Dell'Orto

MEMORANDUM *

1. It is undisputed that Dell’Orto had been drinking, that he was staggering and that Stark smelled alcohol on his breath. In addition, Stark observed Dell’Orto get into his car and place his key in the ignition. See People v. Lively, 10 Cal.App.4th 1364 , 13 Cal.Rptr.2d 368, 373 (Ct.App.1992) (“An inebriated person behind the wheel of a car ... poses a greater danger to himself ... and others than the same person lying on a park bench.”). In view of these undisputed facts, and taking the disputed evidence in the light most favorable to Dell’Orto, Stark had probable cause to arrest Dell’Orto for being “in [a] public place under the influence of intoxicating liquor ... in a condition that he ... [was] unable to exercise care for his ... own safety or the safety of others.” Cal.Penal Code § 647(f); see also Mercer v. DMV, 53 Cal.3d 753 , 280 Cal.Rptr. 745 , 809 P.2d 404, 409 (1991). The district court thus erred in concluding that Stark was not entitled to summary judgment on Dell’Orto’s Fourth Amendment claim. See Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) (“If no constitutional right would have been violat *763 ed were the…