*1 No. 7859. In Bank. [Sac. Dec. 1970.] PEOPLE, Petitioner,
THE COUNTY, THE SUPERIOR COURT OF YOLO Respondent; al., MARTELL DEAN KIEFER et Real Parties in Interest.
Counsel General, C. Haws and Elliott D. Thomas Edsel W. Attorney Lynch, General, for Petitioner. McCarty, Attorneys Deputy
No appearance Respondent. Michael and Sherman Ellison Real Parties in Interest. Stepanian Opinion
MOSK, J. (real Defendants herein) in interest parties charged information with unlawful possession transportation marijuana. Code, (Health Saf. 11531.) & §§ Their motion to suppress evidence on the ground search and seizure was illegal granted, Code, seek review (Pen. 1538.5, writ of mandate. by statutory § (o).) subd.
The sole witness the events testifying was the question arresting officer, Sergeant Cameron of the California Patrol. Highway Approxi- *5 8 a.m. on a mately Sunday Officer Cameron was on his morning duty marked Interstate 5 in Yolo patrol when he Highway County, observed 1960 Pontiac automobile driven being southbound at a high rate of chase, He gave and switched on speed. his red emergency light the the car to a halt. The purpose bringing driver immediately began over to the pull side the road. At this Officer Cameron saw a point woman’s head seat; rise from the front she turned passenger portion and her arm over the put seat, back of the then faced forward bent again, floor, down toward the and reassumed a normal The driver sitting position. Pontiac, Kiefer, defendant Martell first and walked alighted toward Officer him, Cameron. The told officer Mr. Kiefer he had and why stopped the latter he had readily and his acknowledged speeding produced driver’s license. side of the then Pontiac. passenger
Officer Cameron approached Kiefer, defendant Patricia remained in the female sitting The occupant, Officer Cameron made no with the window rolled up. front seat attempt Kiefer, but immediately Mrs. the car door to communicate with opened testified, . As he later was . . “My her and looked inside. next to purpose see what had been hidden and to talk to the and One was passenger several. own my safety.” concerned about I also was door, “some green-looking saw Officer Cameron
Upon opening door, “several between the seat on the floor mat lying stems” to be latter cushion. Believing round seeds” in the crack the seat a thorough out undertook he ordered Mrs. Kiefer to marijuana, step of marijuana of defendants’ car. Additional small quantities and in Mrs. Kiefer’s purse. found in the glove compartment circumstances whether in the issue this controlling proceeding car and of defendants’ Officer act of the door shown Cameron’s opening search within meaning inside was an unreasonable looking conclude that We Fourth the United States Constitution. Amendment to affirmative, trial court and that the must answered question defendants’ motion to correctly granted suppress.
I Cameron that Officer It stipulated suppression hearing car; the burden to show search defendants’ proper did not have warrant to search, (Badillo on the for the rested justification accordingly, prosecution. 269, (1956) 46 Superior Cal.2d P.2d excess determined that defendants’ car was driven in Having being limit, Officer Cameron had posted stop speed its driver a misdemeanor committing vehicle arrest presence. alone, (Pen. Code, I.)1 however, not have subd. That fact would § as an “incident” to the traffic arrest. a search of vehicle justified 57]; Peopled. cf. Blodgett (1956) 46 Cal.2d Weitzer cases 269 Cal.App.2d and an cited.) than The latter rule has been more often stated explained, of its instructive. origin analysis may prove arrest, lawful a warrantless
It is now settled that as an incident to a *6 v. 376 U.S. (Preston (1964) search limited both as time United States to 780-781, 881]) (Chimel 364, 777, and 84 S.Ct. place 367-368 L.Ed.2d [11 693-694, 752,. 685, (1969) L.Ed.2d v. 395 U.S. 762-763 [23 California 2034]) to commit (1) be instrumentalities used 89 S.Ct. made for will crime, crime, which aid and other evidence thereof the fruits of that criminal; (2) for articles or conviction pos apprehension unlawful, to or known itself such as contraband goods session of which is stolen; arresting can used to assault (3) and which be weapons ground ap would “arrest” on this 1 The offense was such an nature of the the driver until parently by temporary statute to a detention of have been limited (See v. gave promise appear. identified his written to Weitzer himself and cited.) 274, 318], (1969) Cal.Rptr. and authorities 269 294 [75
813 (See v. (1967) officer effect an Warden generally Hayden escape. 294, 782, 788-794, 1642].) U.S. 300-310 L.Ed.2d 87 387 S.Ct [18 In the we these case at bar exclude the first of three may quickly Inasmuch as the the offense categories. “instrumentality” used to commit is, itself, if the automobile a search of speeding anything, portion (Grundstrom its interior cannot v. Beto this justified ground. (N.D.Tex. 1967) 912, Moreover, no 916.) there are “fruits” F.Supp. offense, of such an and the thereof search and “evidence” is not subject seizure it as consists officer’s own observations essentially arresting 762, (United (D.Del. 1962) and States 765.)2 records. v. Tate 209 F.Supp. II second of the above we confront a
Turning categories, initially more difficult If a is entitled conduct question: ordinarily arrest, search contraband as an incident a lawful this has rule why officer, been held to routine traffic violations? When the as inapplicable here, has arrest driver for a traffic offense committing in his he not search the offender’s vehicle for why may contra presence, band incident to that arrest? The answer deducible from the cases is Chimel, that even when limited as Preston required by incident to an arrest must remain nevertheless “reasonable scope.” (People (1964) 861, v. 841, Cal.2d Cruz 395 P.2d [40 Chimel, As Justice White remarked dissent “The Amendment does not ‘warrantless searches’ but instead [Fourth] proscribe ” it (395 ‘unreasonable searches’ U.S. proscribes 772-773 pp. [23 search, therefore, 700]). L.Ed.2d at A be unreasonable p. “may hence unlawful incident to a although lawful arrest.” Brown 640, 528], 45 Cal.2d cited.) and cases “What is the test of reason which a search makes reasonable? The test reason the Fourth underlying Amendment: expressed history which it embodies and experience against afforded it safeguards (Chimel evils to it which response.” California 395 U.S. L.Ed.2d from United States v. quoting 653, 669, 339 U.S. L.Ed. Rabinowitz 70 S.Ct. 430] Frankfurter, J.).) evil (dissenting opinion to be sought principal foregoing analysis well, course, 2 The applies equally to the majority vast offenses, including traffic “moving” “equipment” Among both violations. few exceptions against driving are the sanctions while under influence of alcohol *7 or a corroborating presence narcotic: the the of latter substances in the vehicle is admissible as crimes, evidence of these a reasonable search therefor be conducted in the interior of the vehicle which such an offender is apprehended, as an incident (1965) 889, that arrest. v. Robinson 62 Cal.2d 894 [44 762, Cal.Rptr. 834].) 402 P.2d
814 wholesale forestalled, course, of individual is the invasion privacy authority. under color of governmental conducted searches exploratory 782, 294, L.Ed.2d (1967) 387 U.S. 301 (Warden Hayden [18 v. must reason, of the search 788-789], “The cited.) For this scope and cases its which rendered the circumstances to and justified by’ be tied ‘strictly 1, L.Ed.2d (1968) U.S. 19 (Terry Ohio 392 [20 initiation permissible.” 658, 904, accord, (1970) 1 Cal.3d 889, 1868]; People v. Collins 88 S.Ct. 179, 403].) 463 P.2d [83 v. United In Preston automobiles. These rules the search of govern 777, 781], the defend- 364, L.Ed.2d supra, 376 U.S. States and a warrantless a of vagrancy, ants were arrested in their car on charge held unreasonable. a search thereof at different time and place there could court “assumed” For the of that the high purposes opinion, Maroney Chambers In fruits or of the crime of vagrancy. implements however, 426, 90 S.Ct. L.Ed.2d U.S. it was the court that in Preston “the arrest was vagrancy; acknowledged crime evidence of cause to believe that that the officers had no apparent contrast, the received was concealed in Chambers in the auto.” By station; furnished a service robbery eyewitnesses armed report of the stolen, detailed garb of the articles weapons descriptions robbers, car; thereafter shortly getaway appearance that matching description. defendants were arrested in vehicle precisely automobile of the cause search grounds delayed Upholding probable station, had at the court the officers although noted probable defendant, of an arrest cause for their of the “the validity warrantless arrest there is a car if is not of the to search necessarily determinative right cases, Here, will be true in cause make the search. many probable those furnishing the circumstances the arrest are also justifying probable at (399 cause for fn. L.Ed.2d the search.” U.S. p. p. however, in traffic viola- situation is contrary typical presented, there, tion case: “circumstances justifying arrest”—e.g., speeding, turn, not also furnish illegal or defective lights—do failing stop, arresting of the In Chambers the officers interior car. loot, or other could to find evidence reasonably clothing, expect weapons, the defendants identified vehicle in which robbery specifically therefore, arrested; unreasonable, search for to conduct a it was not items, if in the course of such contraband had been uncovered But officer in search it have been seized. lawfully arresting could case, above, to discover cannot routine traffic as noted reasonably expect offense; still either instrumentalities or fruits seizable evidence more, believe, without reasonable grounds less does the arrest him give (Cf. People v. Baca that the vehicle contains contraband. *8 defendant on cause to arrest [probable [62 182] a does not a search of the as there charge being fugitive justify premises, himself].) “evidence” is no of that crime other than the defendant It offender, that follows cause to arrest a traffic no matter how probable per suasive, neither a nor sufficient condition for a warrantless necessary search, vehicle for contraband. To that there must justify cause to believe the vehicle in fact does contain independent probable contraband. Amendment,
Such a fulfills the of the Fourth requirement purpose earlier, adverted to individual against indiscriminate protect privacy In the intrusions. case of Carroll v. United States governmental leading 132, 543, 551-552, (1925) 280, 267 U.S. 153-154 L.Ed. 45 S.Ct [69 39 A.L.R. the United States Court “It would Supreme explained be intolerable and unreasonable if agent were authorized to prohibition automobile on the chance of and thus all stop every finding liquor, subject lawfully to the inconvenience persons using highways and indignity of such a search. . . . within the entitled to lawfully country, use [T]hose highways, have to free public right without passage interruption search unless there is known search, to a official authorized to competent cause for probable their vehicles are believing contraband or carrying (Accord, Peopled. merchandise.” Gale illegal 46 Cal.2d It would not be less “intolerable and significantly unreason- able” if contraband, were authorized to search for without cause, probable vehicle involved in a every routine traffic violation. Millions of such vehicles are and all but a small every year,3 stopped proportion are doubtless the time on lawful business or innocent proceeding pleasure.
Carroll relaxed the “merely for a warrant on requirements grounds It did not practicability. the need (Henry for cause.” dispense probable v. United States 134, 140, 361 U.S. L.Ed.2d 80 S.Ct. 168].) The constitutional necessity cause to search an probable auto- Carroll, mobile has not diminished in the years since as the Supreme makes clear in its latest (Chambers on the v. Maroney expression subject 419, 426-429]). 399 U.S. 48-50 L.Ed.2d And while the is defined meaning in many phrase intervening opinions, it has nowhere been stated better than in Carroll perhaps itself: there the court held that high acted officers cause because “the facts and circumstances within their and of which had reason- knowledge ably trustworthy information were sufficient in themselves to warrant a man 3,453,680 year 1968-69, 3 In fiscal example, charges nonpark total ing traffic violations (Judicial were filed in the municipal courts of California alone. Cal., 165.) Council of Rep., p. 1970 Ann. *9 816 was being caution in the belief that transported reasonable [contraband] at 162 U.S. (267 which and searched.” p. the automobile they stopped us. facts before 555].) test to the L.Ed. at Our task is to this p. apply
[69 cause In decisions finding the United States probable Supreme automobile, has an the basis for the officers’ conduct search primarily contra- the vehicle contained information” that trustworthy “reasonably that the in Carroll the officers knew from experience band. Thus past defend- Grand were in the business at defendants bootlegging Rapids; Detroit, direction ants observed from the were returning city and the defendants known be a liquor; source of major illegally imported when night been in the “in the same automobile had traveling they thus the officers which was identified whisky tried to furnish the 554]; at (267 at 160 L.Ed. as of the firm U.S. p. equipment.” p. [69 part 694, L.Ed. (1931) 700-701 Husty v. United States 282 U.S. [75 see also 632-633, 240, 1407]; Scher v. United States S.Ct. 74 A.L.R. 151, 153, 174]; Brinegar v. 251, 253 L.Ed. 59 S.Ct. 305 U.S. 1879, 1883-1884, United 162-163 L.Ed. States 338 Ü.S. above, Maroney, noted Chambers v. S.Ct. And in robbers, of the their officers acted on eyewitness weapons descriptions loot, and their car. getaway information
In the case at Officer Cameron had no reliable bar prior fact contraband. he had neither seen that defendants’ contained In We add that such them until he them for nor heard of stopped speeding. case, traffic for the officer ordi- information would be rare in routine but because identity citation not because of the motorist’s issues the narily of his which he was or the condition manner in driving equipment. Indeed, driver because he even if the officer were for the looking specific traffic charges, knew of an warrant for his arrest prior outstanding to search lack—for the cause would still reasons analyzed above—probable vehicle for contraband. cause is facts or circumstances second source probable personally “A scene of the arrest! contraband observed the officer when the is reasonable when conducted incident to a traffic violation only occurrence other than officer observes some arresting traffic offense believe that the motorist which leads the officer to reasonably possesses itself can contraband. ... the absence of some from which In fact contraband, a search draw the belief that the motorist reasonably possesses added.) v. Beto (Grundstrom such articles is unreasonable.” (Italics (N.D.Tex. 912, 917.) 1967) supra, 273 F.Supp. observation, outside the
Most of these is from reliable circumstances objects vehicle other lawful of contraband or vantage point, suspicious a “search” view inside vehicle. That observation not itself plain (Harris States U.S. in the constitutional sense v. United 1067, 1069, cited), but it L.Ed.2d and cases S.Ct. additional is secreted furnish cause to believe that contraband *10 in the vehicle and a search therefor. The rule has justify applied searches that were or otherwise warrantless of vehicles uphold parked 410, (1969) v. 428 (see, People Terry immobilized 70 Cal.2d e.g., [77 460, dashboard; 36], People seen cigarette 454 P.2d on marijuana Cal.Rptr. (1968) 477, 44], v. 268 480 Muriel narcotics Cal.App.2d Cal.Rptr. [74 deck; Samaniego (1968) on People visible rear window v. paraphernalia 804, 904], 263 811-812 stolen auto seen Cal.App.2d Cal.Rptr. parts [69 well trunk), as as vehicles because of a open stopped 223, v. (see, Lopez (1963) routine traffic People violation 60 Cal.2d e.g., 424, 16], 241 384 P.2d crowbar with [32 distinctive Cal.Rptr. marks paint seat; seen v. from under Anderson People (1968) 266 protruding Cal. 125, 827], 132 hand-rolled visible App.2d Cal.Rptr. under cigarette [71 seat; People Superior front 685, v. 266 690 Cal.App.2d 261], on marijuana seeds seen Cal.Rptr. [72 seat passenger during safety People Cacioppo (1968) v. inspection; Cal. Cal.App.2d 356], floor; Rptr. benzedrine visible on v. Ceccone capsules dexedrine visible capsules floor). on
In the case present marijuana discovered Officer Cameron not visible vehicle, from outside the did not come view into until he the door opened next to Mrs. Kiefer. Whether in the circumstances it was reasonable for him to that door and look open inside an is issue we shall explore infra.
The next relevant cases are those in which group search has been on “furtive or “furtive movements” gestures” predicated course, The is that theory, of the vehicle. although occupant vehicle, officer does not see contraband from outside the he actually any from direction of the may reasonably timing occupant’s infer that the latter is in fact in of contraband which he movements possession actor, is From to hide. of the rests on endeavoring theory viewpoint a sound basis: “It is a natural confrontation psychological impulse hide contraband” immediately (People 143 Cal. Jiminez 68]). canWe that sudden efforts at App.2d posit concealment, crime, from the like scene of well be flight may expressions hand, On the of consciousness of other same motion fact guilt. may have an innocuous “It is that a reasons entirely purpose: recognized person’s for concealment run the whole from may legitimate the most spectrum (1969) supra, 269 Cal. most heinous”
motives to the Weitzer 274, 292).4 App.2d observer, an innocent from the difficulty viewpoint must not only can often be mistaken for a movement. He
gesture guilty also it in accordance gesture he must accurately, interpret perceive ambiguous, gestures actor’s true intent. But if words are not infrequently can be assigned are even more so. are wholly Many nonspecific, that context in their Yet the observer view may context. meaning only different, otherwise from not is his quite only vantage the actor: point he have even the scene with a notion—con- approached preconceived and what what he to see sciously subconsciously—of gestures expected in such them to mean. The expected misunderstanding potential *11 situation is obvious. a than mere the more law
It
because of this danger
requires
or
arrest.
cause
to constitute
“furtive gesture”
probable
of
rule in the case
this
reaffirmed
recently
Court
United States Supreme
917, 937,
40, 66-67
L.Ed.2d
(1968)
U.S.
v.
York
392
[20
New
Sibron
of
at the
and flight
furtive actions
“deliberately
approach
A few will serve to set distinguishable examples tive with reliable information constitute may gesture coupled prior 671, 673, supra, down (People cause. Cal.App.2d Jiminez with an ward motion of a others in area juvenile parked sitting cause where officers had told to Probable expect gang fight.) also be on a furtive actual observation gesture predicated coupled contraband to which vehicle gesture portion v. Mosco (People directed. 585-586 car, 644], downward motion of an of a followed occupant parked seat). the officer’s observation of a under the And marijuana cigarette the officer need not even see contraband so observed recognizable long which, act of or box deliberately suspect hiding package circumstances, believe it is reasonable to contains contraband.
Doherty (1967) 67 Cal.2d 21-22 [59 Cal.Rptr. a.m.; defendant and others refused to leave a service station at 3 when identification, officers arrived and asked for defendant was seen to take a small white from his it into the motor of package pocket drop open *12 car; v. Court People Superior a parked Cal.App.2d 646], a.m.; without at 2 or 3 driving stopped lights defendant bent forward and officers saw him a small box white under push seat.)5 the front each of cases the of foregoing gesture
In the the could suspect reasonably a connotation from reliable given information or from the guilty prior facts, Although People Blodgett a closer case on its 46 Cal.2d 114, may fairly put category. in this There the and companions defendant his two double-parked seated a were taxicab in front at 3 of a hotel Police a.m. officers cab, observing the investigate. They had been and decided to occupants ordered the out, and as opened one of the officers the left rear door “he saw defendant with juncture draw his left at hand from behind the the seat seat back cushion.” cigarettes The officers searched the marijuana seat and found three area the from the Affirming judgment which possession defendant had taken his hand. of conviction of marijuana, (at 117) of this p. court reasoned that although the search predicated could not be ever, on a traffic arrest for parking, justified, double “It was how ground. on nothing another There is questioning in an unreasonable officer’s persons night [citations], outdoors at and in view of the hour and the unusual con duct of the occupants of the cab it was not the unreasonable for officers to order get them to out the questioning. of cab for Since Officer Barker saw defendant’s out, getting furtive action he grounds had reasonable hiding believe that he was contraband and the of the cab was therefore reasonable.” Thus, although actually the officer did not see the defendant hand thrust his into space cushion, between the seat and the back likely it was more than not that the defendant’s taking observed motion space of his hand out was that the end of such a sequence. inference, least, That at quite was as as plausible the defendant’s belated of conceal- observation of contraband a deliberate act personal
officer’s con- circumstances. It is true that to reach a under otherwise ment suspicious was draw cause in each instance clusion of required probable facts; eminently but were from the known the inferences certain inferences reasonable, was strong chain his deductions correspondingly however, A far different from a series of emerges, compelling. picture facts to those before us: in number decisions on similar now of Appeal to the “furtive evidence sinister assertedly giving meaning such cases the breaking that almost to the been so thin as to stretch chain has gesture” point. Sanson first of the series—and typical many—was
The There the officer observed (1957) 156 California, Venice, driven street in being slowly” automobile on “very illumination, a.m.; taillight and the he also noted there was no license plate five he turned blue the car for minutes was instead of red. After following he he so did his red in order it to a When light bring stop. emergency saw, testified, hiding to be as he later “appeared two passengers the door on the passen- under the front seat.” The officer went to something under it; exited, “looked and the officer side and ger passengers opened bag, Finding dirty the seat to see what had there.” they paper placed two The contained bag marijuana.- it and look inside. The proceeded open substance; charged possession subsequently passengers had no the officer set on the ground moved to aside information car, illegally that the evidence cause to search hence motion, trial obtained. The court granted People appealed. reversed, admissible. holding evidence The Court of Appeal 252) “strikingly similar” (at facts by characterizing begins p. opinion untenable. (ante, 5), fn. Blodgett; analogy those as noted above *13 the defendants’ (at 253) lights that the defective on The court then stated p. but not violations the driver for the cause cite gave equipment police red vehicle; on their turning that justified to search the the were police car; re- “This signal the for of defendants’ the light purpose stopping In story “pushed at the on the seat “to raise himself.” police station that he had back” occupants the light of of the the lateness of the unusual conduct the of hour the cab, thrusting in and out of reasonably the could his hand conclude that space attempting to secrete contraband. that the defendant had been purported extend appear, Appeal As will decisions have number reliance, however, Blodgett improper. to the fact situation now before us. That Blodgett, bending simply the act of In contrast to the unusual movement observed in has, show, many or downward in the of an we will forward more innocent front seat automobile Blodgett authority culpable interpretations. than is therefore not proposition ipso the that cause to search for probable such act facto furnishes Blodgett future, avoid contraband. To similar it will well limit confusion.in to its facts. vealed to the defendants that officerswere at hand desired to ques- tion them.” however,
At this in the of the Court of point opinion, reasoning shifts from of the facts observed suddenly analysis proper by Appeal officers to an on the defendants’ motives: “Conscious improper speculation fearing of the narcotic and would be they its presence apprehended movements, defendants made as did the defendant possession, immediately case, in the which led Blodgett to believe that were they hiding something under the front seat. . . . The of the movements of significance the defendants is that realizing were made they immediately were they upon to be confronted The defendants were police. ‘a simply exercising Jiminez, supra].” natural (Italics added.) (Id. impulse’ [citing at p. 253.)
The fatal defect in this is that nor, neither the Court reasoning of Appeal indeed, the officer had arresting of what the any knowledge defendants “real- ized,” “feared,” were “conscious of” or or what felt. To be they “impulse” sure, with the advantage hindsight such is not But speculation implausible. a search cannot be what it justified by (People turns v. Brown up n 640, 643-644, 45 Cal.2d cited), and cases cause cannot probable be based on a belated conduct interpretation which suspect’s appears reasonable only light evidence uncovered in that search. very
The Sanson also violates the broader rule approach probable arrest or to search must tested “facts which the record shows were known to the officers the time the arrest made.” [or search] Talley Cal.2d In case, an officer typical observes motorist patrol commit a routine violation, traffic and turns on his siren or red light violator’s car stop citation; and issue a such a giving upon signal, officer sees the driver or other of the car occupant “lean forward” suddenly or “bend down” or otherwise reach toward the dashboard or floor. Assuming these are the only “facts known to the moment, officer” at that do him cause give to believe that the person observed moving in car is in possession contraband? Careful reveals analysis there are too weak links many officer’s chain of deductions to conclusion. flaws support bemay conveniently around two grouped assumptions.
First, the argument assumes that the movements in question purpose- *14 ful to the officer’s responses on the scene. But the appearance ob- person served might not in fact have seen the car, in which event move- police any ments he made would be irrelevant. If he did see a vehicle he following, not have might car; it to be a recognized police many “furtive gesture" cases have arisen in the dark of with night, the officer’s car some distance such, have understood that the If he it he not recognized might
behind. If inferred his own to a halt. he bring correctly to police attempting response been have might the intent of the his movements not made police, awareness; he on the to that have been movements was they might simply to And if making event. his movements were point responsive situation, i.e, fac- purposeful: suddenly still not have been when might misdeed, an imminent with the for unknown ing confrontation some police citizens with to hide will nevertheless an understand- many manifest nothing random, able nervousness undirected or movements. gestures means will react in de- only guilty assumes the argument Secondly, opin- their car. The reported to signal stop to scribed manner policeman’s seen were not gestures the claimed furtive the “fact” that make much ions (See, light e.g., their red or siren. turned on until the officers to occur “No such movements 253: supra, 156 Cal.App.2d v. Sanson during previous by any made defendants] to [the have appear above, surveillance.”) this explained As their car under had period indeed, the move- fortuitous; in certain cases entirely could be sequence until visible he but not been the officer’s could have pursuit ments preceded that this But even the car. assuming for the stopping drew closer purpose hoc, hoc—the ergo causal nexus—post evidences a propter also chronology than more innocent many Reflection suggest not end there. will does analysis or “bending forward” act of “leaning for a motorist’s guilty explanations at hand. down” in the circumstances officer that the with, knows every approaching motorist begin
To license, also the and probably see his in all ask to driver’s will likelihood therefore, movement, well might card the car. The observed registration so as to have for his wallet reaching be the driver’s act of more than nothing or glove reaching steering his or for the ready post license inspection, drivers And as women card. registration many obtain compartment and other identification—next their their license handbag—containing keep seats, a in that direction or motion reaching them on floor between would be less natural for them. no
Furthermore, that the will wish to motorist knows every speak him, are therefore for that conversation however briefly; simple preparations down for the driver roll necessary, It expected. example, time, If the the driver or window. radio is playing passenger If the driver turn off set.6 lean forward reduce the volume or might store his cigarette was well reach down to smoking, might extinguish very given 6 This explanation reported in at least two of the the defendant 866]; Cal.App.3d Cal.Rptr. cases. People v. Goodrick 219 [89 216. Cruz *15 And of the vehicle was food consuming if the car’s ashtray.7 occupant follow.8 similar movements would probably or beverages, car, their whether vol- motorists from Additionally, many alight expect are certain by or when they stopped police. Again, untarily upon request, unbuckled; belts have to be may are in order: seat usually pas- preparations coats, folded or infants have to remove road sengers maps, packages, on, have to be shoes or hats their and clothing may adjusted, from laps; put and outer buttoned. tightened, garments belts in he when a driver his in situation which knows
Finally, stops vehicle, it both from is him to may alight customary prudent Indeed, the law control of a anyone his brake. forbids in apply parking it to stand on unattended without first highway motor vehicle to “permit Code, 22515; (Veh. the brakes thereon” see also effectively setting § brake such a Yet in automobiles system). many requiring parking § dashboard, brake handle lever or is or below the parking lean forward or driver is therefore downward order to compelled it. apply
Each of the in some resembles—and foregoing gestures degree could rea mistaken for—the movements of sonably engaged person secreting innocent, contraband inside a car.9 Yet each is and has been wholly made or another driver virtually every one time on the roads by today. passenger Carroll, in the such are not “sufficient in Accordingly, gestures language themselves to warrant man of reasonable caution in the belief that [con in the vehicle under observation. being transported” traband] People Moray (1963) decision so leading holding Cal.App. 432], 2d 743 There the defendant driver failed his car Cal.Rptr. stop lane; at a and made a left turned turn from posted sign wrong over; red on his the defendant did light signalled latter pull Shapiro (1963) 7 In explained brought cigarette driver that as dropped she her car to a halt she had she smoking up. and bent to pick down it Court, Superior ct., Hassell v. (petition hg. 8 In Civ. den. div. 6, 1970), May minute order of the driver testified pulling that while he was over in response signal holding the officers’ a can of Coca-Cola which he had been be legs spilled seat, tween over him and put and he took can and it down on passenger the floor on the side. opportunity gestures 9 The officer’s limited to observe such should be borne only He views suspect’s mind. them not from outside the car but also from one moving, car to another while both are at a time when a traffic has been offense committed, road, maneuvering the vehicles are to the side of the and the officer will properly monly others, safety be concerned for his own and that most com nighttime, bar, as noted opinion. elsewhere in this In case at observation was made when the officer was 100 to 200 feet behind the defendants’ car. *16 his reaching his as if he were officer saw him “raise shoulder right so the hand seat.” officer asked the and lean towards The right then pocket, seat,” defendant had hidden defendant “what he underneath defendant out of The officer nevertheless ordered the answered “nothing.” car, it, a under the front searched and found small of marijuana package substance, the a conviction of of that Reversing seat. possession (at 746): reasoned here to indicate “There is record nothing Appeal p. that defendant to was not a narcotics was hide attempting anything—he addict, nor was had seen the he such—the officer never suspected being defendant, car, nor his The not listed on before. defendant’s automobile was ‘hot sheet.’ The officer did In effect all any not see the defendant’s hands. that the officer was an have been might saw arm motion. The defendant himself, have with his scratching been for his wallet iden- might reaching tification and documents therein or he have his might changing been simply would be a reasonable none which activities seem to physical position, him of a suspect felony.” committing circumstances, concluded the court no other there were suspicious Noting the record this case were to consti- set forth in 747), “If the conduct (at p. that officer to believe a has com- felony for a traffic cause tute probable authorized, vehicle is then of the motorist’s prac- that a search and mitted about to receive a California who receives or is motorist in tically every his automobile' to his subject having person citation will traffic not the law.”10 fortunately the traffic officer—such searched aside, however, this Court of decision on Moray every Appeal Cruz “facts” in the record has found sufficient other with Sanson beginning topic our to furtive atten- gesture engaging a now to connotation guilty impart 10 Moray In was 437. followed Cruz frame; driving unlawfully case the was an automobile with an lowered that defendant lights, suddenly turned red lower his the officer on his observed defendant shoulder, left, right reaching look to the seat “appear” to toward or floor seat, put the car. The officer asked the what he had under the front but defendant shrugged reply. then and made no The officer ordered the defendant out defendant of the it, car, packages searched and found several of benzedrine tablets under the Reversing judgment drug, a possession seat. of conviction of of that Court of (at 441): Appeal p. “Nothing suspicious was visible reasoned character does not officer when he stood beside the defendant’s vehicle. record disclose background except experience that Officer Lee had in narcotics violations training academy. instruction at the The defendant was not known to some Officer Lee at the time he having any stopped him the illicit connection with traffic suspected There no that Lee in narcotics. was evidence to indicate Officer disposition motion he observed connected with the of contraband naroctics. For discloses, inquiry all the record not the officer’s as what had been hidden did direct specifically general curiosity itself prompted narcotics but was ascertain what, anything, opinion if was within the defendant’s vehicle. We are of the there support probable was insufficient evidence to cause to search the vehicle for contraband narcotics.” cases, stressed in the cited tion.11 Of the various circumstances perhaps failure most is driver’s when promptly persuasive stop *17 fact, however, him to do Even this is to signals subject officer so. interpreta- the in this situation con- tion. Little is when motorist difficulty experienced tinues to drive for a substantial distance and makes turns or other sharp Impala); (Gil, unusual maneuvers Chevrolet such conduct can fairly action, deemed consciousness of Yet in other in- evasive guilt. implying a stances well be reasonable. It is a motorist’s delay may duty stopping times, use due care at all and when over by police requested pull conditions, he should do so-at the first But road or speed, opportunity. safe other traffic sometimes him to a short before may bring- compel proceed way (1963) his (See, People Moray supra, car to a halt. v. 222 ing e.g., Cal.App. 743, 744, 2d being defendant at the first signalled upon stop, “parked (Ber- available The line be a fine in certain cases one parking space.”) geron, Brown), but it must be drawn and in of all the realistically light facts.
A second (with circumstance noted in each of cited cases virtually Gil) of Williams and that the is took exception confrontation place Here, however, the nighttime. possibility mistake As distin- greater. from a guished car, deliberate delay his the fact that it is night stopping when the is not “conduct” of the “in motorist to” the appear response officer’s signal. of this significance fact should therefore be appraised caution; not, more, with it does without transform innocent an into a gesture one cause to search. culpable furnishing People As v. long ago (1955) Simon 45 Cal.2d 650-651 P.2d we acknowledged, [290 is, course, “There unreasonable in officer’s nothing questioning per- added). sons outdoors at (italics however, night” Recognizing, in our it is society dark, not crime for a citizen to be out after we held that “to an officer to a search on the permit justify ground that he ‘didn’t feel’ that a street at had night lawful business there person any would expose anyone searched having officer no person matter suspicious how unfounded the were. Innocent suspicions or from going people, entertainment, or evening jobs for exercise or walking enjoyment, would suffer with along the occasional criminal who would be turned up.” These are no dangers less real today. 11 Our following research has disclosed People Cantley point: (1958) cases in v. 993]; 163 Cal.App.2d People 762 (1961) [329 v. Williams 196 Cal.App.2d 726 836]; People Shapiro Cal.Rptr. (1963) [16 supra, 618; v. People Cal.App.2d 213 v. One Impala (1963) 18; Chevrolet People (1967) 219 Cal.App.2d v. Gil Cal.App.2d 88]; 248 321 People Cal.Rptr. Wigginton (1967) v. Cal.App.2d 104]; Cal.Rptr. People v. Brown Cal.Rptr. 448 [77 438]; Bergeron Superior 711]; 2 Cal.App.3d Cal.Rptr. 433 [82
People v. Sirak 716]; 2 Cal.App.3d Goodrick (1970) supra, 11 Cal.App.3d 216. cases cited varying
Other circumstances mentioned emphasis a criminal con- had on the whether “furtive gesture” as bearing question the area the confrontation took where include the remoteness notation crime of the neighborhood, of a recent violence in (Brown), report place car (Cantley), condition damaged with a description suspect (Wigginton), lack be stolen motorist’s for belief it giving ground might (Goodrick), erratic or dangerous of a driver’s license and other identification Sirak, (William, Shapiro, Good- driving by operator suspected under rick), investigation the motorist while and “nervousness” of (Gil). *18 each of circumstances individually, do not examine these
We pause than others. we note that some are less considerably although persuasive be evidence of alcoholic or well narcotic driving,” “Erratic example, driver; actions the but also caused the or sudden by intoxication of it may Thus in the officers observed themselves. Goodrick police appearance their turning and chase after on driving only headlight, gave one woman, driver, to lean and red seen emergency lights. spotlights the of the road. As she right, forward to but over to the side promptly pulled however, front wheel the curb.” The Court came to her stop, right “jumped latter event—“a cir- of attributed sinister to the multiple meanings Appeal that the driver failed cumstance calculated reasonably generate suspicion because of narcotics or control vehicle either of the influence properly her because of with a vehicle or because of alcohol or stolen unfamiliarity (11 Cal. with an need to conceal contraband.” urgent App.3d preoccupation 219.) (id. at at find driver’s We equally plausible simple explanation p. car, 218-219) she that the sheriff’s reached lights of “Upon observing pp. curb her the radio ran over the because right down with hand to turn off from the car were her.”12 blinding spotlights police A “fact” final word must be said about the in several the cases stressed Brown, (Williams, that his vehicle the Impala) Chevrolet upon stopping car, rather alighted driver first and walked back to the than waiting police whether, for the officers to come do not as court asserts to him. know We 728), (196 iti Williams it is “the customary thing” p. car, to sit and doubt motorist wait for the officers his we approach 12 Similarly, the appeared fact that the motorist to be rendered “nervous” Here, materiality arrival of the is of little in all but unusual cases. Officer Cameron passengers testified that “it isn’t unusual” for to “look back” when he behind, approaches their car from speeding and when a is made people arrest “some nervous, appear passengers, people true some don’t” and the same is of drivers. nervousness, above, Such sented; we noted a natural response pre to the stress situation conjunction movements,” distinguish even in with “furtive it fails to those guilty “any (People Coupe who are from other harried citizen” v. One 1960 Cadillac 92, 706]). 62 Cal.2d Cal.Rptr. there are either statistics or consensus of on But we opinion point. dispute the conclusion of the Williams court that when the motorist adopts car, course himself walks to the he does so to opposite decoy away, officers would not have “evidently hoping opportunity (Ibid.) look into car.” We conceive of a easily innocent variety wholly —and if not more “evident”—motives for conduct such a motor equally ist, not the least which is a natural desire to be or to appear cooperative and otherwise himself with have ingratiate the officers who him. stopped
Our list various elements which have contributed to the finding cause in “furtive cases is intended to be illustrative rather gesture” moreover, than In these analyzing elements exhaustive. we do separately, not mean to from the settled rule that “There is no exact formula for depart of reasonableness. Each determination case must decided on its own facts and circumstances the total of the case. [citations]—and atmosphere Ingle 53 Cal.2d [Citations.]”
348 P.2d also agree We “The rule should not be understood as man of care and ordinary ordinary and the officer placing prudence experienced detection narcotics offenders in the same class. Circum stances and conduct which would not excite the of the man on the suspicion *19 street be to an officer had had extensive might highly significant who training and in the devious and experience devices used narcotics offend cunning ers to conceal their (1961) supra, crimes.” v. Williams 196 Cal.App. 726, 728; accord, 2d Cowman 117- so,
Even we will not countenance abuses of that The near- experience. of the evidence of insufficiency cause in certain of cited probable upheld Court of decisions that reliance suggests on so-called “furtive Appeal police movements” has on occasion little subterfuge, short of a and that order intuition, to conduct a search on the basis of mere or guilty suspicion has significance been claimed for gestures or circumstances surrounding or more to be A innocent. recent indicates equally likely wholly study solution, that our concern in this regard well-founded.13 may Marijuana Study Empirical 13 In Laws: An and Administration of Enforcement Angeles County (1968) Los (fns. omitted), 15 U.C.L.A. 1533-1535 L.Rev. large the authors observe percentage marijuana that “A possession of the arrests for violations, results from the stopping of automobiles for minor traffic with subse quent discovery marijuana either in person passen the car or on the of one of the gers. The most stops missing taillight common of these are for a or for an unillumi plate.” recognized nated rear license probable It is that such a violation does not alone furnish automobile, cause to search the but the authors continue: “The furtive authorizing motion usually a search pulling results as the officer is a car over for minor traffic reports violation. typically The arrest lights state that as he shined his car, on the back patrolman of the occupants saw one of the make a ‘furtive motion’ as away if to hide or something. throw appellate A few decisions indicate been, with the to insist good-faith always simply upon compliance
as it has should remember there is no substitute Constitution: or drawing hasty and should avoid pre- and thorough investigation, patient guilty that the movements he observes are conclusion prompted conceived motives; on the issue of cause should make ruling the trial court probable on the basis of common sense judgment dispassionate independent event; of the time of the the circumstances of all light presented court, deter- deference to the trier of fact’s while due giving appellate and affirming weight credibility testimony, mination of it, evidence to should firmly if there is substantial ruling keep support ever vigilant of the Fourth Amendment and remain mind the high purpose encroachment on its fundamental guarantees. forestall any us, (1) Mrs. facts of the case before we find only to the Turning the seat the floor of defendants’ Kiefer made a “furtive toward gesture” automobile, back Officer car rather and Mr. Kiefer walked Cameron’s above, stated Mrs. than wait for the officer to come to him. For reasons search, Kiefer’s alone is insufficient to constitute gesture cannot be deemed reasonably and Mr. Kiefer’s walk toward the It that Officer Cameron invest her follows gesture guilty significance. contraband. could not search defendants’ vehicle for lawfully Ill a search The third of articles which category object made, incident to a lawful arrest is an arrest is it is reason “When weapons: able arrested in order to remove officer to search the arresting person or effect that the latter seek to use in order to resist might weapons *20 additional, driver, something by that before present such as evasive action the must however, police probable Usually, judge accepts the the have cause to the search. gesture being provides police furtive alone as with an almost sufficient. This the officer cause, probable although attorneys irrefutable method suc- to ‘write-in’ some have cessfully gone lengths great prove that the officer not have seen inside could vantage point. accepting the policeman car from his Even that the did see the furtive motion, however, open variety interpreta- movement inside sudden a car is of questionable tions and It is satisfies thus whether such a movement [inferences]. high degree probability required probable of which has been for cause in other areas.” suggestion by To probable that cause can in” of the case be “written the record (at 95): technique, p. suspicion this occur is the authors add “The this does fn. heightened by uniformity reports. the almost total of the arrest The traffic style appears report officer to be aware he tailors to a certain with certain that if facts, certainly Summing accepted by up, study he will almost have it the court.” 1533) (at nagging points p. question out that “The situations is whether in all these truly justifying investigation police are interested in conduct whether they using merely investigating activity are that conduct as an excuse some other they legal police procedures have no To for which basis. the extent that the use these use, subterfuge marijuana as a effectively uncover have created a new ‘method’ method, marijuana manifestly, enforcement.” That is unconstitutional. Otherwise, well might endangered, the officer’s safety escape. (Chimel (1969) supra, U.S.
arrest itself frustrated.” California 762-763.) bear are not unmindful faced the men who
We dangers daily by even the burden of and of the fact that our streets policing highways, We minor traffic citation incident can into violence. occasionally erupt United it would be States Court that “Certainly agree Supreme risks in the unreasonable to officers take unnecessary require of their duties. American criminals have a tradition of performance long violence, and armed in this law enforcement every year country many officers are killed in the line thousands more are wounded. duty, all of these deaths and a substantial are injuries Virtually portion inflicted with (Terry knives.” v. Ohio 392 U.S. guns 889, 907].) 23-24 L.Ed.2d The courts should do all their consti- tutional to minimize these risks. powers Terry
Yet in court held that when an officer high observes suspicious arrest, behavior short of conduct a probable “pat-down” search for if he has reasonable to believe the weapons only grounds suspect (Id. 24, 27, dangerous.” “armed at at presently L.Ed.2d pp. 907-908, 909, 911].) pp. requirements weapons (id. are not as strict if the officer has cause to arrest at p. 908]);
L.Ed.2d at but for the reasons in Part II this p. explained opinion, even a search incident to such an arrest must remain “reasonable in scope.” moreover,
That is dictated scope, similar considerations. Just as the officer in an arresting traffic violation case cannot ordinary reasonably to find contraband expect vehicle, in the offender’s so also he cannot expect to find To allow the weapons. search for routinely weapons all such instances would likewise constitute an “intolerable and unreason able” intrusion into the vast citizens privacy majority peaceable who travel automobile. It follows that a warrantless search for contraband, like a search for weapons, must be in traffic viola predicated tion cases on facts or circumstances specific reasonable giving to believe that grounds such are in the vehicle he has weapons present stopped.
No such facts or circumstances in the record of the case bar. appear *21 Mrs. Kiefer’s act of down and Mr. walk bending Kiefer’s toward the officer’s if, are insufficient clearly II, for this as we conclude in Part purpose: those observations did not Officer Cameron reasonable give grounds car, believe there was contraband in the the same token by could they not a belief reasonably that the same justify persons possession not of contraband but of weapons. briefs in his General
Neither the officer on the stand nor Attorney facts or circumstances. attention other has directed our to any suspicious next to sure, the door testified that he To be Officer Cameron opened safety,” adding about own Mrs. Kiefer in because “I was concerned my part to, talking are that “I feel it is be able to see you person important seen, hands, forth, have a furtive activity and their and so and when you face, this concern is compre- want to see the On its you quite person.” Cal. v. Davis hensible. (Compare demonstrate at the hearing But additional facts out brought Rptr. this case. The the unreasonableness of Officer Cameron’s conduct in stop- automobile, remembered, in broad of defendants’ it will be occurred ping what- took no evasive action and on the Mr. Kiefer daylight open highway; ever, but his car to the of the road. Officer Cameron side promptly pulled of bur- conceded on cross-examination that he had received no reports area; robberies, or violence in the that he had glaries, other crime of any Kiefers; no information kind and that Mr. Kiefer any bearing license, was and “was and admitted straight cooperative, produced pretty he was fast”—an admission which the felt was “not unusual.” going At that harbored Cameron still Officer must have point suspicion take been indeed. Yet even then he failed to a number of more slight reasonable he did not ask or Mrs. Kiefer to signal it: roll allay steps window, did chance to down her nor he her a do so on her own give initiative; observed, did he not ask her to the movement he had explain hands; nor to show him what if she did had in her he not anything (see People her to from the vehicle for further alight request investigation v. Mickelson Cal.2d 380 P.2d 658]). Instead, her, he seized the door next to it and looked pulled open, inside the car. Officer Cameron event whether be doubted in any it
Finally, may could be armed concerned that defendants might weapons truly with Mrs. his confrontation that throughout him. He conceded use against husband, searched whom he had not back to her he had his turned Kiefer “To say of the automobile. “somewhere” at the rear but had left standing arrested, while he back on the driver whom has who turns his the officer a reasonable search the driver’s automobile is conducting first searches staggers and not incident to the arrest conducting exploratory (Grund the reasoning.” to examine who anyone the credulity pauses 912, 918, from 1967) (N.D.Tex. Beto quoting strom v. F.Supp. 1967) 925.) 424 S.W.2d Lane v. State (Tex.Crim.App. Cameron did not the fact that Officer inference is
This supported car, narcotics in defendants’ say- even claim he suspected presence Mrs. Kiefer. had hidden” by he wanted “see what ing only *22 what, if to ascertain curiosity But a search aby general “prompted vehicle” was within the defendant’s anything, Cruz nature, 441) supra, 264 is manifestly exploratory Fourth Amendment. violates both the letter and the spirit As initial into defendants’ car was un entry Officer Cameron’s lawful, all the evidence discovered as a of that entry consequence inadmissible. It that the trial court’s order of follows suppression sup substantial evidence. ported by
The alternative writ of mandamus is discharged peremptory writ is denied. J., Peters, J., Tobriner, J., Burke, C. J., Sullivan, J.,
Wright, concurred. I
McCOMB, J. dissent. I would the writ. grant