Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 080046-6
Kline, P.J.
Carlton Wayne Colbert appeals from convictions following his pleas of no contest to possession of cocaine base for sale and sale or transportation of cocaine base. He contends the trial court erred in denying his motion to suppress evidence obtained as a result of what he claims was an unconstitutional patdown search. We agree and reverse the convictions.
Statement of the case
Appellant was charged by information filed on January 16, 2008, with possessing cocaine base (Health & Saf. Code, § 11351.5), selling/transporting cocaine base (Health & Saf. Code, § 11352, subd. (a)), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and obliterating the identification number of a firearm (Pen. Code, § 12090). At the preliminary hearing, appellant had been unsuccessful on a motion to suppress evidence found during a pat-down search. He renewed this motion in the trial court and the motion was denied. On May 7, the information was amended to add a count of simple possession of a controlled substance (Health & Saf. Code, § 11350), and appellant entered no contest pleas to this offense and to unlawful possession of a firearm. The court suspended imposition of sentence and placed appellant on formal probation for two years.
Appellant filed a timely notice of appeal on May 8, 2008.
Statement of facts
El Cerrito Police Officer Chris Mills testified at the preliminary hearing that he was on routine patrol at about 3:30 a.m. on November 18, 2007, when he stopped appellant’s vehicle because its rear license plate light was inoperative in violation of Vehicle Code section 24601. Mills explained on cross-examination that he had first observed the vehicle drive northbound on San Pablo Avenue, make a U-turn and enter a motel parking lot, where it stopped for a minute or so while a woman passenger got out, went into a motel room, then returned. Meanwhile, Mills obtained information about the vehicle’s registration from dispatch. The vehicle left, driving back southbound on San Pablo, and Mills initiated the stop.
Mills told appellant the reason for the stop and asked for his license and registration. Appellant showed him a valid driver’s license and a citation he had received previously for an expired registration. In response to Mill’s question, appellant said he was driving his passenger to Oakland.
Mills asked appellant to exit the vehicle, wanting to separate him from the passenger and speak to each separately, and appellant got out. The officer had called in appellant’s license and had received no information causing him concern about appellant. Mills asked appellant to submit to a patsearch for weapons, “[f]or our mutual safety.” During the search, Mills felt what he believed to be prescription medication bottles in appellant's pocket and asked whether appellant was in possession of prescription medication; appellant said he had high blood pressure and “heart pills.” In response to Mills’s question, appellant said it was okay for him to drive while taking the prescription medication. Mills asked to see the bottles to confirm this, but appellant did not produce them. Mills, who had noticed the odor of marijuana emanating from appellant’s person during the patsearch, told appellant he smelled marijuana and “wasn’t worried if he possessed a small amount of marijuana.” Mills had also noticed that appellant’s hands and legs were shaking, his eyes were bloodshot and watery and his voice “sounded dry.” Appellant said he had “a little marijuana” on him. When Mills asked appellant to show him the marijuana, appellant said it was in his pocket. Mills asked if appellant had a medical marijuana card and appellant said he did not. At this point, Mills began a search of appellant’s pockets for the marijuana. Appellant initially tried to pull away and turn toward Mills, and Mills handcuffed him “for our mutual protection.”
Mills completed the search of appellant’s pockets, finding in his left pants pocket a prescription pill bottle containing “four small off-white chunky substance wrapped in plastic,” in his left jacket pocket a glass jar containing green plant material with a strong marijuana odor, and in his right pants pocket a second prescription bottle containing two large packages of a similar off-white chunky substance wrapped in plastic and two small pills labeled Pfizer (a pharmaceutical company). Appellant also had a wallet in each of his rear pockets, one holding $1,500 in $100 bills and the other holding $229 in various denominations. Mills then searched the vehicle and found a glass cylinder consistent with a utensil used for smoking crack cocaine, a razor blade with green flecks of plant material, a glass jar containing similar flecks of plant material, and correspondence that did not appear to belong to either appellant or the passenger in the vehicle. In the trunk, Mills found a computer bag containing an “extravagant blown glass utensil” that appeared to be used to smoke tobacco or marijuana and a 9-millimeter semiautomatic handgun on which the serial number “appeared to have been drilled out by a metal drill.”
Mills spoke with appellant at the police department after informing him of his Miranda rights. Appellant told Mills that the off-white substance was crack cocaine: The four small bindles were “10 to $20 spots” for personal use and the larger packages, worth about $150 each, were for a friend who had given him money to obtain and deliver them to him. Appellant said he had purchased the handgun for $100 about three months before, noticed the serial number had been removed and thought this was suspicious but had not removed the number himself and had not used the gun. He said he bought the gun “because ‘Richmond be crazy.’”
Mills also spoke with appellant’s passenger, Ms. Letlow, after advising her of her Miranda rights. She identified the suspected crack cocaine as “crack” and said she had purchased crack cocaine from appellant hundreds of times since 2003.
Subsequent testing determined that the two large packages contained cocaine base with a total weight of 12.13 grams. The four small packages weighed 1.39 grams each and resembled the tested substance but were not tested themselves.
Discussion
At the preliminary hearing, appellant’s attorney argued there was no valid ground for the patsearch because Officer Mills had no basis for believing appellant might be armed or dangerous. The magistrate noted it was “a very close call on the patsearch” but upheld the search “because of the fact that it was 3:30 in the morning, there was another person in the car, and the officer did testify that the basis for asking to patsearch was for... mutual protection.” The magistrate found nothing improper about “the proximity in time of the smell of marijuana to the search with the prescription bottles” and stated that “once the ordering out and the patsearch are done, the marijuana is smelled, the subsequent questioning at that initial point does not constitute a violation of Miranda.” The search of appellant’s pockets was held justified by the officer’s smelling marijuana during the patsearch, and the further search justified by appellant’s failure to produce the marijuana at Mills’s request.
Appellant renewed his motion to suppress in superior court, arguing that the patsearch was unconstitutional because Mills had no reason to believe appellant was armed or dangerous and, therefore, all the items found, as well as appellant’s incriminating statements, were illegally obtained. At the hearing, defense counsel pointed out that the prosecution, in its opposition, claimed that Mills detected the smell of marijuana immediately as appellant exited the vehicle, whereas the transcript showed Mills testified that he had already begun patsearching appellant when he smelled the marijuana “during that patsearch.” Contrary to the prosecution’s assertion that appellant consented to the patsearch, the defense argued that there was no testimony to this effect; Mills testified that he asked appellant to submit to a patsearch and that he conducted the search, with no reference to appellant’s consent. The prosecutor, following a suggestion from the court, argued that because they were standing in close proximity, Mills would inevitably have smelled the marijuana even if he had not been patsearching appellant. He also argued that the circumstances, including appellant’s compliance with the officer’s other requests, indicated appellant consented to the patsearch. Defense counsel responded that there was no evidence of consent to the search, only that appellant complied with the officer’s orders, and that there was no evidence the marijuana smell was strong enough for Mills to have smelled if he had not been as close to appellant as he was during the patsearch.
In denying the motion to suppress, the trial court stated that the magistrate “basically made a finding based upon all of the evidence that he heard, that the smell of marijuana was detected contemporaneously” and viewed this finding as supported by the evidence. The court found it “apparent” that the officer “was entitled to be as close to the defendant as he wanted to be whether he was entitled to conduct a patsearch or not” and “clear” that “any officer conducting that patsearch or not would have smelled the marijuana on Mr. Colbert and immediately upon smelling it, asked Mr. Colbert about whether or not he had any marijuana on him.” Once appellant responded that he had marijuana, the court reasoned, the officer would have been justified in searching him for contraband with or without consent.
When a motion to suppress evidence under Penal Code section 1538.5 is denied at the preliminary hearing and reviewed in the trial court, we review the magistrate’s decision directly, deferring to the magistrate’s factual findings and not those of the trial court. (People v. McDonald (2006) 137 Cal.App.4th 521, 529; People v. Woods (1993) 12 Cal.App.4th 1139, 1147.) On review, we “must draw all presumptions in favor of the magistrate’s factual determinations, and we must uphold the magistrate’s express or implied findings if they are supported by substantial evidence.” (People v. McDonald, at p. 529; People v. Woods, supra, 12 Cal.App.4th at p. 1147.) “We judge the legality of the search by ‘measur[ing] the facts, as found by the trier, against the constitutional standard of reasonableness.’ (People v. Lawler (1973) 9 Cal.3d 156, 160, superseded by statute on another ground as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) Thus, in determining whether the search or seizure was reasonable on the facts found by the magistrate, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.) [¶] We may sustain the trial court’s decision without embracing its reasoning. Thus, we may affirm the superior court’s ruling on McDonald’s motion to suppress if the ruling is correct on any theory of the law applicable to the case, even if the ruling was made for an incorrect reason. (E.g., People v. Smithey (1999) 20 Cal.4th 936, 972.)” (People v. McDonald, at p. 529.)
Appellant first argues that the trial court applied the wrong standard of review and improperly redetermined facts to uphold the search by finding the officer would have smelled the marijuana even if he had not conducted the patsearch. Appellant argues the magistrate did not make the finding attributed by the trial court — that the smell of marijuana was contemporaneous with the patsearch — quoting the comment, “once the ordering out and the patsearch are done, the marijuana is smelled...” The full comment from which appellant quotes was as follows: “I don’t find — because of the proximity in time of the smell of marijuana to the search with the prescription bottles, I don’t find anything improper about that. And I think once the search — once the ordering out and the patsearch are done, the marijuana is smelled, the subsequent questioning at that initial point does not constitute a violation of Miranda, in my opinion.” The magistrate’s reference to the “proximity in time” of the smell to the “search with the prescription bottles” was clearly a reference to Mills’s smelling marijuana during the patsearch. We therefore disagree with appellant’s assertion that the trial court made a new factual finding in describing Mills as having smelled the marijuana contemporaneously with the patsearch. Moreover, appellant is wrong in suggesting there was no evidence to support this finding: The evidence was uncontradicted that Mills smelled the marijuana during the initial patsearch.
In any event, appellant’s challenge to this finding has no apparent relevance to the point he urges — that there was no evidence Mills smelled the marijuana before beginning the patsearch and, therefore, the search could not be justified on the basis of the smell. The magistrate did not attempt to justify the search on this basis. The trial court did not purport to find that Mills conducted the search because he smelled the marijuana, only that Mills inevitably would have smelled the marijuana even if he had not conducted the patsearch.
Appellant does not challenge the legality of the traffic stop or Mills’s ordering him to get out of his car. (Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn. 6 [“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.”].) The trial court reasoned that Officer Mills was entitled to stand as close to appellant as he chose and therefore would have smelled the marijuana even if he had not conducted a patsearch. Similarly, respondent argues that Mills would have smelled the marijuana when appellant exited the car and, therefore, the search can be upheld under the doctrine of inevitable discovery. Appellant maintains there was insufficient evidence to support the assumption that the marijuana odor was strong enough for Mills to have noticed it without engaging in the patsearch.
“The inevitable discovery doctrine acts as an exception to the exclusionary rule, and permits the admission of otherwise excluded evidence ‘if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police.’ (Nix v. Williams (1984) 467 U.S. 431, 447 (Nix).)” (People v. Hughston (2008) 168 Cal.App.4th 1062, 1071.) “It is the prosecution’s burden to ‘establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.’ (Nix, at p. 444; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62.)” (Hughston, at p. 1071.) “The showing must be based not on speculation but on ‘demonstrated historical facts capable of ready verification or impeachment.’ (Nix, supra, 467 U.S. at pp. 444–445, fn. 5.) The inevitable discovery exception requires the court ‘ “to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” ’ (U.S. v. Cabassa (2d Cir. 1995) 62 F.3d 470, 473.)” (Hughston, at p. 1072.)
We agree with appellant. Officer Mills testified that he smelled the marijuana during the patsearch: He specifically stated that he asked appellant about the marijuana odor only after questioning him about the prescription bottles in his pocket. Mills said nothing about the distance between him and appellant prior to the search. The odor Mills detected apparently came from the “green plant material” in a glass jar in appellant’s jacket pocket. Simply put, there is nothing but speculation to suggest Mills would have smelled the marijuana if he had not moved close enough to conduct the patsearch, much less that he inevitably would have smelled it.
Appellant further argues that the facts did not support Mills having a reasonable suspicion he was armed or dangerous. In the context of a routine traffic stop such as was involved here, an officer may conduct a patdown search of a driver and passengers “upon reasonable suspicion that they may be armed and dangerous.” (Knowles v. Iowa (1998) 525 U.S. 113, 117-118; Arizona v. Johnson (2009) __ U.S. __, 129 S.Ct. 781, 787.) “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry v. Ohio (1968) 392 U.S. 1, 27.) “And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Ibid.)
Respondent maintains the patsearch was justified by a reasonable, articulable suspicion that appellant might be armed because it was 3:30 a.m. and dark, Mills was alone, and there was a passenger in the car with appellant. The cases respondent relies upon, however, all involve something more than just these basic facts. In People v. Avila (1997) 58 Cal.App.4th 1069, 1074, the officer observed the defendant “acting suspiciously, walking around his car, and dropping an envelope from his waist,” realized the defendant might be under the influence of alcohol and saw a metal object within eight to ten inches of the defendant’s hand; the defendant denied knowledge of the object without looking to see what the officer was asking about, denied ownership of the vehicle, admitted having illegal alcohol in the vehicle and assumed a search position without being asked to do so. In People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230, an officer investigating for a reported prowler in a commercial area at about 11:20 p.m. found the defendant and his wife in a car; no other people appeared to be in the area and when the officer asked for identification, the defendant and his wife spoke only Spanish, which the officer did not understand. Upholding a patsearch of the defendant, the court noted, “Under these circumstances, a reasonably prudent person would fear a possible burglar and burglary suspects frequently carry weapons.” (Ibid.) In People v. Samples (1996) 48 Cal.App.4th 1197, 1210, four officers executing a warrant to search an apartment and its two residents were told the two subjects would be returning in a particular car. When that car arrived outside the apartment, the officers asked the defendant, who was driving, to get out so that the two suspects could get out of the backseat, and patsearched him when he did so. The search was held justified because the four police officers were dealing, at night, with five occupants of a car, two of whom were subjects of a search warrant. The officers were “ ‘engaged in an undertaking fraught with the potential for sudden violence’” and it would be “ ‘utter folly’ to require them to wait to search so as to protect themselves until there is ‘an overt act of hostility.’ ” (Ibid., quoting People v. Thurman (1989) 209 Cal.App.3d 817, 823.) In U.S. v. Douglas (8th Cir. 1992) 964 F.2d 738, 741, the officer was alone with the defendant in a dimly lit parking lot, late at night, and the defendant was wearing a long coat which could have concealed a weapon; similarly, in U.S. v. Buchannon (8th Cir. 1989) 878 F.2d 1065, 1067, the officer was alone and the defendant was a larger man wearing a long winter coat that could have concealed a weapon. In U.S. v. Moore (4th Cir. 1987) 817 F.2d 1105, 1108, the officer was alone, late at night, investigating a burglar alarm; the court noted that burlgary often involves use of weapons.
Unlike these cases, no suspicious circumstances are present here: Appellant simply was stopped for a traffic violation while driving with a passenger at 3:30 a.m. Officer Mills testified that he received no information from dispatch causing him any concern about appellant. “[S]ince minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon.” (People v. Miranda (1993) 17 Cal.App.4th 917, 927.) “[T]he ordinary motorist who transgresses against a traffic regulation ‘does not thereby indicate a propensity for violence or iniquity,’ and the officer who stops him generally ‘has not even the slightest cause for thinking that he is in danger of being assaulted.’ Moreover, a search of the driver’s person is obviously no less an invasion of privacy than a search of his vehicle, even when it is limited to a pat-down: as the United States Supreme Court said in Terry, ‘it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.’ [Citations.] We therefore conclude that when a police officer observes a traffic violation and stops the motorist for the purpose of issuing a citation, a pat-down search for weapons as an incident to that arrest must be predicated on specific facts or circumstances giving the officer reasonable grounds to believe that a weapon is secreted on the motorist’s person.” (People v. Superior Court (1972) 7 Cal.3d 186, 206.)
The evidence at the preliminary hearing demonstrated that Mills smelled the marijuana only after beginning the patdown search. Since that search was not justified by any specific facts or circumstances giving Mills reason to believe appellant was armed and dangerous, the motion to suppress should have been granted.
Although the point was argued at the hearing, the trial court did not find that appellant consented to the patsearch and respondent does not urge consent as a basis for affirming the judgment. “ ‘The prosecution bears the burden of showing that the consent to a search is voluntary and unaffected by duress or coercion. [Citations.] In every case, the voluntariness of a consent is a factual question to be decided in light of all the circumstances. [Citation.]’ ” (People v. Miller (1999) 69 Cal.App.4th 190, 202; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558.) No evidence was presented in this case to meet the prosecution’s burden.
The judgment is reversed. The trial court is directed to vacate its order denying suppression and enter an order granting suppression.
We concur: Haerle, J., Lambden, J.