The opinion
BURKE, J.
I concur in the result reached by the majority, but only under the compulsion of the “vicarious exclusionary rule” adopted in People v. Martin, 45 Cal.2d 755 [ 290 P.2d 855 ]. In Martin , this court based its decision upon Fourth Amendment principles and relied (pp. 759-760) upon an analysis of prior United States Supreme Court decisions no longer apposite in view of the recent decision in Alderman v. United States, 394 U.S. 165, 171-176 [ 22 L.Ed.2d 176, 185-188 , 89 S.Ct. 961 ]. It is clear, therefore, that the majority- reaffirm Martin solely upon the basis of their own preferences regarding the scope of the exclusionary rule, and have abandoned further reliance upon federal constitutional principles, as defined by the United States Supreme Court. In view of the apparent need for uniform standards in the search and seizure area, I deem such a course improvident. 1
I would also point out that, contrary to the majority’s suggestion, the “pat-down” search of Patterson’s outer clothing was entirely reasonable and proper under the circumstances in this case. Unlike the ordinary “furtive gesture” situation wherein the officer observes only some innocent movement of the body (see Gallik v. Superior Court, 5 Cal.3d 855, 861-862 [ 97 Cal.Rptr. 693 , 489 P.2d 573 ]; People v. Superior Court, 3 Cal.3d 807, 828-831 [ 91 Cal.Rptr. 729 , 478 P.2d 449 ]), in the instant case Officer Briscoe testified that when he turned on his red light to signal the driver to stop, Patterson looked back, reached under the front seat, looked back once more, and “then he reached in his left or right front pocket, shoved his hand in his coat as the vehicle pulled over to the side of the road.” Briscoe testified further that he told Patterson to get out of the car and searched him “Because I felt he was hiding a weapon.”
The majority blithely assume that “the ‘furtive gesture’ observed by Of *163 ficer Briscoe did not, without more, give him reasonable grounds to believe Patterson was in possession of a weapon.” What more, may I ask, was required to justify a pat-down search? Must the officer wait until a gun is drawn or fired before he may take the standard minimum precautions to protect his own life?
In People v. Superior Court, supra, 3 Cal.3d 807, 829 , we acknowledged “the dangers daily faced by the men who bear the burden of policing our streets and highways, and ... the fact that even a minor traffic citation incident can occasionally erupt into violence,” and we directed our courts to “do all in their constitutional powers to minimize these risks.” In my view it is clearly within our “constitutional powers” to hold that an officer who, in the course of stopping a speeding car, observes a passenger reach under his seat and then thrust his hand into his coat pocket, has reasonable grounds to believe that the passenger may have armed himself. (See People v. Collins, 1 Cal.3d 658 [ 83 Cal.Rptr. 179 , 463 P.2d 403 ], assuming arguendo the propriety of a pat-down search for weapons when a theft suspect thrust his hand into his pants pocket.) Accordingly, Officer Briscoe properly conducted a pat-down search of Patterson’s outer clothing. The further search, however, inside Patterson’s pocket was unjustified once the officer determined that Patterson did not possess a weapon. (People v. Collins, supra.) Thus, I concur in the majority’s conclusion that the subsequent seizure of contraband was illegal.
Wright, C. J., and McComb, J., concurred.
The petition of the real party in interest for a rehearing was denied December 29, 1971. Wright, C. J., McComb, J., and Burke, J., were of the opinion that the petition should be granted.
It is noteworthy that, as of the date the Alderman case was decided (March 10, 1969), California appears to have been the only jurisdiction in the United States adhering to the vicarious exclusionary rule. (See separate concurring and dissenting opinion of Mr. Justice Portas in Alderman v. United States, supra, 394 U.S. 165, 204 [ 22 L.Ed.2d 176, 204 ].) Although as a theoretical matter we may not be bound in this area by decisions of the United States Supreme Court or the courts of our sister states, their unanimity of practice is highly indicative that our decision in Martin is neither compelled by constitutional principles nor warranted by the practical considerations underlying the exclusionary rule.