The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant, Thomas Keller, has been indicted for violation of
18 U.S.C. § 1341 and 1708 for the theft and fraudulent use of
certain credit cards. The matter is now before the Court on
Keller's motion to suppress evidence.
Chicago Police Officer Kukulka is a Special Operations Group
Officer whose primary responsibility involves back-up
investigation of non-traffic related crimes. On the morning of
April 30, 1978, Officer Kukulka was on duty with a partner in a
"high crime" district. He noticed a car in violation of a city
ordinance because it had only one license plate. The car was
pulled over and Thomas Keller, the driver and sole occupant, was
asked to get out and present his driver's license. Keller stepped
from the car, but he was unable to produce his driver's license
because he had posted it in lieu of bail on a prior traffic
citation. He presented that citation to Kukulka. The officer
explained, however, that Keller would have to go to the police
station on the new traffic offense because a prior traffic
citation is not acceptable as bond. The officer then searched
Keller and found several credit cards and a social security card
bearing names other than Keller's. Keller told Kukulka the cards
belonged to a friend,
but upon further questioning Keller became evasive.
The officer testified that the search was a protective search
and not a full custody search. He didn't remember where he found
the cards, but testified that he looked into the wallet to see if
the defendant had a gun concealed there. One could treat this
testimony as facetious or a deliberate misrepresentation. I
choose the latter. Kukulka then told Keller he was under arrest
and Miranda rights were read. The car was searched and Keller was
taken to the police station where he was issued two traffic
tickets for failing to produce a driver's license and failing to
display two license plates. It was also then learned that the
credit cards had been stolen.
At the suppression hearing, Officer Kukulka testified that it
is normal procedure to stop a person driving a car displaying
only one license plate and to take drivers to the police station
when they are unable to produce a valid driver's license.
However, Kukulka also quite candidly testified that he stopped
Keller on the technical traffic violation only because he hoped
to recover evidence of a more serious crime, since "many times a
traffic violation does lead to bigger things." (Tr. 10, 18-21).
In his motion, Keller argues that all evidence derived from the
warrantless search of his person should be suppressed for two
reasons. First, he claims that his initial stop by the police was
invalid because it was purely a pretext to search for other
evidence. Second, even if the stop was valid, the police did not
have probable cause to make a full custodial arrest until after
Keller was searched. Thus, the search was not authorized by
United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d
427 (1973), as incident to a custodial arrest and further, the
search exceeded the permissible scope of a Terry pat-down.
The government has responded that once Keller failed to produce
a driver's license, he was subject to custodial arrest. Under
Robinson, then, the full search was permissible. In regard to the
pretext issue, the government argues that the validity of an
arrest should be judged by an objective standard and not by the
arresting officer's subjective motives. Thus, since there was a
valid basis for a custodial arrest, independent of improper
motivations, the arrest and search were proper.
Preliminarily, Officer Kukulka testified and Keller argues that
it is not illegal to drive on a prior traffic ticket. Although
this practice apparently has no statutory basis, the Illinois
Appellate Court has commented on its validity several times.
People v. Morrison, 57 Ill.App.3d 468, 15 Ill.Dec. 174,
373 N.E.2d 520 (1978); People v. Cannon, 18 Ill.App.3d 781,
310 N.E.2d 673 (1974); People v. Jordan, 11 Ill.App.3d 482,
297 N.E.2d 273 (1973). Thus, it is an open question whether driving
on a prior ticket is sufficient indicia of criminality to justify
a full custodial arrest on the principles in People v. Brown,
38 Ill.2d 353, 231 N.E.2d 577 (1967) and People v. Pritchett,
75 Ill. App.3d 127, 30 Ill.Dec. 810, 393 N.E.2d 1157 (1979). Even if
it is not sufficient, however, when the police officer elects to
transport the driver in the squad car to post bond, then a full
search of the driver is permissible. Gustafson v. Florida,
414 U.S. 260, 93 S.Ct. 1494, 36 L.Ed. 177 (1973); People v. Redmond,
73 Ill.App.3d 160, 29 Ill.Dec. 838, 390 N.E.2d 1364 (1979). Since
Kukulka told Keller before the search was conducted that he was
taking Keller in, the search apparently was permissible. However,
as Keller argues, the pretext issue may taint all of Kukulka's
The invalidity of a pretextual arrest was articulated many
years ago by the Supreme Court: "An arrest may not be used as a
pretext to search for evidence." United States v. Lefkowitz,
285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). This
principle has been followed by many courts, United States v.
Hellman, 556 F.2d 442 (9th Cir. 1977); Amador-Gonzalez v. United
States, 391 F.2d 308 (5th Cir. 1968); Taglavore v. United
States, 291 F.2d 262 (9th Cir. 1961); People v. Fox,
62 Ill.App.3d 854, 20 Ill.Dec. 84, 379 N.E.2d 917 (1978); People
v. Lichtenheld, 44 Ill.App.3d 647, 3 Ill.Dec. 296,
358 N.E.2d 694 (1976), and since United
States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427
(1973), the issue has acquired added significance. In Robinson,
the Court decided there is no reason to limit a search incident
to a minor traffic arrest, because "[i]t is the fact of the
lawful arrest [for any reason] which establishes the authority to
search." 414 U.S. at 235, 94 S.Ct. at 476. The Robinson
dissenters, however, realized a potential for abuse of the
authority to search granted by the majority's opinion. Justice
Marshall noted, "There is always the possibility that a police
officer, lacking probable cause to obtain a search warrant, will
use a traffic arrest as a pretext to conduct a search." 414 U.S.
at 248, 94 S.Ct. at 482. Since the Robinson majority opinion was
based on the existence of a valid arrest, the pretext issue was
not addressed or resolved.
The government, here, has relied on a First Circuit case which
significantly curtails the applicability of a pretext arrest
argument. In United States v. McCambridge, 551 F.2d 865 (1st Cir.
1977), the court stated that ordinarily an arrest is judged by
"an objective standard rather than by inquiry into the officer's
presumed motives." 551 F.2d at 870. In that case, the defendant
driver was initially stopped for following too closely to another
car and the state law authorized an arrest for such a violation.
Further, there was no evidence that the stop was pretextual
because the sheriff had just stopped another car for the same
reason. Thus, the court held the arrest and search valid.
The McCambridge decision, however, is not persuasively
controlling here for two reasons. First, the rationale of the
decision virtually eliminates the possibility of ever proving a
pretextual arrest. If every arrest were judged by an objective
standard and upheld if there was a valid basis for arrest, then
there could never be a pretextual arrest. The concept assumes
that there is a basis for an arrest, but that the arrest is made
for the purpose of conducting a search for which there would not
otherwise be a justification. Although proving subjective motives
is unquestionably problematic, see LaFave, Search and Seizure
§ 5.2(e) at 285 (1978), to judge an arrest by an objective
standard ignores, instead of solves, the problem. Since fourth
amendment jurisprudence should be based upon a "jealous regard
for maintaining the integrity of individual rights", Mapp v.
Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081
(1961), the McCambridge approach is inappropriate.
In any event, there is a significant factual distinction which
provides a second reason for not following McCambridge. In that
case, the court found no evidence that the traffic stop was
pretextual, so it was left with the task of determining the
officer's motivation. In this case, there is no doubt that the
traffic stop was pretextual because Officer Kukulka frankly
admitted that. Thus, there is direct proof and no need to engage
in the difficult balance of circumstantial evidence of pretext
against an objectively valid basis for arrest.
A second case, from the Eighth Circuit, is arguably applicable
here and should also be considered. In United States v. Hollman,
541 F.2d 196 (8th Cir. 1976), the court assumed that a traffic
stop was pretextual, but it found that in the interval between
the stop and search independent events occurred that justified an
arrest and search. The intervening event was the tossing of
heroin out the window of the stopped car as the agents
approached. In this case, it might be argued that Keller's
failure to produce his driver's license was an intervening,
independent event justifying an arrest and search.
Again, however, a fundamental consideration justifies a
rejection of the Hollman rationale. That decision, in effect,
rewards the officer for his subterfuge; his pretextual stop
successfully uncovers other incriminating conduct or evidence and
then the government is permitted to use that evidence. This
approach fails to acknowledge that the intervening basis for
arrest is still the product of initial illegal action. The better
rule in this situation is enunciated in Taglavore v. ...