MOTOR VEHICLES - OPERATORS' LICENSES - LAW ENFORCEMENT OFFICERS - AUTHORITY TO STOP MOTORIST TO SEE OPERATOR'S LICENSE

MOTOR VEHICLES - OPERATORS' LICENSES - LAW ENFORCEMENT OFFICERS - AUTHORITY TO STOP MOTORIST TO SEE OPERATOR'S LICENSE.

A law enforcement officer has no authority, either statutory or common law, to stop a motorist for the sole purpose of determining whether the motorist has a valid operator's license on his person.

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                                                               December 10, 1959

Honorable J. Bruce Burns
State Representative, 27th District
1215 Ridgewood Avenue
Tacoma, Washington                                                                                 Cite as:  AGO 59-60 No. 88

Dear Sir:

            By letter previously acknowledged, you requested the opinion of this office on the following question:

            Does a law enforcement officer, either by statute or common law, have the authority or right to stop a motorist on the highways of the state of Washington, who has not committed a misdemeanor in the officer's presence and is not suspected by the officer of having committed a felony, for the sole purpose of determining whether or not the motorist has a valid operator's license on his person?

            We answer your question in the negative.

                                                                     ANALYSIS

            The facts implicit in your question are assumed to be as follows:

            A motorist is operating a motor vehicle upon a public highway when he is confronted by a uniformed peace officer.  The officer, by use of an arm signal, or some mechanical device such as a red light or siren, directs the operator to drive to the side of the highway and stop.  After the vehicle stops, the peace officer demands to see the operator's driver's license.  The purpose of this inspection is solely to determine whether the operator has a valid driver's license on his person.

             [[Orig. Op. Page 2]]

            Under these circumstances, there can be no doubt that such operator's freedom of locomotion -or liberty to come or go -is restrained.  The question remains, however, whether such restraint constitutes an arrest.

            4 Am.Jur., Arrest, § 2, contains the following definition:

            "An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. . . .  However, in all cases in which there is no manual touching or seizure or any resistance, the intentions of the parties to the transaction are very important; there must have been intent on the part of one of them to arrest the other, and intent on the part of such other to submit, under the belief and impression that submission was necessary. . . ."

            "Arrest," as the term is commonly used in the law, has been variously defined by the courts.  Perhaps one of the most comprehensive definitions is found in Black's Law Dictionary, 4th ed., which reads:

            "To deprive a person of his liberty by legal authority.  Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.  Ex parte Sherwood, 29 Tex. App. 334, 15 S.W. 812.  Physical seizure of person by arresting officer or submission to officer's authority and control is necessary to constitute an 'arrest.'  Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210, 213.  It is a restraint, however slight, on another's liberty to come and go.  Turney v. Rhodes, 42 Ga. App. 104, 155 S.E. 112.  It is the taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest.  [Citing cases]"

            In order to constitute an arrest, it is generally recognized that four elements must be present:

            1.  Intent to arrest.

            2.  Under real or pretended authority.

            3.  Accompanied by seizure or detention of the person.

            4.  Which is so understood by the person arrested.  6 C.J.S., Arrest § 1.

             [[Orig. Op. Page 3]]

            In the present instance it would appear that all of the aforementioned elements required of an arrest are present.

            First the officer's intent to seize or detain the vehicle operator is made manifest by his direction to such operator to stop.

            Second the officer's uniform, possibly coupled with his police vehicle, gives ample notice of the officer's assumption of authority, real or pretended.

            Third when the motorist stops in compliance with the direction of the peace officer, it cannot be denied that the former is, in fact, detained.

            Fourth when the motorist submits to the direction of the uniformed officer to stop, he must have understood that he was detained under authority of law, else he would be free to continue on, in disregard of the officer's signal.

            Application of the foregoing assumed facts to the definition of arrest, and the elements thereof, impels the conclusion that an arrest is technically effected when a motor vehicle operator submits to the direction of a uniformed peace officer to stop.  While we are unable to find any decision of the supreme court of this state ruling upon this precise issue, the courts of Oklahoma (Webster v. State, 96 Okla. Cr. Rep. 44 [[96 Okla. Crim. 44)]], 248 P. (2d) 646 (1952)), Tennessee (Robertson v. State, 184 Tenn. 277, 198 S.W. (2d) 633 (1947)), and Florida(City of Miami v. Aronovitz, 114 So. (2d) 784 (1959)), appear in accord with that conclusion.

            Having resolved that the stopping of a motor vehicle by a peace officer constitutes at least a technical arrest as to the vehicle operator, it is necessary to determine whether such an arrest is one which the laws of this state authorize.

            Since 1937 there have been in effect two sections of our motor vehicle laws from which it might be implied that a peace officer is authorized to stop a driver and inspect his operator's license.

            RCW 46.20.190 (cf. § 59 (b), chapter 188, Laws of 1937) reads:

            "Every person licensed as a vehicle operator shall write his usual signature with pen and ink in the space provided for that purpose on the vehicle operator's certificate issued to him immediately upon receipt thereof, and such license shall not be valid until the certificate is so signed.

            "The licensee shall have such vehicle operator's license in his immediate possession at all times when operating  [[Orig. Op. Page 4]] a motor vehicle and shall display it upon demand to any peace officer or to any other person when and if required by law to do so."  (Emphasis supplied)

            RCW 46.56.190 (cf. § 126, chapter 189, Laws of 1937) provides:

            "It shall be unlawful for any person while operating or in charge of a vehicle to refuse when requested by a peace officer to give his name and address and the name and address of the owner of the vehicle, or for such person to give a false name and address, andit shall likewise be unlawful for any such person to refuse or neglect to stop when signaled to stop by any peace officer or to refuse upon demand of such peace officer to produce his certificate of license registration for the vehicle or his vehicle operator's license or to refuse to permit the officer to take any such license or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of the vehicle or the weighing of the vehicle or to refuse or neglect to produce the certificate of license registration of the vehicle or his vehicle operator's license when requested by any court.  Any peace officer shall on request produce evidence of his authorization as such."  (Emphasis supplied)

            Neither of these statutes specifically authorizes a peace officer to stop vehicles solely for the purpose of ascertaining whether a driver has a valid operator's license.  Such authority must arise by implication - if at all -from the duties which our legislature has imposed upon motor vehicle operators in the language emphasized above.

            The problem, then, resolves itself into one of statutory construction.  Did our legislature, in enacting these provisions, intend to vest peace officers with authority to stop any motor vehicle and examine the operator's license of the driver at any time, irrespective of whether the driver had committed some crime?

            Prior to 1937 our supreme court had formulated a definite pattern of rules with respect to the right of a peace officer to arrest without a warrant.  InGreenius v. American Surety Co., 92 Wash. 401, 402, 159 Pac. 384 (1916), it stated:

            ". . . The right of a constable to arrest without warrant has not been defined by statute.  Authority to do so is to be found in the common law.  At common law, a peace officer could arrest without a warrant when he had reasonable grounds for  [[Orig. Op. Page 5]] believing that the party arrested had committed a felony.  [Citations of authorities]."

            InPavish v. Meyers, 129 Wash. 605, 225 Pac. 633 (1924) the court said at page 607:

            ". . . It is a general rule of law that a peace officer may, without a warrant therefor, arrest one who, in his presence, breaches the peace or threatens so to do.  25 Cyc. 465. . . ."

            And perhaps the most oft quoted statement of our supreme court in this regard is found inState v. Hughlett, 124 Wash. 366, 214 Pac. 841 (1923), at page 368, wherein it was said:

            ". . . In misdemeanor cases the officer may not arrest without a warrant therefor, except where the crime is being committed in his presence, or where he had actual knowledge that the person about to be arrested committed the crime.  But in cases amounting to a felony, if the officer believe, and have good reason to believe, that a person has committed, or is about to commit, or is in the act of committing a crime, then he may arrest without a warrant.  But the arresting officer must not only have a real belief of the guilt of the person about to be arrested, but such belief must be based upon reasonable grounds.  Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.  An officer may not arrest simply because he has some fleeting idea that one may be about to commit a felony, but he must have a reasonable ground for his belief.  2 R.C.L. 446-450; 5 C.J. 398 et seq; 416et seq.; State v. Symes, 20 Wash. 484, 55 Pac. 626. . . ."

            See also:State v. Zupan, 155 Wash. 80, 85, 283 Pac. 671 (1929); State v. Vennir, 159 Wash. 58, 291 Pac. 1098 (1930);Kalkanes v. Willestoft, 13 Wn. (2d) 127, 129, 124 P. (2d) 219 (1942);State ex rel. Fong v. Superior Court, 29 Wn. (2d) 601, 608, 188 P. (2d) 125 (1948).

            Both of the statutes in question are penal in character, it being a misdemeanor to violate either.  RCW 46.64.050 (§ 82, chapter 188, Laws of 1937; § 150, chapter 189, Laws of 1937).  See, also,Seattle v. Gordon, 154 Wash. Dec. 636 [[54 Wn. 2d 516)]], 342 P. (2d) 604 (1959), wherein it was recently held that a municipal ordinance making it "unlawful for any person while  [[Orig. Op. Page 6]] operating . . . any vehicle . . . to refuse or neglect to stop when signaled to stop by any peace officer" was recognized as a codification of the common-law crime of resisting arrest.  The language of the ordinance in question was apparently derived from RCW 46.56.190,supra.

            As stated in Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 8, § 5423, pp. 319, 320:

            "The provisions of the law authorizing municipal officers to arrest without warrant and upon view are strictly construed like all penal statutes and ordinances.  So, the power of municipal officers to arrest without process for mere quasi criminal offenses arising from violation of traffic ordinances should not be enlarged by judicial construction beyond what is expressly granted or is necessarily implied.  This is because such power is liable to serious abuses by police officers."

            The rule of statutory construction applicable to penal statutes was enunciated by our supreme court in the case of State v. Coolidge, 72 Wash. 42, 46, 129 Pac. 1088 (1913), as follows:

            "Penal statutes are to be strictly construed, to the end that no citizen shall be deprived of his liberty under statutes that are malum prohibitum only. . . ."

            See also,State v. Herr, 151 Wash. 623, 627, 276 Pac. 870 (1929) and cases cited therein.

            When RCW 46.20.190 and 46.56.190 are strictly construed -thereby omitting any statutory authority by implication that officers may stop a vehicle at any time for the sole purpose of examining the operator's license of the driver -there still remains the right and duty of a peace officer to arrest operators for misdemeanors committed in their presence, or for more serious offenses in accordance with the principles enunciated by our supreme court.  Thus, it may be seen that any implication of a broad general grant of power to police officers is not necessary to the operation of either section.

            Although it may appear that there should be considerable case authority on a subject as important as the legality of a peace officer stopping vehicles solely for the purpose of demanding the production and examination of drivers' licenses, our research has revealed scant text material (see 60 C.J.S., Motor Vehicles, § 157, and 5 A Am.Jur., Automobile and Highway Traffic, §§ 134, 1197) and few reported decisions precisely in point (see annotations collected in 143 A.L.R. 1019).  Since  [[Orig. Op. Page 7]] our supreme court has not ruled upon this particular issue, we have necessarily looked to the decisions of sister states for assistance in arriving at our conclusion recognizing that such decisions are considered valuable by our court.

            Of cases examined, one of the nearest in point is Robertson v. State, 184 Tenn. 277, 198 S.W. (2d) 633 (1947).  That case concerned the admissibility of evidence obtained after an automobile was stopped, ostensibly for the purpose of permitting state patrol officers to examine the operator's license of the driver.  The Tennessee statute authorizing state patrol officers to stop vehicles for this purpose, at that time, read, in part, as follows:

            "Every licensee shall have his operator's or chauffeur's license in his immediate possession at all times when operating a motor vehicle and shall display the same, upon demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division, provided, however, that it shall be unlawful for any law enforcing officer of this state, except a state patrolman or officer of this division, to demand the exhibition of said licenses, unless the operator of said motor vehicle shall then be or immediately prior to such demand have been engaged in a violation of any municipal ordinance or statute law of this state. . . ." (Emphasis supplied)  (10 Tenn. Code Ann. Ch. 7, 59-709)

            That section had been interpreted by the supreme court of Tennessee in the earlier case ofCox v. State, 181 Tenn. 344, 181 S.W. (2d) 338, 154 A.L.R. 809 (1944) in the following language:

            ". . . It clearly appears from Code, section 2715 (22), that all peace officers other than Highway Patrolmen have no authority to stop an automobile to examine a driver's license, except where such driver has violated a state law or municipal ordinance.  The exceptional authority conferred upon Highway Patrolmen was due to the fact that their chief duty was to enforce the traffic laws and ordinances in order to promote the safety of the traveling public. . . ."

            In the course of its opinion in the Robertson case, supra, the Tennessee court said at page 284:

            ". . . One of the few exceptions of the law relating to arrests without a warrant is the authority of highway patrol officers to stop a car and demand to see the license of the operator.  This authority in itself is not known to the common law and is of statutory origin only.  In fact, the authority  [[Orig. Op. Page 8]] is impliedly given in provisions of the laws relating to the issuance of licenses to drive automobiles.  Consequently this right of the officers should be strictly construed and made to stay within its proper limitations.  Others than State Highway patrolmen may not demand to see the license, unless the operator then or immediately prior, has been engaged in a violation of an ordinance or statute.  Code, Sec. 2715 (22).  The arrest is excusable because of revenue necessities and for the protection of the public against unqualified or dangerous operators.  As stated above, this authority should be exercised in good faith and all sincerity and if exercised as a pretext or a subterfuge for a search, it is an unlawful exercise of that authority and constitutes an unlawful arrest."  (Emphasis supplied)

            While in the case just cited the first portion of the statute there under consideration bears a striking resemblance to RCW 46.20.190, the reasoning of the court is not particularly persuasive.  Under the Tennessee statute, the legislative intention to give highway patrolmen authority to stop vehicles for the purpose of examining vehicle operators' licenses is made manifest by the proviso therein (underscored above).  But that is not the case in Washington.  Neither of the pertinent statutes (RCW 46.20.190 or 46.56.190) contains a similar proviso -or other language - clearly indicating legislative intent.

            InEdwards v. State, Okla., 1958, 319 P. (2d) 1021 (a case also concerning the admissibility of evidence obtained after stopping a vehicle for the purpose of examining the operator's license) a statute (47 O.S. 1951 § 285) containing substantially the same language as that of Tennessee (above quoted) with the exception of the proviso therein (cf. RCW 46.20.190) was considered in connection with another Oklahoma statute (47 O.S. 1951 § 366 (4)) which provided:

            "'When on duty, uponreasonable belief that any vehicle is being operated in violation of any provision of this Act, or any other law regulating the operation of vehicles, to require the driver thereof to stop and exhibit his driver's license' . . ." (cf. RCW 46.56.190)

            Construing the statutes together, the Criminal Court of Appeals of Oklahoma held:

            ". . . under such circumstances no peace officer could be justified in stopping a motor  [[Orig. Op. Page 9]] vehicle and demanding to examine a driver's license except 'upon reasonable belief' 'that the vehicle' is being operated in violation of any provision of the [motor vehicle] Act [47 O.S.A.] or any other law regulating the operation of vehicles, except perhaps where a road block has been established for wholesale checking."

            The Oklahoma legislature has by the latter implementing statute (47 O.S. 1951, § 366 (4)) made apparent its intention that police officers may require a driver to stop and exhibit his driver's license only upon reasonable belief of such officer that the vehicle was being operated in violation of the law.  Of course, the Oklahoma court's reference to "road blocks" for "wholesale checking" is dictum, being wholly unrelated to the facts of the case before it and entirely unnecessary to the disposition thereof.

            In the recent case ofCity of Miami v. Aronovitz, supra, the power of police officers to systematically stop automobiles at "road blocks" for the purpose of checking drivers' licenses was raised on appeal.  The statute there in question was substantially the same as RCW 46.20.190,supra.  The court concluded that although the conduct of the officers constituted a technical arrest, law enforcement officers should be permitted to make periodic check-ups on the driving license qualifications of those who operate motor vehicles on the highway in order to compel careful driving and protect the public against incompetent, dangerous or unqualified drivers.

            While the Florida court recognized that a "technical arrest" was effected, it found it unnecessary to discuss the conditions upon which such arrests are authorized by Florida law, other than by reference to the statute construed.  But, inasmuch as the Washington statutes are penal in character and are in derogation of the common law they must be strictly construed.  We are therefore hesitant to imply within them a power not expressed.  Accordingly, and with deference to the Florida court, we are reluctant to subscribe to its decision as applied to Washington law.

            In our opinion, nevertheless, none of the foregoing cases compel the conclusion that the authority delegated to peace officers under statutes comparable to RCW 46.20.190 and 46.56.190 necessarily includes the right to stop motorists whenever and wherever such officers see fit, solely for the purpose of examining operators' licenses.  If it was the intention of our legislature to grant such broad power to peace officers, it is not easy to understand why it is not specifically included in either of our statutes, or why such intent must be discovered by implication.  Cf.State v. Eberhart, 106 Wash. 222, 179 Pac. 853 (1919).

             [[Orig. Op. Page 10]]

            As stated in 16 C.J.S., Constitutional Law, § 202, p. 987:

            "Personal liberty, or the right to the enjoyment of life and liberty, is one of the fundamental or natural rights, which has been protected by its inclusion as a guaranty in the various constitutions, which is not derived from, or dependent on, the federal Constitution, and which may not be submitted to a vote and may not depend on the outcome of an election.  It is one of the most sacred and valuable rights; as sacred as the right of private property; or as occupying a preferred position as contrasted with property rights; and is regarded as inalienable."

            This concept is further amplified in 11 Am.Jur., Constitutional Law, § 329, p. 1135 wherein it is said:

            "Personal liberty largely consists of the right of locomotion -to go where and when one pleases - only so far restrained as the rights of others may make it necessary for the welfare of all other citizens.  The right of a citizen to travel upon the public highways and to transport his property thereon, by horse drawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but a common right which he has under his right to life, liberty, and the pursuit of happiness.  Under this constitutional guaranty one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's rights, he will be protected, not only in his person, but in his safe conduct."

            See also,Teche Lines, Inc. v. Danforth, 195 Miss. 226, 12 So. (2d) 784 (1943).

            InBarbour v. Walker, 126 Okla. 227, 259 Pac. 552, 56 A.L.R. 1049, 1053, the distinction between the right of a citizen to use the public highways for private, rather than commercial purposes is recognized:

            "In Ex parte Dickey (Dickey v. Davis) 76 W.Va. 576, L.R.A. 1915 F, 840, P.U.R. 1915 E, 93, 85 S.E. 781, we find this apt expression of the court: 'The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously  [[Orig. Op. Page 11]] from that of one who makes the highway his place of business and uses it for private gain, in the running of a stagecoach or omnibus.  The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary.  As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader, the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature.  This distinction, elementary and fundamental in character, is recognized by all the authorities: . . ."

            (As to the power of the legislature to prohibit or condition special or extraordinary uses of the highway, i.e., commercial use, as it sees fit, see:  Stephenson v. Binford, 287 U.S. 251, 77 L.Ed. 288, 53 S.Ct. 181, 87 A.L.R. 721, 727; Robertson v. Department of Public Works, 180 Wash. 133, 135, 39 P. (2d) 596 (1934); Pacific Inland Tariff Bureau v. Schaaf, 1 Wn. (2d) 210, 216, 95 P. (2d) 781 (1939))

            Under its power toregulate private use of our highways, our legislature has required that motor vehicle operators be licensed.  RCW 46.20.190.  Undoubtedly, the primary purpose of this requirement is to insure, in so far as possible, that all motor vehicle operators will be competent and qualified, thereby reducing the potential hazard, or risk of harm, to which other users of the highway might otherwise be subject.  But once having complied with this regulatory provision by obtaining the requisite operator's license, a motorist enjoys the privilege of traveling freely upon the public highways without unauthorized detention or restraint.

            We cannot overlook the merit in, and forcefulness of, the argument that a broad delegation of authority is essential to the enforcement of the licensing requirement (seePeople v. Utsman, 166 N.Y.S. (2d) 358 (1957)).  However, a right as precious as the freedom of an individual who has not violated any law to travel wherever he pleases without interruption should not be denied by implication where an equally consistent construction not impairing such right is possible.

            Accordingly, it is our conclusion that peace officers have no statutory authority under RCW 46.20.020 and 46.56.190 to stop motorists solely for the purpose of examining their drivers' licenses, except in such cases as they are otherwise entitled by law.

             [[Orig. Op. Page 12]]

            Since an officer is without authority to stop one car for this purpose, it follows that wholesale checking, whether by means of a "road block," wherein all cars are stopped, or "spot checking," wherein only certain cars are temporarily stopped and the remainder are permitted to proceed, is likewise unlawful.

            Consistent with the established policy of this office, we have assumed that the pertinent statutes are constitutional.  Accordingly, we have not inquired into possible constitutional objections.  Our function has been simply to construe these statutes as written.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. HALL
Assistant Attorney General