People v. Aaron Sung Min Yim

Decision Date28 June 2022
Docket NumberF081023
PartiesTHE PEOPLE, Plaintiff and Appellant, v. AARON SUNG MIN YIM, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kings County. No 19CMS3934 Randy L. Edwards, Judge.

Keith Fagundes, District Attorney, and Louis D. Torch, Assistant District Attorney, for Plaintiff and Appellant.

Elizabeth Campbell, under appointment by the Court of Appeal for Defendant and Respondent.

OPINION

THE COURT [*]

During a traffic stop, a police officer detained Aaron Sung Min Yim (defendant) and conducted a warrantless search of his vehicle. The search yielded a firearm, cocaine and a quantity of marijuana exceeding the legal limit for personal possession. The officer believed he had probable cause to search the vehicle based on the odor of marijuana therein and on defendant.

Defendant unsuccessfully moved to suppress the fruits of the search under Penal Code section 1538.5.[1] The magistrate ruled there was probable cause to search based on the odor of marijuana and defendant's admission of having "recently" smoked marijuana. After being held to answer to felony and misdemeanor drug charges, defendant challenged the ruling by filing a motion to dismiss under section 995. The motion was granted.

The superior court held "the odor of marijuana and admission of smoking- standing alone-cannot be regarded as probable cause" to conduct a warrantless vehicle search. Although the arresting officer had also testified to his belief defendant was under the influence of marijuana, the testimony was deemed conclusory. The People now appeal the dismissal order. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2019, defendant was arrested during a traffic stop after a Hanford police officer found contraband inside of his vehicle. The warrantless search resulted in the seizure of approximately 22 grams of cocaine, 75 grams of marijuana, and a loaded handgun. During the booking process, an additional 2.5 grams of cocaine was discovered among defendant's personal effects.

The next day, the Kings County District Attorney filed a criminal complaint charging defendant with transportation of cocaine (Health & Saf. Code, § 11352, subd. (a); count 1) possession of cocaine for purposes of sale (Health & Saf. Code, § 11351; count 2); possession of cocaine while armed with a loaded and operable firearm (Health & Saf. Code, § 11370.1, subd. (a); count 3); bringing a controlled substance into a jail (§ 4573, subd. (a); count 4); misdemeanor possession of cannabis for sale (Health & Saf. Code, § 11359, subd. (b); count 5); and misdemeanor transportation of cannabis (Health & Saf. Code, § 11360, subd. (a); count 6). Counts 1 and 2 included firearm enhancement allegations under section 12022, subdivision (c).

In October 2019, defendant moved under section 1538.5 to suppress all evidence derived from the search of his automobile. The motion was heard on November 26, 2019. The People filed a written opposition on the day of the hearing. Relying exclusively on case law predating California's legalization of cannabis in 2016, the People's brief argued that an odor of marijuana emanating from a vehicle establishes probable cause to search the vehicle without a warrant.

The arresting officer testified at the suppression hearing. According to the testimony, defendant was driving a Toyota 4Runner when pulled over at approximately 12:17 a.m. near the intersection of 10th Avenue and Glendale Avenue in Hanford. The officer, who was in a marked patrol car, initiated the stop because defend ant's license plate was not illuminated as required by Vehicle Code section 24252.

The issue on appeal turns on the following testimony regarding the officer's contact with defendant:

"[Officer:] The driver rolled down his window, and I smelled a strong odor of marijuana come from the inside of the vehicle.

"[Prosecutor:] Could you tell where that odor was emanating from?

"[Officer:] Yes, the driver and the inside of the vehicle in the passenger compartment.

"[Prosecutor:] Did you have any training or experience in regards to the identification of the smell of marijuana?

"[Officer:] I do.

"[Prosecutor:] What training was that?

"[Officer:] I have been to-in addition to the academy H & S 11550 school, a specialized school on people that are under the influence of different narcotics.

"[Prosecutor:] And at that school was there a training in regards to individuals under the influence of marijuana?

"[Officer:] There was.

"[Prosecutor:] And what was that training?

"[Officer:] Just how to identify based on eyes, eye movement, different signs and symptoms of marijuana use. As well as a jar of marijuana they brought around and had us smell so we knew what it smelled like.

"[Prosecutor:] From your training and experience the smell that you-or the odor that you observed was of marijuana?

"[Officer:] It was.

"[Prosecutor:] Based upon the smell of marijuana what did you do next?

"[Officer:] I asked the driver if he had been smoking marijuana, and he told me that he had.

"[Prosecutor:] Did he tell you how long ago he smoked marijuana?

"[Officer:] I don't recall.

"[Prosecutor:] Would it refresh your recollection if you refer to your report, page three, second paragraph?

"[Officer:] Yes.

"[Magistrate]: [Refer to your report and look up when you are finished.]

"[Officer:] Ready to proceed.

"[Prosecutor:] Do you recall what he told you in regards to when he smoked marijuana?

"[OFFICER:] He said he had recently smoked marijuana.[2]

"[PROSECUTOR:] Based on that information did you believe he was under the influence of marijuana?

"[OFFICER:] I did.

"[PROSECUTOR:] What did you do next?

"[OFFICER:] I asked for consent to search the vehicle.

"[PROSECUTOR:] And what happened?

"[OFFICER:] And he told me I did not have permission to search his vehicle.

"[PROSECUTOR:] What did you do next?

"[OFFICER:] Based on prior case law I know that the odor of marijuana is probable cause to search a vehicle.

"[PROSECUTOR:] And what did you do?

"[OFFICER:] So I asked him to step out of the vehicle, and detained him by placing him in the back of my police car.

"[PROSECUTOR:] Was he handcuffed at that time?

"[OFFICER:] He was not.

"[PROSECUTOR:] What did you do at that point?

"[OFFICER:] Then returned to the vehicle and began searching for marijuana."

The officer's testimony was the only evidence presented at the suppression hearing. Defense counsel's arguments concerned the officer's subjective reliance on the odor of marijuana to justify the search. The prosecutor argued the search was valid because the officer had probable cause to arrest defendant either for the Vehicle Code violation or on suspicion of driving under the influence. Although defendant was not arrested on either of those grounds, the prosecutor argued if such an arrest had occurred, "any search conducted afterwards would be a search incident to impound [of the vehicle]."

The magistrate cited and relied on People v. Fews (2018) 27 Cal.App.5th 553 (Fews), opining Fews involved "facts which were similar to those" in the present case. In reference to defendant's circumstances, the magistrate noted "there was not only testimony in regards to the smell of marijuana, but there was a statement by the driver he had been recently smoking." Based on those facts, the magistrate concluded the officer had probable cause to search the vehicle.

The motion ruling was immediately followed by a preliminary hearing on the complaint. Defendant was held to answer to all charges. A criminal information pleading the same counts and enhancement allegations was later filed on December 5, 2019.

On January 3, 2020, defendant moved to dismiss the information pursuant to section 995. The moving papers discussed U.S. v. Maffei (N.D.Cal. 2019) 417 F.Supp.3d 1212, a then-recent decision in which a federal district court had distinguished Fews and found there was no probable cause for a vehicle search under circumstances more factually analogous to defendant's case. In Maffei, the officer "did not see any marijuana either in the Maffeis' possession or in plain sight in the car, let alone on Mr. Maffei's person; he did not observe any significant indications that Mr. Maffei was under the influence of marijuana; he did not indicate, either in his police report or his declaration, that the scent of marijuana he observed was burnt. No field sobriety test was performed. No smell emanated from the trunk, a car carrier, or other known trafficking storage locations. [Neither the passenger nor the driver] attempted to flee. Instead, [it] was a routine traffic stop for a broken tail light and failing to yield to pedestrians." (Maffei, at p. Supp. 1227, fn. omitted.)

The People did not file a timely response to defendant's motion. The motion was scheduled be heard in January 2020 but was continued until early March. The continuance was ordered because, "[d]ue to the developing case law on the [Proposition] 64 search issues, the Court want[ed] to see a briefing by the People."

In a subsequently filed opposition, the People argued the magistrate had appropriately relied on Fews. It was impliedly argued that the search of defendant's car was justified by probable cause to believe he was driving under the influence of cannabis. The briefing also discussed the law on searches conducted incident to an arrest.

On March 4, 2020, defendant's motion to dismiss was heard and granted. The pertinent analysis and conclusions, as stated in the written order, were as follows:

"Based on the testimony at the preliminary hearing, this court does not find there was sufficient probable cause to search...

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