Summary
holding that the fact that possession of marijuana was a federal crime did not provide state law enforcement officers with probable cause to search a vehicle because "to permit this end-run around [the state's] legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of [state] residents engaging in activity the state has deemed lawful"
Summary of this case from United States v. WhitlockOpinion
Case No. 19-cr-00605-RS-1
06-16-2020
UNITED STATES of America, Plaintiff, v. Cecil Divaya TALLEY, Defendant.
Christina T. Liu, United States Attorney's Office, San Francisco, CA, for Plaintiff. Ellen Valentik Leonida, Federal Public Defender's Office, San Francisco, CA, for Defendant.
Christina T. Liu, United States Attorney's Office, San Francisco, CA, for Plaintiff.
Ellen Valentik Leonida, Federal Public Defender's Office, San Francisco, CA, for Defendant.
ORDER GRANTING MOTION TO SUPPRESS
RICHARD SEEBORG, United States District Judge
I. INTRODUCTION
Defendant Cecil Talley moves to suppress all fruits of what he characterizes as an illegal search of his vehicle. The government responds that the search was legal because the officers had probable cause to believe the car contained contraband. A telephonic hearing was held on June 16, 2020. For the reasons explained below, Talley's motion to suppress is granted.
II. BACKGROUND
On July 24, 2019 at approximately 11:10 PM, two uniformed San Francisco Police Department ("SFPD") officers pulled Talley over for committing a traffic violation, specifically for driving in a lane reserved for buses and taxis. Talley concedes he violated § 7.2.72 of the California Traffic Code and does not contest the legality of the initial traffic stop. He does, however, challenge what happened next.
After Talley had pulled over, the first officer, Officer Griffin, approached the driver's side of Talley's vehicle and requested Talley's license and registration. Talley provided a valid license, a current registration, and proof of insurance, although it took him a few minutes to find the paperwork. During this initial exchange, Officer Griffin saw in the vehicle's center console a closed, clear plastic tube, about the size of a prescription pill bottle, containing what appeared to be marijuana. When Officer Griffin commented on the container, Talley showed the closed contained to the officer, as depicted on the body camera footage submitted in connection with this motion. See Dkt. No. 21-3, Mot. Ex. C ("Griffin BWC") at 1:46.
While Talley was searching for his papers and speaking with Officer Griffin, the second officer, investigating officer Ishida, approached the passenger's side of the vehicle and began speaking with the passenger. Shortly after the initial traffic stop, Officer Ishida called dispatch to request backup to assist with a vehicular search.
The government contends Officer Ishida placed this request only after Officer Griffin had seen the marijuana, determined a vehicular search was justified, and had "indicated to or instructed" Officer Ishida of this conclusion. See Officer Griffin Declaration, Dkt. No. 23-1 at 5. Talley, however, claims the body camera footage belies this narrative and instead shows that Officer Ishida placed the request to dispatch without speaking to Officer Griffin or seeing the marijuana for himself. This Order need not wade into this dispute, because for the reasons explained herein, suppression is required even under the government's version of events.
Officer Griffin then returned to his patrol car, after which Officer Ishida walked around to the driver's side to speak with Talley. Approximately two minutes later, Officer Ishida ordered Talley to step out of the vehicle and Officer Griffin performed a search of the vehicle, which uncovered a firearm wedged between the driver's seat and center console, as well as ammunition and several cell phones.
Talley was then placed under arrest. On September 20, 2019, Talley appeared in state court for a preliminary hearing on state charges stemming from this July 24, 2019 arrest. Both officers testified at this hearing. On November 12, 2019, a federal grand jury indicted Tally on one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Talley now brings this motion seeking to suppress all the evidence recovered in the search of his vehicle on the night of his arrest. He claims the officers' search of his vehicle was unlawful, because driving with less than 28.5 grams of marijuana in a closed plastic container is no longer a crime in California. According to Talley, the officers therefore lacked probable cause to perform a vehicular search.
Specifically, Talley moves to suppress: (1) a Smith and Wesson pistol; (2) all ammunition; (3) all cell phones and information derived through analysis of the seized phones; and (4) all biological evidence collected.
The government opposes Talley's motion. First the government contends that transporting any amount of marijuana in an unsealed container is a crime, so the officers did have probable cause to believe the car contained contraband. Alternatively, the government argues there was probable cause to believe that a federal crime was being committed, which independently justified their search.
III. LEGAL STANDARD
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." U.S. Const. amend. IV. Searches and seizures conducted without a warrant are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Due to the diminished expectation of privacy in one's vehicle as compared to on one's person, the "automobile exception" allows an officer to search a vehicle without a warrant if the officer has probable cause to believe the vehicle contains contraband. Carroll v. United States , 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925). "Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Davis , 530 F.3d 1069, 1084 (9th Cir. 2008) (internal quotations omitted). In general, probable cause "is not a high bar" and "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." Dist. of Columbia v. Wesby , ––– U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (internal quotation marks omitted). Lastly, as a general rule, "[e]vidence seized in violation of the Fourth Amendment, including any ‘fruit of the poisonous tree,’ may not be used in a criminal proceeding against the victim of the illegal search and seizure." United States v. Cervantes , 703 F.3d 1135, 1143 (9th Cir. 2012) (quoting Wong Sun v. United States , 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ).
IV. DISCUSSION
As the government observes, because Talley does not contest the propriety of the traffic stop, "the suppression dispute in this case is a narrow one: whether defendant's possession of the container of marijuana in his car provided the officers with probable cause to search his car under the Fourth Amendment." Opp. to Mot. to Suppress, Dkt. No. 23 at 6-7.
All page numbers refer to pagination on ECF.
--------
A. Marijuana in Vehicles Following Proposition 64
Proposition 64, passed in November 2016, decriminalized the possession of 28.5 grams of marijuana or less by persons age 21 and over in the state of California. See Cal. Health & Safety Code § 11357(b). Furthermore, Proposition 64 provided that "[c]annibis and cannabis products ... 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. § 11362.1(c) (emphasis added).
In the context of operating a motor vehicle, a person cannot lawfully drive under the influence of any drug, including marijuana. Vehicle Code § 23152(f). Likewise, a person cannot smoke marijuana while driving or while a passenger in a car. Health and Safety Code § 11362.3(a)(7) and (8). It is also illegal to possess an "open container or open package of cannabis or cannabis products while driving ...." Health and Safety Code § 11362.3(a)(4). The statute in question in this case is Vehicle Code § 23222, which states that, "while driving a motor vehicle," it is an infraction to possess "any receptacle containing any cannabis ... which has been opened or has a seal broken, or loose cannabis flower not in a container ...." Vehicle Code § 23222(b)(1).
B. Legal Transport Under State Law
Talley's use of the container at issue to transport marijuana was legal under California law. A plain reading of the statute suggests that transporting cannabis in a closed container is permissible. By contrast, the government's strained interpretation that any non-sealed container is illegal would render meaningless the final clause, which implies that transporting loose cannabis flower "in a container" is allowed.
This finding aligns with the conclusion of a state appellate court that considered the legality of transporting marijuana in this exact type of container—that is, a plastic "tube" which "could be opened by squeezing the sides of the tube, which flexed the top open." People v. Shumake , 259 Cal. Rptr. 3d 405, 407 (Cal. App. Dep't Super. Ct. 2019). In Shumake , a defendant also had this precise type of container in the center console of his vehicle. Following a traffic stop, police saw the container of marijuana and used it as grounds to conduct a vehicular search, which uncovered contraband. The defendant then moved to suppress, but the trial court denied his motion. The appellate court reversed, finding this identical container—closed although not "sealed"—complied with Vehicle Code § 23222(b)(1). The court found the officer's "belief that any cannabis being transported in a vehicle must be in a heat-sealed container is not supported by the plain language of Section 23222(b)(1)." Shumake , 259 Cal. Rptr. 3d at 408.
The court also held that, because this closed container complied with the statute, an officer could not rely on the container as support for the inference of additional marijuana or other contraband in the vehicle. Id. at 409. Indeed, such an inference would violate California law. Health and Safety Code § 11362.1 ("[N]o conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest."); see also People v. Lee , 40 Cal. App. 5th 853, 866, 253 Cal.Rptr.3d 512 (4th Dist. 2019) ("[P]ossession of a small and legal amount of marijuana provides scant support for an inference that [the] car contained contraband").
Shumake 's reasoning is persuasive. Talley's use of a closed plastic container to transport less than 28.5 grams of marijuana was legal under California law and could not provide officers with probable cause to search Talley's vehicle.
C. Violation of Federal Law
Alternatively, the government contends that even if Talley's transport of marijuana was not illegal under state law, possession of marijuana is still illegal under federal law, and thus the officers could rely on Talley's container of marijuana to believe that the vehicle contained contraband. Marijuana remains a Schedule I controlled substance under federal law. See 21 U.S.C. § 812(c), Sched. I(c)(10); Raich v. Gonzales , 500 F.3d 850, 854 (9th Cir. 2007). The Ninth Circuit has repeatedly declined to decide the question of whether state law enforcement officers may rely on likely violations of federal law to support probable cause. See United States v. Martinez , 811 Fed. Appx. 396, 397–98, (9th Cir. Apr. 20, 2020) (unpublished) (declining to address for first time on appeal whether California police officer's warrantless search of car could be based on federal drug laws); United States v. Gray , 772 Fed. Appx. 565, 567 (9th Cir. 2019) (unpublished). However, the Ninth Circuit has previously held that local police officers did not have probable cause based on alleged violations of federal law when the officers were, at the time, investigating a violation of state law. See United States v. $186,416.00 in U.S. Currency , 590 F.3d 942, 948 (9th Cir. 2010). This suggests that officers' post-hoc explanations that federal law supported probable cause are insufficient, when in fact they were relying on mistaken interpretations of state law.
Moreover, at least one court in this District that confronted the question concluded that federal marijuana law could not provide an alternative basis for probable cause. In United States v. Jones , the government argued that "although California has decriminalized the possession of small amounts of marijuana, possession of marijuana is still illegal under federal law, and thus the officers could rely on the smell of marijuana to believe that the vehicle contained contraband." No. 19-cr-00013, 438 F.Supp.3d 1038, 1053, (N.D. Cal. Feb. 10, 2020). The court rejected this argument and instead held that, after the passage of Proposition 64, the smell of marijuana does not itself provide probable cause or reasonable suspicion to believe a vehicle contains contraband and search it. The court therefore granted defendant's motion to suppress, remarking that the officers involved were "San Francisco Police Department officers charged with enforcing California law, not federal law" and that the government did not produce "objective, specific facts" that any California marijuana-related offense had been committed." Jones , 438 F.Supp.3d at 1053–54, ; see also Commonwealth v. Craan , 469 Mass. 24, 13 N.E.3d 569, 578 (2014) ("Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana").
Here, federal law cannot provide an alternate basis for probable cause. To hold otherwise would allow officers to disregard entirely the California legislature's directive that "no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest." Id. § 11362.1(c). Indeed, it would lead to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce. See Printz v. United States , 521 U.S. 898, 918-19, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Moreover, practically speaking, to permit this end-run around California's legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of California residents engaging in activity the state has deemed lawful. Without appellate authority compelling such a result, the undersigned will not sign off on this potentially sweeping erosion of constitutional rights.
D. Good Faith Exception
Lastly, the government argues that, even if the search of Talley's car was unconstitutional, suppression is not warranted, because the error was based on the officers' objectively reasonable, good-faith belief that their conduct was lawful. Admittedly, when making their probable cause determination, Officers Ishida and Griffin did not have the benefit of the Shumake decision, which was rendered months later. Nonetheless, the Shumake decision did nothing to alter the interpretation of state law; rather it was explicitly premised on the plain meaning of the statute, which officers are expected to know. See Shumake , 259 Cal. Rptr. 3d at 408 ("A plain reading of the statute mandates the conclusion that the possession of the cannabis flower in this case was lawful."). The California Vehicle Code clearly permits the transport of "loose cannabis flower ... in a container." The officers' contrary conclusion was unreasonable.
Moreover, the executing officers' inferences stemming from the presence of this small amount of marijuana were similarly problematic. For example, Officer Ishida's narrative incident report states: "Based on my training and experience, I know that individuals who transport marijuana will have weapons concealed on their person. Based on this knowledge, I removed Talley from the vehicle and performed a high profile cursory pat search of Talley for weapons with negative results." Ex. A to Leonida Declaration, Dkt. No. 21-1 at 8. Officer Ishida uses similar language to justify the search of the passenger. See id. at 9 ("Based on my training and experience, I know that individuals who may be transporting large amounts of marijuana will have weapons concealed on their person.") (emphasis added).
These sorts of inferences are unreasonable in light of what was the legal transport of a small quantity of marijuana in a closed container. As Officer Ishida himself said to Talley when disingenuously reassuring Talley that he was not in trouble for transporting marijuana, "It's 2019 California." Dkt. No. 21-2, Mot. Ex. B ("Ishida BWC") at 3:03. Possession of a recreational amount of marijuana, without more, no longer justifies sweeping inferences of criminality to support probable cause. The good faith exception will not apply.
V. CONCLUSION
For the foregoing reasons, Talley's motion to suppress is hereby granted. A telephonic status conference is scheduled in this case for July 14, 2020.