Opinion
B300749
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. BRIAN PAUL, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Theresa A. Patterson and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA476242) APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen, Theresa A. Patterson and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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Police officers conducted a traffic stop of a car in which Brian Paul was a passenger, holding a backpack in his lap. While searching the passenger compartment of the car, they found a gun in the backpack. After Paul's motion to suppress the evidence was denied, he pled no contest to carrying a concealed firearm while an occupant of a vehicle. Paul now contends there was no probable cause to search the car because Proposition 64 made marijuana possession legal under certain circumstances. We disagree and affirm.
Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act (the Act), added and amended sections to, among others, the Health and Safety Code. (Stats. 2017, ch. 27, §§ 1, 129.) --------
BACKGROUND
An information charged Paul with being an occupant in a vehicle with a concealed firearm for the benefit of a street gang in violation of Penal Code section 25400, subdivision (a)(3).
Paul moved to suppress evidence of the firearm pursuant to Penal Code section 1538.5 on the ground that the evidence was found during an unlawful search. At the hearing on the motion, officers for the Los Angeles Police Department testified that they conducted a traffic stop of the vehicle for blocking a driveway and having illegally tinted front windows. Three people were in the car: a driver, a passenger, and Paul.
One officer smelled a strong odor of fresh cannabis emitting from inside the vehicle. The officer also noticed that the driver had bloodshot eyes and a marijuana cigarette behind his ear. Another officer spoke with Paul, who was in the backseat with his arms wrapped around a backpack. Paul told the officers that there were two boxes of cereal in the backpack. The officers instructed all occupants to exit the vehicle so they could conduct a narcotics investigation to verify that the amount of marijuana inside the car did not exceed the legal limit. The officers directed Paul to leave the backpack in the vehicle. One officer searched the vehicle and patted down the outside of the backpack, feeling what appeared to be a firearm. He opened the backpack and retrieved a semiautomatic handgun.
In support of the motion, the driver testified that he was dropping Paul off at home when the police stopped the car. He explained to the officer that his eyes were red because he was tired and it had been a long day. He also said that, while he had smoked earlier in the day and had a partially smoked marijuana blunt behind his ear, no one had smoked in the vehicle. He claimed the car did not smell of marijuana and that the officers directed the occupants to exit the vehicle.
The third person in the car also testified. He said that all three occupants had smoked marijuana two to three hours earlier, but the vehicle did not smell of marijuana.
The defense also introduced video footage taken from an officer's body camera along with a transcript of the recording. The parties agree that the interaction went as follows:
DISCUSSION
Paul argues the search was unlawful because the officers did not have probable cause to search the vehicle and his backpack. He contends that, after the Act's passage, neither the smell of marijuana nor the plain view presence of a small amount of marijuana can justify a search under the automobile exception.
Our review of a suppression motion presents a mixed question of law and fact. (People v. Thompson (2010) 49 Cal.4th 79, 111-112.) We review factual findings under the substantial evidence standard and conduct an independent review of the reasonableness of the search. (Ibid.)
The Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause. (United States v. Ross (1982) 456 U.S. 798, 809.) Under the automobile exception, if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. (People v. Waxler (2014) 224 Cal.App.4th 712, 718; see Wyoming v. Houghton (1999) 526 U.S. 295, 307 [passenger's belongings].) There is no requirement that the offense for which the suspect is arrested is the same offense that gave officers probable cause to search the vehicle. (Arizona v. Gant (2009) 556 U.S. 332, 347.)
Probable cause to search exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." (Ornelas v. United States (1996) 517 U.S. 690, 696.) To determine if there was probable cause, each case is decided on its own facts and under the totality of the circumstances. (Ibid.) There must be a fair probability that contraband or evidence of a crime will be found in the place searched by officers. (Illinois v. Gates (1983) 462 U.S. 213, 238.) The Fourth Amendment only requires that the circumstances known to the officers, viewed objectively, justified the action; their subjective intent is irrelevant. (Whren v. United States (1996) 517 U.S. 806, 812-813.)
The Act added Health and Safety Code section 11362.1, subdivision (c) and which made possession of cannabis legal under certain circumstances. (People v. Lee (2019) 40 Cal.App.5th 853, 864.) Health and Safety Code section 11362.1, subdivision (c) states: "Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest."
Under the new law, Paul argues that the smell of marijuana coming from the vehicle and the small amount of marijuana behind the driver's ear did not create probable cause to search the car. Paul relies on People v. Lee, supra, 40 Cal.App.5th at page 857. In Lee, police stopped a car with no front license plate and illegally tinted windows. (Ibid.) When the defendant said he did not have his driver's license with him, the officers instructed him to step out of the vehicle and conducted a pat down search of his person. (Ibid.) They found a small bag of marijuana on the defendant. (Ibid.) The defendant told the officers that he delivered medical marijuana. (Ibid.) After determining that the defendant had a suspended license, the officers searched the vehicle. (Id. at p. 858.) During the search, the officers recovered cocaine, a firearm, and other items associated with selling narcotics in the vehicle. (Id. at p. 856.) The defendant in Lee moved to suppress the evidence obtained during the search, arguing that the small amount of marijuana on his person did not give rise to probable cause to search his car. (Id. at p. 859.) The trial court granted the motion and the Fourth Appellate District affirmed, concluding the officers lacked probable cause as a result of the new law. (Id. at pp. 856-857, 861.) "The recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug on Lee's person, and the remaining facts cited by the People do not provide any reasonable basis to believe contraband would be found in the car." (Id. at p. 861.)
Lee is distinguishable. Unlike Lee, the facts here point to illegal activity. When officers conducted the traffic stop, the driver had a marijuana cigarette behind his ear, he admitted smoking marijuana earlier that day and being high, and said there was marijuana in the car. These facts strongly suggested that the driver was driving under the influence of marijuana or that he possessed an open container of marijuana inside the vehicle. Despite the change in law, it is still illegal to possess an open container or package of marijuana inside a vehicle and to drive a vehicle under the influence of marijuana. (People v. Fews (2018) 27 Cal.App.5th 553, 563.) Paul argues that the People have taken the driver's comment that he was high out of context because, while he admitted to being high, he also stated he had only smoked earlier in the day. However, notwithstanding that one need not consume a drug in a car in order to drive under the influence of that drug, the officers and the trial court were free to disbelieve that part of the driver's statement.
Further, when probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search, like Paul's backpack. (See United States v. Ross, supra, 456 U.S. at p. 825.) The strong odor of marijuana inside the vehicle, as well as admissions that all three occupants of the car had been smoking marijuana earlier that day, provided probable cause that the driver of the car was under the influence of marijuana or that the car contained an open container of marijuana. Accordingly, the officers had probable cause to conduct the search of any place within the car that could contain marijuana, including Paul's backpack.
Finally, although the officers did not fully investigate whether the driver was under the influence, the subjective intent of the officers is irrelevant for purposes of the Fourth Amendment analysis. (Whren v. United States, supra, 517 U.S. at pp. 812-813.) Because there was probable cause to search the vehicle for contraband or evidence of crime, no Fourth Amendment violation occurred.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
EGERTON, J.