Donaldson

In this prosecution for driving while under the influence of alcohol, the parties agree that the arrest was violative of Penal Code section 836, subdivision (a)(1) which requires that a warrantless arrest for a misdemeanor be committed in the presence of the arresting officer. The parties also agree that the judicially created exclusionary rule mandating that evidence obtained incident to such an arrest be excluded was abrogated by the adoption of article I, section 28, subdivision (d), of the California Constitution (section 28(d)), an initiative measure enacted in 1982 as part of Proposition 8. The question presented in this appeal is whether the Legislature intended to revive the judicially created exclusionary rule as a remedy for an illegal arrest when it amended Penal Code section 836 in 1992 and 1993 by a two-thirds vote. We hold, as did the superior court, that it did not.

Factual and Procedural History

While riding as a passenger in a car, Jason Namkung noted a red Pontiac Fiero swerving and weaving in and out of its lane. They followed the Pontiac for 15 to 20 minutes hoping to flag down a police officer. Eventually, the driver pulled over next to a restaurant…