The opinion
DeCARLO, Judge
(dissenting):
I cannot join in the reversal of this case in its entirety. I do agree with the holding as to the two companions, but respectfully differ as to the appellant Shipman.
My reasoning is that probable cause existed for Lt. Smith to stop the car. He had before him these articulable facts: a radio dispatch from Police Headquarters, personal knowledge that warrants would be obtained, identification of the car and its occupants. Even though all the facts taken together at this point would not justify an arrest or search, the officer had sufficient information to warrant stopping the automobile for investigation. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 .
Effective crime prevention and detection dictate that a police officer, under appropriate circumstances and in an appropriate manner, should approach a person for purposes of investigating possible criminal behaviour, even though there is no probable cause to arrest. Terry, supra.
Lt. Smith had stopped the car and was speaking to the driver when he observed appellant pass cellophane packages held with a rubber band from one hand to another, then to his boot top. He testified that the packages contained white powder similar to headache powder.
Items in plain view of a law enforcement officer who has a legitimate right to be in the position he is to have that view are not discovered as a result of a search. United States v. Lowry, 5 Cir., 456 F.2d 341 .
In view of appellant’s unusual conduct, it was not unreasonable for this officer to order them out of the car. When Lt. Smith first approached the vehicle, he saw the appellant’s furtive actions and had reasonable grounds to believe he was hiding contraband.
“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, 143 Cal.App.2d 671 , 300 P.2d 68 , People v. Goodrick, 11 Cal.App.3d 216 , 89 Cal.Rptr. 866 .
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be some authority permitting seizure where the officer has reason to believe that the furtive movements of an individual he is confronting suggests concealment of contraband, regardless of whether he had probable cause to arrest the individual initially. The officer need not be absolutely certain that the attempted concealment is contraband. The crux of this question should be when a police officer observes unusual conduct which leads him to reasonably conclude in light of his experience that the person he is facing has committed a crime or is committing a crime, the seizure is justified.