Opinion
C080603
05-26-2017
THE PEOPLE, Plaintiff and Respondent, v. WILBUR LAWRENCE CUMMINGS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM037628)
Defendant Wilbur Lawrence Cummings challenges the trial court's denial of his motion to suppress, contending it erred in admitting evidence discovered by law enforcement after an unlawful, warrantless search of his vehicle.
We disagree and affirm the judgment. The deputies had probable cause to search defendant's vehicle.
I. BACKGROUND
The facts are taken from the evidence presented at the May 23, 2013, hearing on defendant's motion to suppress.
On the night of October 21, 2012, Deputy Darrin Brown of the Butte County Sheriff's Office was driving around on routine patrol when he saw a blue Volkswagen Passat with a defective taillight drive by. Deputy Brown initiated a traffic stop by activating his overhead lights. Defendant, the driver of the Volkswagen, pulled over about one block after Deputy Brown initiated the stop.
Deputy Brown was in his first year with the Butte County Sheriff's Office. Previously, he had served as a police officer in the City of Willows for five years. He testified that, in the course of his law enforcement career, he had investigated dozens of narcotics cases.
Deputy Brown approached defendant, who rolled down his window approximately two inches. Deputy Brown told defendant why he stopped him, asked him where he was going, and asked to see defendant's identification. Deputy Brown could smell fresh, unburnt marijuana "coming from the vehicle." He asked defendant if there was marijuana in the car, defendant said there was not. Deputy Brown then asked defendant to step out of the car.
With defendant out of the car, Deputy Brown patted him down and asked Deputy Ryan Hutts, who also was at the scene, whether he could smell marijuana. Deputy Hutts said that he could. Deputy Brown asked defendant for permission to search the vehicle but defendant refused to give consent. Deputy Brown searched the vehicle anyway.
During his search, Deputy Brown found "a shard of white crystalline substance" on the driver's side floorboard. He believed that shard to be methamphetamine. In the vehicle, Deputy Brown also found a laptop-sized black bag, inside of which he found a brown paper bag containing several little baggies varying in sizes and shapes, each containing more of the white crystalline substance. He did not find any marijuana or marijuana smoking paraphernalia. Deputy Brown then contacted Detective Joseph Deal with the Butte Inter-Agency Narcotics Task Force.
Detective Deal worked for the Butte County Sheriff's Office for 12 years. He was personally involved in several narcotics investigations and had experience identifying methamphetamine. He also was familiar with the smell of fresh and burnt marijuana. When he arrived at the scene, he told Deputy Brown that based on the quantity of methamphetamine found in defendant's car, he believed the drugs were intended for sale. Detective Deal did not personally search the vehicle and he did not note any smells at the scene. He did, however, recover 99.07 grams of methamphetamine from the search of defendant's vehicle.
Deputy Brown arrested defendant and transported him to the Butte County Sheriff's Office where defendant admitted having "a glass smoking pipe on him, as well as other illegal contraband."
Angela Reiswig was the only witness to testify on defendant's behalf. She testified that approximately 20 minutes before he was stopped by Deputy Brown, defendant drove through the Jack-in-the-Box where she worked. She remembered defendant as a regular customer but they were not friends. In her experience, when someone pulls up to the drive through window, the air from the car gets "suck[ed] right in." So, if someone is smoking cigarettes or marijuana in the car, it "comes right in [her] face." That night, she did not smell anything in defendant's car.
At the conclusion of the suppression hearing, the trial court found Deputy Brown's testimony to be "believable" and denied defendant's motion to suppress.
On April 17, 2014, defendant filed a renewed motion to suppress. The court denied the motion, finding defendant was not entitled to a second evidentiary hearing and finding that Deputy Brown's testimony at the original hearing on May 23, 2013, was credible. The court then set the matter for trial.
The court repeatedly referred to the testimony of "Deputy Holtz" at the May 23, 2013, hearing as credible; however, Deputy Holtz did not testify at the May 23, 2013, hearing, Deputy Brown did. We presume the court misspoke and intended to refer to Deputy Brown's testimony.
Defendant filed a second renewed motion to suppress on November 26, 2014. Defendant argued that the court erred in denying his April 17 renewed motion to suppress "without considering it on the merits." The trial court heard defendant's renewed motion on February 25, 2015. Deputy Ryan Hutts testified at that hearing. The trial court later denied the renewed motion citing the transcript from the May 23, 2013, suppression hearing.
The clerk's transcript indicates that "Brian Hutss" testified at this hearing. Although the record does not include the testimony from the February 25, 2015, hearing, we presume the clerk's transcript reference is an error, and that Deputy Ryan Hutts testified.
On July 17, 2015, a jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378—count 1), transportation or sale of methamphetamine (§ 11379, subd. (a)—count 2), and possession of a narcotic smoking device, a misdemeanor (§ 11364.1—count 3). The jury also found true two enhancement allegations related to his crimes. The trial court subsequently placed defendant on three years' formal probation.
Undesignated statutory reference are the Health and Safety Code. --------
II. DISCUSSION
Defendant contends the trial court erroneously denied his suppression motion, arguing the warrantless search of his vehicle violated his Fourth Amendment rights. He further contends his convictions must be reversed. We reject defendant's contention.
"If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross[ (1982)] 456 U.S. 798, 820-821 authorizes a search of any area of the vehicle in which the evidence might be found." (Arizona v. Gant (2009) 556 U.S. 332, 347 [173 L.Ed.2d 485, 498].) The automobile exception applies where a car is being used as a car because it was readily mobile and there is a reduced expectation of privacy. (People v. Hochstraser (2009) 178 Cal.App.4th 883, 903-904.) "Under the automobile exception to the warrant requirement," the police have probable cause to search if they believe " 'an automobile contains contraband or evidence' " of a crime (People v. Waxler (2014) 224 Cal.App.4th 712, 718 (Waxler)) and may search " ' " 'every part of the vehicle and its contents that may conceal the object of the search' " ' " (id. at p. 719). We apply the totality of the circumstances test to determine whether there was probable cause for the warrantless search. (Illinois v. Gates (1983) 462 U.S. 213, 230-231, 238 .)
Here, after seeing that the vehicle had a broken taillight, Deputy Brown initiated a traffic stop. Brown approached defendant, who opened the window two inches. Brown smelled fresh marijuana and searched the car. Defendant contends the smell of fresh marijuana alone does not constitute probable cause to search a vehicle. Defendant's position is without merit.
A distinctive odor can provide probable cause "to conduct a search or seizure under the automobile or exigent circumstances exception to the warrant requirement." (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1240 [and cases cited therein]; see United States v. Neumann (1999) 183 F.3d 753, 756 [detection of smell of burnt marijuana while conducting search for open container gave officer probable cause to search entire car for drugs].) Under State of California law at the time defendant was stopped, "nonmedical marijuana—even in amounts within the statutory limit set forth in section 11357, subdivision (b)—[was] 'contraband' and [could] provide probable cause to search a vehicle under the automobile exception." (Waxler, supra, 224 Cal.App.4th at p. 715.)
It makes no difference whether the odor is of fresh or burnt marijuana: "[T]he odor of unburned marijuana or the observation of fresh marijuana may furnish probable cause to search a vehicle under the automobile exception to the warrant requirement." (Waxler, supra, 224 Cal.App.4th at p. 719.) Nor does the exception require, as defendant suggests, that Deputy Brown both see and smell the marijuana. (Ibid.)
Defendant further argues Deputy Brown's testimony that he smelled marijuana was not credible. In support of his argument, defendant points out that Deputy Brown was "an unseasoned officer," as he had only been employed with the Butte County Sheriff's Office for about six months, and, ultimately, no marijuana was found inside the car. He notes that Ms. Reiswig did not smell marijuana in defendant's car when he drove through Jack-in-the-Box 20 minutes before Deputy Brown pulled him over. And, he relies on Detective Deal's testimony that he did not note any smells at the scene that night.
But the trial court found Deputy Brown credible. We will not second guess the credibility determination made by the trial court. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Moreover, "[a] single witness's uncorroborated testimony, unless physically impossible or inherently improbable, is sufficient to sustain a conviction [citation]." (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372; accord, People v. Young (2005) 34 Cal.4th 1149, 1181 [uncorroborated testimony of a single witness is sufficient to sustain a conviction].) Deputy Brown's testimony was neither physically impossible nor inherently improbable.
Finally, defendant argues the automobile exception to the warrant requirement is no longer viable. In support of his argument he cites the United States Supreme Court's decision in Missouri v. McNeely (2013) 569 U.S. ___ (McNeely). Defendant reads that decision far too broadly. McNeely addresses only the exigency exception to the warrant requirement; it does not render nugatory the automobile exception. (Id. at p. 702.) Indeed, the court refers to the automobile exception as one in a "limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case. [(]See, e.g., California v. Acevedo [(1991)] 500 U.S. 565, 569-570, [automobile exception]; [citation].[)]" (Id. at p. 705, fn. 3.)
In short, we conclude the trial court did not err in denying defendant's motion to suppress. Substantial evidence supports the trial court's determination that there was probable cause to search defendant's vehicle.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
MURRAY, J.