Opinion
B300416
01-19-2021
THE PEOPLE, Plaintiff and Respondent, v. DASHUN COOKE, Defendant and Appellant.
Pamela J. Voich and Karyn H. Bucur, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Kathy S. Pomerantz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. BA472857 APPEAL from an order of the Superior Court of Los Angeles County, Katherine Mader, Judge. Reversed and remanded with directions. Pamela J. Voich and Karyn H. Bucur, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Dashun Cooke appeals after pleading no contest to felony possession of a firearm and being placed on probation. Cooke challenges the denial of his motions to suppress evidence of the firearm found in the trunk of his car during a warrantless search. Specifically, Cooke argues the officers lacked probable cause to search the car after observing one of the passengers throw a small amount of marijuana from the car's window, detecting the odor of marijuana inside the car, and finding a "large sum" of small bills on one of the passengers. We agree that the officers lacked probable cause to search the car's trunk and therefore reverse and remand for further proceedings.
FACTUAL BACKGROUND
On an evening in November 2018, Los Angeles Police Department (LAPD) Officer Louie Gener and his partner, Officer Torres, were patrolling near 35th Street and Central Avenue when they saw Cooke driving a car with its headlights off in the dark. After Gener turned on his emergency lights to initiate a traffic stop, the passenger riding in the front seat of Cooke's car threw what appeared to be several small nuggets of marijuana, ranging from the size of a nickel to the size of a quarter, out of the front passenger window. According to Gener, the marijuana wasn't in a baggie.
After Cooke pulled over, the officers ordered him and the two passengers to step out of the car. When he approached the car, Gener detected a strong odor of marijuana coming from the passenger compartment. Gener then handcuffed Cooke and the two passengers. The passenger riding in the front seat told the officers that he threw the marijuana out of the car because he was on probation. Gener then searched that passenger and found a "large sum" of small bills in his pockets. Gener also pat searched Cooke and the other passenger but found no money or drugs on them. The officers never recovered the baggie thrown from the car, nor did they observe any lit or burnt marijuana during the stop.
Once he found the money on the front-seat passenger, Gener searched the car's passenger compartment as part of a "narcotics investigation." Gener found more small bills "in large sums" throughout the car, including inside the center console and glove compartment, but he didn't find any drugs or paraphernalia inside the passenger compartment. Gener believed the cash inside the car was "indicative of narcotic sales."
After searching the passenger compartment, Gener moved to the trunk, where he found an opaque backpack that was locked. After manipulating the backpack, Gener felt what he believed was a box containing a handgun. Cooke admitted he owned the backpack and told the officer, " 'Go ahead, open it, do what you have to do.' " Gener then used a lockpick to open the backpack. The box inside the backpack contained a "Glock 21, .45 caliber semiauto pistol" and "two fully loaded high capacity magazines."
According to Gener, the entire traffic stop, including the search of the occupants and the car, took about 20 minutes. The officers never obtained a search warrant or asked Cooke for consent to search his car.
PROCEDURAL BACKGROUND
The People charged Cooke with one count of felony possession of a firearm under Penal Code section 29800, subdivision (a)(1). The People also alleged defendant suffered two prior felony convictions, one in 2006 and the other in 2008.
Cooke filed a motion to suppress the evidence obtained during the search of his car, including the handgun found in the trunk and any statements he made to the officers. At the combined motion to suppress and preliminary examination hearing, Gener was the only witness to testify.
The court denied Cooke's motion, finding the warrantless search of his car was valid under the Fourth Amendment. The court reasoned that after Gener witnessed the front-seat passenger throw marijuana from the car and smelled marijuana inside the car, and after the passenger admitted he threw marijuana from the car, the officers were justified to search the car, including the trunk, for evidence of "other drugs." Because Cooke consented to the search of his backpack found in the trunk, the court concluded the entire search was justified under the Fourth Amendment. Cooke was held to answer.
Cooke later filed a combined motion to set aside the information and renewed motion to suppress the evidence obtained during the traffic stop. The court denied Cooke's motion. With respect to the renewed suppression motion, the court concluded that the officers had probable cause to search Cooke's entire car based on the front-seat passenger's possession of marijuana and the odor of marijuana emanating from Cooke's car.
Cooke pled no contest to felony possession of a firearm. The court suspended imposition of Cooke's sentence and placed him on three years' probation.
Cooke filed a timely notice of appeal.
DISCUSSION
Cooke challenges the denial of his suppression motions, arguing the warrantless search of his car violates the Fourth Amendment. As we explain, while the officers may have been justified in searching the passenger compartment of Cooke's car, they lacked justification to search the car's trunk without a warrant. The trial court, therefore, should have granted Cooke's initial motion to suppress the evidence found during the search of the trunk of his car, including the firearm found in his backpack.
The Fourth Amendment protects against unreasonable searches and seizures of private property. (U.S. Const., 4th Amend.) Warrantless searches are per se unreasonable "subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357.) A defendant may move to suppress evidence obtained through an illegal search. (Pen. Code, § 1538.5.) When a defendant challenges a warrantless search or seizure, the prosecution bears the burden of proving the government's conduct was justified. (People v. Johnson (2006) 38 Cal.4th 717, 723.)
On appeal from a denial of a motion to suppress evidence, we defer to the trial court's express or implied factual findings if they are supported by substantial evidence. (People v. Macabeo (2016) 1 Cal.5th 1206, 1212.) But we exercise our independent judgment in determining whether, based on the court's findings, the search or seizure was reasonable under the Fourth Amendment. (Macabeo, at p. 1212.)
Cooke doesn't dispute that the initial traffic stop was lawful since he was driving with his headlights off in the dark. There also is no question that the officers were justified in asking Cooke and the two passengers to exit the car once it was parked. (See Maryland v. Wilson (1997) 519 U.S. 408, 415 ["an officer making a traffic stop may order passengers to get out of the car pending completion of the stop"]; Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 518 [same].) Cooke contends, however, that once the occupants were removed, the officers lacked justification to search any part of his car, including the passenger compartment and trunk.
The People, on the other hand, argue the officers' search of Cooke's car, including the trunk, was justified because they had probable cause to believe it contained " 'additional' " marijuana and evidence of "narcotics sales." Under the automobile exception, if the police have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband, they may search any area of the vehicle where that evidence or contraband might be found. (People v. Evans (2011) 200 Cal.App.4th 735, 753; United States v. Ross (1982) 456 U.S. 798, 825 ["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."].) Probable cause is a more exacting standard than reasonable suspicion. (People v. Lee (2019) 40 Cal.App.5th 853, 862 (Lee).) Probable cause exists where the objective facts and circumstances known to the police are sufficient such that a reasonable person would believe contraband or evidence of a crime will be found. (Ornelas v. United States (1996) 517 U.S. 690, 696.)
Relying primarily on People v. Strasburg (2007) 148 Cal.App.4th 1052 (Strasburg) and People v. Dey (2000) 84 Cal.App.4th 1318 (Dey), the People argue the officers had probable cause to search Cooke's entire car, including the trunk, based on Gener: (1) seeing the front-seat passenger throw a small amount of marijuana from the car; (2) smelling a strong odor of marijuana emanating from the car; and (3) finding a "large sum" of money in small denominations on the front-seat passenger during the pat search. The People's reliance on Strasburg and Dey is misplaced because those cases predate the passage of Proposition 64, which has significantly changed how law enforcement officers may rely on the presence of marijuana to justify warrantless searches of automobiles. (See People v. Johnson (2020) 50 Cal.App.5th 620, 628-635 (Johnson).)
In Strasburg, the appellate court upheld a warrantless search of the defendant's car because the arresting officer had probable cause of a drug violation once he smelled the odor of marijuana emanating from the car. (Strasburg, supra, 148 Cal.App.4th at pp. 1059-1060.) Although qualified patients were permitted to carry up to eight ounces of marijuana when Strasburg was decided, possession of the drug for recreational or other purposes was still criminalized. (Id. at pp. 1057-1058.) And, while the medical marijuana law protected qualified patients possessing a lawful amount of marijuana from prosecution, the law did not preclude law enforcement officers from relying on the presence or odor of marijuana inside a vehicle from investigating whether the occupants were possessing a legal amount of the drug or using it for lawful purposes. (Id. at pp. 1058-1059.) Thus, under the law at the time of Strasburg, the odor or presence of marijuana inside a car provided probable cause to search the car for evidence of a drug-related offense. (Id. at pp. 1059-1060.)
In Dey, officers conducted a warrantless search of the trunk of the defendant's car after they found a marijuana bud inside a day planner located in the car's passenger compartment. (Dey, supra, 84 Cal.App.4th at p. 1320.) The officers found additional marijuana in the trunk and then searched the hood of the car, where they found methamphetamine. (Ibid.) On appeal, the defendant challenged the denial of his motion to suppress, arguing the officers lacked justification to search the trunk based on the marijuana bud found in the passenger compartment. (Id. at p. 1321.) The reviewing court upheld the search, concluding that "a person of ordinary caution would conscientiously entertain a strong suspicion that even if [the] defendant makes only personal use of the marijuana found in his day planner, he might stash additional quantities for future use in other parts of the vehicle, including the trunk. Such a suspicion is sufficient for a search of the trunk." (Id. at p. 1322.)
In 2016, after Dey and Strasburg were decided, California voters passed Proposition 64, which added Health and Safety Code section 11362.1. That statute makes it lawful for people 21 years of age or older to possess marijuana for recreational purposes in certain circumstances. Relevant here, it is lawful to: (1) purchase, obtain, possess, or transport 28.5 grams or less of non-concentrated marijuana or 8 grams or less of concentrated marijuana. (§ 11362.1, subd. (a).) Subdivision (c) of that statute provides: "[Marijuana] and [marijuana] 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." (Id., subd. (c).)
All undesignated statutory references are to the Health and Safety Code.
Some uses and methods of possessing marijuana are still illegal, however. For instance, section 11362.3, subdivision (a)(4) prohibits "[p]ossess[ing] an open container or open package of [marijuana] or [marijuana] products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle ... ." Likewise, Vehicle Code section 23222, subdivision (b)(1) makes it an infraction to possess a container of marijuana that is open or has a broken seal while operating a car. But that provision does not apply where the open or unsealed container of marijuana or loose marijuana flower is located in the car's trunk. (Veh. Code, § 23222, subd. (b)(2).) And, obviously, it is illegal to operate a car while under the influence of marijuana. (Veh. Code, § 23152, subd. (f).)
As the courts in Lee, Johnson, and People v. Hall (2020) 57 Cal.App.5th 946 (Hall), among others, have observed, the passage of Proposition 64 undercuts "much of Strasburg's probable cause analysis" because section 11362.1, subdivision (c) expressly precludes law enforcement officers from conducting a warrantless search of a car based solely on the odor of marijuana or the lawful possession of the drug. (Lee, supra, 40 Cal.App.5th at p. 865; see also Johnson, supra, 50 Cal.App.5th at p. 629 ["section 11362.1 undercuts the continued viability of Strasburg's holding that the odor of marijuana alone establishes probable cause post-Proposition 64"]; Hall, at p. 955 [same].) Thus, law enforcement officers need to observe more than the odor of marijuana or a lawful amount of the drug inside a car to establish probable cause to search the car for contraband or evidence of illegal activity. (People v. McGee (2020) 53 Cal.App.5th 796, 802 ["mere presence of a lawful amount of marijuana," without more, is insufficient "to establish probable cause to search under the automobile exception"]; Johnson, at p. 634 ["the odor of marijuana alone no longer provides an inference that a car contains contraband because individuals over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana"].)
Here, Gener testified that he saw the front-seat passenger throw what appeared to be several small, loose nuggets of marijuana out of the front window of Cooke's car after the officers initiated the traffic stop. According to Gener, the marijuana didn't appear to be in a baggie when it was thrown. Once the occupants were removed from the car, the front-seat passenger confirmed that he threw marijuana out of the car. Gener also smelled what he described as a "strong odor" of marijuana emanating from the car when he approached it. Armed with this information, Gener had probable cause to suspect that Cooke or a passenger in his car were in possession of an open container of marijuana while Cooke was driving. Gener, therefore, was authorized to search the passenger compartment of Cooke's car because it is illegal to possess loose leaf marijuana or open or unsealed containers of the drug in the passenger compartment while driving. (See § 11362.3, subd. (a)(4); Veh. Code, § 23222, subd. (b)(1).) But that information did not provide Gener probable cause to search Cooke's trunk since it is lawful to transport loose leaf, or open or unsealed containers of, marijuana in the trunk of a car. (See Veh. Code, § 23222, subd. (b)(2).)
Gener also lacked probable cause to search the trunk for evidence of the illegal sale of marijuana or additional marijuana that exceeded 28.5 grams—i.e., the amount of non-concentrated marijuana a person may lawfully possess. (See § 11362.1, subd. (a)(1).) Gener testified only that he saw the passenger throw "several little nuggets" of marijuana out of the car. Gener never found the marijuana that was thrown from the car, or any other marijuana inside the passenger compartment of Cooke's car, and there is no other evidence in the record to suggest that Cooke or any of the passengers were in possession of an amount of marijuana that exceeded the legal limit. While Gener smelled what he believed was a "strong odor" of marijuana, he didn't testify about any specialized training or expertise he has in being able to ascertain the amount of marijuana a person possesses based on the odor of the drug. (See Johnson, supra, 50 Cal.App.5th at p. 634 [although the officer testified he smelled marijuana, there was no evidence or testimony establishing a connection between the odor and the presence of illegal conduct involving the drug].)
Nor was the existence of a "large sum" of small denomination bills on the front-seat passenger's person and inside the passenger compartment, coupled with the odor of marijuana and the presence of a small amount of the drug, sufficient to establish probable cause that Cooke or any of the passengers possessed marijuana to illegally sell. Gener never testified about any specific amount of money he found on the passenger or inside the passenger compartment. While cash may be indicative of drug sales, it is completely legal to possess cash while driving or riding in a car, even in "large sums." Without other evidence of illicit conduct, such as a scale or baggies that could be used to facilitate drug sales, the mere presence of cash and observation of only a small quantity of marijuana does not constitute probable cause to suspect a car contains evidence of illegal sales. (See Lee, supra, 40 Cal.App.5th at p. 866.)
Finally, there was no evidence to support a search of the trunk as part of an investigation into whether Cooke was driving under the influence of marijuana. As Gener testified, he didn't observe any burnt or lit marijuana, and he never testified that the odor of marijuana coming from the car smelled like it had recently been burned. Gener didn't testify that Cooke appeared to be under the influence of the drug, nor did the officer ask Cooke any questions about whether he had recently used the drug or make Cooke participate in a field sobriety test.
In sum, we conclude that, while the officers were justified in searching the passenger compartment of Cooke's car for evidence of loose leaf or open or unsealed containers of marijuana, the officers lacked probable cause to search the trunk of Cooke's car for contraband. Consequently, the search of the trunk and the containers found in the trunk, including Cooke's backpack and the gun box contained in the backpack, violated Cooke's Fourth Amendment rights. The trial court, therefore, should have granted Cooke's first motion to suppress the evidence found in the trunk of his car, including the firearm.
The People don't rely on the probation exception to the warrant requirement on appeal, and the lower court didn't rely on it in denying defendant's suppression motions. We nevertheless note that although the passenger's probation status may have authorized the officers to conduct a warrantless search of the areas of the passenger compartment where the front-seat passenger " 'could have stowed personal belongings or discarded items when aware of police activity' " (People v. Cervantes (2017) 11 Cal.App.5th 860, 871), none of the "attendant circumstances" support an inference that the passenger had access to the car's trunk to authorize a warrantless search of that compartment. (See People v. Schmitz (2012) 55 Cal.4th 909, 926, fn. 16.)
DISPOSITION
The order placing Cooke on probation is reversed. On remand, the trial court shall vacate its orders denying Cooke's motions to suppress, enter a new order granting Cooke's first motion to suppress, allow Cooke to withdraw his no contest plea, and make other orders consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J. WE CONCUR:
EGERTON, J.
DHANIDINA, J.