McKay

California has, in various statutes, limited the circumstances in which a peace officer may effect a custodial arrest for minor offenses. (E.g., Pen. Code, §§ 818, 827.1, 853.5, 853.6; Pub. Resources Code, § 5786.17; Veh. Code, §§ 40302, 40302.5, 40303, 40303.5, 40304, 40305, 40305.5.) California also has, by the passage of Proposition 8 in 1982, limited the circumstances in which a trial court may exclude relevant evidence as a sanction for the violation of these state statutes. (Cal. Const., art. I, § 28, subd. (d).) As we have previously observed, state statutes limiting police discretion are not inconsistent with the state constitutional provision limiting the exclusion of evidence as a sanction for their violation. The “substantive scope” of state statutes governing the ability of peace officers to effect a custodial arrest for minor offenses “remains unaffected by Proposition 8.” (In re Lance W. (1985) 37 Cal.3d 873, 886 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ].) “What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained,…

I concur in the majority’s conclusion that Vehicle Code section 40302, subdivision (a) (section 40302(a)) permits a police officer to *626 effect a custodial arrest of a bicyclist who, having been stopped for violating a provision of the Vehicle Code, lacks satisfactory evidence of his identity. (Maj. opn., ante, at p. 619 et seq.) I agree that section 40302(a) contemplates an offender will produce written or other tangible evidence of identity, but that oral evidence may suffice if, in the reasonable discretion of the officer, it is “satisfactory” to ensure the citee will honor his promise to appear. Moreover, I agree section 40302(a), as interpreted, does not violate the Fourth Amendment’s protection against unreasonable searches and seizures. (Atwater v. Lago Vista (2001) 532 U.S. 318 [ 121 S.Ct. 1536 , 149 L.Ed.2d 549 ] (Atwater).) Accordingly, the search incident to the custodial arrest in this case, in which the officer found a baggie of methamphetamine, was permissible. (United States v. Robinson (1973) 414 U.S. 218 [ 94 S.Ct. 467 , 38 L.Ed.2d 427 ].)

Unfortunately, the majority does not stop there or, rather, does not start and stop there, but instead addresses at the…

As Justice Jackson warned in 1949: “We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit. . . . [¶] . . . [¶] And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.” (Brinegar v. United States (1949) 338 U.S. 160, 182 [ 69 S.Ct. 1302, 1314 , 93 L.Ed. 1879 ] (dis. opn. of Jackson, J.).) From what we know of human nature, this observation seems unassailable: for every inch given, a mile will be taken.

This is a case about pushing to the limits and beyond. The majority concludes Vehicle Code section 40302, subdivision (a) (section 40302(a)) 1 permits the full custodial arrest of a bicyclist for failure to produce written or other tangible proof of identity when the arresting officer, in the exercise of his unfettered and unreviewable discretion, rejects proffered oral evidence. I disagree with the majority’s interpretation…

California has, in various statutes, limited the circumstances in which a peace officer may effect a custodial arrest for minor offenses. (E.g., Pen.Code, §§ 818, 827.1, 853.5, 853.6; Pub. Resources Code, § 5786.17; Veh.Code, §§ 40302, 40302.5, 40303, 40303.5, 40304, 40305, 40305.5.) California also has, by the passage of Proposition 8 in 1982, limited the circumstances in which a trial court may exclude relevant evidence as a sanction for the violation of these state statutes. (Cal. Const., art. I, § 28, subd. (d).) As we have previously observed, state statutes limiting police discretion are not inconsistent with the state constitutional provision limiting the exclusion of evidence as a sanction for their violation. The "substantive scope" of state statutes governing the ability of peace officers to effect a custodial arrest for minor offenses "remains unaffected by Proposition 8." ( In re Lance W. (1985) 37 Cal.3d 873, 886 , 210 Cal.Rptr. 631 , 694 P.2d 744 .) "What Proposition 8 does is to eliminate a judicially created remedy for violations of the search and seizure provisions of the federal or state Constitutions, through the exclusion of evidence so obtained,…