Opinion
Opinion on pages 216 to 226 omitted.
HEARING GRANTED
[89 Cal.Rptr. 867]Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.
Richard S. Buckley, Public Defender, James S. McCormick, James Haney, and Leighton A. Nugent, Deputy Public Defenders, for defendant and respondent.
HERNDON, Associate Justice.
Defendant was charged in an information with possession of a dangerous or restricted drug in violation of section 11910, California Health and Safety Code. Her motion under Penal Code section 995 to set the information aside was denied. She entered a plea of not guilty and thereafter moved to suppress evidence under Penal Code section 1538.5. The trial court granted the motion to suppress the evidence and dismissed the action pursuant to Penal Code section 1385. The People appeal under the authority of Penal Code section 1238(7).
Dale Goerndt, a deputy sheriff for the County of Los Angeles, testified that on the morning of March 20, 1969, he was on duty riding in a marked patrol car operated by deputy Melvin Savage. At approximately 2:50 a. m., he observed a 1962 Nash Rambler, with but one illuminated headlight, being driven northbound on Eastern Avenue. After the vehicle made a right turn onto Live Oak, the officers pulled in behind it and activated their spotlights and red lights.
The ensuing occurrences are described in the following testimony of Officer Goerndt: '[BY MR. MILLER]: Q. What observations did you make of the vehicle and its occupants after you energized your red light? A. I observed the driver lean forward, down and to the right, and as she did so she pulled to the curb and the right front wheel jumped the curb and she stopped. Q. Approximately how much time passed from the time that the red light was energized until the car in which the defendant was riding came to rest? A. Probably 15 seconds. Q. Now, did you form any opinion as to the movements you observed before the car came to rest? * * * THE WITNESS: Yes. It was my opinion that something was being concealed. MR. MILLER: Q. What were the factors that you had in your mind at that time to reach that opinion or conclusion? A. I could see no other reason for her bending forward and down, impairing her view at that time. Q. By the way, who was the driver of the vehicle? Was that the defendant? A. Yes, she was. Q. Now at the time this bending movement was made, do you recall the position of the driver's hands on the wheel? A. Her left hand was on the wheel; her right hand was not in view. Q. And was it shortly after this that the car went over the right-hand curb? A. Yes, it was. MR. HANEY: I'm going to object and move to strike 'went over the curb.' There is no [89 Cal.Rptr. 868]evidence that it did in fact go over a curb. MR. MILLER: Q. Officer, what observation did you make concerning this vehicle and the right-hand curb? A. The right front wheel did in fact jump the curb.'
The officers then approached defendant's vehicle and officer Savage asked defendant for her driver's license. She replied that she did not have one, that she had lost her purse and that her name was Linda Robertson.
Officer Savage requested that defendant get out of the vehicle, while officer Goerndt opened the door for the female passenger who was sitting in the front seat. After the passenger had exited, officer Goerndt looked under the right front seat, the area in which he thought something was being conceald, and found four capsules resembling seconal and a brown leather purse with the name 'Linda' embedded in the leather. Thereafter defendant was arrested.
Defendant testified that she was driving her grandmother's car on the morning of the arrest. Upon observing the lights of the sheriff's car, she reached down with her right hand to turn off the radio and ran over the curb because the spotlights from the police car were blinding her.
In announcing his ruling the trial judge stated that his granting of the motion to suppress evidence was not based upon the credibility of the witnesses. The order granting the motion reads as follows: 'The motion of the defendant, pursuant to Penal Code Section 1538.5, is granted, and the cause dismissed, pursuant to Penal Code Section 1385, solely on the ground that although the Court believed the People's witnesses, it has concluded that, as a matter of law, the facts testified to by the People's witnesses do not establish a reasonable search or seizure.'
Applying the controlling California precedents hereinafter discussed, we hold that probable cause for the search which led to the discovery and seizure of the contraband in this case was established by combination of appellant's suspicious actions and her law violation which included the following: (1) Her furtive gesture in the form of a body movement which (a) was apparently motivated by her awareness of the approaching police; (b) was made while she was engaged in stopping her moving vehicle; and (c) had the appearance of a hurried attempt to conceal something of an incriminating nature. (2) Her operation of the vehicle in such a manner that before it was brought to a stop the right front wheel jumped the curb--a circumstance reasonably calculated to generate suspicion that the driver failed to propcrly control the vehicle either because of the influence of narcotics or alcohol or because of unfamiliarity with a stolen vehicle or because of her preoccupation with an urgent need to conceal contraband. (3) Her lack of any satisfactory form of identification and her lack of a driver's license provided legal cause for her arrest. (4) The inherently suspicious nature of appellant's actions was heightened by the early morning hour of their observance.
In view of the combination of suspicious circumstances present in the case at bench, it is unnecessary for us to decide whether ony one of them, standing alone, would have sufficed to provide probable cause for the search.
The Significance Of Appellant's Furtive Movement.
People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57, has been referred to in more recent decisions as the leading case dealing with the precise issue here presented. In that case police officers saw the defendant enter a taxicab that was double parked in front of a hotel at 3 o'clock in the morning. The defendant on entering the cab sat on the left side of the rear seat. A woman who had just entered the cab was on the right side. The officers had been observing the cab as it stood double parked in front of the hotel and decided to investigate. They approached the cab and ordered the occupants to get out. As one of the officers 'opened the left rear door he saw defendant withdraw his left hand from behind [89 Cal.Rptr. 869]the seat at the juncture of the seat and back cushion.' After the defendant got out the officer removed the rear seat and found three marijuana cigarettes where defendant had withdrawn his hand. The arrest there, as here, was made without a warrant.
On appeal the defendant Blodgett contended that the search of the cab was made without probable cause and that the evidence obtained thereby was therefore erroneously admitted. In rejecting this contention and affirming the judgment of conviction, the Supreme Court held as follows:
'Defendant contends that the scarch of the cab was unlawful and that the evidence obtained thereby was therefore inadmissible. The search was made without a warrant. Although the cab driver could have been arrested for double parking, the search of his cab cannot be justified on that ground, for it had no relation to the traffic violation and would not have been incidental to an arrest therefor. Cf. People v. Gorg, [45 Cal.2d 776] 291 P.2d 469; Elliott v. State, 173 Tenn. 203, 116 S.W.2d 1009, 1012-1013; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, [82 A.L.R. 775]. It was justified, however, on another ground. There is nothing unreasonable in an officer's questioning persons outdoors at night. People v. Simon, 45 Cal.2d [645, 650-651] 290 P.2d 531; Gisske v. Sanders, 9 Cal.App. 13, 16-17, 98 P. 43, and in view of the hour and the unusual conduct of the occupants of the cab it was not unreasonable for the officers to order them to get out of the cab for questioning. Since Officer Barker saw defendant's furtive action in getting out, he had reasonable grounds to believe that he was hiding contraband and the search of the cab was therefore reasonable. [Citations.]' (Pages 116-117, 293 P.2d page 58.)
In People v. Sanson, 156 Cal.App.2d 250, 319 P.2d 422, this court reversed the trial court's order setting aside an information which charged the defendants with possession of marijuana. The motion to set aside the information was made pursuant to Penal Code section 995 and was granted on the ground that the contraband had been seized in the course of an illegal search.
The factual situation in Sanson was strikingly similar to that presented in the case at bench. At approximately 3 o'clock in the morning on June 1, 1957, an officer of the Los Angeles Police Department observed an automobile being driven slowly down Pacific Avenue. The officer "noted at the time that the car had no license plate illumination and that the taillight, instead of being the legal red, was a blue color." The officer followed the car for about five minutes and then stopped it. There were three young men in the front seat. When the officers turned on the red lights of the police vehicle and pulled the car over, the officer "noticed the two passengers [the defendants] appeared to be hiding something under the front seat * * *." As the officers approached the car the driver and the two passengers got out. The officer "looked under the seat to see what they had placed under there", and found a dirty paper bag directly under the place where normally a passenger would sit if there were only one passenger in the front seat. The bag contained marijuana.
In reversing the order of dismissal, this court commented upon the similarity of the factual situation which the officers were called upon to evaluate in that case with that which had been presented in People v. Blodgett, supra. After quoting from Blodgett substantially the same language which we have set forth above, the opinion in Sanson proceeds as follows:
'In the instant case the driver of the car could have been given a citation for his illegal lights but that would not have justified a search of the car for it would have had no relation to the traffic violation. But the defective lights justified the officers in stopping the car. In fact, it was their duty to do so. (People v. West, 144 Cal.App.2d 214, 220-221, 300 P.2d 729.) It was proper for the officers to use their red light as a signal to the occupants of [89 Cal.Rptr. 870]the other car to stop. This signal revealed to the defendants that police officers were at hand and desired to question them. Conscious of the presence of the narcotic and fearing they would be apprehended for its possession, defendants immediately made movements, as did the defendant in the Blodgett case, which led the police to believe that they were hiding something under the front seat. As pointed out in People v. Jiminez, 143 Cal.App.2d 671, 674, 300 P.2d 68, 70: 'It is a natural impulse on confrontation to hide immediately any contraband, and one cannot be heard to complain that he, or a companion, has betrayed the presence of illegal goods by the alacrity with which he attempted to conceal them.' The significance of the movements of the defendants is that they were made immediately upon realizing they were to be confronted by the police. The defendants were simply exercising 'a natural impulse.' * * *' (Page 253, 319 P.2d page 424.)
Another case presenting a strikingly similar factual picture is People v. Shapiro, 213 Cal.App.2d 618, 28 Cal.Rptr. 907, in which this court affirmed a judgment convicting the defendant of possession of marijuana after rejecting a contention that the contraband had been seized in the course of a search made without probable cause. The opinion recites the facts in Shapiro as follows:
'At about 1:00 a. m. on March 23, 1962, Los Angeles Police Officers Allen and Gates observed defendant come out of a bar on Figueroa Street and enter an unoccupied 1961 Ford convertible which had its top up. It was parked 'approximately at 11th Street.' When she started the car which was headed south on Figueroa, Officer Gates noticed that the tail light was out. The officers followed her in a marked police car. They turned on their energency red light, then sounded the horn 'several times' and then flashed their large auxiliary flash light across the back of defendant's car. Defendant appeared to notice the officers. She slowed down at the corner of 12th and made a right turn on 12th. She stopped at Trenton which is one block west of Figueroa. Prior to defendant stopping, she leaned over in the seat so far that her head went out of Officer Allen's view. While making this movement her car turned in toward the curb, the front tire hitting the curb and bouncing off. It was then that defendant stopped.
'Because of these actions on the part of defendant, Officer Allen looked inside the car after she alighted from it. Underneath the front seat ('approximately in the middle') he found a brown paper bag that contained a green leafy substance which proved to be marijuana. Further search under the floor mat turned up foreign debris which was 10% marijuana.' (Page 619, 28 Cal.Rptr. pages 907-908.)
The following langugage indicates the substance of the decision: '* * * It was during this period that defendant leaned over in the seat so far that her head went out of the officer's view. It was while she was making this movement that her front wheel hit the curb and bounced off. It was late at night--approximately 1:00 a. m. It is a reasonable inference from the use of the lights of the police car that defendant was aware that the police were after her and wanted her to stop. As pointed out in People v. Jiminez, 143 Cal.App.2d 671, 674, 300 P.2d 68, 70: 'It is a natural impulse on confrontation to hide immediately any contraband' one may have in his possession. The significance of defendant's movement is that it was made almost immediately upon realizing she was to be confronted by the police. They could reasonably draw the inference that defendant was simply exercising 'a natural impulse'. Defendant's delay in stopping when the police signaled and her furtive act in leaning over so far just before she did stop reasonably justified the police in suspecting she possessed contraband and was attempting to hide it when she realized the officers were about to stop her. The officers were therefore justified in searching the area in which it appeared defendant might have been trying to hide contraband. Thus probable cause for making [89 Cal.Rptr. 871]the search was established and the product of such search was admissible in evidence. (People v. Sanson, 156 Cal.App.2d 250, 319 P.2d 422; People v. Jiminez, supra.)' (Page 621, 28 Cal.Rptr. page 909.)
The prevailing law is stated as follows in People v. Weitzer, 269 Cal.App.2d 274, at pages 292-293, 75 Cal.Rptr. 318, at pages 330-331: '* * * It is well established that furtive conduct evidenced by a body movement indicating that some object is being concealed in a vehicle which is the subject of a traffic arrest will justify a search of that portion of the vehicle where it appeared that the object was hidden. (People v. Gil, supra, 248 Cal.App.2d 189, 192-194, 56 Cal.Rptr. 88; People v. Shapiro, supra, 213 Cal.App.2d 618, 621, 28 Cal.Rptr. 907; People v. Sanson, supra, 156 Cal.App.2d 250, 253-254, 319 P.2d 422; and see People v. Elliott (1960) 186 Cal.App.2d 185, 188-189, 8 Cal.Rptr. 716.) So here the officer could properly open the matchbox to determine what the defendant was seeking to conceal.
'It is recognized that a person's reasons for concealment may run the whole spectrum from the most legitimate motives to the most heinous, and that in the absence of circumstances tending to indicate contraband, an investigating officer cannot speculate as to the nature of the contents of a closed package. (See People v. Marshall (1968) [69 Cal.2d 51, 56-57] as modified 69 A.C. 187, 69 Cal.Rptr. 585, 442 P.2d 665.) On balancing all of the circumatances, the person under arrest cannot complain because his attempted concealment is taken as evidence of consciousness of guilt. 'It is a natural impulse on confrontation to hide immediately any contraband, and one cannot be heard to complain that he, or a companion, has betrayed the presence of illegal goods by the alacrity with which he attempted to conceal them.' (People v. Jiminez (1956) 143 Cal.App.2d 671, 674, 300 P.2d 68, 70; and see People v. Crowley (1961) 193 Cal.App.2d 310, 315-317, 14 Cal.Rptr. 112.) The search was not illegal because it ultimately turned up contraband rather than a weapon or any other thing which might have been used to effect an escape. (People v. Gil, supra, 248 Cal.App.2d 189, 192, 56 Cal.Rptr. 88; People v. Kraps, supra, 238 Cal.App.2d 675, 680, 48 Cal.Rptr. 89; People v. Strelich, supra, 189 Cal.App.2d 632, 636, 11 Cal.Rptr. 807; People v. Jiminez, supra, 143 Cal.App.2d 671, 673, 300 P.2d 68.) Nor can it be said that the traffic arrest was used as an excuse for an unwarranted general shakedown. (Cf. People v. Gale (1956) 46 Cal.2d 253, 257, 294 P.2d 13; People v. Franklin (1968) 261 Cal.App.2d 703, 707, 68 Cal.Rptr. 231; and People v. Molarius, supra, 146 Cal.App.2d 129, 132, 303 P.2d 350.)
'The search was not unreasonable under the circumstances of the case, and the contraband discovered was properly admitted in evidence against the defendant.'
In People v. Robinson, 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834, the defendant was convicted of forgery. On his appeal he contended that the trial court had erred in admitting incriminating evidence obtained by means of a police search of the car in which he had been riding. The relevant facts recited in the decision of the Supreme Court are as follows:
While on patrol the police officers received a call from the police station to the effect that two men in a car were drunk; that one of them, who had a credit card, had asked a service station attendant whether he had a 'hot sheet' on credit cards; and that after obtaining an affirmative reply the man purchased gasoline and paid for it with cash. The officers arrived at the service station as the automobile left. They followed it for several blocks, observing that it was proceeding in a wobbling manner. When the red light of the patrol car was turned on, the officers saw the defendant, who was a passenger, leaning over as though he were trying to put something out of sight.
The officers stopped the car and finding the two apparently intoxicated, arrested and booked them for drunkenness in public and in a vehicle. The officers [89 Cal.Rptr. 872]searched defendant personally and made a search of the car and found therein the various items of incriminating evidence which were seized and later received in evidence at the trial. In rejecting the contention that the search of the car was unreasonable, the Supreme Court stated the applicable law as follows:
'As we have noted, moreover, defendant's contention lacks substance. Since defendant and the driver of the car were intoxicated, their arrests were lawful. (Veh.Code, § 23102; Pen.Code, § 647, subd. (f); Pen.Code, § 836, subd. 1.) As incident to such arrest the police officers, for the purpose of discovering evidence of the crime, could properly search not only defendant and the driver but the car as well. Thus the officers could lawfully examine the interior of the car for the possible presence of liquor containers. The abnormal position of the rear seat and defendant's attempt to hide something beneath the front seat constituted circumstances justifying search in these areas. Once they had commenced their search, and it remained reasonable in scope, the officers were not required to close their eyes to evidence of other crimes. [Citations.]' (Page 894, 44 Cal.Rptr. page 765, 402 P.2d page 837.)
Bergeron v. Superior Court, 2 Cal.App.3d 433, 82 Cal.Rptr. 711, and People v. Wigginton, 254 Cal.App.2d 321, 62 Cal.Rptr. 104, are still more recent additions to the long list of precedents dealing with the identical issue and which apply the same rules of law in approving searches made under circumstances strikingly similar to those presented in the case at bench.
Appellant's Furtive Movement Combined With Her Lack Of A Driver's License Or Other Identification Provided Probable Cause For The Search.
The decision in People v. Valdez, 239 Cal.App.2d 459, 48 Cal.Rptr. 840, is direct authority for each of the following propositions which are stated substantially in the same language as that used in the Valdez opinion at pages 462 and 463, 48 Cal.Rptr. 840:
When the officers learned that appellant carried no driver's license, they knew that she had been, and then was, violating Vehicle Code sections 12500 and 12951. The officers were then and there authorized to arrest her for these offenses (Pen.Code, § 836, subd. 1) and to detain her at least until she had furnished satisfactory evidence of her identity and had signed a promise to appear (Veh.Code, §§ 40302, 40504). Since appellant had no operator's license nor any other satisfactory evidence of identity, the officers 'were bound to consider whether or not [she] was in possession of a vehicle which had been stolen or taken without the consent of the owner. The possibility that defendant might be guilty of one of these felony offenses was a circumstance bearing upon the kind of investigation which was pertinent and reasonable at that time. * * *' Appellant's furtive movement reasonably 'suggested the concealment of a document which might betray the true identity of defendant or the ownership of the vehicle.'
The pertinence of the following quotation from People v. Myles, 189 Cal.App.2d 42, 46, 10 Cal.Rptr. 733, 735-736, is self-evident:
'Defendant contends the court erred in not granting defendant's motion to suppress the exhibits in the case and to strike the testimony of the officers because of the illegally obtained evidence. This position is without support in law or fact. Officer Mosher had the right to stop defendant's car because of the suspicious circumstances he observed when it pulled away from the curb and continued in a zig-zag pattern without lights at 4 a. m. As stated in People v. Galceran, 178 Cal.App.2d 312, 315 , 2 Cal.Rptr. 901, 903:
"It is well established that police officers may reasonably stop vehicles violating traffic laws, parking regulations, or vehicles which have defective equipment in violation of the requirements of the Vehicle Code.'
'When defendant was unable to produce a driver's license or satisfactory proof of ownership of the Cadillac, the officer had [89 Cal.Rptr. 873]reasonable cause to believe that it was a stolen vehicle and defendant guilty of grand theft (auto). Veh.Code, § 503, now § 10851. (People v. Galceran, supra, 178 Cal.App.2d 312, 315-316 [3b, 5-6], 2 Cal.Rptr. 901; People v. Nebbitt,183 Cal.App.2d 452 [1-5, 7, 8] 7 Cal.Rptr. at page 11.)'
The fact that at the time they first signalled appellant to stop, the officers had insufficient reason to believe that the car was stolen or that its occupants were involved in narcotic activity is of no consequence. Neither is the subjective state of mind of either officer a controlling consideration. The determinative test of the existence or nonexistence of probable cause is an objective one. It is simply this: Were the actions of the appellant in this case, viewed in the context of the attendant circumatances, such that they 'would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion' that appellant was engaged in criminal activity. (People v. Hillery, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 423 P.2d 208.) This question must be answered in the affirmative.
The order granting the motion to suppress evidence and dismissing the action is reversed.
ROTH, P. J., and FLEMING, J., concur.