Opinion
F052404
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JAMES JEFFERY MUHAMMAD, Defendant and Appellant.
Law Office of Michael J. McGinnis and Michael J. McGinnis for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.
Defendant pled no contest to one count of possession of a controlled substance (cocaine base), a violation of Health & Safety Code section 11350, subdivision (a), after the court denied his motion to suppress evidence brought pursuant to Penal Code section 1538.5. Defendants sole contention on appeal is that the trial court erred in denying the motion to suppress. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 11, 2003, around midnight, Fresno Police officer Edward Louchren was dispatched to Masten Towers, an apartment building in downtown Fresno. The security guard at the building, Mr. Mora, told Louchren that, just minutes before, he had seen a drug transaction. He said he saw a resident of Masten Towers, Al Dansby, buy drugs from the black male driver of a white Cadillac, with a specified license plate number. Mora stated he had grown up on the streets and had seen drug sales before. He saw a clear baggie with a white substance in it he believed to be drugs handed from the driver to Dansby; Dansby carried it in open view back to the building.
Dispatch checked the license number of the Cadillac and identified defendant as its registered owner. Louchren accompanied Mora to Dansbys apartment. When Dansby opened the door, Mora identified him as the buyer in the drug transaction. Louchren explained that he was investigating a report that Dansby had purchased drugs and brought them to his apartment. Louchren asked Dansby if he knew defendant, and if he had bought narcotics from defendant. Initially, Dansby said no, but then he confirmed the report. Dansby consented to a search of his apartment; Louchren observed drug paraphernalia and possible rock-base cocaine on a table inside.
Before he went into Masten Towers, Louchren met with Officer Ron Flowers and updated him on the investigation. After finding narcotics in Dansbys apartment, Louchren radioed Flowers and told him Moras information appeared to be confirmed — that defendant had sold narcotics and was driving a white Cadillac in the area.
On the same date, at around midnight, Flowers also was dispatched to Masten Towers; he received Louchrens information about a white Cadillac Deville with a specified license plate and a black male driver being involved in narcotic activity. The registered owner of the vehicle was identified. As he arrived at Masten Towers, Flowers observed a white Cadillac drive by. He reentered his patrol car, caught up with the Cadillac, and confirmed that the license was the same as that in the dispatch. As he was putting out that information, Louchren asked him to initiate a traffic stop, indicating he had discovered evidence of narcotics or narcotics sales involving defendant.
Flowers stopped the Cadillac as an investigative stop in a possible narcotics case. He asked the driver, defendant, for his drivers license; the window was down, and Flowers smelled a strong odor of burned marijuana. He asked defendant to get out of the car and the passenger to remain in it. Believing there might be marijuana in the car or on defendants person, Flowers searched defendant. Flowers was also concerned about officer safety; the dispatch had included a report that defendant might be armed. Flowers testified at one point that he did not do a pat down, but simply searched defendant; at another point, he testified he first patted defendant down, then, when he felt objects in defendants pocket, entered the pocket and found marijuana and a bindle of an off-white rocky substance he believed to be cocaine base, after which he searched for weapons. Flowers handcuffed defendant, then removed the passenger and searched the car. He found no more narcotics. When he subsequently inventoried the vehicle, he found no marijuana, no ashes or other evidence of marijuana use, and no paraphernalia.
Defendant was charged with: count 1, possession of cocaine base (Health and Safety Code, § 11350, subd. (a)); count 2, possession of cocaine base for sale (§ 11351.5); count 3, transportation of cocaine base for sale (§ 11352, subd. (a)); and count 4, sale of cocaine base (§ 11352, subd. (a)). Defendant filed a motion to suppress evidence. After a hearing, the court denied the motion, concluding defendant was first patted down and searched for drugs, then searched for weapons, all prior to being arrested. The court stated the prearrest pat down and search for drugs exceeded the scope of search permitted during a temporary detention, which permits only a limited search for weapons. Nonetheless, the court concluded, "based on the temporal sequence of the pat-down and search for drugs and the later search for weapons, immediately after the search for drugs ... that contraband would have been inevitably discovered, even if the search had only been for officer safety concerns." Defendant asserts his petition for writ of mandate and petition for habeas corpus seeking review of the ruling on his motion to suppress were both denied.
All further statutory references are to the Health and Safety Code, unless otherwise specified.
After his motion to suppress was denied, defendant pled no contest to count 1, and the remaining counts were dismissed. Defendant appeals, again seeking review of the denial of his motion to suppress evidence.
DISCUSSION
I. Standard of Review
"`The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 924.) "In conducting our independent review, we are concerned with the correctness of the ruling, not the trial courts reasoning. [Citations.]" (People v. Zichwic (2001) 94 Cal.App.4th 944, 951.)
II. Validity of Search
Defendant does not challenge the legality of the initial stop of his vehicle. He contends that the stop and detention, based only on reasonable suspicion that he had engaged in an illegal drug transaction, justified only a pat search for weapons. He asserts the initial pat search and "full blown" search for drugs, which resulted in the discovery of drugs in his pocket, exceeded the scope of a permissible search during a temporary detention. He contends the trial courts conclusion that discovery of the drugs was inevitable because they would have been found during the second, lawful search for weapons was unsupported by the evidence, because the evidence did not demonstrate that there were two separate searches — one for drugs and a subsequent one for weapons. Alternatively, he argues the second search "was not sufficiently distinguishable and independent to purge the primary taint" of the initial illegal search.
"[C]ircumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation." (In re Tony C. (1978) 21 Cal.3d 888, 892.) "`In order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him [or her] to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he [or she] intends to stop or detain is involved in that activity. [Citation.]" (In re Eskiel (1993) 15 Cal.App.4th 1638, 1641.) The officer may make a reasonable search for weapons if he or she has reason to believe a suspect is armed and dangerous. (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.) Generally, the permissible weapons search is limited to a pat down of the suspects outer clothing, unless, during the pat down, the officer discovers something that reasonably feels like a weapon; in that event, the officer is permitted to reach into the suspects clothing for the limited purpose of recovering the object thought to be a weapon. (People v. Collins (1970) 1 Cal.3d 658, 662-663.) "Feeling a soft object in a suspects pocket during a pat-down, absent unusual circumstances, does not warrant an officers intrusion into a suspects pocket to retrieve the object." (Id. at p. 662.) "[A] soft object may not be retrieved by a police officer performing a patdown search unless its incriminating character is `immediately apparent." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
"Probable cause to arrest exists when the facts and circumstances known to the arresting officer `"`warrant a [person] of reasonable caution in the belief that an offense has been or is being committed [by the person to be arrested]." [Citations.]" (People v. Souza (1994) 9 Cal.4th 224, 230.) "When an officer has probable cause to arrest a person for narcotics possession, the warrantless search becomes justified as a search incident to arrest. [Citation.] An officer may thoroughly search an individual incident to a lawful arrest. [Citation.] Moreover, when the formal arrest follows quickly on the heels of the challenged search, it is not important that the search preceded the arrest rather than vice versa. [Citation.]" (People v. Avila, supra, 58 Cal.App.4th at p. 1075.)
If, as defendant contends, his detention was based solely on reasonable suspicion that defendant had engaged, or was engaging, in unlawful conduct (the drug sale transaction), the only search permitted was a pat down of his outer clothing for weapons. If only a pat down for weapons was justified, then a "full blown" search, including entry into defendants pockets without any cause to believe they contained weapons, was not justified. There was no evidence that Flowers had any reason to believe there was a weapon in the pocket in which he found the drugs. There was no evidence that, when Flowers patted defendants pocket, the incriminating character of the objects inside was immediately apparent. Thus, the drugs would not inevitably have been discovered during a lawful pat down for weapons.
We reject defendants premise that, at the time of the search, Flowers had only a reasonable suspicion of criminal activity to support his search. Prior to stopping defendant, Flowers was aware that a report had been received that a black man driving a white Cadillac Deville with a specified license number had been involved in a drug transaction and that the information and defendants identity had been confirmed by Louchrens investigation. Louchren testified about the information he received from Mora, his reasons for believing Mora to be a credible citizen informant, the confirmation of Moras information and of defendants identity he received from the drug buyer, Dansby, and his transmission to Flowers of his confirmation of the information that defendant had sold narcotics and was driving a white Cadillac in the area. After Flowers stopped the Cadillac, defendant produced his drivers license, which confirmed that he was the person from whom Dansby had purchased drugs.
Thus, at the time Flowers initiated the search, the facts and circumstances known to him were sufficient to warrant a person of reasonable caution in the belief that an offense had been committed by defendant. He had probable cause to arrest defendant and to conduct a warrantless search incident to that arrest. Such a search is not limited to a pat down of the outer clothing; intrusion into the suspects pockets and removal of contraband is permitted. The search of defendant and seizure of the drugs from his pocket was valid on this ground.
Additionally, when Flowers approached defendant in the Cadillac, Flowers smelled a strong odor of burnt marijuana through the open car window. Detection of such an odor has been held to supply probable cause to arrest a suspect. In People v. Fitzpatrick (1970) 3 Cal.App.3d 824, an officer made a valid traffic stop of a vehicle. When the driver opened the window to hand his drivers license to the officer, the officer smelled the odor of burned marijuana. The court upheld a search of the defendant, including the pockets of his jacket, concluding it was a search incident to an arrest for which the odor of marijuana provided the probable cause. (Id. at p. 826; accord, People v. Lovejoy (1970) 12 Cal.App.3d 883. See also, Mann v. Superior Court (1970) 3 Cal.3d 1, 7, where the court held officers who detected an odor of marijuana smoke upon entering a residence had probable cause to believe that a felony was being committed in their presence and to arrest the occupants.) The fact that the drugs have already been ingested and are no longer physically in the defendants possession does not preclude an arrest for possession. "[L]oss or destruction of evidence by ingestion should not defeat a possession charge. [Citations.] [W]e see no reason why a drug possession charge could not be based on direct or circumstantial evidence of past possession." (People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242.)
The odor of burnt marijuana coming from the interior of a vehicle, particularly where the vehicle was reported to have been involved in a narcotics transaction and was being driven by a person identified as having been involved in that transaction, provided the probable cause necessary to arrest defendant for possession of marijuana. The subsequent "full blown" search of defendant for drugs was justified as a search incident to arrest.
"The fact that a defendant is not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest. [Citations.]" (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240.) Here, probable cause to arrest preceded both arrest and search. The search took place immediately prior to the formal arrest and was therefore substantially contemporaneous with it. The search was therefore lawful, and defendants motion to suppress the evidence acquired as a result of the search was properly denied.
DISPOSITION
The judgment (order denying motion to suppress) is affirmed.