THE PEOPLE, Plаintiff and Appellant, v. JOHN CHARLES GALE, Defendant and Respondent.
Crim. No. 16597
In Bank
July 26, 1973
9 Cal.3d 788
THE PEOPLE, Plaintiff and Appellant, v. JOHN CHARLES GALE, Defendant and Respondent.
Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, Oretta D. Sears and John J. Ryan, Deputy District Attorneys, for Plaintiff and Appellant.
Keith C. Monroe and George H. Chula for Defendant and Respondent.
BURKE, J.—Defendant was charged with possession of marijuana for sale (former
Between 8 and 9 p.m. on March 11, 1971, Police Officer Aumond noticed a man, subsequently identified as defendant, in a dimly lighted parking lot adjacent to a group of businesses, some of which were known by the officer to have been burglarized in recent months. After Officer Aumond drove partially around the block and into the lot defendant, who had been standing near the right side оf a Pontiac, walked to his left past the front of the vehicle, moved towards the police unit, but then veered away and headed in the direction of the street. The officer called to defendant, approached him, and requested identification. Defendant produced his driver‘s license, which appeared to be in order, and said he was waiting for a friend. In response to additional questions, defendant stated that he did not own the Pontiac and that “he thought the car belonged to the person he was waiting for but upon checking he found it wasn‘t.” Defendant also stated that other friends were waiting for him at a cafe located approximately one block from the parking lot. At some time during this conversation Officer Aumond patted defendant down, but found no weapons. (The legality of the pat-down search is not at issue.)
A second police officer, James Gardiner, arrived to assist. Officer Gardiner took over the field interrogation of defendant, while Officer Aumond went to the Pontiac to determine if it had been burglarized.
Officer Aumond then left the Pontiac and went to a Porsche automobile parked approximately 10 feet away, on the other side of a delivery van. He shone his flashlight on the car and noticed “dust disturbances” on the driver‘s door similar to those he had seen on the Pontiac. He then opened the door and entered the Porsche. He found no evidence of tampering, but removed the car‘s registration papers. While inside, he again smelled an odor of marijuana.
Officer Aumond returned to Officer Gardiner, and the latter said that defendant‘s clothing also smelled strongly of marijuana. After personally verifying this fact, Officer Aumond placed defendant under arrest on suspicion of possession of marijuana. A search of defendant‘s person disclosed $1,400 in cash in his shirt pocket, but no marijuana or other contraband. The two cars, however, were then thoroughly searched and substantial quantities of marijuana were found in both, together with a small amount of cocaine in the Porsche.
In granting defendant‘s motion to suppress the foregoing evidence, the trial court ruled there were no circumstances giving a reasonable person cause to believe the cars had been tampered with. The officer “has to have some cause to get in the car,” said the court, and none was shown here.
We turn to a consideration of the order appealed from under appropriate standards of review. Recently we stated “In such a proceeding [a
However, at the outset of our analysis it may be useful to explain what is not involved in this proceeding. First, we need not determine whether the proseсution made a sufficient showing at the hearing to connect this defendant with the contents of the Pontiac and the Porsche—i.e., to establish that defendant had dominion and control over the contraband found therein. Whether there were reasonable grounds to suspect this defendant—rather than someone else—to be guilty of possessing the contraband found in the two cars is not an issue cognizable on a motion under
Second, for present purposes the lawfulness of defendant‘s arrest is also irrelevant. We may assume arguendo that the arrest was legal.4 But it
On the other hand, even if the arrest had been invalid the search of the Pontiac and the Porsche would be permissible if Officer Aumond‘s initial entry into each vehicle was lawful. This is so because in each instance the strong odor of fresh marijuana which Officer Aumond smelled after entering would have given him “probable cause to believe . . . that contraband may be present.” (People v. Marshall, supra, 69 Cal.2d 51, 57, fn. 2.) Inasmuch as the contraband was apparently located not in a dwelling but in an automobile parked in a public lot—unlocked, accessible, and readily movable—the same probable cause would have justified the subsequent search of each vehicle under the rationale of Carroll v. United States, 267 U.S. 132 [69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790], and its progeny.
It follows that the dispositive questiоn in this proceeding is whether Officer Aumond‘s initial entry into the Pontiac and the Porsche was lawful. His observation while outside each vehicle—whether of the exterior or the portion of the interior visible from that vantage point—was not a “search” in the constitutional sense. (Harris v. United States, 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992].) But his ensuing entry into each car was, under numerous cases, a search within the meaning
On the basis of the aforementioned facts6 the trial court held Officer Aumond‘s entry into the Pontiac was unwarranted and suppressed the subsequently discovered contraband. However, we have concluded that an examination of the totality of the circumstances, from the officer‘s initial observance of defendant in the area to the exterior inspection of the Pontiac, commands the contrary result. Since Officer Aumond‘s external inspection of the Pontiac produced no observable evidence of “tampering” other than the dust disturbances, the trial court concluded that there were no circumstances sufficient to give a reasonable person cause to believe the vehicle had been tampered with or burglarized, and thus, there was no reason to enter the vehicle. We disagree. It appears that the trial court failed to consider the reasonable inference, drawn from the suspicious circumstances preceding Aumond‘s entry into the vehicle,7 that a crime was being, or had been, perpetrated in or about the Pontiac.
In retrospect, we might agree that Officer Aumond could have pursued alternate courses of conduсt in attempting to inspect the vehicle, such as attempting to locate the owner by a radio license check. However, knowledge acquired through hindsight is an improper gauge by which to judge an officer‘s actions. “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made. [Citations.]” (People v. Superior Court (English) 266 Cal.App.2d 685, 688 [72 Cal.Rptr. 261]; italics added.) Thus, in light of the knowledge available at the time the entry into the Pontiac was made, Officer Aumond‘s actions appear lawful and reasonable. Significantly, we note that “[e]xperienced police officers naturally develop an ability to perceive the unusual and
The Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 905-906, 88 S.Ct. 1868], said “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. [Fn. omitted.] And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? [Citation, fn. omitted.] Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. [Citation.]” As previously stated, we have concluded as a matter of law that Officer Aumond‘s entry into the Pontiac, based on the articulable facts available to him, was entirely reasonable and appropriate. The California cases support that conclusion.
For example, in People v. Drake, 243 Cal.App.2d 560 [52 Cal.Rptr. 589], two police officers on patrol at 6:30 a.m. noticed a vehicle parked approximately three feet from the curb; both doors were unlocked and one was slightly ajar. One officer entered to find the registration which showed the owner lived two miles from the scene. Suspecting that the vehicle might have been stolen, the officer then examined the ignition to determine whether it had been “hot wired.” In affirming the legality of the discovery of marijuana under the ignition upon entry into the vehicle the court stated (p. 564), “To examine the wiring of the ignition to see if it had been ‘hot wired’ was a proper step to ascertain whether the vehicle had been stolen in view of the other circumstances under which the vehicle was found. In doing so the officers were not engaged in the search for contraband nor were they attempting to make an arrest, and they were not obligated under the law to ignore the contraband which came to their attention accidentally while they were engaged in a lawful investigation of the vehicle in which it was found. [Citations.]”
The Drake case is virtually indistinguishable from the instant case and its rationale would permit officers to enter an unoccupied vehicle when-
However, the search of the Porsche presents a different factual situation. The factors which we deemed significant in giving rise to reasonable cause to enter the Pontiac fail to support the entry into the Porsche. Defendant was not observed near or about the Porsche, that vehicle did not appear unsecured, and there was no visible personal property on the seats open to theft. Thus, in the absence of any suspicious circumstances or other factors connecting defendant with the Porsche, we view Officer Aumond‘s entry into the Porsche as unreasonable and hold that the evidence of the contraband discovered in the Porsche should be suppressed.
Defendant also maintains that his detention by the officers should have ceased once he furnished satisfactory identification аnd responded in a reasonable manner to the officers’ questions.8 An analysis of the factual setting in which the detention occurred,9 coupled with applicable legal principles leads us to conclude, however, that the detention was not unduly extensive.
Officer Aumond testified that approximately three minutes elapsed from the time he initially stopped defendant to the arrival of Officer Gardiner. After conversing with the second officer, Aumond proceeded to examine the vehicles while Gardiner continued to fill out a field interrogation card with defendant. Although the record fails to disclose the length of time it took Aumond to inspect the vehicles, inform Gardiner of the marijuana odor in the vehicles, be told of the smell of marijuana on defendant‘s clothes, and make the arrest, the actual duration of the detention appears to have been minimal.10 Defendant does not contend otherwise. Thus, on the basis of the foregoing sequence of events, it appears that either officer would have been remiss in permitting defendant to leave prior to informing the other of the particular knowledge acquired by each independently.
Defendant does not challenge the legality of his initial detention. It has been stated that “While a detention of a citizen by a police officer based on
People v. Rosenfeld, 16 Cal.App.3d 619 [94 Cal.Rptr. 380], aids us in determining that defendant‘s detention was not unreasonable in extent. In that case two officers werе patrolling an alley behind apartments with open garages in an area where there had been a number of auto burglaries. The officers spotted defendant and asked his reason for being there. Defendant responded that he was looking for a friend, but that he did not know where the friend resided. One officer continued the interrogation of defendant while the other sought to find the friend as well as to check nearby buildings and vehicles. In discussing the legality of the detention the court stated “it is apparent that what the officers were attempting to do was carry out an on-the-scene investigation in a high crime rate area of the activities of a person who they suspected might be breaking into parked vehicles. It is a reasonable inference that the officers were attempting to prevent the commission of a crime by a timely investigation of [a] brief duration. [Citation.]” (P. 623; italics in original.) The court additionally remarked (p. 623), “The duration of the further investigation was admittedly short, and the extent of the additional temporary detention was minimal. On the facts before us we believe the officers acted within their authority. Unlike People v. Lingo, 3 Cal.App.3d 661 and Pendergraft v. Superior Court, 15 Cal.App.3d 237 where a lawfully initiated detention was unlawfully extended, the officers at bench had not completed their initial on-the-scene investigation. Prudence dictated that at a minimum the police examine the nearby vehicles and buildings for signs of unlawful entry or attempted unlawful entry.” (Italics added.)
Finally, defendant contends that submission of previously suppressed evidence to a grand jury for consideration amounts to a denial of due process unless the grand jury is informed of the prior judicial action. However, without passing on the merits of this contention, it is evident that the question was not properly before the trial court under
The portion of the order of the trial court suppressing the evidence found in the Pontiac and dismissing the indictment is reversed. The remаinder of the order suppressing the evidence discovered in the Porsche is affirmed.
Wright, C. J., McComb, J., and Wood, J.,* concurred.
MOSK, J.—I dissent.
The trial court, having heard the witnesses and their explanation of the facts, suppressed the evidence obtained from both vehicles. The majority, drawing a strange distinction, uphold the trial court‘s ruling as to the Porsche but reverse as to the Pontiac, located under the same circumstances at the same site at the same time. I would uphold the trial court.
Officer Aumond‘s unlawful entry into the Pontiac cannot be legitimized by invoking the “totality of the circumstances” rule. Each and every one of the six facts which the majority hold would justify the entry when taken “in combination” (ante, p. 795, fn. 7) is equally consistent with innocence. As we recently reiterated, “Officers cannot reasonably conclude on the basis
*Assigned by the Chairman of the Judicial Council.
The majority first point to “defendant‘s presence in the parking lot at night.” But the lot was open to the public, and a number of other cars were parked there at the time of the events in question. The hour, more-over, was not the dead of night, but 8 or 9 o‘clock on a spring evening. By contrast, in People v. Miller, supra, 7 Cal.3d 219, the police observed the defendant asleep in a car parked in an abandoned private lot at 3 a.m. Yet we held that this fact could not contribute to a finding of probable cause: “Certainly, the mere fact that defendant was found sleeping in such a location did not evidence any criminal behavior on his part; . . .” (Id. at p. 225.)
By making a point of describing in their statement of facts (ante, p. 791) the particular path followed by defendant on leaving the parking lot, the majority seem to imply that his movements may have furnished an additional ground for suspicion. But we have previously rejected just such an argument. In People v. Simon (1955) 45 Cal.2d 645 [290 P.2d 531], a police officer observed two youths at 10:40 p.m. in a warehouse district, walking first in one direction and then back again; he stopped and searched them, finding narcotics. Holding the search unlawful, we reasoned (at p. 650): “the mere fact that two persons walked a few blocks in a ware-house district at night and then retraced their steps would not constitute reasonable cause to believe either had committed a felony, even if the officer had entertained such a belief.” We reaffirmed Simon in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 825 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]: the fact that a defendant‘s movements occur in the nighttime, we explained, must be “appraised with caution; it does not, without more, transform an innocent gesture into a culpable one furnishing probable cause to search. As long ago as People v. Simon (1955) 45 Cal.2d 645, 650-651, we acknowledged, ‘There is, of course, nothing unreasonable in an officer‘s questioning persons outdoors at night’ (italics added). Recognizing, however, that in our society it is not a сrime for a citizen to be out after dark, we held that ‘to permit an officer to justify a search on the ground that he “didn‘t feel” that a person on the street at night had any lawful business there would expose anyone to having his person searched by any suspicious officer no matter how unfounded the suspicions were. Innocent people, going to or from evening jobs or entertainment, or walking for exercise or enjoyment, would suffer along with the occasional criminal who would be turned up.’ These dangers are no less real today.”
The same rule was applied in Cunha v. Superior Court (1970) 2 Cal.3d 352 [85 Cal.Rptr. 160, 466 P.2d 704]. There, two officers stationed them-selves in an area in which one had made 15 to 20 narcotics arrests in 3 months and the other had made 30 to 40 such arrests in 6 months. They observed the defendant and a companion walk along the street while looking watchfully about them, then apparently exchange an object for money. Inferring that a sale of narcotics had just been consummated, the officers arrested and searched the two men, finding narcotics. Ordering the evidence suppressed, we held (at p. 357) that “Neither petitioner‘s activities nor the location of his arrest provided probable cause for arrest.” Quoting the above language from Moore, we concluded: “Moore held that a high crime rate area cannot convert circumstances as innocent as a telephone call by an individual who acted nervous at the approach of a police officer into sufficient cause to detain that individual. Similarly, an area known to be the site of frequent narcotics traffic should not be deemed to convert circumstances as innocent as an apparent transaction by pedestrians who seem generally concerned with their surroundings into
The third assertedly suspicious circumstance emphasized by the majority is “defendant‘s elaborate explanation for his presence.” I find nothing “elaborate” about that explanation, fairly summarized in the majority opinion.2 In any event, “elaborateness” is not the test here: we have held that when a defendant gives “an inherently implausible explanation for his presence,” it may reasonably constitute an additional ground for suspicion. (People v. Sandoval (1966) 65 Cal.2d 303, 310 [54 Cal.Rptr. 123, 419 P.2d 187].) There is, of course, nothing inherently implausible in defend-ant‘s explanation in the case at bar.
More importantly, the majority‘s reliance on defendant‘s own words to justify Officer Aumond‘s conduct is fraught with dangers which we have only recently elucidated. To begin with, in such circumstances the person confronted by the police is not required to say anything at all, and his refusal to do so may not be held against him. Thus, in Gallik v. Superior Court (1971) 5 Cal.3d 855 [97 Cal.Rptr. 693, 489 P.2d 573], the investigating officer observed what he believed was a furtive movement by the defendant and asked for an explanation. We held that the defendant‘s negative response was wholly insufficient to invest the movement with guilty significance: “Upon such inquiry the person questioned may elect to give an explanation of his ‘furtive’ movement or he may freely consent to a search. [Citation.] 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 that event, we declared, probable cause “‘must be predicated on specific facts and circumstances, other than a mere negative reply to the subject inquiry, . . .‘”
If on the other hand the defendant does give an explanation, we have warned that it must not be turned against him on an easy assumption that it is false. In People v. Superior Court (Simon) (1972) 7 Cal.3d 186 [101 Cal.Rptr. 837, 496 P.2d 1205], we first held that a driver‘s failure
The majority next list “the dust disturbances on the door and window” of the Pontiac. Relianсe on that evidence is such a novel idea that it is not surprising there are no cases either confirming or rejecting it. But we are not, I hope, left without the guidance of common sense and experience. Officer Aumond‘s testimony that he saw “dust disturbances” resembling handprints on the door and windows of the driver‘s side was offered to sustain his claim of probable cause to believe the car had been “burglarized or tampered with.”3 The trial court ruled that Officer Aumond‘s observa-tion of “dust disturbances” did not contribute to the claimed probable cause because no reasonable man could believe an attempt had been made to break the lock on the driver‘s door of a car when the window of the passenger door, as here, was wide open. I agree. I further submit that most automobiles, except those which have been freshly washed, are likely to
The last two circumstances stressed by the majority—“the unsecured condition of the vehicle” and “the visible personal property on the front and rear seats of the vehicle“—may conveniently be considered together. The testimony describing both was offered by Officer Aumond to support the final rationalization for his warrantless entry: i.e., that he did so to protect the personal property in the car from being stolen by larcenously inclined passersby. The contention will not bear scrutiny in the light of Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84]. There the defendant was injured in an automobile collision and was taken to the hospital; prior to towing her car to storage the police “inventoried” its contents, and in so doing opened a suitcase lying on the back seat, finding marijuana. The People contended inter alia that the search of the suitcase “was reasonably necessary to protect [defendant‘s] personal property from loss or damage” (id. at p. 707). We rejected that argument, stating that in determining the constitutionality of the officer‘s entry we must balance the owner‘s interest in keeping his property safe against his “countervailing interest in maintaining the privacy of his per-sonal effects. . . .” (Ibid.) However commendable the officer‘s motive may be, the owner may well prefer that his car and its contents not be disturbed by official intrusion.
In this respect the present case is even more compelling than Mozzetti. There the police knew that the driver of the car in question would not soon return to take care of her property, as she had been injured and trans-ported to a hospital; suсh a belief is also reasonable when the driver has been arrested on a criminal charge and taken to jail. Officer Aumond, by contrast, had no grounds whatever to believe that the owner of the Pontiac was either incapacitated or in police custody.4 But in many other instances
the owner may be in the vicinity, only temporarily away from his vehicle, and may feel that any slight risk of theft is outweighed by the convenience of immediate access to his car upon his return. The choice in such cir-cumstances should be that of the owner. Certainly the mere fact that a lawfully parked automobile is unlocked and contains visible items of per-sonal property should not give every passing police officer license to climb inside the vehicle for the purpose of “securing” that property against hypo-thetical thieves.
Moreover, even if we assume that the circumstances relied on by the majority justifiеd the belief in this case that the owner would not shortly return, it was not necessary for Officer Aumond to enter the car in order to protect its contents. As we pointed out in Mozzetti (4 Cal.3d at p. 707), he could simply have rolled up the window and locked the door: “The owner himself, if required to leave his car temporarily, could do no more to protect his property.”5
In the alternative, if the officer felt it was necessary to notify the owner of the insecure condition of the car, he could quickly have learned the latter‘s identity by running a radio check of the license number. Since Officer Aumond thus had less intrusive means available to him, his as-serted purpose of “securing” the property in the Pontiac did not justify the entry. A case in point is People v. Superior Court (1969) 2 Cal.App.3d 304 [82 Cal.Rptr. 766], relied on by the trial court. There, after ob-serving activity around a parked car in an area in which previous bur-glaries had taken place, a police officer shone his flаshlight through the car‘s window and saw loose wires hanging from the dashboard and empty brackets beneath. Believing a stereo set had been stolen from the vehicle, he entered it for the asserted purpose of learning the owner‘s name and address and leaving a notice directing the owner to report the theft to the police station. Sustaining an order suppressing evidence of marijuana found in the glove compartment as a result of that entry, the Court of Appeal reasoned (at pp. 309-310): “In this case, as the trial judge observed, the
I conclude, as we did in Cunha (2 Cal.3d at p. 358) that “the behavior observed here was consistent with innocence and any relation to crim-inality did not depend upon the expertise of the observer.” When each of the individual circumstanсes observed by the officer is thus consistent with innocence, they do not mysteriously become imbued with an aura of guilt merely by viewing them in their “totality.” Six times zero, in my arithmetic, still equals zero. (See, e.g., People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96 [41 Cal.Rptr. 290, 396 P.2d 706]; People v. Privett (1961) 55 Cal.2d 698, 701-702 [12 Cal.Rptr. 874, 361 P.2d 602]; People v. Schraier (1956) 141 Cal.App.2d 600, 602-604 [297 P.2d 81]; cf. People v. Mickelson (1963) 59 Cal.2d 448, 452-454 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. Gibson (1963) 220 Cal.App.2d 15, 22-25 [33 Cal.Rptr. 775].) In Remers (2 Cal.3d at p. 664) we reasoned that “Where the events are as consistent with innocent activity as with criminal activity, a detention based upon those events is unlawful [citations]; a fortiori, an arrest and search based on events as consistent with innocent activity as with criminal activity are unlawful.” The majority concede (ante, pp. 794-795) that Officer Aumond‘s “entry into each car was, under numerous cases, a search within the meaning of the Fourth Amendment to the United States Constitution and article I, section 19, of the California Constitu-tion.” Under the authorities discussed herein, both those searches were un-lawful.6
When the evidence discovered by means of the illegal entries is ex-cluded, there is not a sufficient basis to support the indictment. It follows that thе trial court properly suppressed the evidence and dismissed the charges against defendant, and the order appealed from should be affirmed in its entirety.
Tobriner, J., and Sullivan, J., concurred.