GERALD ANDREW GALLIK, Pеtitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 22808
In Bank.
Oct. 20, 1971.
855 | 5 Cal.3d 855 | 97 Cal. Rptr. 693 | 489 P.2d 573
Tiernan & Nicoletti and Frank Nicoletti for Petitioner.
Thomas C. Lynch and Evelle J. Younger, Attorneys General, Derald E. Granberg, Edward P. O‘Brien, Robert R. Granucci and Sanford Svetcov, Deputy Attorneys General, for Respondent and for Real Party in Interest.
OPINION
MOSK, J.—Defendant Gerald Andrew Gallik, petitioner herein, was charged with possession of marijuana. (
The motion to suppress was heard on the transcript of the preliminary examination. At that examination the sole witness testifying to the events in question was San Jose Police Officer Roger Finton. Aрproximately 7:45
Officer Finton pulled up next to defendant‘s vehicle for the purpose of advising him it was illegally parked. As he alighted from his car the officer saw defendant lean forward, the top part of his body briefly bending down to the right.2 Officer Finton approached the driver‘s side of the vehicle and told defendant he was illegally parked. Upon request, defendant produced his identification. The officer directed defendant to get out of the car and proceeded to pat him down for weapons, but found none. He also patted down the boy with whom defendant had been talking, but not the girl. Officer Finton then asked defendant “what he placed underneath the front seat,” and defendant replied “Nothing, I didn‘t place anything.” The officer nevertheless searched under the seat and brought out a brown leather bag. He opened it, and found inside a plastic “baggie” containing a small amount of marijuana.
On cross-examination Officer Finton admitted that as he approached defendant‘s vehicle he had no suspicion of crime: there were no circumstances that drew his attention to the vehicle other than its position in the street, and he had received no reports of unusual activities in the area. The officer conceded that even though he looked into the window he could not see defendant‘s arms during the time he bent forward, and did not in fact observe him placing anything under the seat. Further questioning established that Officer Finton undеrtook the search solely because defendant was, in the witness’ words, “making the furtive movement“; he reiterated there were no other “suspicious circumstances” leading him to believe a crime was being committed in his presence. Asked the purpose of his search, the officer explained he was “looking for something” that defendant appeared to have placed beneath the seat; when pressed, the witness suggested “it could have been a gun or could have been some other type contraband.”
The case is obviously controlled by our recent decision in People v. Superior Court (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449] (hereinafter called Kiefer). There, the arresting officer stopped the defendants’ car for speeding. As they pulled over to the side of thе road, the passenger in the front seat appeared to look at the officer, then turned and bent forward
Upholding an order suppressing the marijuana on the ground of illegal search and seizure, we emphasized (1) the officer had no reliable information that the defendants’ car contained contraband or was otherwise involved in criminal activity, and (2) he personally observed only the commission of the traffic offense and the assertedly “furtive gesture” of the passenger. We held that neither a traffic offense nor such a “furtive gesture” as there shown, without more, could reasonably give the officer probable cause to believe that either contraband or weapons were present in the defendants’ car, and hence that his warrantless search thereof was unreasonable within the ambit of the
We dismiss at the outset the Attorney General‘s suggestion that Kiefer is inapplicable because it assertedly declared “a new rule in California” and should therefore be given prospective еffect only.3 In People v. Groves (1969) 71 Cal.2d 1196, 1198 [80 Cal.Rptr. 745, 458 P.2d 985], we considered whether the decision in People v. Sesslin (1968) 68 Cal.2d 418, 422-425 [67 Cal.Rptr. 409, 439 P.2d 321], prescribing the factual allegations necessary to support an arrest warrant issued on information and belief, represented a substantial change in the law. We observed that Sesslin was itself predicated on five earlier decisions of the United States Supreme Court, and reasonеd that “the Sesslin decision did not change the law. It was merely the first case in which this court was called upon to apply the foregoing decisions of the United States Supreme Court.” We concluded (fn. 1) that “Since the Sesslin decision did not change the law, there is no merit in the Attorney General‘s contention that it should not apply to arrеsts made before the Sesslin case was decided.”
By the same token, our decision in Kiefer did not “change the law” of probable cause. The guiding principle of Kiefer is that to constitute probable cause for an arrest or search, a “furtive gesture” such as a motorist‘s act of bending over inside his car must be invested with guilty significance either by specific information known to the officer or by additional suspicious circumstances observed by him. But Kiefer was not the source of this rule: as our opinion expressly pointed out (3 Cal.3d at pp. 818, 823-824, & fn. 10), the rule had been recognized in California at least as early as People v. Tyler (1961) 193 Cal.App.2d 728, 732 [14 Cal.Rptr. 610], and had been correctly applied to an automobile search in both People v. Moray (1963) 222 Cal.App.2d 743 [35 Cal.Rptr. 432], and People v. Cruz (1968) 264 Cal.App.2d 437 [70 Cal.Rptr. 249]. Kiefer simply explained the origin and scope of the rule, and called a halt to its more egregious abuses; rather than declaring new law, we thus reaffirmed a settled principle which some intervening decisions of the Courts of Appeal had weakened by resting it on increasingly shakier factual foundations. (3 Cal.3d at pp. 818-828.) It follows that the Kiefer rule is not merely prospective in operation, but applies аs well to searches conducted before Kiefer itself was handed down.4
Turning to the facts of the present case, we hold that the minor differences between Kiefer and the record before us do not rise to the level of “suspicious circumstances” sufficient to invest defendant‘s movement with guilty significance.
Nor is it significant that Officer Finton asked defendant what he had placed under the seat and received a negative response: whether the motorist specifically answers “nothing” (People v. Moray (1963) supra, 222 Cal.App.2d 743, 744) or shrugs and remains mute (People v. Cruz (1968) supra, 264 Cal.App.2d 437, 439), the bare circumstance that he thus denies hiding anything does not ipso facto give the officer probable cause to believe the contrary. It is true that the officer in Kiefer “did not ask [the passenger] to explain the movement he had observed” (3 Cal.3d at p. 830); but as Justice Molinari correctly reasoned in his dissenting opinion prepared when the present case was before the Court of Appeal (Gallik v. Superior Court (Cal.App.) 93 Cal.Rptr. 332, hg. granted April 22, 1971), our remark does not imply “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.) 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 contrabаnd 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.”5
Tаking a different tack, the Attorney General seeks in a supplemental
We explained in Kiefer (at p. 829) that even when there is probable cause to arrest, a search for weapons must remain “reasonable in scopе,” and that “Just as the arresting officer in an ordinary traffic violation case cannot reasonably expect to find contraband in the offender‘s vehicle, so also he cannot expect to find weapons. To allow the police to routinely search for weapons in all such instances would likewise constitute an ‘intolerable and unreasonable’ intrusion into the privacy of the vast majority of peaceable citizens who travel by automobile. It follows that a warrantless search for weapons, like a search for contraband, must be predicated in traffic violation cases on specific facts or circumstances giving the officer reasonable grounds to believe that such weapons are present in the vehicle he has stopped.”
We held in Kiefer that the requisite grounds are not furnished by the mere act of a motorist‘s bending down in his car when a police officer approaches, and that holding governs the case at bаr. Moreover, here as in Kiefer (at p. 830) the defendant‘s car was stopped during daylight hours; the officer had received no reports of crimes or unusual activities in the area; the defendant was cooperative and produced his identification upon demand; and the officer‘s suggestion that he was looking for weaрons came as an afterthought to his avowed purpose of searching generally for whatever might have been placed beneath the seat. (See also People v. Hana (1970) 7 Cal.App.3d 664, 669 [86 Cal.Rptr. 721].)
In a futile effort to avoid the thrust of Kiefer the Attorney General relies on two additional “facts and circumstances” he finds in this record; whether taken alone or together, however, they fail tо furnish the missing probable cause.
First it is stressed that Officer Finton conducted a pat-down of defendant and the young man on the bicycle before searching the car. But this event shows at most the officer‘s concern that the suspect might be armed; it does not amount to evidence from which the officer could reasonably believe he was in fact armed. To hold otherwise would be to permit a police officer to create his own probable cause to search a vehicle simply by undertaking an unsuccessful pat-down of its occupants. Such a bootstrap operation is no more adequate for this purpose than the proсess, discussed above, of asking the motorist what he placed under the seat and then acting on a negative response.
Secondly, the Attorney General contends that because an “unarmed student observer” was riding in the patrol car Officer Finton was under a special duty to search for weapons if he entertained “any” suspicion of danger.
We conclude that Officer Finton‘s search of defendant‘s car was unlawful, and the evidence discovered was therefore inadmissible. It follows that defendant is entitled to an order suppressing that evidence under the provisions of
The alternative writ of prohibition (
Wright, C. J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
McCOMB, J.—I dissent. I would deny the writ of mandate for the reasons expressed by Mr. Justice Sims in the opinion prepаred by him for the Court of Appeal in Gallik v. Superior Court (Cal.App.) 93 Cal.Rptr. 332.
The petition of the real party in interest for a rehearing was denied November 18, 1971.
Notes
A more recent example of this approach is Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84]. Like Kiefer, our purpose in Mozzetti was essentially prophylactic—i.e., to call a halt to the more egregious abuses of the authority of the police to “inventory” the contents of automobiles lawfully in their custody pursuant to the removal and storage provisions of the Vehicle Code. In so doing we held that an “inventory” of this kind is a search within the meaning of the Fourth Amendment; but that holding was expressly predicated (at pp. 704-705) on such earlier decisions as Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727], People v. Williams (1967) 67 Cal.2d 226 [60 Cal.Rptr. 472, 430 P.2d 30], and People v. Grubb (1965) 63 Cal.2d 614 [47 Cal.Rptr. 772, 408 P.2d 100]. In addition, we ruled that the asserted need tо protect the motorist‘s personal property from loss and the police or storage bailee from unfounded claims does not constitute “exigent circumstances” justifying a warrantless inventory search, as there are reasonable alternatives which also protect the motorist‘s right of privacy. But a similar hоlding had been reached in People v. Superior Court (1969) 2 Cal.App.3d 304, 309-310 [82 Cal.Rptr. 766] (cited in Mozzetti at p. 703 of 4 Cal.3d), relying on the direct precedent of Virgil v. Superior Court (1968) 268 Cal.App.2d 127 [73 Cal.Rptr. 793]; and the general rule requiring exigent circumstances to justify the search of an immobilized vehicle without a warrant or probable cause, as we noted at page 706 of 4 Cal.3d, dates at least from Preston v. United States (1964) 376 U.S. 364 [11 L.Ed.2d 777, 84 S.Ct. 881], and People v. Burke (1964) 61 Cal.2d 575 [39 Cal.Rptr. 531, 394 P.2d 67]. Finally, we concluded that mere legal custody of an automobile by the police does nоt ipso facto create a new possessory right to search; but that conclusion was specifically drawn (at pp. 710-711) from such prior decisions as Burke and Cooper v. California (1967) 386 U.S. 58 [17 L.Ed.2d 730, 87 S.Ct. 788].
Accordingly, the Mozzetti rule, like Kiefer, does not represent a substantial change in the law and hence is not merely prospective in effect. (Accord, People v. Heredia (1971) 20 Cal.App.3d 194 [97 Cal.Rptr. 488].)