Gallik v. Superior Court of Santa Clara County
| Decision Date | 24 February 1971 |
| Citation | 93 Cal.Rptr. 332,15 Cal.App.3d 548 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Gerald Andrew GALLIK, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 28499. |
Tiernan & Nicoletti, San Jose, for petitioner.
Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.
By petition for writ of mandate and prohibition (Pen.Code, § 1538.5, subd. (i), and § 999a), the defendant, who is charged in an information with possession of marijuana in violation of section 11530 of the Health and Safety Code, seeks orders directing the lower court to suppress the evidence against him and to dismiss the information, and to prohibit the trial court from proceeding with the trial in this matter. The petition was filed more than 15 days after the denial of defendant's motion to suppress (§ 1538.5, subd. (a)), and his motion to dismiss (§ 995). It must, therefore, be dismissed as untimely insofar as it seeks review of the latter motion (§ 999a).
Both motions were submitted on the evidence adduced at the preliminary examination, from which the following facts appear:
On May 13, 1970, at 7:45 p. m., San Jose Police Officer Finton was on routine patrol, in uniform, in a marked patrol car. It was still daylight at the time. Finton was accompanied by a college student riding as an observer.
Officer Finton observed an illegally parked vehicle obstructing traffic at the entrance to a side street in an unimproved area. There were no other circumstances to draw the officer's attention to the vehicle, nor were there any reports or suspicion of criminal activity in the area. The petitioner was the driver and only occupant of the vehicle. He was talking to a girl and boy on bicycles who were on the passenger side of the vehicle.
Officer Finton stopped his patrol car alongside petitioner's vehicle to advise petitioner that he was illegally parked, and that he would either have to park legally or move on. As he was alighting from his patrol car, he observed that the petitioner leaned forward as though he was taking something out or placing something underneath the seat on the driver's side. The officer was not able to see the movement of the arms. It was a movement of the whole body bending on the right side. Petitioner's head also dipped down and almost completely disappeared from view. To Officer Finton the conduct appeared furtive and indicated an attempt to hide contraband. The witness demonstrated to the court the manner in which the defendant leaned forward.
On cross-examination the officer reiterated that although he could not see petitioner's hands or arms placing anything under the seat, he believed that petitioner's body movements were furtive and suspicious and indicated to him that something, which could have been a gun or some other type of contraband, had been placed under the seat.
The officer went to the driver's side of the vehicle and asked petitioner for identification. Petitioner complied. Petitioner was then asked to get out of the vehicle, which he did, and was pat-searched for weapons. The search revealed no weapons or contraband. Officer Finton asked petitioner what he had placed underneath the front seat. Petitioner replied, 'Nothing, I didn's place anything.' The officer then checked the area under the front seat and found a brown leather bag containing a plastic baggie containing a 'brownish material that appeared to be marijuana.'
The officer patted down the defendant's male companion. He conducted no further search of him or of the female cyclist, and merely took their names and addresses after he found the contraband. The student observer called in the license plate number of the illegally parked vehicle, and then covered the driver's side of the vehicle.
As originally presented, the case involved a distinction or choice between two apparently conflicting lines of authority on the question of whether a so-called 'furtive movement' furnishes probable cause for the search of a vehicle following a stop for a traffic violation. A long line of decisions of the intermediate appellate courts gave rise to the following statement, by this court: 1
On the other hand an observation that the operator raised his right shoulder as if he were reaching in his pocket, and then leaned toward the right hand seat has been held insufficient to justify a search of the area under the front seat of the vehicle. (People v. Moray (1963) 222 Cal.App.2d 743, 746-747, 35 Cal.Rptr. 432.) In People v. Cruz (1968) 264 Cal.App.2d 437, 70 Cal.Rptr. 249, the reviewing court upheld the finding of the trial court that an observation that the operator lowered his right shoulder suddenly, looked to the left and appeared to be reaching for something in the vicinity of the floorboards and the front seat of the vehicle, was insufficient to support probable cause to search under the seat of the vehicle for contraband narcotics (264 Cal.App.2d at p. 441, 70 Cal.Rptr. 249). The case was reversed because the reviewing court found that the trial court's finding of consent was not sustained by the evidence.
While this opinion was in preparation the Supreme Court of this state filed its opinion in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449. Twelve pages of the opinion are devoted to a review of cases in which probable cause to search has been predicated on 'furtive gestures' or 'furtive movements' of an occupant of a vehicle. The court approves the decisions in People v. Moray, supra, and People v. Cruz, supra (3 Cal.3d at pp. 823-824, 91 Cal.Rptr. 729, 478 P.2d 449). It also notes and reviews (id. at p. 825, fn. 11, 91 Cal.Rptr. 729, 478 P.2d 449) substantially all of those cases cited above in which probable cause for search has been found. It criticized People v. Sanson, supra, the forerunner of the series of cases countenancing the admission of the evidence discovered by the exploitation of what was observed. (Id. at pp. 820-822, 91 Cal.Rptr. 729, 478 P.2d 449.) Nevertheless, none of those cases are expressly overruled. In fact the opinion states, (Id., p. 827, 91 Cal.Rptr. p. 742, 478 P.2d p. 461.)
In Kiefer's case the trial court had granted the driver's motion to suppress. The evidence relied upon by the People on appeal consisted of the officer's observation that as the car pulled over to the side of the road he saw a woman's head rise from the passenger portion of the front seat, the woman turned and put her arm over the back of the seat, then faced forward again, bent down toward the floor and reassumed a normal sitting position. The driver alighted and walked toward the officer ( id., p. 811, 91 Cal.Rptr. 729, 478 P.2d 449). The court ruled that the foregoing circumstances did not warrant the officer's conduct in opening the door at the passenger's side of the vehicle and looking inside ( id., p. 828, 91 Cal.Rptr. 729, 478 P.2d 449). The court directs: '* * * the appellate court, while giving due deference to the trier of fact's determination of the weight and credibility of the testimony, and affirming the ruling if there is substantial evidence to support it, should keep firmly in mind the high purpose of the Fourth Amendment and remain ever vigilant to forestall any encroachment on its fundamental guarantees.' ( Id., p. 828, 91 Cal.Rptr. p. 743, 478 P.2d p. 462.)
Much of the discussion of the subject is devoted to demonstrating that the movements generally involved in the cases may not be purposeful responses to the officer's appearance on the scene ( id., pp. 821-822, 91 Cal.Rptr. 729, 478 P.2d 449), and to establishing that there may be more innocent than guilty explanations for the motorists' act of 'leaning forward' or 'bending down' in the circumstances at hand ( id., pp. 822-823, 91 Cal.Rptr. 729, 478 P.2d 449). These are all matters properly addressed to a trier of fact. If any rule of law stands out it is the...
To continue reading
Request your trial
-
Gallik v. Superior Court
...correctly reasoned in his dissenting opinion prepared when the present case was before the Court of Appeal (Gallik v. Superior Court, 15 Cal.App.3d 548, 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 a......