Opinion
2-24-1971
Gerald Andrew GALLIK, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 28499.
Tiernan & Nicoletti, San Jose, for petitioner. Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.
Gerald Andrew GALLIK, Petitioner,
v.
The SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent;
The PEOPLE of the State of California, Real Party in Interest.
Feb. 24, 1971.
Hearing Granted April 22, 1971.
Tiernan & Nicoletti, San Jose, for petitioner.
Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.
SIMS, Associate Justice.
By petition for writ of mandate and prohibition (Pen.Code, § 1538.5, subd. (i), and § 999a), the defendant, who is charged in an information with possession of marijuana in violation of section 11530 of the Health and Safety Code, seeks orders directing the lower court to suppress the evidence against him and to dismiss the information, and to prohibit the trial court from proceeding with the trial in this matter. The petition was filed more than 15 days after the denial of defendant's motion to suppress (§ 1538.5, subd. (a)), and his motion to dismiss (§ 995). It must, therefore, be dismissed as untimely insofar as it seeks review of the latter motion (§ 999a).
Both motions were submitted on the evidence adduced at the preliminary examination, from which the following facts appear:
On May 13, 1970, at 7:45 p. m., San Jose Police Officer Finton was on routine patrol, in uniform, in a marked patrol car. It was still daylight at the time. Finton was accompanied by a college student riding as an observer.
Officer Finton observed an illegally parked vehicle obstructing traffic at the entrance to a side street in an unimproved area. There were no other circumstances to draw the officer's attention to the vehicle, nor were there any reports or suspicion of criminal activity in the area. The petitioner was the driver and only occupant of the vehicle. He was talking to a girl and boy on bicycles who were on the passenger side of the vehicle.
Officer Finton stopped his patrol car alongside petitioner's vehicle to advise petitioner that he was illegally parked, and that he would either have to park legally or move on. As he was alighting from his patrol car, he observed that the petitioner leaned forward as though he was taking something out or placing something underneath the seat on the driver's side. The officer was not able to see the movement of the arms. It was a movement of the whole body bending on the right side. Petitioner's head also dipped down and almost completely disappeared from view. To Officer Finton the conduct appeared furtive and indicated an attempt to hide contraband. The witness demonstrated to the court the manner in which the defendant leaned forward.
On cross-examination the officer reiterated that although he could not see petitioner's hands or arms placing anything under the seat, he believed that petitioner's body movements were furtive and suspicious and indicated to him that something, which could have been a gun or some other type of contraband, had been placed under the seat.
The officer went to the driver's side of the vehicle and asked petitioner for identification. Petitioner complied. Petitioner was then asked to get out of the vehicle, which he did, and was pat-searched for weapons. The search revealed no weapons or contraband. Officer Finton asked petitioner what he had placed underneath the front seat. Petitioner replied, 'Nothing, I didn's place anything.' The officer then checked the area under the front seat and found a brown leather bag containing a plastic baggie containing a 'brownish material that appeared to be marijuana.'
The officer patted down the defendant's male companion. He conducted no further search of him or of the female cyclist, and merely took their names and addresses after he found the contraband. The student observer called in the license plate number of the illegally parked vehicle, and then covered the driver's side of the vehicle.
As originally presented, the case involved a distinction or choice between two apparently conflicting lines of authority on the question of whether a so-called 'furtive movement' furnishes probable cause for the search of a vehicle following a stop for a traffic violation. A long line of decisions of the intermediate appellate courts gave rise to the following statement, by this court: 'It is well established that furtive conduct evidenced by a body movement indicating that some object is being concealed in a vehicle which is the subject of a traffic arrest will justify a search of that portion of the vehicle where it appeared that the object was hidden. (People v. Gil, supra, 248 Cal.App.2d 189, 192-194, 56 Cal.Rptr. 88; People v. Shapiro, supra, 213 Cal.App.2d 618, 621, 28 Cal.Rptr. 907; People v. Sanson, supra, 156 Cal.App.2d 250, 253-254, 319 P.2d 422; and see People v. Elliott (1960) 186 Cal.App.2d 185, 188-189, 8 Cal.Rptr. 716.)' (People v. Weitzer (1969) 269 Cal.App.2d 274, 292, 75 Cal.Rptr. 318, 330. See, in addition to the cases cited, People v. Doherty (1967) 67 Cal.2d 9, 22, 59 Cal.Rptr. 857, 429 P.2d 177; People v. Blodgett (1956) 46 Cal.2d 114, 117, 293 P.2d 57; People v. Sirak (1969) 2 Cal.App.3d 608, 611, 82 Cal.Rptr. 716; Bergeron v. Superior Court (1969) 2 Cal.App.3d 433, 435-436, 82 Cal.Rptr. 711; People v. Brown (1969) 272 Cal.App.2d 448, 451-452, 77 Cal.Rptr. 438; People v. Superior Court [Vega] (1969) 272 Cal.App.2d 383, 386-387, 77 Cal.Rptr. 646; People v. Bordwine (1968) 268 Cal.App.2d 290, 292, 74 Cal.Rptr. 1; People v. Wigginton (1967) 254 Cal.App.2d 321, 325-326, 62 Cal.Rptr. 104; People v. One 1958 Chevrolet Impala (1963) 219 Cal.App.2d 18, 20-21, 33 Cal.Rptr. 64; People v. Williams (1961) 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836; and People v. Cantley (1958) 163 Cal.App.2d 762, 766, 3129 P.2d 993.) 1
On the other hand an observation that the operator raised his right shoulder as if he were reaching in his pocket, and then leaned toward the right hand seat has been held insufficient to justify a search of the area under the front seat of the vehicle. (People v. Moray (1963) 222 Cal.App.2d 743, 746-747, 35 Cal.Rptr. 432.) In People v. Cruz (1968) 264 Cal.App.2d 437, 70 Cal.Rptr. 249, the reviewing court upheld the finding of the trial court that an observation that the operator lowered his right shoulder suddenly, looked to the left and appeared to be reaching for something in the vicinity of the floorboards and the front seat of the vehicle, was insufficient to support probable cause to search under the seat of the vehicle for contraband narcotics (264 Cal.App.2d at p. 441, 70 Cal.Rptr. 249). The case was reversed because the reviewing court found that the trial court's finding of consent was not sustained by the evidence.
While this opinion was in preparation the Supreme Court of this state filed its opinion in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449. Twelve pages of the opinion are devoted to a review of cases in which probable cause to search has been predicated on 'furtive gestures' or 'furtive movements' of an occupant of a vehicle. The court approves the decisions in People v. Moray, supra, and People v. Cruz, supra (3 Cal.3d at pp. 823-824, 91 Cal.Rptr. 729, 478 P.2d 449). It also notes and reviews (id. at p. 825, fn. 11, 91 Cal.Rptr. 729, 478 P.2d 449) substantially all of those cases cited above in which probable cause for search has been found. It criticized People v. Sanson, supra, the forerunner of the series of cases countenancing the admission of the evidence discovered by the exploitation of what was observed. (Id. at pp. 820-822, 91 Cal.Rptr. 729, 478 P.2d 449.) Nevertheless, none of those cases are expressly overruled. In fact the opinion states, '* * * we do not mean to depart from the settled rule that 'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case. [Citations.]' (People v. Ingle (1960) 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.)' (Id., p. 827, 91 Cal.Rptr. p. 742, 478 P.2d p. 461.)
In Kiefer's case the trial court had granted the driver's motion to suppress. The evidence relied upon by the People on appeal consisted of the officer's observation that as the car pulled over to the side of the road he saw a woman's head rise from the passenger portion of the front seat, the woman turned and put her arm over the back of the seat, then faced forward again, bent down toward the floor and reassumed a normal sitting position. The driver alighted and walked toward the officer ( id., p. 811, 91 Cal.Rptr. 729, 478 P.2d 449). The court ruled that the foregoing circumstances did not warrant the officer's conduct in opening the door at the passenger's side of the vehicle and looking inside ( id., p. 828, 91 Cal.Rptr. 729, 478 P.2d 449). The court directs: '* * * the appellate court, while giving due deference to the trier of fact's determination of the weight and credibility of the testimony, and affirming the ruling if there is substantial evidence to support it, should keep firmly in mind the high purpose of the Fourth Amendment and remain ever vigilant to forestall any encroachment on its fundamental guarantees.' ( Id., p. 828, 91 Cal.Rptr. p. 743, 478 P.2d p. 462.)
Much of the discussion of the subject is devoted to demonstrating that the movements generally involved in the cases may not be purposeful responses to the officer's appearance on the scene ( id., pp. 821-822, 91 Cal.Rptr. 729, 478 P.2d 449), and to establishing that there may be more innocent than guilty explanations for the motorists' act of 'leaning forward' or 'bending down' in the circumstances at hand ( id., pp. 822-823, 91 Cal.Rptr. 729, 478 P.2d 449). These are all matters properly addressed to a trier of fact. If any rule of law stands out it is the adoption of the following rule from People v. Tyler (1961) 193 Cal.App.2d 728, 14 Cal.Rptr. 610, 'As it is the information known to the police officers or the suspicious circumstances which turn an ordinary gesture into a furtive one, it is equally clear in this state that in the absence of information or other suspicious circumstances, a furtive gesture alone is not sufficient [citation].' (193 Cal.App.2d at p. 732, 14 Cal.Rptr. at p. 612. See 3 Cal.3d at p. 818, 91 Cal.Rptr. 729, 735, 478 P.2d 449, 455.) The court in Kiefer's case critically analyzes the other facts which have been used to support the furtive gestures in the existing precedents, but, as noted above, does not reject them. 2
Turning to the instant case we start with the following principles which, as has been noted, were recognized by the Supreme Court: 'There is no precise formula for determining the existence of reasonable grounds to search. Each case must be decided on its own facts and circumstances. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.) A trial court's determination of the issue may be set aside only if there is no substantial evidence to support it. (People v. Morales, 259 Cal.App.2d 290, 295, 66 Cal.Rptr. 234; People v. Wozniak, 235 Cal.App.2d 243, 250, 45 Cal.Rptr. 222; People v. Swayze, 220 Cal.App.2d 476, 489, 34 Cal.Rptr. 5. See People v. Dickerson, 273 Cal.App.2d 645, 649, 78 Cal.Rptr. 400.) In reviewing such determination, it must be borne in mind that the credibility of witnesses and the weight to be given their testimony are ordinarily matters for the trial court. (People v. Shapiro, 213 Cal.App.2d 618, 620, 28 Cal.Rptr. 907.)' (Bergeron v. Superior Court (1969) 2 Cal.App.3d 433, 436, 82 Cal.Rptr. 711, 712-713. See also People v. Sirak, supra, 2 Cal.App.3d 608, 611, 82 Cal.Rptr. 716.)
In the instant case the vehicle in question was parked. There was no need for the occupants to perform many of the acts attendant to bringing a vehicle to a stop, which have been alluded to in Kiefer's case. The movements exceeded what was observed in Kiefer's case and in People v. Moray, supra, and People v. Cruz, supra. Although the officer could not see the occupant's hands or any physical object in them, he not only described the movements as indicating that something was being placed underneath the seat, but also demonstrated to the court the manner in which the defendant leaned forward. The trial court was entitled to consider the nature of the act evinced by that demonstration. If the court were convinced that the officer was entitled to believe that the occupant had placed something under the seat, then the occupant's denial may be treated as having a significance which similar denials could not be assumed to have in the Moray and Cruz cases. (See Crueger v. Superior Court (1970) 7 Cal.App.3d 147, 150-151, 86 Cal.Rptr. 555; People v. Weitzer, supra, 269 Cal.App.2d 274, 292, 75 Cal.Rptr. 318; and People v. Brooks (1965) 234 Cal.App.2d 662, 685, 44 Cal.Rptr. 661.) It may be noted that in Kiefer's case the court stated: '[The officer] did not ask her to explain the movement he had observed, nor to show him what if anything she had in her hands; and he did not request her to alight from the vehicle for further investigation * * *.' (3 Cal.3d at p. 830, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 463.)
The petition for a writ of prohibition under section 999a of the Penal Code is dismissed. The petition for a peremptory writ of mandate under subdivision (i) of section 1538.5 of the Penal Code is denied, and the alternative writ heretofore issued is discharged.
ELKINGTON, J., concurs.
MOLINARI, Presiding Justice.
I concur and dissent. I concur in the dismissal of the writ of prohibition under section 999a of the Penal Code for the reason indicated by the majority, but I dissent to the denial of the petition for a peremptory writ of mandate brought pursuant to Penal Code, section 1538.5.
The pertinent evidence going to the issue of probable cause in the instant case consists of Officer Finton's testimony that he observed petitioner leaning forward in his car as though he was taking something out or placing something underneath the seat and the officer's testimony that when he asked petitioner what he had placed underneath the front seat, petitioner replied, 'Nothing, I didn't place anything.' The described body movement in and of itself did not constitute probable cause to search or arrest since it consisted merely of a 'furtive movement.' In People v. Superior Court (Kiefer) 3 Cal.3d 807, 817-818, 91 Cal.Rptr. 729, 478 P.2d 449, the Supreme Court made it clear that a 'furtive gesture' or 'furtive movement' alone is not sufficient to constitute probable cause to search or arrest. Keifer declares the principle that in order to constitute probable cause to search or arrest the 'furtive' gesture or movement must be coupled with other circumstances which, on the total atmosphere of the case, reasonably give the gesture or movement a guilty connotation. (At pp. 818-820, 827, 91 Cal.Rptr. 729, 478 P.2d 449.) These circumstances are those which find their basis in known facts from which reasonable inferences can be drawn, such as prior reliable information, personal observation of contraband, and a deliberate act of concealment under otherwise suspicious circumstances. (People v. Superior Court (Kiefer), supra, at pp. 819-820, 91 Cal.Rptr. 729, 478 P.2d 449.)
In People v. Moray, 222 Cal.App.2d 743, 35 Cal.Rptr. 432, and People v. Cruz, 264 Cal.App.2d 437, 70 Cal.Rptr. 249, the facts were substantially similar to those in the present case. In each the officer observed a seemingly furtive body movement which prompted him to ask the driver of the car that he had hidden (in Moray) or put (in Cruz) underneath the seat. In Moray the driver answered 'nothing'; in Cruz, the driver shrugged and made no reply. In each of these cases it was held that there was insufficient evidence to support probable cause to search the vehicle.
Moray and Cruz were cited with approval in Kiefer as illustrative of cases in which there were no 'facts' in the record to impart a guilty connotation to the 'furtive movement.' (People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 823-824, 91 Cal.Rptr. 729, 478 P.2d 449.) It appears, therefore, that the circumstance which must be coupled with the 'furtive' gesture or movement in order to support probable cause may not be supplied solely by a false reply or by remaining mute to an inquiry as to what was hidden or secreted made by an officer who observes what he interprets to be a 'furtive' gesture or movement. As noted in People v. Shelton, 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 436, 388 P.2d 665, 668, 'A suspect has no duty to cooperate with officers in securing evidence against him, * * *.' (See also People v. Superior Court (Kiefer), supra, 3 Cal.3d at p. 819, fn. 4, 91 Cal.Rptr. 729, 478 P.2d 449; Tompkins v. Superior Court, 59 Cal.2d 65, 68, 27 Cal.Rptr. 889, 378 P.2d 113.) Accordingly, in the instant case defendant's attempt to forestall an otherwise unconstitutional search cannot legitimize the officer's conduct.
The majority find support in the following statement in Kiefer: '* * * he [the officer] did not ask her to explain the movement he had observed, * * *' (3 Cal.3d at p. 830, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 463.) This statement was made in conjunction with the court's discussion of the category of cases in which a warrantless search may be made, as an incident to lawful arrest, for weapons which can be used to assault the arresting officer or to effect an escape. The inquiry alluded to was one of a number of reasonable steps which the court said the officer might have taken to allay his suspicion that defendant might be armed with weapons. 1 (3 Cal.3d at p. 830, 91 Cal.Rptr. 729, 478 P.2d 449.) As I apprehend the reviewing court's statement, it purports to indicate that an officer may make the subject inquiry for the purpose indicated. There is no suggestion, however, that the person to whom the inquiry is addressed is obliged to answer or that a negative reply in and of itself supplies circumstances giving the officer reasonable grounds to believe that weapons are present in the vehicle stopped for a traffic violation. The indication, rather, is that the inquiry is reasonable since it may produce a response which would allay the officer's suspicion based on the 'furtive' movement. Upon such inquiry the person questioned may elect to give an explanation of his 'furtive' movement or he may freely consent to a search. (See People v. Cruz, supra, 264 Cal.App.2d 437, 442, 70 Cal.Rptr. 249.) He may, on the other hand, elect to stand on his constitutional right not to cooperate with the officers in securing evidence against him. In the latter situation the probable cause for the officer's search for either contraband or weapons in traffic violation cases must be predicated on specific facts and circumstances, other than a mere negative reply to the subject inquiry, which give reasonable grounds to believe that contraband or weapons are present in the vehicle the officer has stopped.
I would grant the peremptory writ of mandate ordering suppression of the evidence. --------------- 1 On January 13, 1971 the Supreme Court granted a hearing in another case involving this issue. (See People v. Goodrick (1970) 11 Cal.App.3d 216, 219-224, 89 Cal.Rptr. 866.) 2 The court concludes: 'The near-insufficiency of the evidence of probable cause upheld in certain of the cited Court of Appeal decisions suggests that police reliance on so-called 'furtive movements' has on occasion been little short of a subterfuge, and that in order to conduct a search on the basis of mere suspicion or intuition, guilty significance has been claimed for gestures or surrounding circumstances that were equally or more likely to be wholly innocent. A recent study indicates that our concern in this regard may be well-founded. [fn.]' (3 Cal.3d at p. 827, 91 Cal.Rptr. at p. 742, 478 P.2d at p. 461.) The footnote reads: 'In Marijuana Laws: An Empirical Study of Enforcement and Administration in Los Angeles County (1968) 15 U.C.L.A. L.Rev. 1499, 1533-1535 (fns. omitted), the authors observe that 'A large percentage of the arrests for marijuana possession results from the stopping of automobiles for minor traffic violations, with the subsequent discovery of marijuana either in the car or on the person of one of the passengers. The most common of these stops are for a missing taillight or for an unilluminated rear license plate.' It is recognized that such a violation does not alone furnish probable cause to search the automobile, but the authors continue: 'The furtive motion authorizing a search usually results as the officer is pulling a car over for a minor traffic violation. The arrest reports typically state that as he shined his lights on the back of the car, the partolman saw one of the occupants make a 'furtive motion' as if to hide or throw away something. * * *'' It is arguable that the study indicates that there is a close correlation between the observation of furtive motions and the possession of contraband, and that the motions therefore furnish reasonable cause to search. A more informative study, which would test out the theories of the court that such movements are usually innocent, would be to interview a sample of persons cited for traffic violations without further arrest to determine to what extent the arresting officers were engaging in fruitless searches. 1 The complete statement made by the court was as follows: 'At that point [the stopping of the car and the production by the driver of his license with the admission that he was going fast] any suspicion still harbored by Officer Cameron must have been slight indeed. Yet even then he failed to take a number of more reasonable steps to allay it: he did not ask or signal Mrs. Kiefer [the passenger who made the 'furtive' movement] to roll down her window, nor did he give her a chance to do so on her own initiative; he did not ask her to explain the movement he had observed, nor to show him what if anything she had in her hands; and he did not request her to alight from the vehicle for further investigation [citation]. Instead, he seized the door next to her, pulled it open, and looked inside the car.' (3 Cal.3d at p. 830, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 463.)