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Court of Appeal, Second District, Division 1, California.

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

Cr. 23851.

Decided: January 23, 1974

Joseph P. Busch, Dist. Atty., Donald J. Kaplan and Robert J. Lord, Deputy Dist. Attys., for plaintiff and appellant. Richard S. Buckley, Public Defender, Harold E. Shabo, Marvin S. Benson, and A. Jane Fulton, Deputy Public Defenders, for defendant and respondent.

This People's appeal from an order of the superior court dismissing an information pursuant to Penal Code section 995 raises the issue of the United States Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L.Ed.2d 456, upon the California law defining the permissible scope of searches incident to arrests for traffic violations as declared in People v. Superior Court (Simon), 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, and People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449. We conclude that Robinson and Gustafson are controlling, and accordingly reverse the order of dismissal.

Respondent was charged in an information alleging possession of marijuana and seconal. On a motion pursuant to Penal Code section 995, the superior court dismissed the information on the ground that the only evidence adduced against respondent at the preliminary hearing was illegally obtained. We thus examine the record in the light most favorable to the action taken by the magistrate.

On February 28, 1973, at 3:55 a. m., Officer Leo J. Repp of the Inglewood Police Department saw appellant driving a van without lights. Officer Repp shined the spotlight of the police vehicle on respondent who ‘gave [Repp] a rude gesture with his finger and continued southbound on La Brea.’ Repp activated the red lights of his vehicle and pursued respondent down La Brea to Cedar where respondent made a left turn against a red light. Respondent, who ran a stop sign, continued on Cedar until he stopped just short of Manchester. Repp exited the police car and approached the stopped van. Respondent ‘stuck his head out the driver's window and said ‘Fuck you, cop’ and drove off.' Repp returned to his vehicle and pursued the van at a speed of 45 to 50 miles per hour to just past La Cienega where he forced the van to halt. Repp left the police car and approached the van with gun drawn. A second police car, driven by Officer Errol D. Cobb, arrived at the scene, and Officer Cobb also approached the van.

Respondent exited the van from the driver's door. He had a black cylindrical object in his hand which appeared to be a gun. Repp pointed his service revolver at respondent and told him ‘to either drop it or die.’ Respondent turned his body a ‘little bit to the rear’ and with a ‘wrist flip’ threw the black object to a point under the van, one or two feet in front of the left rear wheel. Officers Repp and Cobb both saw the black object as it fell to the ground. Since it made no noise when it hit, Cobb realized the object was not a gun. Repp 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. Repp placed respondent and a female companion in handcuffs. Cobb picked up the object which respondent had thrown, a black plastic tobacco pouch five and one-half inches deep. Cobb brought the tobacco pouch to Repp. Inside the pouch were marijuana, Zig Zag cigaret papers and seconal pills.

Evidence of the marijuana and seconal was received at the preliminary hearing over respondent's objection that it was the product of an illegal search. The record is silent as to the arresting officer's subjective belief of a reason for placing respondent in handcuffs, thus accomplishing his arrest. Neither counsel for the defense nor the prosecutor inquired into that fact.1 Nor is the basis of the magistrate's ruling receiving the marijuana and seconal in evidence totally clear. He prefaced it with the statement ‘the defendant violated traffic laws and fled from the scene of the first stop by the police officer which gives rise to a reasonable inference that there was something he was trying to hide.’ That ambiguous declaration seems best interpreted as the magistrate's finding that the search which disclosed the contraband was one incident to an arrest, pursuant to Vehicle Code section 40303, subsection (i), for respondent's conduct in attempting to evade apprehension for his previous vehicle code violations and was thus valid.

If the magistrate's finding and ruling are correct, the superior court erred in granting the motion to dismiss the information on the ground that the incriminating evidence against respondent was illegally obtained. We conclude that (1) recent decisions of the United States Supreme Court declare constitutional principles establishing the validity of the search here involved under the Fourth and Fourteenth Amendments to the United States Constitution; and (2) those decisions implicitly overrule California Supreme Court cases holding to the contrary.

In People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, our Supreme Court declared that the general rule of constitutionality of warrantless searches made incident to lawful arrests is subject to an exception in the case of arrests for traffic violations requiring release of the suspect on citation and promise to appear. The Supreme Court stated that a search incident to an ordinary arrest may be justified by the possibility of discovering instrumentalities used to commit the crime for which the arrest is made or its fruits and of discovering articles the possession of which is unlawful or weapons which can be used to assault the arresting officer or to effect an escape. (3 Cal.3d at pp. 812–813, 91 Cal.Rptr. 729, 478 P.2d 449.) The court reasoned that there are no instrumentalities used to commit or fruits of most Vehicle Code offenses2 and that a search for articles the possession of which is unlawful is unreasonable in relation to the purpose of the usual arrest for a minor traffic offense. Finally, relying upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the California high court held that as a matter of law a detention incident to a violation of a traffic law does not, absent other facts, present articulable circumstances justifying a search for weapons. (3 Cal.3d at p. 829, 91 Cal. Rptr. 729, 478 P.2d 449.)

In People v. Superior Court (Simon), 7 Cal.243d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 4, a four justice majority of the California Supreme Court extended the rule of Kiefer to invalidate searches incident to custodial arrests pursuant to Vehicle Code section 40302 and 40303 requiring (section 40302) or permitting (section 40303) the person arrested for certain traffic offenses, or under specified conditions, to be taken before a magistrate rather than to be released on citation. Thus the court held that, despite the custodial character of the arrest of a traffic violator taken before a magistrate pursuant to Vehicle Code sections 40302 and 40303, a search of the violator incident to his arrest does not satisfy Fourth Amendment standards absent special circumstances giving probable cause to search.

If the rule of Simon is applied to the case at bench, the validity of the examination of the tobacco pouch which disclosed the marijuana and seconal within it is in doubt.3 The content of the pouch could not reasonably be assumed to be evidence of the traffic violations for which appellant was arrested, and the character of the pouch as something other than a weapon was evident before it was opened. Since Simon, however, the Supreme Court of the United States has filed its decisions in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. Both decisions involve searches incident to custodial arrest for minor traffic violations, Robinson because the person arrested was driving while his operator's license was revoked, and Gustafson because the person arrested for ‘weaving’ license in his possession. In Robinson, the United States Supreme Court rejected the rationale for validation of searches incident to arrest utilized by the California high court in Kiefer and Simon. Rather, it adopted the principle that a search incident to a lawful custodial arrest always satisfies constitutional standards. It said: ‘A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.4 It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.' (414 U.S. 218, 235, 94 S.Ct. 467, 477.) Gustafson applies the rule of Robinson, although the custodial character of the arrest was discretionary in the judgment of the arresting officer and no law or police regulation prescribed custodial arrest rather than release upon citation. (414 U.S. 260, 265, 94 S.Ct. 488, 492.)

In many respects, the facts before the United States Supreme Court in Gustafson are similar to those present in the case at bench. There, at 2 a. m., an officer in Florida observed a car with New York plates weaving across the center line of a street. The officer activated the red lights of his police vehicle causing the weaving car to stop. The driver was unable to produce an operator's license and said that he had left it in his dormitory room in a nearby city. He was arrested for failure to possess a driver's license. The officer placed the driver in custody in order to transport him to the police station. He conducted a thorough search of the driver's person, disclosing a cigaret box. Looking inside the box, the officer saw marijuana. In holding that the search was validly incident to a lawful custodial arrest, the United States Supreme Court said: ‘Though the officer here was not required to take the petitioner into custody by police regulations as he was in Robinson, and there did not exist a departmental policy Establishing the conditions under which a full scale body search should be conducted, we do not find these differences determinative of the constitutional issue [citation]. It is sufficient that the officer had probable cause to arrest the petitioner and that he lawfully effectuated the arrest, and placed the petitioner in custody.’ (414 U.S. 260, 265, 94 S.Ct. 488, 491.)

If Robinson and Gustafson control the case at bench, the search which disclosed the marijuana and seconal is a lawful one. Respondent was lawfully arrested when he was stopped for the Vehicle Code offense of driving at night without lights. (See People v. Superior Court (Simon), supra, 7 Cal.3d 186, 200, 101 Cal.Rptr. 837, 469 P.2d 1205.) The nature of the arrest as a custodial one is evidenced by the fact that respondent was placed in handcuffs, and its character as custodial is authorized by Vehicle Code section 40303, subsection (i), permitting a traffic violator who has attempted to avoid arrest either to be taken before a magistrate or to be given a citation to appear. Since the custodial arrest was lawful, the search of the tobacco pouch dropped by respondent in the course of the arrest is also lawful under Robinson and Gustafson standards as incident to it.

There remains the problem of whether the United States Supreme Court standard or the stricter rule of California as enunciated in the pre-Robinson-Gustafson decisions of Kiefer and Simon is now the governing principle. Decisions of the California high court dealing with similar problems are not consistent.

In People v. McKinnon, 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097, our Supreme Court dealt with a search of cartons at an airport under circumstances declared violative of constitutional rights in earlier decisions of that court in People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 and Abt v. Superior Court, 1 Cal.3d 418, 82 Cal.Rptr. 481, 462 P.2d 10. Subsequent to McGrew and Abt, while the appeal in McKinnon was pending, the United States Supreme Court rendered its decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, rejecting the reasoning applied by the California high court in the two earlier cases. Our Supreme Court said: ‘Fairly construed, the reasoning of the United States Supreme Court in Chambers thus undermines the foundation of the majority opinions in McGrew and Abt. (Accord, People v. Superior Court (Evans) (1970) 11 Cal.App.3d 887, 893, 90 Cal.Rptr. 123). For these reasons, McGrew and Abt are no longer to be followed.’ (People v. McKinnon, supra, Cal.3d at p. 910, 103 Cal.Rptr. at p. 904, 500 P.2d at p. 1104.) Thus McKinnon determines that a United States Supreme Court decision construing the Fourth and Fourteenth Amendments to the United States Constitution controls its determination of a parallel issue. No mention is made in McKinnon of article I, section 19 of the California Constitution, this state's equivalent of the Fourth Amendment.5

Other recent decisions of the California Supreme Court approach the relationship between the Fourth Amendment and parallel California constitutional provisions differently from McKinnon.

In Kaplan v. Superior Court, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1, our high court retained the rule which allows one to claim vicariously the right of another to require the exclusion of illegally obtained evidence as enunciated in People v. Martin, 45 Cal.2d 755, 290 P.2d 855, despite an intervening decision of the United States Supreme Court (Alderman v. United States, 394 U.S. 165, 171–176, 89 S.Ct. 961, 22 L. Ed.2d 176), holding that only the person subjected to a search violating constitutional standards has standing to raise the issue. Kaplan is of limited utility in the case at bench, however, because it is rationalized upon statutory construction of the Evidence Code and expressly excludes California Constitution, article I, section 19, as a basis of decision. (6 Cal.3d at p. 161, n. 9, 98 Cal.Rptr. 649, 491 P.2d 1.)

The California Supreme Court in People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, invalidated as violative of constitutional protection the examination by police of the content of a garbage can emptied into the well of a collection truck cleared to receive the content at the direction of the police. Certiorari was granted by the United States Supreme Court in Krivda. (405 U.S. 1039, 92 S.Ct. 1307, 31 L.Ed.2d 579.) That court concluded that it could not determine from the opinion of the state court whether Krivda was based upon “an adequate and independent nonfederal ground” created by the California Constitution. It accordingly vacated the California judgment and remanded the cause to the California Supreme Court ‘for such further proceedings as may be appropriate.’ (California v. Krivda, 409 U.S. 33, 35, 93 S.Ct. 32, 34 L.Ed.2d 45.) On remand, the California high court stated: ‘[W]e have reexamined our opinion in the subject case . . . and certify that we relied upon both the Fourth Amendment to the United States Constitution and article I, section 19, of the California Constitution, and that accordingly the latter provision furnished an independent ground to support the result we reached in that opinion . . .. [W]e reiterate that decision in its entirety.’ (People v. Krivda, 8 Cal.3d 623, 624, 105 Cal.Rptr. 521, 504 P.2d 457.) Again in People v. Triggs, 8 Cal.3d 884, 106 Cal. Rptr. 408, 506 P.2d 232, when invalidating clandestine police observation of public restrooms as constitutionally impermissible, the California court declared: ‘Although for the sake of convenience we often refer to constitutional guarantees, both state and federal, against unreasonable searches and seizures under the rubric of ‘Fourth Amendment’ rights, our decision today is based both upon our reading of applicable federal Fourth Amendment law and our own determination of the proper construction of article I, section 19, of the California Constitution [citing Krivda on remand].' (8 Cal.3d at p. 892, n. 5, 106 Cal.Rptr. at p. 413, 506 P.2d at p. 237.)

Resolution of the conflict between the approach of our Supreme Court in McKinnon on the one hand and its reasoning in Krivda and Triggs on the other is critical to the determination of the case at bench. If the McKinnon rationale applies, the United States Supreme Court decisions in Robinson and Gustafson ‘[undermine] the foundation of the majority opinions in [Kiefer] and [Simon]’ so that they ‘are no longer to be followed.’ (People v. McKinnon, supra, 7 Cal.3d at p. 910, 103 Cal.Rptr. at p. 904, 500 P.2d at p. 1104.) Conversely, since California may adopt a stricter standard of search than is required by the Fourth Amendment (Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L. Ed.2d 730), the approach of Krivda and Triggs, to declare retrospectively that Kiefer and Simon were determined upon an independent state ground in the form of article I, section 19, of the California Constitution, results in the continued vitality of those cases.

Neither Krivda on remand nor Triggs cites McKinnon and neither purports expressly to overrule it. Left with conflicting decisions of the California Supreme Court of very recent vintage, we are required to choose among them. The McKinnon rationale is the more persuasive, both in terms of stare decisis and in its internal structure.

The Fourth Amendment to the United States Constitution and article I, section 19 of the California Constitution are essentially identical in wording.6 Decisions of the United States Supreme Court construing constitutional phraseology are highly persuasive. (Gabrielli v. Knickerbocker, 12 Cal.2d 85, 89, 82 P.2d 391; Cohen v. Superior Court, 173 Cal.App.2d 61, 67, 343 P.2d 286; 21 C.J.S. Courts § 205, n. 17 and 18, and cases there cited.) By the nature of federal and state jurisdiction that court has acquired a degree of expertise not shared by any state court. Matters of constitutional import are likely to reach the United States high court on a cleaner record and to be better briefed and argued than are similar issues in the state system. The persuasion of the United States Supreme Court decisions is particularly strong in the area of search and seizure and the exclusionary rule. California courts have for years spoken of the basis of the exclusionary rule as the Fourth Amendment. A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the initiative process to overrule the California decision with its concomitant harm to the prestige, influence, and function of the judicial branch of state government.7 The very purpose of the exclusionary rule, to deter unlawful police searches (Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 14 L.Ed.2d 601; Comment, Standing to Object to an Unreasonable Search and Seizure (1967) 34 U. of Chi. L.Rev. 342, 352–359), requires that there be certainty in the ground rules of search and seizure. The more courts feel free to adopt ground rules unpersuaded by contrary decisions of other courts, the greater the likelihood there is of uncertainty in those ground rules. The uncertainty is mitigated if proper deference is paid United States Supreme Court holdings.

Thus, something more than personal disagreement by a majority of members of a state court with the decision of the United States high tribunal on search and seizure is required if the persuasion of that court is not to be followed.8 Speaking of stare decisis in the context of constitutional law, Professor Philip B. Kurland states: ‘Certainly there is or should be something disturbing about the proposition that a watershed in constitutional law is marked not by changes in the constitutional text, as after the Civil War, nor by changes in social conditions that give rise to the problems to which the test is applied, as after the Great Depression. For, if the meaning of the Constitution is as fluid as the personal whims of the Court's membership would make it, it is really no constitution at all. A set of principles setting governmental authority within those bounds is meaningless if nine Delphic oracles are permitted to divine its meaning and state it anew each time a question is proposed for resolution.’ (Kurland, 1971 Supreme Court Review, Univ. of Chicago Press, 265–266.) For the same reason, the state system should accept the interpretation of the United States Supreme Court of language in the federal Constitution as controlling of our interpretation of essentially identical language in the California Constitution unless conditions peculiar to California support a different meaning. “Judges do not represent people, they serve people.” (Wells v. Edwards, D. C., 347 F.Supp. 453, 455, citing Buchanan v. Rhodes, D. C., 249 F.Supp. 860, 865.) To do so, they must not represent a political or social point of view; they must serve the rule of law.

People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, exemplifies a condition peculiar to California that sustains an interpretation of article I, section 19 of the state Constitution in a fashion more stringently restricting clandestine police observation than possibly does the Fourth Amendment framed in virtually identical language. A California statute, Penal Code section 653n, declares as the public policy of the state the right of privacy in public restrooms. (People v. Triggs, supra, 8 Cal.3d at p. 893, 106 Cal. Rptr. 408, 506 P.2d 232.) That statute justifies an interpretation of the California Constitution in a fashion protecting that declared policy against governmental intrusion despite any meaning ascribed to the Fourth Amendment by the United States Supreme Court.

No similar declared public policy or other condition peculiar to California exists with respect to searches incident to custodial arrest for violations of traffic laws the issue presented by the case at bench.

Forced to choose between conflicting lines of decision of our Supreme Court where neither appears to have been overruled by implication, we must determine for ourselves which of the high court decisions is the better reasoned. We most respectfully suggest that the reasoning of Krivda on remand and Triggs presents an analytical problem not present in McKinnon. Both Krivda on remand and Triggs purport to be decided on both federal and state constitutional grounds. So long as a state statutory or constitutional limitation on search is as strict or stricter than that imposed by the Fourth Amendment, no question of violation of Fourteenth Amendment rights can arise. In such a situation, a case cannot be decided on ‘both’ the federal and state Constitutions.9 McKinnon is free of this analytical problem. We therefore determine that it binds our decision in the case at bench.

We thus conclude that the recent decisions of the United States Supreme Court In United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 and Gustafson v. Florida, supra, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, declare the law of search and seizure applicable to the case at bench. Tested by that rule of law, the search here involved is a valid one.

The order of dismissal is reversed.


1.  Lack of subjective belief of the facts of probable cause is not asserted in the record as a reason rendering the search illegal.

2.  But see People v. Yniguez, 15 Cal.App.3d 669, 93 Cal.Rptr. 444, dealing with searches where the arrest is for driving while under the influence of alcohol or drugs.

3.  But cf. People v. Gil, 248 Cal.App.2d 189, 193, 56 Cal.Rptr. 88, cited with apparent approval in People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 825, 91 Cal.Rptr. 729, 478 P.2d 449.

4.  For a pre-Simon California pronouncement of similar reasoning, see People v. Rhodes, 23 Cal.App.3d 257, 261–265, 100 Cal.Rptr. 487, concurring opinion.

5.  In a related area, the United States Supreme Court decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, permitting the use for impeachment of a confession obtained in violation of Miranda rights is followed in California despite pre-existing California cases giving a contrary construction to Miranda. (People v. Hayes, 19 Cal. App.3d 459, 468, 96 Cal.Rptr. 879; People v. Acosta, 18 Cal.App.3d 895, 903–904, 96 Cal.Rptr. 234.)

6.  It was noted by one delegate to the California Constitutional Convention when the present article I, section 19 was presented, that the section ‘was word for word from the Constitution of the United States, 4th article.’ Browne, Report of the Debates in the Convention of California, pp. 47–48. (1973 reprint of the 1850 ed.)

7.  For exposition of a contrary view, see Comment, Toward an Activist Role for State Bills of Rights, 8 Harvard Civil Rights—Civil Liberties L.Rev. 271.

8.  The intellectual integrity of our Supreme Court is not to be questioned by attributing to it adoption of a principle of decision designed solely to avoid review by the high court of the United States. Particularly is this true where by purportedly resting its decision upon both federal and California constitutional grounds that purpose would insulate the decision both from United States Supreme Court review and political action short of constitutional amendment to modify the law. (See Bice, Anderson and the Adequate State Ground, 45 So.Cal.L.Rev. 750, 757.)

9.  Addressing himself to a similar situation in Jolicoeur v. Mihaly, 5 Cal.3d 565, 582–583, 96 Cal.Rptr. 697, 708, 488 P.2d 1, 12, the Chief Justice stated in the concurring opinion: ‘[The] result [in this case] is compelled by clear language of the Twenty-Sixth Amendment which provides in pertinent part that the ‘right of citizens of the United States . . . to vote shall not be . . . abridged . . . by any State on account of age [footnote omitted].’ . . . [¶] As the Twenty-Sixth Amendment expressly prohibits the described state conduct, we need not inquire further and to do so only emphasizes matters which should be of no concern to us.' See also Bice, supra, 45 So.Cal.L.Rev. 750, 754-755.

THOMPSON, Associate Justice.

LILLIE, J., concurs. WOOD, P. J., concurs in the judgment and the part of the opinion stating that the Robinson and Gustafson cases are controlling herein.

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Docket No: Cr. 23851.

Decided: January 23, 1974

Court: Court of Appeal, Second District, Division 1, California.

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