9th Circuit, in Reversal, Says Traffic Stops Aren't 'Arrests'

Embracing the common meaning, Judge N. Randy Smith creates a circuit split.

The California recorder
Essential California Legal Content

Ginny LaRoe

2011-11-30 03:43:14 PM

SAN FRANCISCO — Is a traffic stop an "arrest" for sentencing purposes in federal court?
The Ninth Circuit U.S. Court of Appeals on Wednesday in an en banc ruling said no, reversing itself and creating a circuit split.
The court, by a 10-1 vote, said a traffic citation is not the same as a formal arrest, which would include informing the suspect he was under arrest and taking him to jail or a police station.
That didn't happen in the case of Israel Leal-Felix, a Mexican citizen who had twice been cited for driving on a suspended license before his federal indictment for unlawful re-entry.
When his criminal history was prepared for sentencing in the re-entry case, the traffic stops were treated as arrests. Riverside U.S. District Judge Virginia Phillips gave him 21 months in prison. Had the citations been excluded, his range would have started at just 18 months.
"Nothing in the record suggests Leal-Felix was ever formally arrested for driving with a suspended license," Judge N. Randy Smith wrote for the majority. "He was not told he was 'under arrest,' he was not transported to the police station, and he was not booked into jail."
Leal-Felix did eventually serve time in county jail for the driving offenses.
Wednesday's ruling in U.S. v. Leal-Felix, 09-50426 reverses the three-judge panel's finding from a year ago that adopted the reasoning of the Seventh Circuit.
Judge Johnnie Rawlinson, who was in the majority on the first ruling, held her ground and was the lone dissenter in the en banc decision, saying the majority improperly imports Fourth Amendment analysis into sentencing calculations, creating an unnecessary circuit split. "I do not agree that the concept of custody for the purpose of criminal history calculation is co-extensive with a formal arrest that includes Miranda warnings, handcuffs and a trip to the police station," she wrote.
Four judges weighed in with a separate concurrence, saying the main reason traffic citations aren't arrests under the sentencing guidelines is the common meaning of the term arrest.
"I am confident that an average citizen — with or without a law degree — would not believe he had been arrested if pulled over, briefly detained and issued a traffic ticket," Judge M. Margaret McKeown wrote.
If a traffic citation constituted an arrest in ordinary parlance, she wrote, then job and college applicants would need to employ an entirely different "truth-o-meter."
"In other words, treating an ordinary traffic ticket as an arrest defies our common experience and would be a paradigmatic shift."