Opinion
C088939
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA RAY VANSTEEN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F3715)
After a trained narcotics detection dog alerted to a backpack in defendant Joshua Ray Vansteen's vehicle, officers searched the backpack and found methamphetamine. On appeal, defendant challenges the trial court's denial of his motion to suppress arguing the search of the vehicle lacked probable cause because the dog could have alerted to a legal amount of cannabis. We will affirm.
BACKGROUND
A police officer pulled defendant over for improper registration tags. After defendant withdrew his initial consent to search the vehicle, the officer retrieved his narcotics detection dog, named Aero, from the patrol car. Aero is certified by the State Commission on Peace Officer Standards and Training (POST) to detect methamphetamine, cocaine, heroin, cannabis, and ecstasy. The officer walked Aero around defendant's pickup truck and Aero made an alert through the driver's open door to a backpack in the driver's compartment by putting his nose on the backpack and sitting down. The officer searched the backpack and discovered a small black safe that opened with the keys found in the vehicle. Inside the safe was approximately 17 grams of a crystalline substance, later determined to be methamphetamine.
Defendant was charged with two felony drug charges: possession for sale of a controlled substance in violation of section 11378 of the Health and Safety Code, and sale or transportation of a controlled substance in violation of section 11379, subdivision (a) of the Health and Safety Code. Defendant moved to suppress the evidence discovered from the search of the backpack. After a Penal Code section 1538.5 hearing, the trial court denied the motion. Defendant then pleaded no contest to sale or transportation of a controlled substance.
DISCUSSION
Defendant appeals the trial court's denial of his motion to suppress arguing the search of his vehicle lacked probable cause because, given that Aero could have alerted to a legal amount of cannabis, a sniff from a dog trained to detect marijuana in addition to other substances cannot by itself provide probable cause for a search. We reject this argument and affirm the trial court's order.
The standard of review for a suppression ruling "is well established. We defer to the trial court's 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." (People v. Glaser (1995) 11 Cal.4th 354, 362.) Defendant does not challenge the underlying facts of the trial court's ruling, so we review the legal issues independently.
"[T]he Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause." (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059.) Probable cause exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Id. at p. 243, fn. 13) "Under California case law, 'A dog alert can provide the probable cause needed for a search warrant.' " (People v. Stillwell (2011) 197 Cal.App.4th 996, 1006.)
Probable cause existed to search defendant's truck. Aero, a trained and POST-certified narcotics dog, alerted to defendant's backpack located in the truck. Under California law, this alert created a "fair probability" that defendant's backpack contained contraband. (See People v. Stillwell, supra, 197 Cal.App.4th at p. 1006 ["California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search"]; People v. Bautista (2004) 115 Cal.App.4th 229, 236 ["A dog alert can provide the probable cause needed for a search warrant"].)
California's cannabis laws do not negate probable cause here. Though some possession of cannabis is legal after the voters passed Proposition 64, the possession of cannabis can still be illegal as "[i]t remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed 'commercial cannabis activity,' and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving." (People v. Fews (2018) 27 Cal.App.5th 553, 561.) Further, all the other substances Aero is trained to detect, methamphetamine, cocaine, heroin and ecstasy, are illegal to possess in any quantity. Because Aero's alert raised a probability or substantial chance that defendant's backpack contained contraband, probable cause existed for the officer's search.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
KRAUSE, J.