Navarro Motion to Suppress PC 1538 10 Jan 2011 STAMPED

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DARIO NAVARRO A TTO R NEY A T LA W

CARMEL VALL EY , C A

NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES

Dario Navarro, Esq. (State Bar No. 102575) LAW OFFICE OF DARIO NAVARRO P.O. Box 254 14338 West Side Drive Carmel Valley, CA 93924-0254 Telephone: 831.659.2836 Facsimile: 831.308.7535 Email: [email protected] Attorney for Defendant SHAWN RUDY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LAKE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

v.

SHAWN RUDY,

Defendant.

CASE NO. CR-919218

NOTICE OF MOTION AND MOTION TO SUPPRESS EVIDENCE; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DARIO NAVARRO (Penal Code § 1538.5)

Date: January 21, 2011 Judge: Hon. Stephen O. Hedstrom Time: 8:15 AM Dept.: 4

TO: THE DISTRICT ATTORNEY FOR THE COUNTY OF LAKE

PLEASE TAKE NOTICE that on January 21, 2011 at 8:15 a.m. or as soon thereafter

as the matter can be heard in the above-entitled court, Defendant SHAWN RUDY will move

the above-entitled Court pursuant to Section 1538.5 of the California Penal Code to suppress

the evidence listed in the attached Schedule of Items to Be Suppressed obtained during the

unlawful search, seizure, detention and arrest of Defendant. This motion is based on the

grounds that the detention and arrest of Defendant were made without reasonable suspicion,

without probable cause and without a warrant in violation of the fourth and fourteenth

amendments of the United States Constitution and Section 13 of Article I of the California

Constitution. U.S. CONST. amends. IV & XIV.

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Suppression of the evidence is sought on the specific grounds that the traffic stop,

detention, arrest, search and seizure effected by a security patrol officer employed by Hidden

Valley Lake Association on March 15, 2009 in the Hidden Valley Lake subdivision of the

County of Lake, California constituted “state action” under the totality of the circumstances of

this case in violation of the aforementioned federal and state constitutional guarantees against

unreasonable search and seizure such as would render all the evidence derived therefrom

inadmissible at trial by operation of the exclusionary rule first applied to the states in Mapp v.

Ohio, 367 U.S. 643, 654 (1961).

This motion specifically includes all fruits of any unconstitutional search and seizure as

specified in detail in the attached Schedule of Items to Be Suppressed including, but not

limited to, all items seized from Defendant’s person, vehicle, residence or any other site, all

personal items or other belongings, within a zone subject to a legitimate expectation of privacy,

whether actually or constructively possessed by Defendant at the time of any search or seizure,

all statements and gestures of Defendant made or observed at the time of or after any

unconstitutional search or seizure; all items seized, statements obtained and observations made

during the course, or as fruits of, any aforementioned unconstitutional search or seizure,

testimony or statements of witnesses, statements and observations of police or security officers,

all subsequent statements and anticipated testimony of any party, and all fruits thereof.

This motion is based on this Notice, the attached Memorandum of Points and

Authorities, the accompanying Request for Judicial Notice, on the papers and records on file in

this action, as well as any other oral or documentary evidence and legal argument as may be

presented at the suppression hearing.

Dated: January 10, 2011

Respectfully submitted,

Dario Navarro Attorney for Defendant Shawn Rudy

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Schedule of Items to Be Suppressed

While reserving the right to exclude additional evidence that is developed at the

suppression hearing of this motion, Defendant specifically includes in this motion all tangible

and intangible evidence and statements obtained as a direct or indirect result of any warrantless

detention or arrest or any illegal act, search, seizure, or interrogation, including all fruits of any

unconstitutional search and seizure as further specified below:

(1) the observations and all reports, notes, audio recordings and video recordings made

by any employee of the Hidden Valley Lake Association (HVLA), including but not limited to

HVLA Security Patrol Officer McKelvey, from the moment HVLA Security Patrol Officer

McKelvey turned on his flashing amber lights while pursuing Defendant on March 15, 2009;

(3) the observations and all reports, notes, audio recordings and video recordings of

Officer Randy H. Forslund of the California Highway Patrol on March 15, 2009;

(3) the observations and all reports, notes, audio recordings and video recordings of

any other officer of the California Highway Patrol called to the scene on March 15, 2009;

(4) all evidence of performance of field sobriety tests undertaken by Defendant on

March 15, 2009 or thereafter;

(5) all statements made by Defendant to any HVLA security officer or any officer of

the California Highway Patrol or other peace officer on March 15, 2009 after the traffic stop;

(6) the Hidden Valley Lake Association Incident Report in HVLA Case No. 09-03-042

by HVLA Security Patrol Officer McKelvey, dated March 15, 2009;

(7) California Highway Patrol Notice to Appear No. 64968-JP, citing Defendant, dated

March 15, 2009 and signed by Officer Randy H. Forslund of the California Highway Patrol;

(8) Department of California Highway Patrol, Driving Under the Influence Arrest-

Investigation Report, dated March 17, 2009 and signed by Officer Randy H. Forslund of the

California Highway Patrol concerning the investigation and arrest of Defendant;

(9) Age 21 and Older Officer’s Statement by Officer Randy H. Forslund of the

California Highway Patrol, dated March 15, 2009;

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(10) Department of California Highway Patrol Evidence Report by Officer Randy H.

Forslund of the California Highway Patrol concerning evidence seized from Defendant;

(11) all physical evidence obtained by HVLA Security Patrol Officer McKelvey,

Officer Randy H. Forslund of the California Highway Patrol, any HVLA security officer or any

officer of the California Highway Patrol, including but not limited to one clear plastic bag

containing marijuana with an alleged net weight of 10.3 grams and an alleged gross weight of

18.3 grams;

(12) the test results reported in the Breath Alcohol Discovery Report from the Bureau

of Forensic Services, California Department of Justice, dated March 15, 2009 and all related

documentation;

(13) the test results reported in the Breath Alcohol District Attorney’s Report from the

Bureau of Forensic Services, California Department of Justice, dated March 15, 2009 and all

related documentation;

(14) Completed Incident Report, California Highway Patrol, Centralized Cad

Journaling System, dated March 15, 2009; and

(15) In re Rudy, Administrative Per Se Hearing, Notification of Findings and Decision,

signed by “PV Emershaw” and dated August 25, 2009.

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MEMORANDUM OF POINTS AND AUTHORITIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................... i

SUMMARY OF ARGUMENT............................................................................................ 1

STATEMENT OF FACTS .................................................................................................. 2

ARGUMENT ...................................................................................................................... 4

I. SINCE HVLA’S ENACTMENT OF ITS OWN TRAFFIC CODE, ITS ENFORCEMENT OF THE CALIFORNIA VEHICLE CODE AND THE POLICE TRAFFIC STOP MADE BY HVLA PATROL OFFICER MCKELVEY WERE “STATE ACTION,” THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES APPLIES IN THIS CASE. ... 4

A. The U.S. Supreme Court has articulated at least four distinct tests for determining whether, under “all the circumstances of the case,” the actions of an ostensibly private individual, such as HVLA Patrol Officer McKelvey, amount to state action: (1) the public function test, (2) the state compulsion test, (3) the governmental nexus test and (4) the joint action test. .................. 5

1. The totality of the circumstances must be considered. .......................... 5

2. The U.S. Supreme Court has articulated at least four distinct tests to determine whether the actions of an ostensibly private person constitute “state action.” ...................................................................... 7

B. Each of the four distinct “state action” tests is satisfied in this case. .............. 7

1. HVLA conduct meets the “public function” test for “state action.” ....... 7

a. The key elements of the “public function” test are (1) state authorization of the challenged conduct and (2) the exercise of powers traditionally and exclusively reserved to the state. ........... 7

b. The challenged HVLA conduct meets the “public function” test because it (1) was authorized by the state and (2) entails the exercise of powers traditionally and exclusively reserved to the state. ............................................................................................ 15

(1) Lake County has expressly authorized HVLA security officers to enforce the California Vehicle Code on HVLA’s private roadways. ................................................................ 18

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(2) The Lake County District Attorney has expressly authorized HVLA security officers to enforce the California Vehicle Code on HVLA’s private roadways and make police traffic stops. .................................................... 22

(3) The State of California has delegated governmental rulemaking powers to HVLA in the Davis-Stirling Common Interest Development Act. ................................... 25

(4) HVLA and HVLA Patrol Officer McKelvey have exercised powers that are traditionally and exclusively reserved to the State of California and its duly licensed peace officer agents. ................................................................................ 28

2. The “state compulsion” test for “state action” is satisfied in this case. .. 42

3. The “governmental nexus” test for “state action” is met in this case. .... 43

4. The “joint action” test for “state action” is satisfied in this case. ........... 43

II. SINCE THE CHALLENGED POLICE TRAFFIC STOP CONSTITUTED “STATE ACTION” AND FOURTH AMENDMENT PROTECTIONS APPLY, ALL EVIDENCE DERIVED THEREFROM MUST BE SUPPRESSED AT TRIAL UNDER THE EXCLUSIONARY RULE. ................................................. 45

A. HVLA Patrol Officer McKelvey subjected Defendant to an arbitrary police traffic stop without probable cause or even reasonable suspicion to believe that any crime or traffic infraction had occurred. ........................................... 45

B. The fruits of the illegal detention and arrest resulting from the HVLA Patrol Officer McKelvey’s police traffic stop are tainted and may not be used as evidence. ...................................................................................................... 49

C. CHP Officer Forslund lacked probable cause to arrest Defendant because he did not see Defendant actually driving his vehicle. ........................................ 49

D. Exclusion of the evidence would further the purposes of the exclusionary rule by deterring police misconduct and preserving judicial integrity. ........... 50

CONCLUSION.............................................................................................................. 50

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TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Arizona v. Johnson 555 U.S. ___ (2009), No. 07-1122, slip op. (U.S. Jan. 26, 2009) ....................................... 49

Atwater v. Lago Vista 532 U. S. 318 (2001) ......................................................................................................... 46

Blum v. Yaretsky 457 U.S. 991 (1982) ........................................................................................................ 8, 42

Brendlin v. California 551 U.S. 249 (2007) ........................................................................................................ 49

Brentwood Academy v. Tennessee Secondary School Athletic Assn. 531 U.S. 288 (2001) ............................................................................................... 6, 7, 10, 43

Burdeau v. McDowell 256 U.S. 465 (1921) ......................................................................................................... 5

Burton v. Wilmington Parking Authority 365 U.S. 715 (1961) ........................................................................................................ 5, 43

Connally v . General Const. Co. 269 U.S. 385 (1926) .......................................................................................................... 48

Coolidge v. New Hampshire 403 U.S. 443 (1971) .......................................................................................................... 5

Delaware v. Prouse 440 U. S. 648 (1979) ...................................................................................................... 46, 47

Dennis v. Sparks 449 U.S. 24 (1980)............................................................................................................ 43

Edmonson v. Leesville Concrete Co. 500 U.S. 614 (1991) ....................................................................................................... 6

Elkins v. United States 364 U.S. 206 (1960) ....................................................................................................... 44, 50

Evans v . Newton 382 U.S. 296 (1966) ....................................................................................................... 8, 9

Flagg Bros., Inc. v. Brooks 436 U.S. 149 (1978) ............................................................................................. 8, 9, 10, 11

Grayned v. City of Rockford 408 U.S. 104 (1972) .......................................................................................................... 48

Griffin v. Maryland 378 U.S. 130 (1964) ............................................................................................ 10, 11, 14, 20

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Jackson v. Metropolitan Edison Co. 419 U.S. 345 (1974) ............................................................................................. 8, 11, 12, 43

Herring v. United States 555 U.S. 135 (2009) .......................................................................................................... 50

Lanzetta v. New Jersey 306 U.S. 451 (1939) .......................................................................................................... 48

Lebron v. National R.R. Passenger Corp. 513 U.S. 374 (1995) ........................................................................................................ 5

Lugar v. Edmonson Oil Co. 457 U.S. 922 (1982) .......................................................... 7, 10, 11, 12, 15, 16, 17, 29, 38, 41

Mapp v. Ohio 367 U.S. 643 (1961) .......................................................................................................... 44

Marsh v. Alabama 326 U.S. 501 (1946) ........................................................................................................ 8

Moose Lodge v. Irvis 407 U.S. 163 (1972) ....................................................................................................... 9

Nixon v. Condon 286 U.S. 73 (1932)............................................................................................................ 8

Rakas v. Illinois 439 U.S. 128 (1978) .......................................................................................................... 46

Reitman v. Mulkey 387 U.S. 369 (1967) .......................................................................................................... 43

Rendell-Baker v. Kohn 457 U.S. 830 (1982) .......................................................................................................... 8

Skinner v. Railway Labor Executives’ Assn. 489 U.S. 602 (1989) .......................................................................................................... 5

Smith v. Allright 321 U.S. 649 (1944) .......................................................................................................... 8

Terry v. Adams 345 U.S. 461 (1953) .......................................................................................................... 8

Terry v. Ohio 392 U.S. 1 (1968) ............................................................................................................. 45

United States v. Brignoni-Ponce 422 U. S. 873 (1975) ......................................................................................................... 46

United States v. Classic 313 U. S. 299 (1941) ......................................................................................................... 20

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United States v. Crews 445 U.S. 463 (1980) .......................................................................................................... 49

United States v. Lanier 520 U.S. 259 (1997) .......................................................................................................... 48

United States v. Price 383 U.S. 787 (1966) ......................................................................................................... 10

United States v. Salvucci 448 U.S. 83 (1980)............................................................................................................ 46

Whren v. United States 517 U.S. 806 (1996) .......................................................................................................... 46

Williams v. United States 341 U.S. 97 (1951)............................................................................................................ 10

Wong Sun v. United States 371 U.S. 471 (1973) .......................................................................................................... 49

CALIFORNIA COURT CASES

Bailey v. Filco, Inc. 48 Cal.App.4th 1552 (1996) .............................................................................................. 16

Bruce v. Gregory 65 Cal.2d 666 (1967) ........................................................................................................ 24

Burg v. Municipal Court 35 Cal.3d 257 (1983) ........................................................................................................ 48

Chantiles v. Lake Forest II Master Homeowners Assn. 37 Cal.App.4th 914 (1995) ................................................................................................ 27

Citizens Against Gated Enclaves v. Whitley Heights Civic Assn. 23 Cal.App.4th 812 (1994) ................................................................................................ 40

City of Lafayette v. County of Contra Costa 91 Cal.App.3d 749 (1979) ................................................................................................. 40

County of Los Angeles v. City of Alhambra 27 Cal.3d 184 (1980) ........................................................................................................ 39

DuBois v. Workers’ Comp. Appeals Bd. 5 Cal.4th 382 (1993) ......................................................................................................... 24

Duffey v. Superior Court 3 Cal.App.4th 425 (1992).................................................................................................. 27

In re Alonzo C. 87 Cal.App.3d 707 (1978) ................................................................................................. 49

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In re Christopher H. 227 Cal.App.3d 1567 (1991) ............................................................................................. 11, 12

In re Tony C. 21 Cal.3d 888 (1978) ........................................................................................................ 49

Lisa M. v. Henry Mayo Newhall Memorial Hospital 12 Cal.4th 291 (1995) ...................................................................................................... 16

Lockridge v. Superior Court 3 Cal.3d 166 (1970) ......................................................................................................... 49

Mary M. v. City of Los Angeles 54 Cal.3d 202 (1991) ....................................................................................................... 16

Mercer v. Department of Motor Vehicles 53 Cal.3d 753 (1991) ...................................................................................................... 49, 50

Music v. Department of Motor Vehicles 221 Cal.App.3d 841 (1990) .............................................................................................. 50

Nahrstedt v. Lakeside Village Condominium Assn. 8 Cal.4th 361 (1994) ......................................................................................................... 25

People v. Comacho 23 Cal.4th 824 (2000) ..................................................................................................... 45

People v. Engleman 116 Cal.App. 3d Supp. 14 (1981) ...................................................................................... 50

People v. Glick 203 Cal.App.3d 796 (1988) ............................................................................................... 46

People v. Hagedorn 127 Cal.App.4th 734 (2005) .............................................................................................. 48

People v. Harris 256 Cal.App.2d 455 (1967) ............................................................................................... 14

People v. Lionberger 185 Cal.App.3d Supp. 1 (1986) ......................................................................................... 46

People v. Mirmirani 30 Cal.3d 375 (1981) ........................................................................................................ 48

People v. Superior Court (Engert) 31 Cal.3d 797 (1982) ........................................................................................................ 48

People v. Superior Court (Simon) 7 Cal.3d 186 (1972) .......................................................................................................... 47

People v. Taylor 222 Cal.App.3d 612 (1990) ............................................................................................... 12

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People v. Teresinski 30 Cal.3d 822 (1982) ........................................................................................................ 49

People v. Vincelli 132 Cal.App.4th 646 (2005) .............................................................................................. 47

People v. Welch 151 Cal.App.3d 1038 (1984) ............................................................................................. 49

People v. Wells 38 Cal.4th 1078 (2006) ..................................................................................................... 47

People v. Williams 20 Cal.4th 119 (1999) ....................................................................................................... 45

Pipoly v. Benson 20 Cal.2d 366 (1942) ........................................................................................................ 40

Rumford v. City of Berkeley 31 Cal.3d 545 (1982) ........................................................................................................ 40

Villa Milano Homeowners Assn. v. Il Davorge 84 Cal.App.4th 819 (2000)................................................................................................ 27

FEDERAL COURT CASES

Collins v. Womancare 878 F. 2d 1145 (9th Cir. 1989), cert. denied, 493 U.S. 1056 (1990) ............................. 7, 10, 12

Fonda v. Gray 707 F.2d 435 (9th Cir.1983) .............................................................................................. 44

George v. Pacific-CSC Work Furlough 91 F.3d 1227 (9th Cir. 1996) ............................................................................................ 7

Gorenc v. Salt River Project Agricultural Improvement & Power Dist. 869 F.2d 503 (9th Cir.), cert. denied, 493 U.S. 899 (1989) ............................................... 45

Lee v. Katz 276 F.3d 550 (9th Cir.2002) ............................................................................................ 8

Lindsey v. Detroit Entertainment, LLC 484 F.3d 824 (6th Cir. 2007) ............................................................................................ 13, 14

Payton v. Rush-Presbyterian 184 F.3d 623 (7th Cir. 1999) ............................................................................................. 13

Romanski v. Detroit Entertainment, LLC 428 F.3d 629 (6th Cir. 2005) ........................................................................................... 13, 14

Spencer v . Lee 864 F.2d 1376 (7th Cir. 1989) ........................................................................................ 8

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Wade v. Byles 83 F.3d 902 (7th Cir. 1996) ........................................................................................... 13 OTHER STATE COURT CASES

People v. Stormer 518 N.Y.S.2d 351 (1987) ............................................................................................. 14, 15, 41

UNITED STATES CONSTITUTION

U.S. CONST. amend. IV .............................. 1, 4, 5, 11, 14, 15, 16, 29, 42, 43, 44, 45, 46, 47, 50 U.S. CONST. amend. XIV .......................................................................................... 10, 44, 48

CALIFORNIA CONSTITUTION

CAL. CONST. art. I, § 1(a) ............................................................................................... 18, 19 CAL. CONST. art. IV, § 1.................................................................................................... 41 CAL. CONST. art. IV, § 16 ............................................................................................... 24, 40 CAL. CONST. art. V, § 13 ................................................................................................ 24, 40 CAL. CONST. art. X, § 6 ..................................................................................................... 41

CALIFORNIA STATE STATUTES

California Business and Professions Code § 7582............................................................................................................................... 36 § 7582.05 .......................................................................................................................... 36 § 7582.3 ............................................................................................................................ 36

California Civil Code § 1350-78 ........................................................................................................................ 17, 25 § 1351............................................................................................................................ 25, 26 § 1353............................................................................................................................... 26 § 1353.5 ............................................................................................................................ 26 § 1353.6 ............................................................................................................................ 26 § 1354............................................................................................................................... 26 § 1357.100 ........................................................................................................................ 26 § 1357.110 ..................................................................................................................... 27, 28 § 1363............................................................................................................................... 38

California Evidence Code § 452 ............................................................................................................................... 14, 21 § 453 ............................................................................................................................... 14, 21

California Corporations Code § 7140........................................................................................................................ 25, 26, 38

California Penal Code § 487 ................................................................................................................................ 41

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§ 488 ................................................................................................................................ 41 § 490.1.............................................................................................................................. 41 § 594 ................................................................................................................................ 41 § 830 ................................................................................................................................ 20 § 830.1.............................................................................................................................. 41 § 830.2.............................................................................................................................. 41 § 836 ................................................................................................................................ 49 California Vehicle Code § 21 ..................................................................................................................... 24, 38, 39, 40 § 385 ............................................................................................................................. 19, 37 § 625 ................................................................................................................................ 19 § 2800.1 ............................................................................................................................ 35 § 21100 ................................................................................................................ 19, 20, 39, 40 § 21107.7 ...................................................................................................... 17, 18, 20, 21, 32 § 21115 ............................................................................................................................. 37 § 21460 .......................................................................................................................... 37, 47 § 25279 ............................................................................................................................. 35 § 21806 ............................................................................................................................. 35 § 23512 ............................................................................................................................. 49 § 40802 ............................................................................................................................. 42 2010 Cal. Stat. ___ (Chapter 616) .................................................................................. 38, 39

LOCAL ORDINANCES, RESOLUTIONS AND OTHER AUTHORITIES

BOS Res. 90-315 ............................................................... 18, 19, 20, 21, 22, 23, 24, 32, 38, 40 Dana Point City Council Res. 06-16.................................................................................. 21 DATEP ................................................................................................... 20, 22, 23, 24, 38, 44 El Dorado County BOS Res. 067-2009 ............................................................................. 21 Irvine City Council Res. 01-07.......................................................................................... 21 Los Angeles County BOS Order 21 .................................................................................. 21 San Anselmo Town Council Res. 3346 ............................................................................ 21 Santa Barbara County BOS Res. 08-127 .......................................................................... 21 Thousand Oaks City Council Res. 2007-054 .................................................................... 21

CALIFORNIA ATTORNEY GENERAL OPINIONS 16 Ops.Cal.Atty.Gen. 137 (1950) ...................................................................................... 36 68 Ops.Cal.Atty.Gen. 101 (1985) ...................................................................................... 40 75 Ops.Cal.Atty.Gen. 80 (1992) ........................................................................................ 40 76 Ops.Cal.Atty.Gen. 31 (1993) ........................................................................................ 40 78 Ops.Cal.Atty.Gen. 65 (1995) ........................................................................................ 40

FEDERAL STATUTES AND REGULATIONS

18 U.S.C. § 242 ................................................................................................................ 10 42 U.S.C. § 1983 .............................................................................................................. 10

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47 U.S.C. § 301 ................................................................................................................ 42 47 C.F.R. § 90 .................................................................................................................. 42

OPERATING RULES OF HIDDEN VALLEY LAKE ASSOCIATION (“HVLA”)

HVLA Articles of Incorporation AOI, art. II ........................................................................................................................ 29

HVLA Declaration of Covenants, Condition and Restrictions DEC. art. I, § 21................................................................................................................. 30 DEC. art. VI, § 1 ................................................................................................................ 31 DEC. art. VI, § 2 ................................................................................................................ 31 DEC. art. VI, § 3 ................................................................................................................ 31 DEC. art. X, § 17 ............................................................................................................... 31 DEC. art. XIV .................................................................................................................... 41

HVLA Bylaws BYLAWS, art. II, § 2 .......................................................................................................... 30 BYLAWS, art. VII, § 1 ..................................................................................................... 30, 31

HVLA Board Resolutions HVLA Res. 93-32 ............................................................................................................. 32 HVLA Res. 2000-10 ......................................................................................................... 32 HVLA Res. 2003-13 .................................................................................................. 24, 25, 33 HVLA Res. 2008-09 .............................................................................33, 34, 35, 36, 37, 41, 47

OTHER AUTHORITIES

Charles L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 HARV. L. REV. 69 (1967) ............................................................... 6

FCC Public Notice: FCC Regulates Radar Transmitters, But Not Radar Detectors, DA 96-2040, 11 F.C.C.R. 17268 (released Dec. 9, 1996) ................................................... 25

Susan F. French, California Law Revision Commission Background Study: Scope of Study of Laws Affecting Common Interest Developments (Nov. 2000) .................................. 25

Wilson R. Huhn, The State Action Doctrine and the Principle of Democratic Choice, 34 HOFSTRA L. REV. 1379 (2006) ................................................................................... 5, 7

Elizabeth E. Joh, The Paradox of Private Policing, 95 J. CRIM. L. & CRIMINOLOGY 49 (2004) ......................................................................................................................... 9, 11

Alan R. Madry, State Action and the Due Process of Self-Help: Flagg Bros. Redux, 62 U. PITT. L. REV. 1 (2000) ................................................................................................. 6

Martin McGuinness, The “Silver Platter” in the Context of State Constitutional Adjudication, 71 ALBANY L. REV. 1242, 1242-44 (2009) ............................................. 45

Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom, 92 GEO. L.J. 779, (2004) ......................................................................................................................... 6

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David A. Sklansky, The Private Police, 36 U.C.L.A. L. REV. 1165 (1999) ........................... 9

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SUMMARY OF ARGUMENT

This is a case of first impression. Never before has a California court considered

whether the actions of a security officer constituted “state action” under the extraordinary

circumstances present in this case. First, HVLA’s enactment of its own vehicle code, its

enforcement of the California Vehicle Code and the challenged police traffic stop made by

HVLA Patrol Officer McKelvey in this case constituted “state action” such as would trigger the

protections against unreasonable searches and seizures guaranteed by the fourth amendment of

the United States Constitution. The U.S. Supreme Court has articulated at least four distinct

tests for determining whether, under all the circumstances of the case, the actions of a private

individual, such as HVLA Patrol Officer McKelvey, amount to state action: (1) the public

function test, (2) the state compulsion test, (3) the governmental nexus test and (4) the joint

action test. The challenged conduct meets all of them, but primary attention has been devoted

to establishing that the requirements of the “public function” test have been satisfied. The key

elements of the “public function” test are (1) state authorization of the challenged conduct and

(2) the exercise of powers traditionally and exclusively reserved to the state. Since agencies of

the State of California have expressly authorized the challenged conduct and such conduct can

only be manifested as an exercise of powers traditionally and exclusively reserved to the State

of California and its licensed police agents, the challenged conduct satisfies the “public

function” test and is, thus, “state action,” such that fourth amendment protections apply.

Second, all the evidence derived from the challenged police traffic stop made by

HVLA Patrol Officer McKelvey, as a de facto police officer or de facto traffic officer,

putatively pursuant to the California Vehicle Code and the state-authorized HVLA Vehicle

Code, must be suppressed at trial by operation of the fourth amendment exclusionary rule. No

probable cause or even reasonable suspicion existed to justify the police traffic stop. Defendant

had a reasonable expectation of privacy driving down the road in his own vehicle. Exclusion of

the evidence would further the purposes of the exclusionary rule by deterring police misconduct

and preserving judicial integrity. Therefore, Defendant’s arbitrary detention, arrest, search and

seizure violated the fourth amendment and all evidence derived therefrom must be suppressed.

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STATEMENT OF FACTS

In the darkness of the middle of the night, on Sunday, March 15, 2009, at or around

12:55 AM, HVLA Security Patrol Officer Keith McKelvey, an employee of the Hidden Valley

Lake Association (HVLA), subjected Defendant SHAWN RUDY to a police traffic stop in

Defendant’s own truck on Mountain Meadow South (MMS) Road, within the Hidden Valley

Lake (HVL) subdivision in the County of Lake (Lake County), California. Prior to making this

arbitrary police traffic stop, HVLA Officer McKelvey, by his own admission, “activated” the

“overhead amber lights” mounted on the rooftop of his HVLA patrol vehicle and “began

following the suspect vehicle to affect [sic] a stop.” HVLA Incident Report, HVLA Case No.

09-03-042 (Mar. 15, 2009), p. 1. Defendant is not an HVL resident or a member of HVLA.

HVLA Patrol Officer McKelvey followed Defendant’s Dodge Ram 1500 Quad Cab

Pickup Truck eastbound on Mountain Meadow North (MMN) Road with his HVLA security

patrol vehicles amber lights flashing. As Defendant turned right onto MMS Road, HVLA

Patrol Officer McKelvey continued to follow Defendant’s truck until Defendant, believing

himself subject to a mandatory traffic stop in response to the flashing amber light display,

pulled onto an unpaved right-of-way between MMS Road and Old Creek Road and came to a

complete stop. HVLA Patrol Officer McKelvey then subjected Defendant and a passenger,

Joshua Ferrell, to routine police traffic stop procedures. Defendant was commanded to produce

a driver’s license and vehicle registration. Passenger Ferrell was commanded to produce

identification. Defendant produced only his driver’s license. Mr. Ferrell was eventually

allowed to depart from the scene, but Defendant was retained and effectively arrested by HVLA

Patrol Officer McKelvey. Defendant gave Mr. Ferrell his wallet before he left.

Prior to the police traffic stop, Defendant had been following a friend’s vehicle, driven

by Ms. Jenna Barber, who was accompanied by a passenger, Mr. Zachary R. Slikkerveer. The

two vehicles were headed to the home of a common friend within HVL. Ms. Barber did not

know the way to the friend’s home, but Defendant did. Consequently, at a safe location, Ms.

Barber carefully pulled her vehicle completely off MMN Road onto the wide expanse of a

private driveway and came to a stop parallel to the road. Defendant passed Ms. Barber’s

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vehicle while it was safely stopped and completely off the road. Both Ms. Barber and Mr.

Slikkerveer, who were located just a few feet away from Defendant’s truck as it passed them,

will testify that they personally witnessed Defendant pass Ms. Barber’s vehicle within the speed

limit and that Defendant did not cross the double lines at the center of MMN Road.

HVLA Patrol Officer McKelvey has alleged that he saw Defendant’s truck cross over

the double lines on MMN Road. At the time of the stop, he implausibly told Defendant that he

saw Defendant “run” Ms. Barber’s car “off the road,” which Defendant immediately denied and

explained that, in fact, Ms. Barber had merely pulled off the road so that Ms. Barber could

follow Defendant to a friend’s home, the exact location of which was not known to her. HVLA

Patrol Officer McKelvey himself admits that he was “approximately 50 yards” behind

Defendant’s vehicle at the moment he claimed to have observed the alleged traffic infraction,

although the correct distance was actually over four times farther or about 600 feet. HVLA

Patrol Officer McKelvey has made a number of contradictory statements about the factual basis

of his police traffic stop. The implausibility and inconsistency of his statements led the

presiding officer at Defendant’s “Administrative Per Se” (APS) license suspension hearing

before the Department of Motor Vehicles to conclude in his findings of fact that the

“Testimony of Keith McKelvey, as to events, is not credible.” In re Rudy, Administrative Per

Se Hearing Notification of Findings and Decision (Aug. 25, 2009), p. 1.

The traffic stop made by HVLA Patrol Officer McKelvey was a traditional “public

function” exclusively reserved for duly licensed peace officers in California. At the

suppression hearing, Defendant will call as an expert witness, Mr. James C. Diaz, C.I.P., a

former Chief of the Bureau of Security and Investigative Services (BSIS) of the California

Department of Consumer Affairs, the current Chair of the Advisory Committee to BSIS and a

Director of the California Association of Licensed Security Agencies, Guards and Associates

(CALSAGA), who will testify that only licensed peace officers, not private security guards,

make traffic stops such as the one that occurred in this case and that such a traffic stop is, as a

matter of well-established practice, an exclusive peace officer “public function.”

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Although HVLA Patrol Officer McKelvey did not formally state that he had placed

Defendant under citizen’s arrest, he nonetheless arrested Defendant by virtue of the state-

sanctioned coercive means used to stop Defendant’s vehicle and the prolonged coercive

detention of Defendant against his will. The California Highway Patrol (CHP) was notified of

the incident and custody of Defendant was transferred to CHP Officer Randy H. Forslund, who

conducted a variety of sobriety tests, formally declared Defendant to be under arrest for driving

under the influence in violation of California Vehicle Code Section 23152 and searched

Defendant. While searching Defendant, CHP Officer Forslund discovered a plastic bag

containing small amount of marijuana and a package of “Zig Zag” brand rolling paper. In

response to the discovery of this plastic bag, Defendant informed Officer Forslund that he had

paperwork in his wallet from his doctor authorizing the medical use of marijuana, but that he

had given his wallet to passenger Ferrell who had since left the scene. In fact, Defendant did

have in his wallet on that day a letter from Dr. Robert Rosenthal, M.D., License No. G49458,

dated July 24, 2008, authorizing the use of cannabis for medicinal purposes.

ARGUMENT

I. SINCE HVLA’S ENACTMENT OF ITS OWN TRAFFIC CODE, ITS ENFORCEMENT OF THE CALIFORNIA VEHICLE CODE AND THE POLICE TRAFFIC STOP MADE BY HVLA PATROL OFFICER MCKELVEY WERE “STATE ACTION,” THE FOURTH AMENDMENT PROTECTION AGAINST UNREASONABLE SEARCHES AND SEIZURES APPLIES IN THIS CASE.

In Section I-A, Defendant will briefly identify the four tests for determining whether

“state action” is present under all the circumstances of this case such as would justify a

finding by this Court that fourth amendment protections apply. In Section I-B, Defendant will

explain how each of the four “state action” tests has been met in this case by exploring all

the relevant circumstances with special emphasis on two crucial sets of facts: (1) the State of

California has expressly authorized and encouraged HVLA security patrol officers to enforce

the California Vehicle Code and make the challenged police traffic stop in this case and (2)

HVLA security patrol officers routinely make traffic stops, such as the one that occurred in this

case, which constitute a traditional law enforcement “public function” exclusively reserved for

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California peace officers. Defendant will conclusively demonstrate that the fourth amendment

exclusionary rule applies to evidence derived from “state action” in this case and the U.S.

Supreme Court’s admonition in Burdeau v. McDowell that purely private action does not

trigger constitutional protections against unreasonable searches and seizures has no application

whatsoever here in light of all the circumstances of the case. Burdeau v. McDowell, 256 U.S.

465, 476 (1921).

A. The U.S. Supreme Court has articulated at least four distinct tests for determining whether, under “all the circumstances of the case,” the actions of an ostensibly private individual, such as HVLA Patrol Officer McKelvey, amount to state action: (1) the public function test, (2) the state compulsion test, (3) the governmental nexus test and (4) the joint action test.

1. The totality of the circumstances must be considered.

In evaluating the issue of whether the traffic stop made by HVLA Patrol Officer

McKelvey is attributable to the government, this Court must apply one of the various tests

under the “state action” doctrine, but in every case must make that determination while taking

“all the circumstances” into account, a standard that has come to be known as the “totality of

circumstances test.” Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971) (noting that the

determination whether the wife of the accused “must be regarded as having acted as an

‘instrument’ or agent of the state” when she produced incriminating evidence belonging to her

husband must be made “in light of all the circumstances of the case”); Skinner v. Railway

Labor Executives’ Assn., 489 U.S. 602, 613 (1989) (holding that under “all the circumstances”

a federally mandated breath test for alcohol blood content was reasonable); Burton v.

Wilmington Parking Authority, 365 U.S. 715, 722 (1961) (noting that “[o]nly by sifting facts

and weighing circumstances can the nonobvious involvement of the State in private conduct be

attributed its true significance”); Wilson R. Huhn, The State Action Doctrine and the Principle

of Democratic Choice, 34 HOFSTRA L. REV. 1379, 1393 (2006) (noting that “[b]ecause the

nature of government involvement in any particular case may arise in myriad forms resulting

from different combinations of factors, the ‘totality of the circumstances’ test is more

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appropriate than the ‘rule-oriented approach’ for measuring whether private parties are engaged

in state action.”)

In Brentwood, the U.S. Supreme Court explained why judicial review of the facts

comprising a claim of “state action” must be so all-encompassing: “What [private conduct] is

fairly attributable [to the state] is a matter of normative judgment, and the criteria lack rigid

simplicity.” Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288,

295 (2001). The Court elaborated: “From the range of circumstances that could point toward

the State behind an individual face, no one fact can function as a necessary condition across the

board for finding state action; nor is any set of circumstances absolutely sufficient, for there

may be some countervailing reason against attributing activity to the government.” Id. at 295-

96. Thus, the totality of the circumstances must be considered.

Sadly, while it is clear that this Court must review the totality of the circumstances in

determining whether the traffic stop made by of HVLA Patrol Officer McKelvey is legally

attributable to the government, the various strands of the “state action” doctrine itself are

notoriously amorphous, overlapping, intensely fact-dependent and fraught with contradictions.

In fact, the U.S. Supreme Court has itself acknowledged, greatly understating the problem, that

“[i]t is fair to say that ‘our cases deciding when private action might be deemed that of the state

have not been a model of consistency.’” Lebron v. National R.R. Passenger Corp., 513 U.S.

374, 378 (1995), quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (1991)

(O’Connor, J., dissenting). Legal scholars have been less generous. They have variously

characterized the “state action” doctrine as “analytically incoherent,” a “miasma,” a

“conceptual disaster area,” and “somewhat of a mystery to law students, legal scholars,

lawyers, and judges.” Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom,

92 GEO. L.J. 779, 789 (2004) (“analytically incoherent”); Alan R. Madry, State Action and the

Due Process of Self-Help: Flagg Bros. Redux, 62 U. PITT. L. REV. 1, 2 (2000) (“miasma”);

Charles L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s

Proposition 14, 81 HARV. L. REV. 69, 95 (1967) (describing the state action doctrine as

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“conceptual disaster area” and related scholarly commentary as a “torchless search for a way

out of a damp echoing cave”); Huhn, supra p. 5, at 1380 (“somewhat of a mystery”).

2. The U.S. Supreme Court has articulated at least four distinct tests to determine whether the actions of an ostensibly private person constitute “state action.”

Despite these doctrinal deficiencies, the U.S. Supreme Court has articulated at least

four distinct tests for determining when the actions of an ostensibly private person amount to

state action: (1) the public function test, (2) the state compulsion test, (3) the symbiotic

relationship or governmental nexus test and (4) the joint action test. Lugar v. Edmonson Oil

Co., 457 U.S. 922, 939 (1982) (finding state action “when the State has created a system

whereby state officials will attach property on the ex parte application of one party to a private

dispute”); Collins v. Womancare, 878 F. 2d 1145, 1148-49 (9th Cir. 1989), cert. denied, 493

U.S. 1056 (1990). The Court has not definitively indicated whether these different tests are

merely factors or independent tests. Lugar, 457 U.S. at 939 (declining to resolve whether the

different approaches “are actually different in operation or simply different ways of

characterizing the necessarily fact-bound inquiry”); George v. Pacific-CSC Work Furlough, 91

F.3d 1227, 1230 (9th Cir. 1996). Thus, each of the diverse “state action” tests may inform and

illuminate this Court’s adjudication of the case at bar. The satisfaction of any one test would be

sufficient to find “state action” and it would not matter if facts under any one test might be less

significant under an alternative test. Brentwood, 531 U.S. at 303 (suggesting that when the

facts show that one “state action” test is satisfied, “the implication of state action is not affected

by pointing out that the facts might not loom large under a different test”).

B. Each of the four distinct “state action” tests is satisfied in this case.

1. HVLA conduct meets the “public function” test for “state action.”

a. The key elements of the “public function” test are (1) state authorization of the challenged conduct and (2) the exercise of powers traditionally and exclusively reserved to the state.

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The “public function” test treats what ostensibly seems to be private parties as state

actors when they effectively slip into the shoes of the government by exercising “powers

traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S.

345, 352 (1974) (finding that privately-owned electrical utility was not a state actor) (emphasis

added). For example, the U.S. Supreme Court has found institutional state action in numerous

cases where an ostensibly private entity performed a public function by exercising “some

power delegated to it by the State which is traditionally associated with sovereignty.” Id. at

253; see, e.g., Nixon v. Condon, 286 U.S. 73, 88-89 (1932) (election); Smith v. Allright, 321

U.S. 649, 663 (1944) (election); Terry v. Adams, 345 U.S. 461, 468-70 (1953) (election);

Marsh v. Alabama, 326 U.S. 501, 502-08 (1946) (company town); Evans v . Newton, 382 U.S.

296, 299-302 (1966) (municipal park). Furthermore, the Jackson majority even expressly

declared that had some authority been expressly delegated to the privately-owned electrical

utility whose status as a state actor was there under consideration, that case would have been

“quite a different one,” clearly highlighting the crucial significance of any delegation of state

power in a “public function” analysis. Jackson, 419 U.S. at 353; Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 160 n.9 (1978) (noting that “this case does not involve state authorization of

private breach of the peace”); Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir.2002).

The central importance of the confluence of both (1) a state delegation of authority and

(2) the exercise of powers traditionally and exclusively reserved to the state to a finding that the

“public function” test has been satisfied is equally apparent in U.S. Supreme Court decisions in

which no “state action” has been found. For example, in two companion cases decided in 1982,

the U.S. Supreme Court held that in the absence of any delegation of state power and any

exercise of powers traditionally and exclusively reserved to the state, the mere funding and

regulation by the state of a private institution does not thereby transform the private entity into

a state actor. Blum v. Yaretsky, 457 U.S. 991, 1012 (1982) (finding no state action in conduct

of nursing home that had allegedly lowered the level of medical care given to a resident without

adequate notice); Rendell-Baker v. Kohn, 457 U.S. 830, 843 (1982) (finding no state action in

conduct of private school which had allegedly discharged teachers in violation of their

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constitutional rights); see also Moose Lodge v. Irvis, 407 U.S. 163, 177 (1972) (holding that

“the operation of the regulatory scheme enforced by the Pennsylvania Liquor Control Board

does not sufficiently implicate the State in the discriminatory guest policies of Moose Lodge to

make the latter ‘state action’”).

The U.S. Supreme Court, however, has expressly declined to decide the question

whether and under what circumstances private police officers may be said to perform a public

function. Flagg Bros., Inc., 436 U.S. at 163-64 (finding no state action where warehouseman

threatened to sell stored goods pursuant to state statute authorizing self-help). Yet the Court

has made unmistakably clear that “when private individuals or groups are endowed by the state

with powers or functions governmental in nature, they become agencies or instrumentalities of

the state and subject to its constitutional limitations.” Evans, 382 U.S. at 299. The Evans

majority held that a privatized, formerly public park in Macon, Georgia nonetheless performed

a “public function” and was subject to constitutional “state action” constraints because it

exercised “powers or functions governmental in nature” and that a park, unlike golf clubs or

social centers, “is more like a fire department or police department that serves the community.”

Id. at 302 (emphasis added).

In the context of private police cases, the U.S. Supreme Court has continued its

emphasis on formalistic elements of the “public function” test that depend on the discovery of

some kind of authorization or delegation of police power by the state and the exercise of

powers that traditionally have been exclusively reserved to the state. The U.S. Supreme Court

has considered the constitutional status of private security police only twice and in each case

found “state action,” but on the basis of formalistic, rather than purely functional, ties to the

government. See, e.g., David A. Sklansky, The Private Police, 36 U.C.L.A. L. REV. 1165, 1246

(1999) (noting state and federal decisions in this area are “conspicuously formalist”); Elizabeth

E. Joh, The Paradox of Private Policing, 95 J. CRIM. L. & CRIMINOLOGY 49, 97, 125 (2004)

(describing these two U.S. Supreme Court decisions as having rested “upon formalistic ideas of

public and private” and the state action doctrine “highly formalistic”).

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In the first of these two private police cases, Williams v. United States, a private

detective, who held a special city police officer’s card and had taken an oath and qualified as a

special police officer, used force and violence to obtain a confession from a suspected thief.

The Williams majority held that the state’s formal authorization of the police powers met the

“under color of state law” test of 18 U.S.C. § 242, the criminal analogue of 42 U.S.C. § 1983,

which contains a substantially identical requirement. 341 U.S. 97, 99-101 (1951). For almost

all practical purposes, the under-color-of-state-law requirement, as it appears in 42 U.S.C. §

1983, is the same as fourteenth amendment “state action,” although the U.S. Supreme Court has

suggested in dicta that the statutory under-color-of-state-law requirement might be marginally

less difficult to satisfy than constitutional “state action.” Lugar, 457 U.S. at 935 n.18 (1982);

Brentwood, 531 U.S. at 295 n.2; Womancare, 878 F. 2d at 1148 (9th Cir. 1989) (noting that 42

U.S.C. § 1983 under-color-of-state-law requirement is technically separate from the fourteenth

amendment’s state action requirement, but closely related); but see United States v. Price, 383

U.S. 787, 794 n.7 (1966) (noting that in cases arising under 42 U.S.C. § 1983, the “‘under color

of law’ has consistently been treated as the same thing as the ‘state action’ required under the

Fourteenth Amendment”).

More than a decade later, the U.S. Supreme Court held in Griffin v. Maryland, the

second private police case, that the racially discriminatory conduct of a deputized private

security officer at a racially segregated amusement park constituted state action where the

officer who (1) wore the uniform provided by the private security agency that employed him,

(2) wore the badge of a deputy sheriff, (3) had been delegated the same power and authority as

a deputy sheriff “within the area” to which he “was appointed” and (4) “consistently identified

himself as a deputy sheriff.” 378 U.S. 130-31, 132 n.1, 135 (1964). The Flagg Brothers

majority would, in 1978, characterize the 1964 result in Griffin as follows: “[T]his Court has

never considered the private exercise of traditional police functions. In Griffin v. Maryland, . . .

the State contended that the deputy sheriff in question had acted only as a private security

employee, but this Court specifically found that he ‘purported to exercise the authority of a

deputy sheriff.’ Griffin thus sheds no light on the constitutional status of private police forces,

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and we express no opinion here.” Flagg Brothers, 436 U.S. at 163-64 n.14 (citation omitted),

quoting Griffin, 378 U.S. at 135; In re Christopher H., 227 Cal.App.3d 1567, 1572 (1991)

(noting that “United States Supreme Court has never expressed an opinion on the status of

private security personnel”). According to Professor Elizabeth E. Joh, a prominent scholar in

this area of law, “Griffin left unanswered . . . the constitutional status of a private police officer

who did not identify himself as a public official, or who performed policing duties but had not

been deputized.” Elizabeth E. Joh, The Paradox of Private Policing, 95 J. CRIM. L. &

CRIMINOLOGY 49, 100 (2004).

In 1982, the U.S. Supreme Court attempted to distill the general principles from this line

of “public function” authority in Lugar v. Edmonson Oil Co. in the following language that has

been expressly relied upon by California courts in evaluating the constitutional status of

security officers as state actors for purposes of fourth amendment suppression claims: Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State. These cases reflect a two-part approach to this question of “fair attribution.” First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.

Lugar, 457 U.S. at 937 (emphasis added). In the decisional void left by the U.S. Supreme

Court in Griffin and Flagg Brothers, California and lower federal courts have expressly relied

upon the Lugar two-part test when confronted with fourth amendment suppression claims based

on the conduct of security officers, which defendant believes is probably best viewed as a

restatement and refinement of the two elements that the Court has previously held to constitute

the gravamen of the “public function” test: (1) state authorization or delegation of formal

authority and (2) the exercise by the ostensibly private party of powers traditionally and

exclusively reserved to the state. Jackson, 419 U.S. 352-53 (explicitly discussing both of these

crucial “public function” elements).

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In People v. Taylor, the California Court of Appeals affirmed the denial of appellant’s

motion to suppress evidence under the two-part test in Lugar on the grounds that the citizen’s

arrest made by security guards employed by the company that owned the Santa Cruz Beach

Boardwalk did not constitute “state action” because (1) there was no delegation of express

agency authority from the state to the security guards in any way, and (2) in enacting statutes

describing the circumstances in which citizens may make a private arrest, the state had not

created in citizens a right or privilege that was traditionally exclusive to the state since “arrest

has never been an exclusively governmental function.” 222 Cal.App.3d 612, 620-26 (1990)

(curiously collapsing both “public function” elements of Jackson into the first part of the two-

part test in Lugar), quoting Spencer v . Lee, 864 F.2d 1376, 1380 (7th Cir. 1989) (internal

quotation marks omitted); see also Christopher, 227 Cal.App.3d at 1574 (1991) (holding that

no “state action” under the Lugar test occurred when private shopping mall security guards

“who stopped and searched defendants were not state officials,” had “no aid from state officials

in stopping and searching defendants,” and “their conduct” was “not otherwise chargeable to

the state, in that the state had no part in it until after the stop and search had been completed”);

Womancare, 878 F. 2d at 1148-51 (9th Cir. 1989) (holding that, without more, mere citizen’s

arrest by private security guards did not constitute “state action”).

As Defendant will shortly demonstrate, unlike the purely private conduct of the security

guards in Taylor, Christopher and Womancare, the challenged HVLA conduct is based on

expressly delegated state authority and, as specifically applied in the context of the police

traffic stop in this case, necessarily involves the exercise of police powers that are exclusively

and traditionally reserved to the state. Thus, Taylor, Christopher and Womancare in no way

adversely impact Defendant’s motion to suppress under the very different circumstances in this

case. Id.

In contrast to this inapposite triad of private citizen’s arrest cases, the United States

Court of Appeals for the Sixth Circuit has handed down a pair of decisions addressing the

constitutional status of private police conduct that offers this Court helpful guidance with

respect to one crucial distinction relevant to the analysis of the constitutional status of the

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HVLA security officers. Romanski v. Detroit Entertainment, LLC, 428 F.3d 629, 637 (6th Cir.

2005) (holding that “[w]here private security guards are endowed by law with plenary police

powers such that they are de facto police officers, they may qualify as state actors under the

public function test”); Lindsey v. Detroit Entertainment, LLC, 484 F.3d 824, 830 (6th Cir.

2007) (holding that an arrest made by unlicensed private security guards without any delegated

state authority did not amount to “state action”). In these two seminal security officer

decisions, the Sixth Circuit made a crucial distinction between (1) an arrest made by a

Michigan security officer as a private citizen without any specially delegated state authority to

make arrests and (2) an arrest made by a Michigan security officer licensed by the state and

expressly delegated statutory authority to make arrests substantially similar to that given to

public peace officers. Romanski, 428 F.3d at 637-38; Lindsey, 484 F.3d at 630.

On the basis of this distinction, the arrest made by the licensed security officer in

Romanski pursuant to delegated arrest powers was held to constitute “state action,” but the

arrest made by the unlicensed security officer in Lindsey without delegated arrest powers was

held not to constitute “state action.” Id. In other words, the fact that the specific statutorily

defined arrest power in Romanski had been delegated by the state transformed what would have

otherwise been just private conduct into state action. Lindsey characterizes the importance of

this distinction as follows: . . . [T]hat Michigan delegated a part of the police power to licensed private security guards, which it had traditionally and exclusively reserved for itself, was the key fact that justified finding state action in Romanski. Although the police power that Michigan bestowed upon licensed security guards pursuant to [statute] was limited in certain respects, the plaintiff in Romanski could point to an identifiable police power – the power of arrest – which was not possessed by the citizens of Michigan at large, but instead resided only in the state, its agents, and those persons who the state empowered and regulated by statute. By contrast, Plaintiffs here cannot point to any powers above and beyond those possessed by ordinary citizens.

Id.; see also Payton v. Rush-Presbyterian, 184 F.3d 623, 627-30 (7th Cir. 1999) (state action);

Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir. 1996) (no state action).

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The distinction drawn in Romanski and Lindsey finds support in the U.S. Supreme Court

decision in Griffin v. Maryland which expressly held that “[i]f an individual is possessed of

state authority and purports to act under that authority, his action is state action,” and

emphasized that it is “irrelevant that he might have taken that same action had he acted in a

purely private capacity . . . .” 378 U.S. at 135. The formal authorization by the state of the

challenged conduct is the crucial distinction with a constitutional difference under the “public

function” test.

This same distinction explains why the police traffic stop that was made under the

apparent compulsion of flashing lights by HVLA Patrol Officer McKelvey pursuant to

delegated state authority must be deemed “state action,” even though it might be conceivably

possible for a private citizen to force a criminal perpetrator to stop on a roadway, for example,

by honking his horn, as occurred in the hit-and-case, People v. Harris, 256 Cal.App.2d 455,

457-59 (1967) (holding that evidence seized as a result of a citizen’s arrest, initiated from a

moving private car, was admissible under the fourth amendment due to lack of any state

action). While the private witness to the hit-and-run incident in Harris lawfully made a

citizen’s arrest to stop the fleeing driver, the lack of delegated state authority and the absence of

any exercise of an exclusive law enforcement power on the part of private pursuer dispositively

distinguishes any such purely private citizen’s arrest-on-the-run from the formal police traffic

stop made by HVLA Patrol Officer McKelvey under delegated state authority, thereby

mirroring the crucial distinction between the arrests in Romanski and Lindsey. There was no

exercise of state delegated police powers exclusively reserved to peace officers by statute in

Harris, unlike the police traffic stop to which Defendant was subjected in this case.

Finally, Defendant would like to bring to this Court’s attention an especially relevant

and factually analogous decision of a New York County Court, People v. Stormer, which is the

subject of a Request for Judicial Notice simultaneously filed by Defendant with this

memroandum pursuant to Sections 452(a) and 453 of the California Evidence Code. People v.

Stormer, 518 N.Y.S.2d 351 (Warren County Ct. 1987); CAL. EVID. CODE §§ 452(a), 453 (West

2010).

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In Stormer, security guards employed by the Sagamore Hotel on an island in Lake

George, New York conducted a search without probable cause of a car belonging to the hotel

housekeeper they suspected of stealing money from guest rooms. In holding that the

“performance” of the hotel “security force” amounted to a “public function,” the Stormer Court

deemed two factual elements crucial to its “state action” finding that resulted in the suppression

of the seized evidence under the fourth amendment. First, the Sagamore Hotel was located on

a small, rural, geographically remote island connected to the mainland only by a causeway

between a shoreline village and the hotel property, and bore similarities to the company town in

March v. Alabama, 326 U.S. 501, 506 (1946) insofar as it was relatively “self-contained” and

functionally “autonomous” in many respects. Stormer, 518 N.Y.S.2d at 353. Second, and even

more importantly, “local law enforcement agencies” were excluded “except upon request.” Id.

Unable to find any controlling precedent, Judge Moynihan expressed concern in Stormer that

the “privacy rights” of citizens “may be increasingly jeopardized” by the “proliferation in this

country of privately-employed security personnel as a supplement to or, in this case, a

replacement for local law enforcement authorities.” Id. at 352. As in Stormer, the HVL

subdivision is located in a small, rural, geographically remote area that might be metaphorically

thought of as a relatively self-contained, autonomous “island” community. Similarly, HVLA

has a policy of not notifying local law enforcement agencies of violations of the California

Penal and Vehicle Codes except as HVLA deems appropriate and excludes them except upon

request. Thus, under the Stormer rationale, “the unique nature of the facts and circumstances”

in this case suggest that HVLA’s private police services constitute “state action” warranting

fourth amendment protections. Id. at 353.

b. The challenged HVLA conduct meets the “public function” test because it (1) was authorized by the state and (2) entails the exercise of powers traditionally and exclusively reserved to the state.

In this Section I-B-1-b, Defendant will demonstrate that the challenged HVLA conduct

easily satisfies the two-part Lugar test relied upon by both California and federal courts to

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determine whether the “deprivation of a federal right” caused by HVLA through the agency of

HVLA Patrol Officer McKelvey may “be fairly attributable to the State” under the “public

function” test and must, therefore, be deemed “state action” for fourth amendment purposes.

Lugar, 457 U.S. at 937. First, the fourth amendment “deprivation” here was “caused by the

exercise of some right or privilege created by the State or by a rule of conduct imposed by the

State or by a person for whom the State is responsible” in that the State of California expressly

authorized HVLA security officers to enforce the California Vehicle Code, enact a separate

vehicle code and empower its agents, such as HVLA Patrol Officer McKelvey, to make the

police traffic stop to which Defendant was subjected. Id. Second, “the party charged with the

deprivation” is clearly “a person who may fairly be said to be a state actor” in that both HVLA

and HVLA Patrol Officer McKelvey exercised powers traditionally and exclusively reserved to

the state under California law. Id.

In applying the Lugar test to the facts of this case, Defendant wishes to emphasize at the

outset that, under the California law of agency, the agent here, HVLA Patrol Officer McKelvey,

had essentially the same authority to do any act the principal might perform and the act of such

agent must be deemed the act of HVLA for which HVLA is legally accountable. See, e.g.,

CAL. CIV. CODE §§ 2304, 2305 (Section 2305 provides that “[e]very act which . . . may be done

by or to any person, may be done by or to the agent of such person for that purpose, unless a

contrary intention clearly appears.”); Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12

Cal.4th 291, 296–297 (1995) (employer responsible for “willful, malicious and even criminal”

conduct of agent); Bailey v. Filco, Inc., 48 Cal.App.4th 1552, 1559 (1996) (control over

employee not required for employer responsibility); Mary M. v. City of Los Angeles, 54 Cal.3d

202, 208-09 (1991) (respondeat superior applies equally to private and public employees).

Thus, what the state authorized HVLA to do, for purposes of the traffic stop analysis, the state

also authorized HVLA Patrol Officer McKelvey to do as the agent of HVLA and the acts of

HVLA security officers are the acts of HVLA, even despite any defective delegation. Id.

The two-part Lugar test is easily satisfied here because the State of California has (1)

expressly delegated, authorized and encouraged HVLA to enact its own vehicle code and

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exercise formal authority to enforce the California Vehicle Code that resulted in the challenged

police traffic stop in at least three dispositive legal acts that resulted in (2) the exercise of

legislative and police powers traditionally and exclusively reserved to the state.

First, Lake County, a legal subdivision of the State of California, has expressly

identified and authorized HVLA security personnel as the persons who will carry out and

enforce the authority granted in the Board of Supervisors resolution that applied the California

Vehicle Code to HVLA’s private roadways pursuant to Section 21107.7 of the California

Vehicle Code. CAL. VEH. CODE § 21107.7 (West 2010).

Second, the Lake County District Attorney, a constitutionally created local

governmental office subject to the direct supervision of the California Attorney General, issued

a signed statement of procedures for coordinating enforcement of the California Vehicle Code

with HVLA that delegated to HVLA security officers formal state authority enforce the

California Vehicle Code and make police traffic stops.

Third, the State of California has itself delegated governmental rulemaking authority to

HVLA in the Davis-Stirling Common Interest Development Act, codified at Sections 1350–78

of the California Civil Code, to enact local traffic rules and provide for enforcement through the

agency of hired security officers. CAL. CIV. CODE §§ 1350-78 (West 2010).

Fourth, HVLA has consistently and publicly claimed that the State of California and its

local governmental agencies have delegated to HVLA the right to (1) enact the HVLA Vehicle

Code occupying the same field as the California Vehicle Code, (2) authorize its agents, HVLA

security patrol officers, to enforce simultaneously both the California Vehicle Code and the

HVLA Vehicle Code, and, in the process, (3) exercise at their discretion the power to make

traffic stops, such as the one HVLA Patrol Officer McKelvey made in this case, thereby

exercising both legislative and police powers traditionally and exclusively reserved to the State

of California and satisfying both prongs of the Lugar “public function” test. 457 U.S. at 937.

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(1) Lake County has expressly authorized HVLA security officers to enforce the California Vehicle Code on HVLA’s private roadways.

First, through the agency of its Board of Supervisors, Lake County, a legal subdivision

of the State of California, expressly identified and authorized the “security personnel” of

HVLA as the “persons who will carry out and enforce the authority granted” in Lake County

Board of Supervisors Resolution No. 90-315 (BOS Res. 90-315), adopted December 18, 1990,

which applied the California Vehicle Code to HVLA private roadways pursuant to Section

21107.7 of the California Vehicle Code (sometimes hereinafter referred to as “CVC”). Lake

County Board of Supervisors Resolution No. 90-315 (Dec. 18, 1990), pp. 3-4 (BOS Res. 90-

315); CAL. VEH. CODE § 21107.7 (West 2010); CAL. CONST. art. I, § 1(a) (“The State is

divided into counties which are legal subdivisions of the State.”) The operative language of

BOS Res. 90-315 is as follows: NOW, THEREFORE, THIS BOARD HEREBY FINDS AND DETERMINES AS FOLLOWS:

1. That the roads and streets within the Hidden Valley Lake Subdivision, as more specifically described in Exhibit “A” which is attached hereto and incorporated herein by reference, are privately owned and maintained roads that are not generally held open for use of the public for purposes of vehicular travel but, by reason of their proximity to, or connection with, County and State highways, the interests of any residents residing along the roads and the motoring public will be . . . served by application of the California Vehicle Code provisions to said roads.

2. Upon the enactment of this resolution which shall be operative on January 1, 1991, and provided the conditions set forth in paragraph 3 below have been satisfied, and further provided that appropriate signs are erected . . . to the effect that roads are subject to the provisions of the California Vehicle Code, said provisions of the California Vehicle Code shall then apply to said privately owned and maintained roads described in Exhibit “A”.

3. Prior to the authority granted in paragraph 2 above becoming effective, the following conditions shall be satisfied by the petitioner [HVLA]:

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a. There shall be orientation and training conducted for all persons who will carry out and enforce the authority granted herein on the following:

1. Standards of Bureau of Consumer Affairs regarding security guard training.

2. P.O.S.T. standards for comprehensive training for necessary functions performed by security personnel.

b. Development of written policies and procedures for coordination with the District Attorney, Sheriff and California Highway Patrol to implement the authority granted herein.

BOS Res. 90-315, at pp. 3-4 (emphasis added). Pursuant to CVC Section 21107.7, this

resolution, an official, legally binding act of a constitutionally recognized subdivision of the

State of California, expressly identifies “security personnel” as the “persons” who shall be

required to receive training to “carry out and enforce the authority granted” therein. Id; CAL.

VEH. CODE § 21107.7 (West 2010); CAL. CONST. art. I, § 1(a). A more explicit delegation of

state police power would be difficult to imagine. Furthermore, CVC Section 21100 expressly

permits “local authorities,” a term which expressly includes “the legislative body of every

county or municipality having authority to adopt local police regulations,” to “adopt rules and

regulations by ordinance or resolution” regarding the following matters:

(c) Regulating traffic by means of traffic officers. . . . [subsection (d) omitted]

(e) Regulating traffic by means of a person given temporary or permanent appointment for that duty by the local authority whenever official traffic control devices are disabled or otherwise inoperable, at the scenes of accidents or disasters, or at locations as may require traffic direction for orderly traffic flow.

CAL. VEH. CODE § 21100, 385 (West 2010) (definition of “local authorities” appears in CVC

Section 385). As defined in CVC Section 625, such a “traffic officer” is always a “peace

officer.” CAL. VEH. CODE § 625 (West 2010). Thus, the Lake County Board of Supervisors

undeniably had the putative power to appoint HVLA security officers as “traffic officers” with

substantially the same legal standing as peace officers, whose prescribed training was made a

condition precedent to the application of the California Vehicle Code to HVLA’s private

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roadways, under both under CVC Sections 21107.7 and 21100. That Lake County may not

have followed the precisely correct procedures to appoint HVLA security officers as “traffic

officers” is completely “irrelevant,” as the U.S. Supreme Court made clear in Griffin when it

declared: “If an individual is possessed of state authority and purports to act under that

authority, his action is state action. It is irrelevant that he might have taken that same action had

he acted in a purely private capacity or that the particular action which he took was not

authorized by state law.” Griffin, 378 U.S. at 135 (emphasis added); United States v. Classic,

313 U. S. 299, 326 (1941) (noting that relevant issue is whether abuse is “made possible only

because wrongdoer is clothed with authority of state law”) (emphasis added). Thus, full and

formal compliance with every intricate statutory procedure for delegating state authority is

clearly not a prerequisite for finding “state action” if it is clear from the facts that the state

intended to confer authorization or delegate power to the person concerned and such person

purported to act under such delegated authority. Apparently delegated authority is enough.

Consequently, when Lake County identified and approved of HVLA “security personnel” as

the “persons” who would “carry our and enforce the authority granted” by BOS Res. 90-315,

they putatively delegated the plenary state law enforcement authority to HVLA security officers

as “traffic officers” or at least de facto traffic officers that the California Vehicle Code

traditionally and exclusively reserves to peace officers, even if Lake County did not satisfy all

the requirements of CVC Section 21100 and California Penal Code Section 830. CAL. VEH.

CODE § 21100 (West 2010); CAL. PENAL CODE § 830 (West 2010).

As far as Defendant has been able to determine, Lake County is the only county in the

entire State of California that has recognized and approved the security officers of a common

interest development such as HVLA as the de facto police in charge of enforcing the California

Vehicle Code on private roadways in a resolution adopted pursuant to CVC Section 21107.7.

CAL. VEH. CODE § 21107.7 (West 2010). In every other case where the California Vehicle

Code has been applied to private roadways under CVC Section 21107.7, the enforcement

agents of the state have been duly licensed California peace officers, such as city police

officers, county sheriffs and their deputies or officers of the California Highway Patrol. See,

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e.g., (1) City of Dana Point, City Council Resolution No. 06-16 (Dec. 13, 2006) (Orange

County Sheriff’s Department), p. 1, para. 2; (2) City of Irvine, City Council Resolution No. 01-

07 (Jan. 23, 2001) (Irvine Police Department), p. 5, para. 2; (3) County of El Dorado, Board of

Supervisors Resolution No. 067-2009 (Mar. 31, 2009) (California Highway Patrol), p. 1, § 4;

(4) County of Los Angeles, Board of Supervisors Order No. 21 (Jul. 24, 2001) (California

Highway Patrol), pp. 1, 5; (5) County of Santa Barbara, Board of Supervisors Resolution No.

08-127 (Apr. 15, 2008) and Board of Supervisors Agenda Letter on Resolution of Hope Ranch

Park Homes Association (HRPHA) (Mar. 11, 2008), p. 2 (noting that it “is the responsibility of

HRPHA to contract for enforcement of the Vehicle Code by the CHP at their sole expense, if

enforcement is desired.”) (underlining in original); (6) City of Thousand Oaks, City Council

Resolution No. 2007-054 (Apr. 24, 2007), p. 2, para. 2 (Chief of Police of the City of Thousand

Oaks and authorized deputies); (7) Town of San Anselmo, Town Council Resolution No. 3346

(May 14, 1996), p. 1, para. 4 (San Anselmo Police Department). The foregoing local

government resolutions are the subject of a Request for Judicial Notice simultaneously filed by

Defendant with this memorandum pursuant to Sections 452 and 453 of the California Evidence

Code. CAL. EVID. CODE §§ 452, 453 (West 2010).

The foregoing seven local government resolutions, all passed pursuant to CVC Section

21107.7, variously name the California Highway Patrol, the local county sheriff or the local

city or town police department as the state agents responsible for enforcing the California

Vehicle Code on the subject private roadways. These resolutions unequivocally demonstrate

that (1) a resolution adopted pursuant to CVC Section 21107.7 is the established means by

which “local authorities” name and approve the chosen police agent of the State of California to

enforce the California Vehicle Code and (2) this enforcement power is traditionally and

exclusively performed by California peace officers, thereby establishing that the Lake County’s

BOS Res. 90-315 must be deemed to have putatively delegated formal state law enforcement

authority that is traditionally and exclusively exercised by peace officer agents of the state

itself. Without more, the two-part Lugar “public function” test is thereby satisfied, but there is

more, much more, that confirms the presence of “state action” in this case.

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(2) The Lake County District Attorney has expressly authorized HVLA security officers to enforce the California Vehicle Code on HVLA’s private roadways and make police traffic stops.

Second, the Lake County District Attorney, a constitutionally created local

governmental office subject to the direct supervision of the California Attorney General, who is

the chief law enforcement officer of the state, endorsed, on December 18, 1990, a formal

statement of traffic enforcement procedures applicable to the private roadways of the HVL

subdivision, that delegated to “security officers hired by the Hidden Valley Lake Association”

formal authority as the “primary enforcement officers for Vehicle Code violations within [the]

Hidden Valley Lake Subdivision” and expressly approved a traffic enforcement scenario in

which a “security officer observes and stops a vehicle code violator.” Procedures Regarding

California Vehicle Code Enforcement Within the Hidden Valley Lake Subdivision (May 18,

1991), p. 1 (emphasis added) (District Attorney’s Traffic Enforcement Procedures or DATEP);

CAL. CONST. art. V, § 13 (providing that “the Attorney General shall be the chief law officer of

the State” and, as such, has “direct supervision over every district attorney”).

The “[d]evelopment” of the District Attorney’s Traffic Enforcement Procedures

(DATEP) was even a mandatory condition precedent to the application of the California

Vehicle Code expressly required by Section 3(b) of BOS Res. 90-315 as adopted under

authority of CVC Section 21107.7. BOS Res. 90-315, p. 4, § 3(b). DATEP expressly states

that one of its purposes was to “comply with conditions precedent set forth in [Lake Bounty

Board of Supervisor’s] resolution number 90-315.” DATEP, p. 1, para. 1. Thus, DATEP is

itself undeniably a formal manifestation of “state action” recognizing the formal traffic

enforcement authority of HVLA “security officers” and their delegated power to make traffic

stops. The relevant statement of applicable traffic enforcement procedures is as follows:

The primary enforcement officers for Vehicle Code violations within Hidden Valley Lake Subdivision will be security officers hired by the Hidden Valley Lake Association. It will be the responsibility of the Hidden Valley Lake Association to comply with all conditions set forth in Lake County resolution number 90-315.

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The security officers cannot write traffic citations. All prosecution of vehicle code violations investigated by Association Security officers will be by criminal complaint filed by the Lake County District Attorney’s Office. When a security officer observes and stops a vehicle code violator, the officer should conduct an investigation. The results of the investigation should be committed to a written report and that report should be expeditiously delivered to the lake County District Attorney’s Office. Staff from the District Attorney’s Office will review the written report and will file a criminal complaint if the evidence warrants it. The lake [sic] County District Attorney’s Office will issue subpoenas for witnesses necessary to prosecute Hidden Valley Lake Subdivision Vehicle Code Violators and when appropriate furnish attorneys to conduct the prosecution. It will be the responsibility of the Hidden Valley Lake Association to insure that security officers are available to be subpoenaed and to testify in those cases that are filed.

DATEP, p. 1, para. 2-3 (emphasis added). Clearly, the Lake County District Attorney has

authorized and approved the making of traffic stops as an integral component of the traffic

enforcement operations of HVLA security patrol officers.

Curiously, the DATEP states that it is “not intended to be a contract or create legally

binding obligations in or for any party.” DATEP, p. 1, para. 1. Such language should not be

construed by this Court to conclude that the obvious delegation of Vehicle Code enforcement

powers to HVLA security officers, including the exclusive police power to make traffic stops,

is negated by such language or the document would be reduced to a legal nullity. Its very

existence is seen by local authorities as having triggered the application of the California

Vehicle Code to HVLA private roadways by satisfying a mandatory condition precedent of

BOS Res. 90-315. As a legally operative statement of traffic enforcement procedures, from the

standpoint of local authorities, it must be deemed to mean what it says, otherwise it would

become a legal nullity and utterly meaningless. (Void it ultimately may be, but not because of

its internal language, but rather because DATEP is ultra vires for reasons explained later.)

If this Court finds that DATEP should be taken seriously as a statement of traffic

enforcement procedures and was legally operative to an extent sufficient to satisfy the

mandatory condition precedent of Section 3(b) of BOS Res. 90-315, then it must be held to

have putatively recognized and approved the traffic enforcement authority of HVLA security

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officers, for if this Court were to hold otherwise, it would have to find that BOS Res. 90-315

was legally operative for one purpose (i.e., to satisfy the mandatory condition precedent), but

not for the other (i.e., as a statement of effective traffic enforcement delegating authority to

HVLA security officers). Such a result is an absurdity based on the internal text that implies

that DATEP was both meaningless and legally ineffective as a statement of “policies and

procedures,” but meaningful and legally binding for the purpose of satisfying the legislated

condition precedent. The document would become simultaneously meaningless and

meaningful. DuBois v. Workers’ Comp. Appeals Bd., 5 Cal.4th 382, 387 (1993); Bruce v.

Gregory, 65 Cal.2d 666, 673 (1967) (holding that interpretations of statutory text that result in

an absurdity should be avoided).

Assuming for the moment DATEP is not ultra vires, the better approach would be to

treat DATEP as a formal government-endorsed statement of traffic enforcement policies and

procedures for the HVL subdivision that putatively approves and refines the Lake County

Board of Supervisors’ delegation of traffic enforcement powers to HVLA security guards.

(Even though this is clearly what the Board of Supervisors and the District Attorney intended to

accomplish, Defendant contends that BOS Res. 90-315 is nonetheless an unconstitutional ultra

vires act because, in the final analysis, the Board of Supervisors may not lawfully delegate

traffic enforcement powers to security officers. California statutes limit the exercise of such

powers to duly licensed peace officers. County governments may not enact traffic rules that

conflict with the California Vehicle Code. All such conflicting local traffic rules are preempted

by operation of CVC Section 21 and Section 16 of Article IV of the California Constitution.

CAL. VEH. CODE § 21 (West 2010); CAL. CONST. art. IV, § 16(a)-(b).)

Finally, HVLA itself has purported to act under the authority recognized by the Lake

County District Attorney’s Office in adopting its own “Vehicle Code Violation Prosecution

Policy.” HVLA Board Resolution 2003-13 expressly states that “[i]t is the policy of HVLA,

and the Lake County District Attorney’s Office, to utilize Security and Safety Officers of the

Association to enforce the vehicle code with the HVLA subdivision.” HVLA Vehicle Code

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Prosecution Policy, HVLA Board of Directors Resolution No. 2003-13 (Mar. 27, 3003), p. 1,

para. 3.

(3) The State of California has delegated governmental rulemaking powers to HVLA in the Davis-Stirling Common Interest Development Act.

Third, the State of California has itself delegated governmental rulemaking authority to

HVLA in the Davis-Stirling Common Interest Development Act (Davis-Stirling Act), codified

at Sections 1350–78 of the California Civil Code, to enact traffic rules and provide for

enforcement through the agency of hired security officers. CAL. CIV. CODE §§ 1350-78 (West

2010). Before delving into a detailed analysis of the police powers delegated to HVLA under

the Davis-Stirling Act, this Court should be forewarned: the Davis-Stirling Act is notorious for

being poorly drafted and difficult to interpret. Susan F. French, California Law Revision

Commission Background Study: Scope of Study of Laws Affecting Common Interest

Developments (Nov. 2000), p. 3, available at http://www.clrc.ca.gov/pub/BKST/BKST-811-

French-CID-Scope.pdf. As Defendant will demonstrate, problems of poor and ambiguous

draftsmanship afflicting a crucial provision of the Davis-Stirling Act involving association

rulemaking powers will have a direct bearing on Defendant’s “state action” arguments.

The Davis-Stirling Act governs shared ownership real estate property developments,

such as the HVLA subdivision, called “common interest developments.” Nahrstedt v. Lakeside

Village Condominium Assn. 8 Cal.4th 361, 377-78 (1994). Davis-Stirling defines a “common

interest development” to mean a community apartment project, a condominium project, a

planned development or a stock cooperative. CAL. CIV. CODE § 1351(c) (West 2010). Under

Civil Code Section 1363(a), the HVL common interest development is subject to management

by an unincorporated or incorporated community association. CAL. CIV. CODE § 1363(a) (West

2010). HVLA, an incorporated community association, may exercise, by virtue of powers

delegated to it under Civil Code Section 1363(c), “the powers granted to a nonprofit mutual

benefit corporation, as enumerated in Section 7140 of the Corporations Code.” Id. at § 1363(c);

CAL. CORP. CODE § 7140 (West 2010) (providing that a nonprofit mutual benefit corporation

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“shall have all the powers of a natural person,” including those listed in subsections (a) through

(l), but subject to “any limitation contained in the articles or bylaws and to compliance with

other provisions” of the Nonprofit Corporation Law “and any other applicable laws”)

(emphasis added).

In addition to the relatively routine corporate powers enumerated in Corporations

Section 7140, the Davis-Stirling Act delegates to common interest developments, such as

HVLA, sweeping, ill-defined powers to adopt a “declaration” of covenants, conditions and

restrictions (CC&Rs) that contain not only “restrictions on the use or enjoyment of any portion

of the common interest development that are intended to be enforceable equitable servitudes,”

but also “any other matters the original signator of the declaration or the owners consider

appropriate.” CAL. CIV. CODE § 1353(a)(1) & (b) (West 2010). The “covenants and

restrictions in the declaration shall be enforceable equitable servitudes” unless they are

“unreasonable.” Id. at § 1354(a). Under the open-ended authority of the declaration and other

“governing documents” permitted by the Davis-Stirling Act, a common interest development

may also adopt expansive “operating rules.” An “[o]perating rule” refers to any “regulation

adopted by the board of directors of the association that applies generally to the management

and operation of the common interest development or the conduct of the business and affairs of

the association.” Id. at § 1357.100. (“Governing documents” include the “declaration and any

other document, such as bylaws, operating rules of the association, articles of incorporation . . .

which govern the operation of the common interest development or the association.” Id. at §

1351(j).)

That the State of California treats the rulemaking powers of common interest

developments as government in nature is evident from the protections for freedom of speech

that appear in the Davis-Stirling Act which operate as limitations on the authority of association

boards of directors to enact rules that would infringe, for example, the right of members to

display the American flag or political campaign signs. CAL. CIV. CODE §§ 1353.5, 1353.6

(West 2010). Clearly, HVLA functions as a quasi-governmental entity. Even though HVLA

is not a formal subdivision of the State of California, California courts have long recognized

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that associations, such as HVLA, operate in many respect as if they were and they do so on the

basis of delegated state power. The California Court of Appeal has described the quasi-

governmental nature of a homeowners association, such as HVLA, as follows:

. . . [H]omeowners associations function almost “as a second municipal government, regulating many aspects of [the homeowners’] daily lives.” [citations omitted] “[U]pon analysis of the association’s functions, one clearly sees the association as a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government. As a ‘mini-government,’ the association provides to its members, in almost every case, utility services, road maintenance, street and common area lighting, and refuse removal. In many cases, it also provides security services and various forms of communication within the community. There is, moreover, a clear analogy to the municipal police and public safety functions.” [citations omitted] In short, homeowners associations, via their enforcement of the CC&R’s, provide many beneficial and desirable services that permit a common interest development to flourish.

Villa Milano Homeowners Assn. v. Il Davorge, 84 Cal.App.4th 819, 836 (2000) (emphasis

added), quoting, Chantiles v. Lake Forest II Master Homeowners Assn., 37 Cal.App.4th 914,

922 (1995) (describing CC&R’s as a system of governance); Duffey v. Superior Court, 3

Cal.App.4th 425, 434 (1992). Clearly, these authorities suggest HVLA’s operations inherently

require the performance of a “public function.”

Ambiguities in the Davis-Stirling Act’s limitations on association rulemaking powers,

however, suggest that association boards of directors might easily come to believe that they

have the power to effectively override state law, which may, in turn, lead to abuses in the

exercise of their rulemaking authority. For example, Civil Code Section 1357.110 prescribes

five sets of “requirements,” some of which are very poorly drafted and ill-conceived, that must

be satisfied for an “operating rule” to be “valid and enforceable.” Id. at § 1357.110. As they

appear in Civil Code Section 1357.110, these five requirements are as follows:

(a) The rule is in writing. (b) The rule is within the authority of the board of directors of the association

conferred by law or by the declaration, articles of incorporation or association, or bylaws of the association.

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(c) The rule is not inconsistent with governing law and the declaration, articles of incorporation or association, and bylaws of the association.

(d) The rule is adopted, amended, or repealed in good faith and in substantial compliance with the requirements of this article.

(e) The rule is reasonable.

Id. at § 1357.110 (emphasis added). Subsection (b) of Civil Code Section 1357.110 raises the

most serious concerns due to its confusing use of the disjunctive “or” as if to suggest that an

operating rule could be “valid and enforceable” if it were within the authority of the board of

directors conferred, for example, by “the declaration” but not “by law.” Although an operating

rule would likely be deemed inherently unreasonable, and therefore invalid and unenforceable

under subsection (e), if it were beyond the lawful authority of the board of directors to

promulgate, the use of the disjunctive in subsection (b) remains confusing, especially in light of

the strange “substantial compliance” language in subsection (d) which could be read as

suggesting that a rule could be adopted that only substantially, but not completely, complied

with the law or declaration, as apparently required by subsection (b). Quite possibly, under this

tangled provision, an HVLA operating rule that only substantially complied with the Davis-

Stirling Act or other applicable law might be deemed “reasonable” under subsection (e) since

full compliance with the law is not required. Clearly, such awkward, even incoherent

draftsmanship suggests that the apparent limitations in this section on board discretion to adopt

“operating rules” may be illusory. Such ambiguity invites abuse of discretion. As we shall see,

HVLA has taken full advantage of this ambiguity to adopt operating rules that allow it to

exercise powers traditionally and exclusively reserved to the state.

(4) HVLA and HVLA Patrol Officer McKelvey have exercised powers that are traditionally and exclusively reserved to the State of California and its duly licensed peace officer agents.

Fourth, HVLA has consistently and publicly claimed that the State of California and its

local governmental agencies have delegated to HVLA the right to (1) enact the HVLA Vehicle

Code occupying the same field as the California Vehicle Code, (2) authorize its agents, HVLA

security patrol officers, to enforce simultaneously both the California Vehicle Code and the

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HVLA Vehicle Code, and, in the process, (3) exercise in their discretion the power to make

traffic stops, such as the one HVLA Patrol Officer McKelvey made in this case, thereby

exercising both legislative and police powers traditionally and exclusively reserved to the State

of California and satisfying both prongs of the Lugar “public function” test. Lugar, 457 U.S. at

937. Thus, there can be no doubt whatsoever that the challenged conduct of HVLA and its

agent, HVLA Patrol Officer McKelvey, constituted “state action” such that fourth amendment

protections apply.

In this section, Defendant will explore the various provisions of HVLA’s “governing

documents,” including especially HVLA Board of Directors resolutions, under which it claims

to have derivative state authority to enact the HVLA Vehicle Code, a set of legal rules that

purport to occupy the same field as the California Vehicle Code and even modify the operation

of state law on the private roadways of the HVL subdivision, and prosecute violators in

administrative proceedings that illegally oust the constitutionally granted jurisdiction of this

Court. The purpose of this systematic exploration is to demonstrate to this Court that, as a

matter of law, HVLA has exercised powers traditionally and exclusively reserved to the State

of California by customary practice and the affirmative command of state law. Lugar, 457 U.S.

at 937. Defendant will first set forth the legal basis of HVLA’s claims of state-delegated

authority to enact traffic rules as they derive from the HVLA Articles of Incorporation, Bylaws

and Declaration before discussing in detail the specific HVLA Vehicle Code that HVLA has

enacted to implement such broader jurisdictional claims of state delegated authority.

First, the 1993 HVLA Articles of Incorporation provide in Article II that HVLA is a

“nonprofit mutual benefit corporation” that “owns, repairs, maintains and manages common

areas, enforces rules and regulations adopted from time to time by the Board of Directors and

discharges such other lawful duties and responsibilities required pursuant to the corporation’s

bylaws and the Declaration of Covenants, Conditions and Restrictions (the ‘Declaration’), as

amended from time to time, with respect to the planned development.” Certificate of Restated

Articles of Incorporation of Hidden Valley Lake Association (Mar. 19, 1993), art. II, at p. 1

(emphasis added) (For a copy of original, see accompanying Request for Judicial Notice.)

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Second, Section 2(k) of Article II of the 1993 HVLA Bylaws provides in pertinent part

as follows:

Section 2. Powers. The Association shall do whatever is necessary, conducive, incidental or advisable to accomplish and promote its objectives and purposes, except carrying on a business or trade for profit and in connection therewith shall have, but shall not be limited to, the following powers:

* * * (k) To prescribe and enforce vehicle operation and parking within the

Properties . . . .

Certificate of Amendment of Bylaws of Hidden Valley Lake Association (Mar. 19, 1993), art.

II, § 2(k), at p. 2 (HVLA Bylaws) (emphasis added) (For a copy of recorded original, see

accompanying Request for Judicial Notice.). “Properties” is a term defined in Section 21 of

Article I of the 1993 HVLA Declaration, as amended, to mean “all that certain real property

described in the preamble to the Declaration and such additions thereto as may thereafter be

brought within the jurisdiction of the Association.” Declaration of Covenants, Conditions and

Restrictions of Hidden Valley Lake Association (as Restated in 1993), art. I, § 21, at p. 4 (1993

HVLA Declaration) (For copy of recorded original, see accompanying Request for Judicial

Notice.) Such “Properties” are described in Section 1 of the Preamble with an incorporated

reference to an “Exhibit A” to the Declaration, which contains references to the map

descriptions recorded with the Lake County Recorder that define the HVL subdivision. Id.

Third, Section 1(h) of Article VII of the HVLA Bylaws further defines the powers of the

Board of Directors and provides in pertinent part:

Section 1. Powers. Subject to any limitation of the articles of incorporation, of these bylaws, and the General Nonprofit Corporation Law of California, and subject to the duties of the directors as prescribed by these bylaws, all corporate powers of the Association shall be exercised by or under the authority of, and the business and affairs of the Association shall be controlled by, the Board of Directors. Without prejudice to such general powers, but subject to the same limitations, it is hereby expressly declared that the Board of Directors shall have the following powers:

* * * (h) To adopt and establish Rules and Policies subject to the provisions of the

Declaration, governing . . . the . . . roads within the Properties, and the

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personal conduct of the members and their guests thereon, and take such steps as it deems necessary for the enforcement of such Rules and Policies, including the imposition of monetary penalties and/or the suspension of voting rights and the right to use any Common Areas or Common Facilities; provided, however, notice and the opportunity for hearing are provided as more particularly set forth in the Governing Documents.

HVLA Bylaws, art. VII, § 1(h), at p. 10 (emphasis added) (For a copy of recorded original, see

accompanying Request for Judicial Notice.).

Fourth, Sections 1 through 3 of Article VI of the 1993 HVLA Declaration set forth the

powers and authority of HVLA and its Board of Directors. Section 2 of Article VI of the 1993

HVLA Declaration provides as follows:

Section 2. Powers and Authority of the Association. The Association shall have all of the powers of a non-profit mutual benefit corporation organized under the laws of the State of California in operating for the benefit of its membership, subject only to such limitations upon the exercise of such powers as are expressly set forth in the Articles, Bylaws and this Declaration. The Association and its Board of Directors shall have the power to do any and all lawful things which may be authorized, required or permitted to be done under and by virtue of this Declaration, and to perform any and all acts which may be necessary or proper or incidental to the exercise of any of the express powers of the Association for the peace, health, comfort, safety or general welfare of the Members. . . . .

1993 HVLA Declaration, art. VI, § 2, at p. 9 (emphasis added). Section 3(a) of Article VI of

the 1993 HVLA Declaration states that the HVLA Board of Directors may “propose, enact, and

amend Rules and/or Policies of general application to the Members” but only subject to the

Declaration and Bylaws. 1993 HVLA Declaration, art. VI, § 3(a), at p. 9. Section 19 of Article

X of the 1993 HVLA Declaration contains a provision that expressly authorizes HVLA to

directly regulate the roadways of the HVL subdivision:

Section 19. Use of Private Streets Within the Properties. Private streets within the Properties shall not be used for recreational purposes, including “joy riding”, etc. Rules governing the use of streets may be promulgated in the Rules and/or Policies. Posted speed limits shall be observed.

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1993 HVLA Declaration, art. X, § 19, at pp. 24-25 (emphasis added). Incredibly, in its March

1993 restated Declaration and Bylaws, HVLA continued formally to assert the right to “enact”

rules governing the use of streets in the HVL subdivision when such streets were then already

subject to the California Vehicle Code by act of the Lake County Board of Supervisors upon

the satisfaction of the conditions precedent specified in BOS Res. 90-315, as adopted on

December 18, 1990. HVLA did not, however, simply claim the right to continue to regulate its

streets after Lake County applied the California Vehicle Code to those same streets at HVLA’s

request pursuant to CVC Section 21107.7. HVLA began to enforce a parallel vehicle code.

Fifth, HLVA has enacted a comprehensive, detailed internal traffic code that topically

parallels selected provisions of the California Vehicle Code and occupies precisely the same

regulatory field. The HVLA Vehicle Code was enacted in several successive resolutions of the

HVLA Board of Directors which purport, rather incoherently, both to enforce the California

Vehicle Code under delegated state power, and to enact inconsistent internal traffic rules, also

on the basis delegated state power. HVLA imposes its own system of fines for violations of the

California Vehicle Code and, apparently, the HVLA Vehicle Code. A brief chronological

listing of the four key legislative enactments of the HVLA Board of Directors pertaining to the

HVLA Vehicle Code, applicable by its own terms to all members of the public who enter the

HVL subdivision, and its prosecution policy for violations of both the California Vehicle Code

and the HVLA Vehicle Code, appears below:

(1) HVLA Board of Directors Resolution 93-32 (Apr. 27, 1993) (implementing an

internal traffic code and approving a schedule of “fines” for “traffic violations”; enacted, by its

own terms, to “avoid a record keeping nightmare” and to give HVLA “the ability to enforce the

rules through other means than going to court over small issues”) (HVLA Res. 93-32);

(2) HVLA Board of Directors Resolution 2000-10, “Vehicle Code Violation

Prosecution Policy” (Mar. 25, 2000) (expressly adopted under delegated state authority and

expressly requiring that all motorists who commit violations of the “Vehicle Code” submit to

“emergency vehicle” traffic stops by HVLA security patrol vehicles flashing “clear and amber

lights”) (superseded by HVLA Res. 2003-13) (HVLA Res. 2000-10);

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(3) HVLA Board of Directors Resolution 2003-13, “Vehicle Code Violation

Prosecution Policy” (Mar. 27, 2003) (expressly adopted under delegated state authority and

expressly requiring that all motorists who commit violations of the “Vehicle Code” submit to

“emergency vehicle” traffic stops by HVLA security patrol vehicles flashing “clear and amber

lights”) (amended in part, but not superseded by HVLA Res. 2008-09) (HVLA Res. 2003-13);

and

(4) HVLA Board of Directors Resolution 2008-09, “Security and Safety Fine

Policy and Schedule” (May 8, 2008) (adopted merely to update the HVLA traffic fine

schedule and “fill gaps between current practices and published rules and policies,” while

leaving HVLA Res. 2003-13 in full force and effect; contains HVLA Vehicle Code currently

in force and at the time of the March 15, 2009 traffic stop in this case) (HVLA Res. 2008-09).

Careful examination of HVLA Res. 2003-13 and HVLA Res. 2008-09 reveals that the

HVLA Board of Directors has enacted a comprehensive set of traffic rules and a schedule of

fines for violations of those rules. These rules include express references to the California

Vehicle Code as well as other traffic rules that apparently supplement the rules referencing the

California Vehicle Code. (Please see the HVLA Res. 2003-13 for further details.) The HVLA

Vehicle Code provisions that expressly reference the California Vehicle Code contain a brief

summary of the more lengthy text of the referenced California Vehicle Code section and often

contain changes in the text and entirely different, conflicting HVLA rules. The HVLA traffic

rules that reference the California Vehicle Code do not ever make clear whether they were

intended to merely adopt exactly the same rules as those embodied in the referenced California

Vehicle Code provision or whether they are supposed to constitute some adumbrated variation

of the California Vehicle Code. Since HVLA illegally collects fines for violations of the

California Vehicle Code, the penalty provisions of the HVLA traffic rules clearly depart from

the California Vehicle Code. Both residents and nonresidents who are aware of the HVLA

traffic rules, enacted under claims of delegated state authority and official right, are never told

the precise legal nature of the traffic rules to which they are being subjected.

///

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HVLA claims to have delegated state authority to enforce the following provisions of

the California Vehicle Code sections through the agency of HVLA security officers:

California Vehicle Code Sections HVLA Claims to Have Delegated State Authority to Enforce: 12500 (unlicensed driver), 16430 (proof of insurance), 12951 (possession of license), 21116 (levees), 21212 (bicycle helmet requirements), 21200.5 (riding bicycle under influence of alcohol or drugs), 21201 (bicycle equipment requirements), 21202 (operation of bicycle on roadway), 21203 (hitching rides), 21954 (pedestrians outside crosswalks), 21956 (pedestrians on roadway), 21950 (right-of-way at crosswalks), 21951 (vehicle stopped for pedestrian), 21957 (hitchhiking), 21460 (double lines rules), 21461 (failure to obey traffic control sign or signal), 21464 (interference with traffic devices), 21700 (obstruction to driving), 21703 (following too closely), 21801 (U-turn, left-turn), 21806 (failure to yield to emergency vehicles), 22100 (turning on a highway), 22450 (stop requirements), 22350 (basic speed law), 22450 (school bus), 22500 (prohibited stopping, standing and parking), 23103 (reckless driving), 23104 (reckless driving, bodily injury), 23109 (speed contest), 23110 (throwing substances at vehicles), 23111 (throwing substances on highways), 23112 (depositing matter on highway), 23114 (spilling loads on highways), 23116 (persons in back of pickup), 23152 (DUI), 24002 (vehicle unsafe), 27315 (seat belts), 27360 (child restraint requirements), 27803 (safety helmet requirements), 20001 (hit and run), 23220 (drinking alcohol while driving) and 23223 (possession of open container).

HVLA Res. 2008-09, at pp. 3-13. In addition to purporting to implement the foregoing

provisions of the California Vehicle Code as well as parallel, modified versions of these

provisions in their own internal traffic code, HVLA also has enacted its own supplemental

traffic rules that have absolutely no basis whatsoever in any provision of the California Vehicle

Code and directly conflict with it. The following examples are sufficient to establish the truly

shocking extent to which HVLA has illegally assumed legislative powers and enacted a local

traffic code that purports to give HVLA security officers the right to exercise police powers

exclusively reserved to the State of California and its duly licensed peace officers:

First, HVLA has apparently “cut-and-pasted” the California Vehicle Code provision

that authorizes peace officers to make traffic stops into the HVLA Vehicle Code and then

changed a few terms to make that provision applicable to HVLA security officers as follows:

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California Vehicle Code § 2800.1(a)

HVLA Vehicle Code Provision

Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. . . .

Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a Security & Safety Officer’s Patrol Vehicle with amber lights flashing, visible from the front, which the person see or reasonably should have seen the flashing lights. [Note that the HVLA version is an incomplete, ungrammatical sentence.]

Compare CAL. VEH. CODE § 2800.1(a) (West 2010) (emphasis added) with HVLA Res. 2008-

09, at p. 4, para. 2 (emphasis added). As the foregoing excerpt from HVLA Res. 2008-09

indicates, HVLA security officers are misusing amber lights mounted on the light bars of

HVLA security vehicles. A rooftop amber light may not be lawfully used to make a traffic

stop. The violation here is even more fundamental: “private patrol operator vehicles” may not

even be mounted with amber light bars affixed to security vehicles that are ever driven on

public roadways unless the parent company holds a “private patrol operator” license under the

California Business and Professions Code. CAL. VEH. CODE § 25279(b)(1) (West 2010).

Furthermore, under California Vehicle Code Section 25279(a), HVLA security patrol vehicles

may only display “flashing amber warning lights to the front, sides, or rear, while being

operated in response to emergency calls for the immediate preservation of life or property” and

then, again, only if the required private patrol operator’s license has been obtained. CAL. VEH.

CODE § 25279(a)-(b)(1) (West 2010) (emphasis added). Documents subpoenaed by Defendant

from the Bureau of Security and Investigative Services (BSIS) of the California Department of

Consumer Affairs will show that (1) HVLA is not now and has never been licensed as a

“private patrol operator,” (2) on August 5, 2010, HVLA was served with an “unlicensed

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activity” letter by BSIS enforcement representatives and HVLA declared, in a written response,

its refusal to obtain the required licensure, (3) HVLA is currently under investigation for

criminal violations of those provisions of the California Business and Professions Code that

require a homeowners associations, such as HVLA, to obtain state licensure as a “private patrol

operator.” CAL. BUS. & PROF CODE §§ 7582, 7582.05 & 7582.3 (West 2010); 16

Ops.Cal.Atty.Gen. 137 (1950) (security guard agencies of homeowners associations are private

patrol operators and must be licensed as such under state law).

Second, HVLA has tried to redefine the legal effect of amber lights on security

vehicles. HVLA has legislated a new duty to yield to HVLA security patrol vehicles flashing

amber lights in the HVLA Vehicle Code provision, entitled “Security & Safety Patrol Vehicles

-- failure to yield.” HVLA Res. 2008-09, at 4, para. 1. Please find below a comparison

between CVC Section 21806 and HVLA’s cut-and-pasted version that purports to create a new

obligation to yield to an HVLA security patrol vehicle flashing amber lights:

California Vehicle Code § 21806 HVLA Vehicle Code Provision

Upon the immediate approach of an authorized emergency vehicle which is sounding a siren and which has at least one lighted lamp exhibiting red light that is visible, under normal atmospheric conditions, from a distance of 1,000 feet to the front of the vehicle, the surrounding traffic shall, except as otherwise directed by a traffic officer, do the following: (a) (1) Except as required under paragraph (2), the driver of every other vehicle shall yield the right-of-way and shall immediately drive to the right-hand edge or curb of the highway, clear of any intersection, and thereupon shall stop and remain stopped until the authorized emergency vehicle has passed.

Upon the immediate approach of a Security & Safety Patrol Vehicle with amber lights flashing, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to the right edge of the roadway, clear of any intersection, and thereupon shall stop and remain stopped until the vehicle has passed.

Compare CAL. VEH. CODE § 21806 (West 2010) (emphasis added) with HVLA Res. 2008-09,

at p. 4, para. 1 (emphasis added). Obviously, HVLA is claiming the same right-of-way for its

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security vehicles as authorized emergency vehicles enjoy, using almost the same statutory

language that appears in California Vehicle Code Section 21806. CAL. VEH. CODE §§ 21806,

25252 (West 2010). The HVLA Vehicle Code lists a recently increased “$250” fine for

violations of this “failure to yield” rule. HVLA Res. 2008-09, at p. 4, para. 1.

HVLA has not merely adopted rules of the road identical to those in the California

Vehicle Code. HVLA has rewritten them and adopted many changes, exemptions and revisions

and then attempted to claim that these rules supersede the laws of the State of California.

Although many examples of HVLA Vehicle Code provisions could be quoted that overtly

change the terms of provisions of the California Vehicle Code, there is one telling example that

warrants close judicial scrutiny as it is directly relevant to the allegations against Defendant in

this case. As incredible as it may seem, HVLA has actually adopted a traffic rule that purports

to create several exceptions to the double lines provision in Section 21460 of the California

Vehicle Code. CAL. VEH. CODE § 21460 (West 2010). In overt violation of the CVC Section

21460, the HVLA rule magically carves out several exceptions to CVC Section 21460 as

follows: “Vehicles proceeding in the same direction are exempt while passing [1] golf carts,

[2] parked utility and delivery vehicles and [3] other roadway obstacles so long as the motorist

maintains due regard for the safety of all persons on or about the roadway.” HVLA Res. 2008-

09, at p. 6, para. 1. Furthermore, in purporting to exempt the use of golf carts on a roadway

where the California Vehicle Code applies, HVLA has presumed to exercise the legislative

power of a “local authority” under CVC Section 21115(a), which provides that only a “local

authority” may “prescribe rules and regulations that shall have the force of law” with respect to

operation of a golf cart on a roadway where the California Vehicle Code applies. Id. at §

21115(a). Under CVC Section 385, the term “local authorities” is defined to mean “the

legislative body of every county or municipality having authority to adopt local police

regulations.” Id. at § 385. Here HVLA has clearly assumed the powers of a “local authority.”

The foregoing examples of HVLA operating rules that purport to legislate changes to

the California Vehicle Code and enact a parallel, overlapping and inconsistent set of traffic

rules for the private roadways of the HVL subdivision clearly indicate that HVLA and its agent,

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HVLA Patrol Officer McKelvey, have exercised powers traditionally and exclusively reserved

to the state. Lugar, 457 U.S. at 937. If HVLA acted merely as a nonprofit mutual benefit

corporation, the HVLA Vehicle Code would be void ab initio because the acts of such a

corporation are subject to California law and a purely private corporation may not enact rules

that override state law without an express delegation of power. See, e.g., CAL. CIV. CODE §

1363(c) (vesting HVLA with “the powers granted to a nonprofit mutual benefit corporation”);

CAL. CORP. CODE § 7140 (West 2010) (providing that a nonprofit mutual benefit corporation

“shall have all the powers of a natural person,” but subject to “any limitation contained in the

articles or bylaws and to compliance with other provisions” of the Nonprofit Corporation Law

“and any other applicable laws”) (emphasis added).

On the other hand, HVLA has effectively claimed to enact the HVLA Vehicle Code and

operative changes to the California Vehicle Code pursuant to municipal rulemaking powers

delegated to HVLA under BOS Res. 90-315, DATEP and the Davis-Stirling Act, but, even so,

any such exercise of such claimed delegated governmental power beyond that which a

nonprofit mutual benefit corporation could lawfully exercise would still invade a field

exclusively reserved to the State of California manifestly subject to preemption. In other

words, HVLA has effectively claimed that the enactment of its own traffic rules is authorized

by a state delegation of the subset of the general municipal powers that “local authorities” enjoy

under the California Vehicle Code, yet the exercise of such power to enact such local traffic

rules invades an exclusive field of uniform regulation under the California Vehicle Code. Thus,

any such local traffic rules are preempted. Section 21 of the California Vehicle Code provides

as follows:

Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.

CAL. VEH. CODE § 21 (West 2010). Furthermore, on September 30, 2010, Governor Arnold

Schwarzenegger signed into law Senate Bill 949, which amends CVC Section 21 only for the

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purpose of clarifying existing state law. 2010 Cal. Stat. ___ (Chapter 616), available at

http://info.sen.ca.gov/pub/09-10/bill/sen/sb_0901-0950/sb_949_bill_20100930_chaptered.pdf

(See accompanying Request for Judicial Notice); Compare id. with County of Los Angeles v.

City of Alhambra, 27 Cal.3d 184, 189-93 (1980). According to the Legislative Counsel’s

Digest, this “bill would prohibit a local authority from enacting or enforcing an ordinance or

resolution on matters covered by the Vehicle Code, and would expressly include an ordinance

or resolution that establishes regulations or procedures for, or assesses a fine, penalty,

assessment, or fee for a violation of, matters covered by this code unless expressly authorized

by this code, except as specified.” Id.

Old California Vehicle Code § 21 New California Vehicle Code § 21(a)

21. Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and munici-palities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.

21. (a) Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the state and in all counties and municipalities therein, and a local authority shall not enact or enforce any ordinance or resolution on the matters covered by this code, including ordinances or resolutions that establish regulations or procedures for, or assess a fine, penalty, assessment, or fee for a violation of, matters covered by this code, unless expressly authorized by this code. [Subsection 21(b) has been omitted because irrelevant.]

2010 Cal. Stat. ___ (Chapter 616) (emphasis added). In addition, to amending CVC Section 21,

the new law adds the following new subsection to Section 21100(m)(1), which provides as

follows: “This section [21100] does not authorize a local authority to enact or enforce an

ordinance or resolution that establishes a violation if a violation for the same or similar conduct

is provided in this code, nor does it authorize a local authority to enact or enforce an ordinance

or resolution that assesses a fine, penalty, assessment, or fee for a violation if a fine, penalty,

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assessment, or fee for a violation involving the same or similar conduct is provided in this

code.” Id.

City and county governments may not enact traffic rules that conflict with the California

Vehicle Code. All such conflicting local traffic rules are preempted by operation of Vehicle

Code Section 21 and Section 16 of Article IV of the California Constitution. CAL. CONST. art.

IV, § 16(a)-(b) (providing in subsection (a) that “[a]ll laws of a general nature have uniform

operation” and in subsection (b) that a “local or special statute is invalid in any case if a general

statute can be made applicable.”); Citizens Against Gated Enclaves v. Whitley Heights Civic

Assn., 23 Cal.App.4th 812, 820 (1994); Rumford v. City of Berkeley, 31 Cal.3d 545, 551

(1982); City of Lafayette v. County of Contra Costa, 91 Cal.App.3d 749, 755, 756 (1979);

Pipoly v. Benson, 20 Cal.2d 366, 371 (1942). The California Court of Appeals held in Citizens

Against Gated Enclaves that municipal authorities have no power to enact general traffic rules:

As noted by the Attorney General: “Regulating the use of the public roads and highways by whatever means is outside the ‘municipal affairs’ constitutional grant of authority to chartered cities.” (68 Ops.Cal.Atty.Gen. 101, 102, fn. 2 (1985).) Moreover, citing [California Vehicle Code] section 21, Rumford, and Lafayette, among others, the Attorney General stated: “Since the state has preempted the entire field of traffic control, any right of a local authority to interfere with the free flow of traffic . . . must be derived from an express delegation of authority from the Legislature.” . . . (75 Ops.Cal.Atty.Gen. 80, 81 (1992).) We agree.

23 Cal.App.4th at 820. Thus, a city may regulate traffic only if the city has been expressly

authorized by the state to do so. The California Attorney General has repeatedly opined that

“[t]o the extent that it occupies certain fields of law . . . the Vehicle Code preempts local

legislative action.” 76 Ops.Cal.Atty.Gen. 31, 33 (1993); see also, 78 Ops.Cal.Atty.Gen. 65, 67

(1995); 68 Ops.Cal.Atty.Gen. 101, 102 (1985). Thus, to the extent that BOS Res. 90-315

apparently authorized HVLA to enact its own local vehicle code or locally enforce variations in

the California Vehicle Code or enforce the California Vehicle Code itself, the new amendments

to CVC Sections 21 and 21100 clarify that existing law with the effect that any such

authorization is preempted by the California Vehicle Code.

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After the Lake County Board of Supervisors adopted BOS Res. 90-315 on December 18,

1990 and all mandatory conditions precedents were satisfied, HVLA roadways fell subject to

the exclusive, preemptive application of the California Vehicle Code and HVLA lost all legal

authority, if it ever had any, to adopt local traffic rules. By purporting to enact such local

traffic rules, apply them to all motorists on HVLA roadways and vest HVLA security patrol

officers with the power to make traffic stops, HVLA has exercised powers that are traditionally

and exclusively reserved to the California legislature. CAL. CONST. art. IV, § 1; Lugar, 457

U.S. at 937. Furthermore, in asserting both enforcement and adjudicatory jurisdiction over

alleged traffic law violations on HVLA roadways, through the agency of both HVLA security

officers and the HVLA Board of Directors presiding as the HVLA Hearing Board to adjudicate

alleged traffic offenses, HVLA has illegally ousted the lawful exclusive jurisdiction of (1) the

California Highway Patrol and the Lake County Sheriff’s Department over enforcement of

violations of the California Vehicle Code and (2) the Superior Court of Lake County over

alleged criminal violations of the California Vehicle Code. CAL. PENAL CODE §§ 830.1, 830.2

(West 2010); CAL. CONST. art. X, § 6 (concerning original jurisdiction of California superior

courts); 1993 HVLA Declaration, art. XIV, at pp. 27-31. Just as in Stormer, HVLA effectively

excludes local law enforcement from the HVLA roadways except by request. Stormer, 518

N.Y.S.2d at 354. Thus, by ousting both local enforcement and adjudicatory jurisdiction, HVLA

also is exercising powers traditionally and exclusively reserved to the state.

Incredibly, HVLA assertion of state police powers does not end with the enforcement

and adjudication of California Vehicle Code violations. HVLA also claims state delegated

authority to enforce at least the following four sections of the California Penal Code against all

members of the public, adjudicate violations and assess a private fine for the violation of public

law:

California Penal Code Sections HVLA Claims to Have State Delegated Authority to Enforce: 594 (felony and misdemeanor vandalism), 488 (misdemeanor petty theft), 490.1 (misdemeanor petty theft under $50) and 487 (felony grand theft).

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CAL. PENAL CODE §§ 487, 488, 490.1, 594 (West 2010); HVLA Res. 2008-09, at p. 10, paras.

6-10. The evidence at the suppression hearing will also show that HVLA patrol officers

illegally employ used police radar guns without the license from the Federal Communications

Commission (FCC) required by 47 U.S.C. § 301 (2010) and in violation of California statutes

that restrict the use of such of such powerful, high energy devices to duly licensed peace

officers. See, e.g., CAL. VEH. CODE §§ 40802(c)(1)(A) (requiring that “the arresting officer has

successfully completed a radar operator course of not less than 24 hours on the use of police

traffic radar,” where the course has been “approved and certified by the Commission on Peace

Officer Standards and Training”); FCC Public Notice: FCC Regulates Radar Transmitters,

But Not Radar Detectors, DA 96-2040, 11 F.C.C.R. 17268 (released Dec. 9, 1996), available at

http://www.fcc.gov/Bureaus/Wireless/Public_Notices/1996/da962040.pdf (see accompanying

Request for Judicial Notice); 47 C.F.R. § 90 (2009). Clearly, HVLA has exercised police

powers traditionally and exclusively reserved to the state and its duly licensed police agents.

The foregoing analysis clearly establishes that when HVLA Patrol Officer McKelvey

subjected Defendant to a traffic stop without probable cause or even reasonable suspicion, he

was performing a “public function” such that his action must be deemed to constitute “state

action” sufficient to trigger fourth amendment protections in this case.

2. The “state compulsion” test for “state action” is satisfied in this case.

Alternatively, “state action” may also be found in this case under the “state compulsion”

test as the State of California has “exercised coercive power or has provided such significant

encouragement, either overt or covert, that the [private actor’s] choice must in law be deemed

to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis added). The

same challenged HVLA conduct that Defendant has just outlined to vindicate his “public

function” analysis is equally relevant to Defendant’s “state compulsion” test analysis and is

herein incorporated by reference. In the event this Court were to find that the State of

California did not either directly or indirectly, through any of its local agencies, authorize or

delegate to HVLA exclusive police powers, Defendant contends, in the alternative, that “state

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action” must nonetheless be found in this case because the acts of the State of California

previously discussed in great detail in Section I-B-1 of this memorandum constitute, at the very

least, constitutionally cognizable “encouragement” to undertake the challenged HVLA conduct

such that fourth amendment protections must be held to apply.

Defendant believes that this case is controlled by the outcome in the U.S. Supreme

Court decision in Reitman v. Mulkey, 387 U.S. 369, 380-81 (1967) (striking down a California

state constitutional amendment that made it unconstitutional for the state or any political

subdivision to adopt fair housing law and agreeing with the California Supreme Court that the

invalidated section “will significantly encourage and involve the State” prohibited misconduct).

3. The “governmental nexus” test for “state action” is met in this case.

Alternatively, “state action” may also be found in this case under the “government

nexus” or “symbiotic relationship” test under which this Court must consider whether there is a

“sufficiently close nexus between the State and the challenged action of the regulated entity so

that the action of the latter may be fairly treated as that of the State itself.” Jackson, 419 U.S. at

351. This test is sometimes phrased in terms of state “entwinement” with the challenged

conduct. Brentwood, 531 U.S. at 298. As described in elaborate detail earlier in connection

with Defendant’s “public function” analysis, the involvement of the State of California in

giving HVLA the pretext to assert that it has delegated state authority to undertake the

challenged conduct is pervasive and fundamental and goes far beyond merely subjecting HVLA

to “state regulation.” Jackson, 419 U.S. at 350. Defendant has clearly alleged facts and legal

acts that conclusively demonstrate that “the state ha[s] so far insinuated itself into a position of

interdependence” with HVLA’s challenged misconduct that such misconduct is fairly

attributable to the state. Burton, 365 U.S. at 725 (holding that restaurant’s refusal to serve

African-Americans was state action where restaurant leased space in building owned by the

state). Thus, Defendant has, alternatively, clearly shown state action under the “nexus test.”

4. The “joint action” test for “state action” is satisfied in this case.

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Under the “joint action” test, private actors may become state actors when they are

“willful participant[s] in joint action with the state or its agents.” Dennis v. Sparks, 449 U.S.

24, 27 (1980). An agreement between the government and a private party may create

constitutionally significant joint action. See, e.g., Fonda v. Gray, 707 F.2d 435, 437 (9th

Cir.1983) (“A private party may be considered to have acted under color of state law when it

engages in a conspiracy or acts in concert with state agents to deprive one’s constitutional

rights”). DATEP and related understandings between HVLA and other local law enforcement

agencies will be shown to be constitutionally sufficient agreements under this test.

Defendant contends further that the illicit, but convenient continuing arrangement

between HVLA security officers and local law enforcement agencies constitutes a new and

dangerous manifestation of the unconstitutional “silver platter doctrine” struck down by the

U.S. Supreme Court in Elkins v. United States, 364 U.S. 206, 208 (1960). In Elkins, the

majority held that evidence obtained by state officers in violation of the fourth amendment

could not be used against a defendant in a federal criminal trial, despite the fact that federal

agents had not directly participated in the constitutional violation. Id. Just as Elkins held

inadmissible evidence given to federal police agents by state officers, before the fourth

amendment was held to apply to the states under the fourteenth amendment, where such

evidence would have been otherwise inadmissible under the fourth amendment had the federal

agents themselves used the same means to procure it as had the state agents, so, too, here this

Court must declare unconstitutional the ongoing, systematic practice of local California peace

officers of obtaining evidence from HVLA security officers employing means that would be

deemed unconstitutional if local police officers had used the same means. Id.; Mapp v. Ohio,

367 U.S. 643, 654–55 (1961) (holding that fourth amendment protections are enforceable

against the states through the fourteenth amendment and requiring the states to exclude illegally

obtained evidence in a state trial).

More precisely, Defendant argues that by virtue of any explicit or implicit collaboration

or “joint action” between HVLA and local California peace officers undertaken with a common

and continuing design to avoid the constitutional limitations applicable to peace officer

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conduct, HVLA security personnel thereby, alternatively, became state actors. This Court

should not allow HVLA security officers to surreptitiously “serve up” such ill-gotten evidence

on the tainted and constitutionally unpalatable “silver platter” discarded in Elkins. See, e.g.,

Martin McGuinness, The “Silver Platter” in the Context of State Constitutional Adjudication,

71 ALBANY L. REV. 1242, 1242-44 (2009) (providing helpful overview of “silver platter

doctrine”). As far as Defendant has been able to determine, this is the first case in which the

Elkins “silver platter doctrine” has been invoked against security officers on the grounds

suggested, but believes that the extended historical “silver platter” collaboration spanning

almost twenty years between HVLA security officers and local law enforcement agencies more

than justifies a finding of “state action” here on the basis of the “joint action” test such that

fourth amendment protections must be held to apply. See, e.g., Gorenc v. Salt River Project

Agricultural Improvement & Power Dist., 869 F.2d 503, 505-06 (9th Cir.), cert. denied, 493

U.S. 899 (1989).

II. SINCE THE CHALLENGED POLICE TRAFFIC STOP CONSTITUTED “STATE ACTION” AND FOURTH AMENDMENT PROTECTIONS APPLY, ALL EVIDENCE DERIVED THEREFROM MUST BE SUPPRESSED AT TRIAL UNDER THE EXCLUSIONARY RULE.

In this Section II, Defendant will explain why all the evidence derived from the

challenged police traffic stop made by HVLA Patrol Officer McKelvey, as a de facto police

officer or de facto traffic officer, putatively pursuant to the California Vehicle Code and the

state-authorized HVLA Vehicle Code, requires the suppression at trial of all evidence derived

therefrom by operation of the fourth amendment exclusionary rule.

A. HVLA Patrol Officer McKelvey subjected Defendant to an arbitrary police traffic stop without probable cause or even reasonable suspicion to believe that any crime or traffic infraction had occurred.

The fourth amendment protects against unreasonable searches and seizures. U.S.

CONST. amend. IV; Terry v. Ohio, 392 U.S. 1 (1968); People v. Comacho, 23 Cal.4th 824,

830 (2000). A warrantless search is presumptively unreasonable and the burden of justifying a

warrantless search falls upon the prosecution. People v. Williams, 20 Cal.4th 119, 127-130

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(1999). Defendant’s only responsibility is to show by competent evidence presented or

stipulation made at the suppression hearing that the search or seizure occurred without a search

or arrest warrant and the evidence sought to be suppressed is a fruit of that act.

Defendant had a reasonable expectation of privacy in the cab of his own truck. Rakas v.

Illinois, 439 U.S. 128, 130-31, 143-49 (1978). In People v. Glick, the California Court of

Appeals held that “[a]ll drivers on public highways, even those who are subsequently

determined to be driving stolen vehicles, have a protected privacy interest to be free from

unreasonable seizures.” Glick, 203 Cal.App.3d 796, 800-801 (1988); People v. Lionberger

185 Cal.App.3d Supp. 1, 4-5 (1986). This right is separate from any expectation of privacy the

driver has in the car or its contents. United States v. Salvucci, 448 U.S. 83, 90-93 (1980). Such

right is personal to Defendant to the same extent as “if he were walking along a public street.”

Glick, 203 Cal.App.3d at 801 (1988). Any “driver may question the legality of the initial police

detention.” Id.

As a de facto police officer or de facto traffic officer, HVLA Patrol Officer McKelvey

was required to have probable cause or “at least articulable and reasonable suspicion” to believe

that a traffic infraction had occurred. Delaware v. Prouse, 440 U. S. 648, 663 (1979) (requiring

“at least articulable and reasonable suspicion” to support random, investigative traffic stops);

United States v. Brignoni-Ponce, 422 U. S. 873, 880-884 (1975) (same); Whren v. United

States, 517 U.S. 806, 810 (1996) (holding that “the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation has occurred”); Atwater

v. Lago Vista, 532 U. S. 318, 354 (2001) (“If an officer has probable cause to believe that an

individual has committed even a very minor criminal offense in his presence, he may, without

violating the Fourth Amendment, arrest the offender”).

As the U.S. Supreme Court explained in Prouse, “except in those situations in which

there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an

automobile is not registered, or that either the vehicle or an occupant is otherwise subject to

seizure for violation of law, stopping an automobile and detaining the driver in order to check

his driver’s license and the registration of the automobile are unreasonable under the Fourth

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Amendment. . . . [P]ersons in automobiles on public roadways may not for that reason alone

have their travel and privacy interfered with at the unbridled discretion of police officers.”

Prouse, 440 U.S. at 663; People v. Wells, 38 Cal.4th 1078, 1082–1083 (2006); People v.

Superior Court (Simon), 7 Cal.3d 186, 200 (1972).

HVLA Patrol Officer McKelvey has claimed he witnessed Defendant cross double lines

at a distance of 50 yards in the darkness at nearly 1:00 AM, an allegation that two eyewitnesses,

Ms. Jenna Barber and Mr. Zachary R. Slikkerveer, will attest under oath to be completely false

and which a state administrative hearing officer has already found to lack all credibility.

Furthermore, as a matter of law, this Court may not find that probable cause or

reasonable suspicion existed to justify the police traffic stop here even if there were proof

beyond a reasonable doubt that Defendant had crossed the double lines because on the private

roadways of the HVL subdivision two sets of conflicting rules about “double lines” apply:

one enacted by HVLA which would have permitted the crossing of the double lines in this

instance and the other found in Section 21460 of the California Vehicle Code. HVLA Res.

2008-09, at p. 6, para. 1; CAL. VEH. CODE § 21460 (West 2010). Under the cited HVLA

Vehicle Code rule, Defendant would have been free to cross the double lines to avoid any

roadway obstacle so long as he maintained “due regard for the safety of all persons on or about

the roadway.” HVLA Res. 2008-09, at p. 6, para. 1. No such exception is found in CVC

Section 21460. CAL. VEH. CODE § 21460 (West 2010).

Consequently, Defendant had no “fair warning” as to what rule actually applied to his

conduct as a matter of due process of law and the conflicting rules should be treated by this

Court as if the applicable statute were unconstitutionally void for vagueness. As the California

Court of Appeals recently explained, “With respect to the determination whether a statute

imparts fair warning, the United States Supreme Court has stated: ‘There are three related

manifestations of the fair warning requirement. First, the vagueness doctrine bars enforcement

of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning and differ as to its application. . . .’

Second, . . . the canon of strict construction of criminal statutes, or rule of lenity, ensures fair

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warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly

covered. . . . Third, although clarity at the requisite level may be supplied by judicial gloss on

an otherwise uncertain statute [citations omitted], due process bars courts from applying a

novel construction of a criminal statute to conduct that neither the statute nor any prior

judicial decision has fairly disclosed to be within its scope . . . . In each of these guises, the

touchstone is whether the statute, either standing alone or as construed, made it reasonably clear

at the relevant time that the defendant’s conduct was criminal.’” People v. Hagedorn, 127

Cal.App.4th 734, 745-746 (2005), quoting United States v. Lanier, 520 U.S. 259, 266 (1997)

(emphasis added).

As the California Supreme Court held in 1983, both “article I, section 7, of the

California Constitution and the Fourteenth Amendment to the United States Constitution

declare that no person shall be deprived of life, liberty or property without due process of law.

It has been recognized for over 80 years that due process requires inter alia some level of

definiteness in criminal statutes. . . . Today it is established that due process requires a statute

to be definite enough to provide (1) a standard of conduct for those whose activities are

proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” Burg v.

Municipal Court, 35 Cal.3d 257, 269 (1983) (footnotes omitted), citing, Connally v . General

Const. Co., 269 U.S. 385, 391 (1926); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939);

People v. Mirmirani, 30 Cal.3d 375, 382 (1981); People v. Superior Court (Engert), 31 Cal.3d

797, 801 (1982). Vagueness has special implications for responsible law enforcement: “A

vague law impermissibly delegates basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory application.” People v. Vincelli, 132 Cal.App.4th 646, 654 (2005), quoting

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

With two sets of putative, contradictory laws that purport to apply to the same conduct

in the HVL subdivision, Defendant clearly did not have “fair warning” about what legal rule

applied to his conduct on March 15, 2009 and, thus, this Court is precluded as a matter of due

process of law from finding that probable cause or reasonable suspicion existed to justify the

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challenged traffic stop because there was no constitutionally cognizable traffic rule applicable

to the conduct of Defendant.

B. The fruits of the illegal detention and arrest resulting from HVLA Patrol Officer McKelvey’s police traffic stop are tainted and may not be used as evidence.

Evidence seized as a result of an unconstitutional search or seizure, or arrest or

detention, is the “fruit of the poisonous tree” and must be excluded. Wong Sun v. United

States, 371 U.S. 471, 488 (1973). Both the driver and passenger are “seized” in a police traffic

stop “‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’”

Arizona v. Johnson, 555 U.S. ___ (2009), No. 07-1122, slip op. at 7 (U.S. Jan. 26, 2009)

(brackets in original), quoting, Brendlin v. California, 551 U.S. 249, 263 (2007).

Since Defendant’s detention was illegal because HVLA Patrol Officer McKelvey could

not have had either probable cause or reasonable suspicion to make the challenged traffic stop,

“it necessarily follows that the physical evidence found in the automobile as a result of this

detention is inadmissible” along with all other evidence derived from that initial traffic stop and

detention, including all evidence concerning Defendant’s alleged state of intoxication, as more

specifically listed in the accompanying Schedule of Items to Be Suppressed. People v.

Teresinski, 30 Cal.3d 822, 832 (1982); see also, United States v. Crews, 445 U.S. 463, 472

(1980); In re Tony C., 21 Cal.3d 888, 899 (1978); Lockridge v. Superior Court, 3 Cal.3d 166,

170-71 (1970).

C. CHP Officer Forslund lacked probable cause to arrest Defendant because he did not see Defendant actually driving his vehicle.

Penal Code Section 836(a)(1) permits a warrantless arrest for a misdemeanor violation

of Vehicle Code Section 23512 only when the offense is committed in the arresting officer’s

presence. CAL. PENAL CODE § 836(a)(1) (West 2010); CAL. VEH. CODE § 23512 (West 2010).

Since CHP Officer Forslund never observed any volitional movement of the subject vehicle

under the control of Defendant, there was no probable cause to make the arrest and all evidence

from the subsequent search must be excluded. People v. Welch, 151 Cal.App.3d 1038, 1042

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(1984); In re Alonzo C., 87 Cal.App.3d 707, 713 (1978); Mercer v. Department of Motor

Vehicles, 53 Cal.3d 753, 769 (1991); Music v. Department of Motor Vehicles, 221 Cal.App.3d

841, 848 (1990); People v. Engleman, 116 Cal.App. 3d Supp. 14, 19 (1981).

D. Exclusion of the evidence would further the purposes of the exclusionary rule by deterring police misconduct and preserving judicial integrity.

Exclusion of the evidence in this case would deter precisely the kind of “systemic error

or reckless disregard for constitutional requirements” among local police that the U.S. Supreme

Court has identified as a primary rationale of the exclusionary rule in Herring v. United States,

555 U.S. 135, 129 S.Ct. 695, 704 (2009). If the challenged evidence were admitted in this case,

it would invite and encourage future police collaboration on a systematic basis with rogue

HVLA security officers and compromise the integrity of this honorable Court. Elkins, 364 U.S.

at 222.

CONCLUSION

HVLA Patrol Officer McKelvey violated Defendant SHAW RUDY’s fourth

amendment rights under the United States Constitution when he (1) subjected Defendant to a

police traffic stop made without objective reasonable suspicion or probable cause acting as a de

facto peace officer or de facto traffic officer, (2) effectively arrested Defendant after a

prolonged detention and (3) transferred custody of Defendant to California Highway Patrol

Officer Forslund, who, without ever personally witnessing Defendant drive his vehicle, illegally

arrested Defendant, obtained tainted evidence derived from the illegal police traffic stop made

by HVLA Patrol Officer McKelvey and unreasonably searched and seized Defendant.

Dated: January 10, 2011

Respectfully submitted,


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SUPPORTING DECLARATION OF DARIO NAVARRO, ESQ.

I, DARIO NAVARRO, declare:

1. I am an attorney at law duly admitted to practice before all the Courts of the State

of California, the United States Courts for the Northern, Eastern and Central Districts of

California, and the United States Supreme Court. I am the attorney of record to Defendant

Shawn Rudy in the above-captioned action.

2. Based on my investigation of this case, I am informed and believe the following:

(1) that the detention, arrest, search and seizure of Defendant were without reasonable

suspicion or probable cause;

(2) that the search of Defendant was without a warrant;

(3) that the traffic stop, detention and arrest to which Defendant was subjected by

Security Patrol Office Keith McKelvey, an employee of the Hidden Valley Lake Association in

the Hidden Valley Lake subdivision of Lake County, California, constituted “state action” such

that the protections of the fourth and fourteenth amendments of the United States Constitution

apply and all evidence derived therefrom must be suppressed at trial by operation of the

exclusionary rule.

I declare under penalty of perjury under the laws of the State of California that

the foregoing is true and correct except as to those matters stated upon information and

belief and as to those I believe them to be true and correct.

Executed this 10th day of January 2011 in Carmel Valley, California,


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PROOF OF SERVICE

I am a citizen of the United States and a resident of or employed in the County of Monterey, California. I am over the age of 18 and not a party to this action. My business address is Post Office Box 254, 14338 West Side Drive, Carmel Valley, California 93924-0254. On January 10, 2011, I served the foregoing document captioned, “Notice of Motion and Motion to Suppress Evidence; Supporting Memorandum of Points and Authorities; Declaration of Dario Navarro (Penal Code § 1538.5)” hereinafter referred to as “said document,” on the following interested party in this action:

LAKE COUNTY DISTRICT ATTORNEY’S OFFICE Attn: Megan vanSteenburgh, Esq., Deputy District Attorney 255 North Forbes Street Lakeport, California 95453

* hereinafter referred to as “said party.”

BY MAIL: I caused an envelope, with fully prepaid postage thereon, containing said document and addressed to said party to be deposited in the mail of the United States Postal Service at a United States Post Office in Carmel Valley, California.

BY PERSONAL SERVICE: I caused said document to be personally served on said party by hand-delivery of said document to said party.

BY COURTHOUSE MAILBOX: I caused said document to be personally served on said party by causing said document to be deposited in the courthouse mailbox of said party.

BY FACSIMILE TRANSMISSION: I caused said document to be communicated by facsimile transmission to said party.

BY FEDERAL EXPRESS: I caused said document to be sent by Federal Express courier to said party in an envelope addressed to said party.

BY OTHER EXPRESS COURIER: I caused said document to be sent by express courier to said party in an envelope addressed to said party.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was executed at ______________________, California on January 10, 2011.

Dario Navarro Attorney at Law

Lakeport