Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF224419. Joseph A. Kalashian, Judge.
Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Kane, J. and Poochigian, J.
Defendant Tyrone Lee contends the trial court erroneously denied his suppression motion because (1) the officer was not justified in performing a patdown search for weapons under the circumstances, and (2) even if defendant’s patdown search was justified, the officer’s inquiry into the nature of the lump in his pocket exceeded the limits of a patdown search. We will affirm the judgment.
PROCEDURAL SUMMARY
On March 4, 2010, defendant was convicted of transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1); resisting an executive officer (Pen. Code, § 69; count 2); battery upon an officer or emergency personnel (§ 243, subd. (b); count 3); unauthorized entry of a dwelling (§ 602.5, subd. (a); count 4); and possession of 28.5 grams or less of marijuana (Health & Saf. Code, § 11357, subd. (b); count 5).
Unless otherwise stated, all statutory references are to the Penal Code.
The trial court denied defendant’s suppression motion filed pursuant to section 1538.5, and on April 7, 2010, sentenced defendant to prison for five years and imposed a restitution fine of $2,500.
FACTS
At approximately 1:15 p.m. on June 25, 2009, Officers Carsten and Alfano spotted a 1985 Mercedes while on patrol in the city of Visalia. Upon discovering that the vehicle’s registration was expired, Carsten “activated [his] emergency lights” and pulled the car over. Carsten approached the driver, ran a license check, and discovered the driver’s license was expired. While Carsten was talking to the driver, Alfano approached the passenger side where defendant was sitting.
Defendant opened the car door as Alfano approached, and Alfano began to smell a marijuana odor coming from the car. Alfano asked defendant to step out of the passenger’s side. When defendant stepped out and approached Alfano, Alfano smelled marijuana coming from defendant’s person. Based on Alfano’s training and experience as a police officer for nearly nine years, he was aware that weapons often accompany drugs. He also suspected that defendant possessed drugs, and Alfano wanted to search defendant for drugs. Alfano performed a patdown search of defendant.
During the search, Alfano felt an object that resembled a plastic baggie located on the side of defendant’s shorts at the “top of the pocket.” The baggie felt as if it had something inside of it. As Alfano pulled the baggie out of defendant’s pocket, defendant tried to run away.
Alfano in fact pulled out two baggies, one of which contained marijuana and the other cocaine base.
DISCUSSION
I. Standard of Review
Our standard of review on appeal from the denial of a motion to suppress is well established. We defer to the trial court’s factual findings where supported by substantial evidence, including reasonable inferences supported by those facts, but we must exercise our independent judgment to determine whether, on the facts found, the search and seizure were reasonable under the Fourth Amendment standards of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596-597; Ornelas v. United States (1996) 517 U.S. 690, 699.) “On appeal we consider the correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons for reaching its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976) [if the trial court’s ruling is correct ‘“‘upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion’”’]; People v. Braeseke (1979) 25 Cal.3d 691, 700-701.)” (People v. Letner (2010) 50 Cal.4th 99, 145.)
II. Analysis
Defendant contends that the warrantless patdown search and seizure conducted by Alfano violated his Fourth Amendment rights. The People counter that the search was a lawful patdown for weapons and the seizure of the baggie was justified under the “plain feel” doctrine. Under that doctrine, when an officer lawfully pats down a suspect’s outer clothing “and feels an object whose contour or mass makes its identity immediately apparent” as contraband, the officer may lawfully remove the object. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375-376, italics added; People v. Dibb (1995) 37 Cal.App.4th 832, 836-837.)
We agree that the search constituted a lawful patdown for weapons. (People v. Collier (2008) 166 Cal.App.4th 1374 [patdown search justified where officer smelled marijuana upon passenger’s exit from car; officer’s suspicion that passenger possessed drugs supported the further suspicion he might be armed because guns often accompany drugs].) But we need not decide whether the seizure of the baggie from defendant’s pocket was reasonable under the “plain feel” doctrine—that is, that the seizure was reasonable because the lump was immediately recognizableas contraband. Instead, we conclude the seizure was justified because Alfano had probable cause to arrest defendant based on all the circumstances. We will explain.
Pursuant to Government Code section 68081, we requested supplemental briefing from the parties on this issue.
An officer can make a warrantless arrest when the officer has probable cause to believe that the person has committed a felony, or has committed a misdemeanor in the officer’s presence. (§ 836, subd. (a).) “‘Probable cause for arrest exists “when the facts known to the arresting officer ‘would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ [Citations.]” [Citation.]’” (People v. Limon (1993) 17 Cal.App.4th 524, 537.) When an officer has probable cause to arrest a person, a warrantless search is justified as a search incident to arrest. (Virginia v. Moore (2008) 553 U.S. 164, 178; People v. Dibb, supra, 37 Cal.App.4th at pp. 836-837.) Moreover, when the formal arrest follows quickly on the heels of the challenged search, it is not important that the search precedes the arrest rather than vice versa. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111; People v. Limon, supra, at p. 538.)
“[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.” (United States v. Humphries (4th Cir. 2004) 372 F.3d 653, 659; People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826-827 [odor of marijuana was more distinctive on the defendant than on other occupants of car; probable cause to arrest for possession of marijuana existed and search incident to arrest was justified]; see also People v. Lovejoy (1970) 12 Cal.App.3d 883, 887 [upon detecting strong odor of marijuana smoke emanating from vehicle, officer had reasonable cause to believe the four occupants were in possession of marijuana; odor of burning marijuana furnishes probable cause to believe that the substance itself is present (citing cases)]; People v. Temple (1995) 36 Cal.App.4th 1219, 1227-1228 [no evidence to connect marijuana odor to the defendant rather than other four occupants of van; therefore, no probable cause to arrest for possession of marijuana existed and search incident to arrest was not justified]; People v. Collier, supra, 166 Cal.App.4th at p. 1377 [strong odor of marijuana emanating from passenger’s side of vehicle did not provide probable cause to arrest passenger for a drug offense, but did provide police officer with reasonable suspicion that passenger was possessing or transporting drugs].)
In this case, Alfano not only smelled the odor of marijuana coming from the car as defendant exited, he smelled it on defendant himself when he approached Alfano. Thus, Alfano was able to connect and localize the odor to defendant. Based on these facts, Alfano reasonably believed defendant possessed marijuana and was therefore committing a crime. Accordingly, Alfano had probable cause to arrest defendant for possession of marijuana and was entitled to seize the baggie from defendant’s pocket incident to his arrest.
DISPOSITION
The judgment is affirmed.