23154 and 13353.2(a)(4).
Drives with a 0.04% or higher in a commercial vehicle. CVC §§13557(b)(2)(C)(iv) and 13353.2(a)(3).
Drives with a 0.08% or higher BAC. CVC §13353.2(a)(1).
Refuses to submit to and complete a chemical test, CVC §13353, or P.A.S. test if under 21 or on DUI probation.
See: CVC §13353.1.
California DMV APS Suspension Periods
APS suspension periods are governed by CVC §§13353, 13353.1, and 13353.3.
Prior APS suspensions and/or prior convictions will enhance some of the suspension periods. “Conviction” includes a juvenile court finding, infraction, misdemeanor, or felony for any of the following:
CVC §23103, but only where person sentenced pursuant to CVC §23103.5 (alcohol related reckless driving, commonly referred to as a “wet reckless”).
Pen. C. §191.5
Pen. C. §192(c)(3)
Out-of-state conviction for any offense which, if committed in the State of California, would be a violation of any one of the above referenced statutes.
California DMV APS Hearing Discovery
Both the licensee and the DMV are entitled to discovery in preparation for the APS hearing. The scope of mutual discovery is set forth under Government Code §11507.6 (it covers the type of discovery set forth under Pen. C. §1054.3 for criminal actions)
California DMV APS Requests for Discovery
Discovery requests are governed by Cal. Code of Regulations, Title 13, section 115.05, which reads as follows:
Notwithstanding the provisions of Section 11507.6 of the Government Code and, in order to conform to the time constraints for hearings under Chapters 2 and 3 of Division 6 of the Vehicle Code:
(a) A party’s request for discovery may, with the approval of the department, be made by telephone or in person.
(b) A request for discovery must be made at least 10 days prior to the date set for commencement of the hearing to receive discovery prior to the hearing.
(c) A request for discovery may be grounds for a continuance; however, it shall not stay the action by the department.
Excessive BAC DMV APS Hearings (0.08% Or Higher)
Summary of the Issues
The DMV must prove the following three issues at an over-21 excessive BAC hearing:
(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23152 or 23153;
(b) That the person was arrested;
(c) That the person was driving a motor vehicle with a .08 or higher blood-alcohol level.
CVC §§13558(c)(2) and 13557(b)(2).
If the department determines that any of those facts were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to CVC §13551. If the DMV intends to aggravate the length of the suspension order based on a prior conviction or administrative action with offense dates within ten years, then the existence of the prior conviction or administrative action must also be proven by the DMV. CVC §13353.3.
Excessive BAC DMV APS Hearings (0.04% Or Higher—Commercial Drivers)
CVC §13353.2(a)(3) provides that the DMV shall immediately suspend the privilege of a person to operate a motor vehicle if the person was driving a vehicle that requires a commercial driver’s license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood.
A driver may contest this suspension pursuant to CVC §13558(c)(2), which states that the only issues at the hearing are those contained in §13557(b)(2).
The problem is that although the Legislature has amended this statute to include a 0.04 percent limit for persons driving a commercial vehicle, CVC §13557(b)(2)(C)(iv), it failed to modify any of the other issues pertaining to the APS hearing for these cases (e.g., the statute requires a showing that the officer had reasonable suspicion to believe the driver was .08 or higher).
However, Rehman v. Department of Motor Vehicles (2009), addressed this issue and held that it would be absurd to require that showing and that it contravened the legislative intent. Thus, the issues are basically the same as they are in a zero-tolerance case, except that the limit is .04 instead of .01 percent. Hence, the DMV must establish the following by a preponderance of the evidence:
(a) That the peace officer had reasonable cause to believe that the person had been driving a commercial vehicle with a .04 percent or higher alcohol level;
(b) That the person was placed under arrest or was lawfully detained; and
(c) That the person was driving a commercial vehicle with a .04 percent or higher BAC.
Excessive BAC DMV APS Hearings (0.01% Or Higher—Under 21)
Summary of Issues
The DMV must prove the following issues at a .01% or higher excessive BAC hearing:
(a) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §23136, 23140, 23152, or 23153;
(b) That the person was placed under arrest or, if the alleged violation was of 23136, that the person was lawfully detained;
(c) That the person was driving a motor vehicle under any of the following circumstances:
•When the person had a 0.08 percent or higher BAC.
•When the person was under 21 and had a 0.05 percent or higher BAC.
•When the person was under 21 and had a 0.01 percent or higher BAC, as measured by a preliminary alcohol screening test, or other chemical test.
CVC §13558(c)(2) and 13557(b)(2).
Chemical Test Refusal DMV APS Hearings
Summary of Issues
The DMV must prove the following issues at a chemical test refusal hearing:
(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23136, 23140, 23154 (effective 1/1/09), 23152, or 23153;
(b) The person was placed under arrest or, if the alleged violation was of CVC §§23136, 23140, or 23154 (effective 1/1/09), the person was lawfully detained;
(c) The person was advised that a refusal would result in a suspension or revocation of the driving privilege; and
(d) The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer.
See: CVC §13558(c)(1)
Hearing Officer’s Decision: Findings and Conclusions
Decision Announced at Conclusion of Hearing
It is rare that a hearing officer will announce an unfavorable ruling on the spot, particularly with an in-person hearing and with the driver present.
Sometimes, however, the hearing officer will announce a “set aside” of the suspension order on the spot.
Decision Sent by Mail
The most common method for notifying the driver of the APS decision is by mail, with a copy of the order mailed to counsel of record.
Findings and Conclusions
Sometimes the Order will include the hearing officer’s findings and conclusions, whereas other times the Order will simply indicate that these are available upon request.
Either way, the findings should establish sufficient legal support for the hearing officer’s conclusions.
A common tactic employed by some DMV hearing officers is to reject or disregard testimonial evidence presented by the driver, including opinions from his expert, with the naked finding that the witness or witnesses lacked credibility. Any such finding must “identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination.” Gov. Code §11425.50(b).
DECISION-MAKING AT SUPERVISORY LEVEL AND LIMITS ON THE DISCRETION OF FIELD
One of the most commonly used challenges to a DUI Checkpoint and/or
Roadblock is to demonstrate a lack of uniformity in the operation of the
Regarding the issue concerning the required limits on the discretion of
field officers, the California Supreme Court in Ingersoll v. Palmer, noted
A related concern is that motorist should not be subject to the unbridled
discretion of the officer in the field as to who is to be stopped.
Instead, a neutral formula such as every driver or every third, fifth or tenth
driver, should be employed. To permit an officer to determine to stop any
particular driver or car when there is no legitimate basis for the
determination would be to sanction the kind of unconstrained and standardless
discretion which the United State Supreme Court sought to circumcise in its
decision in Prouse, [citations omitted]. In all the checkpoint programs at issue
here, neutral mathematical selection criteria were used.
Id., at 1342 (emphasis added)
Post checkpoint records, available through discovery, will demonstrate the
pattern of detentions. Every car or every third car is neutral. A change
in patterns to adjust for traffic flow is also neutral so long as there is a
formula for the change. What is prohibited is an unjustified deviation
from the pattern which negates the neutral mathematical formula. If the
pattern suddenly changes randomly, an inference of non-neutrality arises making
the checkpoint potentially unconstitutional.
The issue of the constitutionality of a detention based on a tip to the police by an “anonymous tipsters” has become an issue of great debate after the California State Supreme Court decision in People v. Wells and even more so after the United States' Supreme Court ruling in Navarette, especially when the officer observed no signs of impaired driving.
In evaluating the constitutionality of a detention based on a tip to the police, note the distinction between “anonymous tipsters” (folks who telephone the police about a crime, but do not identify themselves and are not known to the police), “government agents” (informants working for the constable) and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters” and “government agents,” there is no presumption of reliability attached to their tips. However, Navarette v. California ___ U.S. ___ (Docket No. 12-9490) (2014) held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’” [quoting Alabama v. White 496 U.S. 325, 327 (1990)].Navarette involved a dispatcher’s radio communication of a 911 report [treated by SCOTUS as anonymous] of a specifically described vehicle and license plate number that had run the caller off the road approximately five minutes ago. About 13 minutes later a CHP officer spotted the vehicle and followed it for about five minutes without observing any vehicle code violation. Employing the “totality of circumstances” test, the court found the report “bore adequate indicia of reliability” to support an enforcement stop based on the following factors:
• The caller necessarily claimed eyewitness knowledge of the alleged dangerous driving (cf. Florida v. J.L., 529 U.S. 266 (2000), where tipster did not explain the basis of his knowledge that a young black man had a gun);
• In spotting the truck 19 miles from the reported mile marker just 18 minutes after the call, the report was contemporaneous with the incident;
• With it being common knowledge that 911 calls can be traced even with blocked caller ID, the tipster’s use of the 911 system provided an additional safeguard against the re-port being false (the court was careful to state that this is just one factor, and that 911 calls are not reliable per se).
After finding the tip to be sufficiently reliable, the Navarette Court then held the enforcement stop was constitutional even though the officer did not see a vehicle code violation during the five-minute observation. “Extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the five-minute period in this case hardly sufficed in that regard.” Id.Furthermore, the court rejected any contention that an officer is required to observe the manner of driving before acting on a reliable tip.
While declaring that “not all [reported] traffic infractions imply intoxication [thus allowing an enforcement stop],” it cited the following descriptions as examples of what is sufficient to reasonably suspect impairment and stop a motorist:
• Weaving all over the roadway;
• Crossing over the center line;
• Almost causing several head-on collisions
• Driving all over the road;
• Weaving back and forth;
• Driving in the median.
The court concluded:
The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway ... As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.
Navarette followed the California Supreme Court’s decision in People v. Wells (2006) 38 Cal.App.4th 1078. In Wells, the dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving. Citing “the grave risks posed by an intoxicated highway driver,” Wellsheld that a brief, investigatory stop was justified under the circumstances even though the tip was treated as anonymous. While approving a lower court ruling inLowry v. Gutierrez (2005) 129 Cal.App.4th 926, and following a non-binding federal opinion in United States v. Wheat (8th Cir. 2001), 278 F.3d 722, the court declared that “there is a sound and logical distinction between the vehicle stop in the present case and the frisk found unconstitutional in [Florida v. J.L. (2000) 529 U.S. 266 (anonymous tip reporting a young, African American man in a plaid shirt, standing at a particular bus stop and carrying a gun)]. Seizing on J.L.’s statement that there may be “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability...[such as a report] of a person carrying a bomb...,” J.L., at 273-274, the Wells Court found that a “drunk driver is not at all unlike a bomb, and a mobile one at that [citing the Vermont Supreme Court in State v. Boyea (2000) 765 A.2d 862, 867-868].” As in Wheat, the court further found that the tip’s lack of “predictive information” was not critical to determining its reliability. It also cited Michigan Department of State Police v. Sitz(1990) 496 U.S. 444, 455, for the proposition that the high court has sanctioned the “stopping of all drivers to investigate possible drunk driving despite any articulable facts indicating an immediate risk of harm.”
The Wells Court set forth three requirements that must be met for an anonymous tip to provide reasonable suspicion to justify a DUI traffic stop, and they closely parallel the factors found sufficient in Navarette:
1. First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller.
2. Second, the tip should indicate the caller had actually witnessed a contemporaneous traf-fic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity.
3. Third, at least the “innocent details” of the tip must be corroborated by the officers. Wells, at 1085-1086.
The prosecution bears the burden of proof when it comes to a warrantless detention, and that the constitutionality of a detention is determined by what the officer knew at the time he made the stop. It is often wise to not ask a question in a Pen. C. §1538.5 motion to suppress hearing where the evidence has not yet proven a particular point. Also, be mindful that Navarette was a 5-4 decision which the majority labeled “a close call” (thus, evidence falling short of what took place inNavaratte can change the outcome).
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