People v. Norman

• Citation: 538 P.2d 237,14 Cal.3d 929,123 Cal.Rptr. 109
• Decision Date: 06 August 1975
• Docket Number: Cr. 17643
• Court: United States State Supreme Court (California)
• Parties: , 538 P.2d 237 The PEOPLE, Plaintiff and Appellant, v. Jack Lee NORMAN, Defendant and Respondent.

Page 109

123 Cal.Rptr. 109

14 Cal.3d 929, 538 P.2d 237

The PEOPLE, Plaintiff and Appellant, v. Jack Lee NORMAN, Defendant and Respondent.

Cr. 17643.

Supreme Court of California,

In Bank.

Aug. 6, 1975.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Donald J. Kaplan, Robert J. Lord and Jay J. Becker, Deputy Dist. Attys., for plaintiff and appellant.

Cecil Hicks, Dist. Atty. (Orange), Michael Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., as amici curiae for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Dennis A. Fischer and A. Jane Fulton, Deputy Public Defenders, for defendant and respondent.

WRIGHT, Chief Justice.

The People appeal from an order granting a motion to set aside an information on grounds that the only material evidence of charged narcotics violations was seized as the result of an illegal search. (Pen.Code, § 995.) Defendant first moved at the preliminary hearing to suppress evidence on the grounds of the illegal search and seizure. (Pen.Code, § 1538.5.) The magistrate denied that motion and held defendant to answer on charges of violating Health and Safety Code sections 11910 (possession of a restricted dangerous drug) and 11350 (possession of marijuana). The motion to set aside the information was submitted to the trial court on the transcript of the preliminary hearing.

Since there is no substantial evidence in support of a contrary conclusion (see Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23), we conclude that the evidence was obtained by means of an unreasonable search and seizure in violation of article I, section 13, of the California Constitution and that the information was properly set aside.

On February 28, 1973, at 3:55 a.m., Officer Repp was parked in his patrol car when he observed defendant driving a Volkswagen van with the headlights off. While still parked, Officer Repp directed the patrol car spotlight onto the van and the defendant 'gave (Repp) a rude gesture with his finger and continued southbound.' Repp activated the police vehicle's emergency lights and pursued defendant at approximately 45 miles per hour. Defendant made a left turn against a red light, ran a stop sign, and finally stopped the van.

Officer Repp stopped the patrol car behind the van, alighted and approached it. Defendant 'stuck his head out the driver's window and said 'Fuck you, cop' and drove off.' Repp returned to his car and again pursued the van at 45 to 50 miles per hour ¹ and again forced it to a stop. ² Repp left his vehicle and approached the van with his gun drawn just as a second patrol car driven by Officer Cobb arrived at the scene. Cobb left his car and also approached the van. Simultaneously, defendant stepped out of the van. He was holding a black cylindrical object in his hand which appeared to Officer Repp to be a gun. ³ Repp pointed his revolver at defendant and ordered him 'to either drop it (the black object) or die.' With a 'wrist flip,' defendant threw the object under the van; it landed on the pavement one or two feet in front of the left rear wheel. ⁴

Both officers saw the object as it fell to the ground. Cobb testified that 'I realized that it wasn't a gun because it didn't make any noise when it hit (the pavement).' Repp then said to Cobb, 'He threw it over there. He had something in his hand and he threw it.' Cobb responded that he had seen the object thrown. However, before he could retrieve it Repp arrested defendant and a female passenger and placed them in handcuffs. The record is silent as to the reason for the arrest. Cobb then picked up the object, which was a black plastic tobacco pouch five inches wide and four inches deep and brought the pouch to Repp. One or both of the officers opened the pouch and found .2 grams of marijuana, 20 seconal pills and cigarette papers. The record is silent as to why the officers opened the pouch. The pouch and its contents are the evidence which is the subject of defendant's motions.

Warrantless Search of Tobacco Pouch ⁵

The burden of justifying the warrantless search in the case at bar rests with the prosecution. (Badillo v. Superior Court, supra, 46 Cal.2d 269, 272, 294 P.2d 23.) Neither officer offered justification at the preliminary hearing for the search of the tobacco pouch. The magistrate ruled the search was justified because defendant's attempt to flee after violating traffic laws gave 'rise to a reasonable inference that there was something he was trying to hide.' As will be seen, the record furnishes support for neither the magistrate's ruling nor a related argument that the defendant's 'furtive' attempt to concel the tobacco pouch by throwing it under the van justified the search.

In People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 817, 91 Cal.Rptr. 729, 734, 478 P.2d 449, 454, we noted when the occupant of a vehicle makes certain 'furtive movements' such movements might establish probable cause for a contraband search if the police officer 'may reasonably Infer from the timing and direction of the occupant's movements that the latter is in fact in possession of contraband which he is endeavoring to hide.' (Id.) We stated there were specific instances where such gestures 'could reasonably be given a guilty connotation from prior reliable information or from the officer's personal observation of contraband or a deliberate act of concealment under otherwise suspicious circumstances.' (Id., at pp. 819--820, 91 Cal.Rptr. at p. 736, 478 P.2d at p. 456.) In the case at bar the 'furtive gesture' or concealment justification is unpersuasive. The gesture of throwing the object under the van cannot be characterized as 'furtive' when it was the result of a police order to 'drop it or die.' Moreover, the officers could not reasonably believe under the circumstances that defendant was attempting to conceal the object. The fact that in complying with the order he flipped the object under the van at the well-lit roadside scene cannot, by itself, establish probable cause to believe the defendant sought to hide contraband. ⁶ Since there had been no information communicated to the officers concerning contraband and they did not personally observe contraband the People cannot rely upon those grounds for attaching significance to the act of throwing the object under the vehicle. (Id., at pp. 819--820, 91 Cal.Rptr. 729, 478 P.2d 449.)

There is likewise no support in the record for the magistrate's conclusion that because defendant violated traffic laws and fled from the scene of the first stop by the police officer, the officers reasonably inferred that there was something that defendant sought to conceal. Even if we assume that Officer Repp stopped defendant for fleeing the scene or for other traffic violations committed during the flight, there is no record evidence that either officer suspected defendant possessed contraband and stopped him on such suspicion.

Custodial Justification for Search

Although we reject the 'furtive gesture' or concealment justification we must determine the nature of the custody in the present case in order to decide if the search of the pouch was within the permissible scope necessitated, in a weapons search, by the relative danger to police officers incident to such custody. (People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.) Initially, we note the record does not expressly disclose the particular grounds upon which defendant and his passenger were arrested and handcuffed. However, Officer Repp testified that the second stop was made solely because defendant was driving without headlights and not because of the obscene gesture, epithets, traffic infractions committed by defendant or failure to stop during the pursuit. Since the record offers no guidance, we can speculate that because defendant was arrested and handcuffed, the officers, at that time, intended to take him before a magistrate. However, of the violations committed by defendant, only that of evading arrest (see Veh.Code, §§ 2800, 40303, subd. (i)) would have permitted the officers to bring defendant before a magistrate. ⁷

Even if we assume that defendant was arrested for evading arrest, the officers could have either prepared a written notice to appear (i.e., a citation or 'ticket') and released defendant 'forthwith' after he promised to appear as directed, or they could have taken defendant 'without unnecessary delay' before the 'nearest or most accessible' magistrate of competent jurisdiction. (People v. Superior Court (Simon), supra, 7 Cal.3d 186, 199, 101 Cal.Rptr. 837, 496 P.2d 1205.) The officer apparently intended to exercise the latter option. We must, therefore, determine whether the search of the pouch was within the permissible scope of a search incident to such an arrest. We conclude, for reasons which follow, that the search exceeded permissible limits and was thus unlawful.

With respect to a search of the driver after a traffic violation, Simon reiterated our position in Kiefer that when there is independent probable cause 'It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time (citation) and place (citation) may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape.' (7 Cal.3d 186, 201, 101 Cal.Rptr. 837, 848, 496 P.2d 1205, 1216.) In the case at bar, there is no evidence establishing independent probable cause to search for instrumentalities of any crime. ...