Metropolitan News-Enterprise


Monday, August 28, 2006


Page 1


Court: Parking Violation Alone Justifies Investigatory Stop


By TINA BAY, Staff Writer


Police officers may perform an investigatory stop of a vehicle just because it is parked illegally, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Upholding the denial of Azim Choudhry’s motion to suppress evidence seized during the investigation of a parking violation, the panel affirmed his conviction for possession of a firearm by a felon.

Choudhry encountered the officers last February while he was sitting in an illegally parked car in the San Francisco neighborhood of Bernal Heights. 

The officers, on night patrol in the area, discovered Choudhry’s presence in the car when they shined their vehicle’s spotlight in its direction.  According to testimony, they initiated an investigative stop after seeing Choudhry and the car’s driver make hurried movements in response to the sudden illumination—conduct leading them to believe that either a sexual encounter or some other possibly illegal act was taking place. 

While questioning Choudhry through the passenger’s side window, one officer noticed the faint odor of burnt marijuana, which prompted him to perform a pat-down search of Choudhry that uncovered the drug. 

After placing Choudhry under arrest, the officer discovered a gun under the passenger seat where Choudhry had been sitting.

U.S. District Judge Phyllis J. Hamilton rejected Choudhry’s motion to suppress the evidence seized during the stop, reasoning that the totality of the circumstances provided the officers with reasonable suspicion that the car’s occupants were engaged in criminal activity.  Choudhry then conditionally pled guilty and received a 57-month sentence.

The appellate court concurred in Hamilton’s ruling on Choudhry’s evidentiary motion, but on different grounds.

A totality of the circumstances analysis was unnecessary, the judges concluded, because under Whren v. United States, 517 U.S. 806,  the parking violation on its own was enough to justify the investigatory stop giving rise to the search.

In Whren—which involved a vehicle that sped away from an intersection after turning suddenly without signaling—the Supreme Court held that an officer’s decision to stop an automobile is reasonable where he has probable cause to believe a traffic violation has occurred.

Writing for the court, Judge Richard A. Paez explained that parking violations under California’s civil-administrative enforcement scheme were “traffic violations” within the scope of Whren.

Whren does not distinguish between traffic violations enforced through a civil-administrative process and traffic violations subject to criminal enforcement,” Paez wrote. 

Moreover, he said, the structure of California’s Vehicle Code indicates legislative intent to treat parking violations similarly to other traffic offenses. 

“Although California has enacted a civil administrative process to enforce parking penalties, it has not removed parking regulation from the division of the Vehicle Code that covers moving traffic violations,” the judge explained, adding that the civil-administrative scheme was merely the preferred method for processing and enforcing parking violations.

The court concluded that in Choudhry’s instance, a local ordinance enacted pursuant to the code gave the officers express authority to enforce the parking violation.

The case is United States v. Choudhry, 05-10810.


Copyright 2006, Metropolitan News Company