Gallik v. Superior Court, S.F. 22808

• Citation: 489 P.2d 573,97 Cal.Rptr. 693,5 Cal.3d 855
• Decision Date: 20 October 1971
• Docket Number: S.F. 22808
• Parties: , 489 P.2d 573 Gerald Andrew GALLIK, Petitioner, v. The SUPERIOR COURT of SANTA CLARA COUNTY, Respondent; The PEOPLE, Real Party in Interest. In Bank
• Court: United States State Supreme Court (California)

Page 693

97 Cal.Rptr. 693

5 Cal.3d 855, 489 P.2d 573

Gerald Andrew GALLIK, Petitioner, v. The SUPERIOR COURT of SANTA CLARA COUNTY, Respondent The PEOPLE, Real Party in Interest.

S.F. 22808.

Supreme Court of California,

In Bank.

Oct. 20, 1971.

Rehearing Denied Nov. 18, 1971.

Tiernan & Nicoletti and Frank Nicoletti, San Jose, for petitioner.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Derald E. Granberg, Robert R. Granucci and Sanford Svetcov, Deputy

Attys. Gen., for respondent and for real party in interest.

MOSK, Associate Justice.

Defendant Gerald Andrew Gullik, petitioner herein, was charged with possession of marijuana. (Health & Saf.Code, § 11530.) His motion to suppress the evidence on the ground of illegal search and seizure was denied, and he seeks review by statutory writ of mandate. (Pen.Code, § 1538.5, subd. (i).) ¹

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. Approximately 7:45 p.m. on May 13, 1970, while it was still daylight, Officer Finton was on routine patrol duty in a marked police car, accompanied by a college student as an observer. In an unimproved area of San Jose the officer saw an automobile partially blocking one lane of a small dead-end street. Defendant, who was 19 years old at the time, was the driver and only occupant of the vehicle. He was talking with another young man and a girl, both standing with their bicycles on the passenger side of the car.

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 undertook 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 of Yolo County (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 the road, the passenger in the front seat appeared to look at the officer, then turned and bent forward briefly. The driver alighted and furnished his identification. The officer went to the door on the passenger side, opened it and looked inside, finding marijuana. He testified that his purpose in doing so was to see 'what had been hidden,' and added, 'I was also concerned about my own safety.' (Id. at p. 811, 91 Cal.Rptr. at p. 730, 478 P.2d at p. 450.)

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 Fourth Amendment to the United States Constitution.

We dismiss at the outset the Attorney General's suggestion that Kiefer is inapplicable because it assertedly declared 'a new rule of law in California' and should therefore be given prospective effect 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 reasoned 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 arrests 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 'future 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, 91 Cal.Rptr. 729, 478 P.2d 449, & 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, 91 Cal.Rptr. 729, 478 P.2d 449.) It follows that the 'Kiefer rule' is not merely prospective in operation, but applies as 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.

To begin with, it is immaterial that defendant's vehicle was standing rather than moving when the claimed 'furtive gesture' took place: the majority of the innocent acts we hypothesized in Kiefer, 3 Cal.3d at pp. 822--823, 91 Cal.Rptr. 729, 478 P.2d 449 as resembling those of a person secreting contraband--such as reaching for a driver's license or registration, turning off the radio, extinguishing a cigarette, putting down food or beverages, or adjusting clothes--are equally likely to be performed when a police officer approaches an illegally parked car to speak with its driver.

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, 35 Cal.Rptr. 432) or shrugs and remains mute (People v. Cruz (1968) supra, 264 Cal.App.2d 437, 439, 70 Cal.Rptr. 249), 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, 91 Cal.Rptr. at p. 744, 478 P.2d at p. 464); 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, 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 answer or that a negative reply in and of itself supplies circumstances giving the officer reasonably grounds to believe that weapons are present in the vehicle stopped for a traffic violation. The indication, rather, is that the Inquiry is reasonable since it may produce a response which would allay the officer's suspicion based on the 'furtive' movement. Upon such inquiry the person questioned may elect to give an explanation of his 'furtive' movement or he may freely consent to a search. (See People v. Cruz, supra, 264 Cal.App.2d 437, 442, 70 Cal.Rptr. 249.) He may, on the other hand, elect to stand on his constitutional right not to cooperate with the officers in securing evidence...