People v. Johnson

• Decision Date: 15 June 2020
• Docket Number: C089373
• Citation: 50 Cal.App.5th 620,264 Cal.Rptr.3d 103
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dammar Darrell JOHNSON, Defendant and Appellant.

50 Cal.App.5th 620

264 Cal.Rptr.3d 103

The PEOPLE, Plaintiff and Respondent,

v.Dammar Darrell JOHNSON, Defendant and Appellant.

C089373

Court of Appeal, Third District, California.

Filed June 15, 2020

Certified for Partial Publication.^*

Theresa Osterman Stevenson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, Acting P. J. Defendant Dammar Darrell Johnson was parked on the side of a road when two police officers approached to investigate his car's missing registration tag. Defendant ended up handcuffed in the patrol car for resisting an officer. After defendant was detained, one of the officers approached defendant's car to perform what the officer described as a tow inventory search. The officer smelled marijuana emanating from the car and found "[p]ossibly a couple grams" of marijuana in the center console; the search then purportedly transitioned from an inventory search into a probable cause search, which revealed a loaded handgun in the rear cargo area of the car. Defendant sought to suppress the evidence from the search, but the motion and his renewed motion were denied. The magistrate and trial judge found the search was not an inventory search, but upheld it based on probable cause. Defendant pled no contest to being a felon in possession of a firearm.

On appeal, defendant challenges the trial court's denial of his renewed motion to suppress. The question before us is whether the odor of marijuana and visual observation of approximately two grams of marijuana in a plastic baggie knotted at the top in defendant's parked car provided probable cause to justify the search conducted by the officers.¹ We conclude the officers did not have probable cause and therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The testimony of Stockton Police Officers Aaron Clark and William Hall during defendant's preliminary examination established the following events. The two officers were on patrol when they saw defendant sitting in a parked car on the side of the road. They decided to check defendant's registration because they did not recognize the vehicle and observed the registration tag was missing. The officers activated emergency lights and Officer Clark got out of the patrol car to speak with defendant. Defendant stepped out of his car and refused to return when asked. Defendant was agitated, yelling at Officer Clark, and asking why he had to get back into his car. When Officer Clark grabbed defendant's arm to maintain control, defendant tensed and pulled away. Defendant continued to pull away and yell as the officers handcuffed him. After some resistance, the officers arrested defendant and placed him in the patrol car.

The officers then approached defendant's car to perform what they referred to as a tow inventory search because the car's registration was expired. Officer Clark approached the driver's side door, testifying he "could smell the odor of marijuana once [he] got to the vehicle." He first "checked underneath the driver's seat" for items and then "went to the center console where [he] found a small bag" containing marijuana. The plastic bag was knotted at the top and contained "[p]ossibly a couple grams" of marijuana. After finding the marijuana, Officer Clark "continued the search as a probable cause search of the vehicle for more contraband." In the rear cargo area of the car, behind a plastic panel, the officers found a loaded handgun.

Defendant moved to suppress the evidence. The hearing on the motion was held contemporaneously with defendant's preliminary examination. The district attorney argued the odor and presence of marijuana provided probable cause for the search. Specifically, the district attorney asserted that, even though the baggie containing the marijuana was knotted at the top, the fact that it could have been untied at some point meant it constituted an open container within the meaning of Health and Safety Code ² section 11362.3, subdivision (a)(4). In the district attorney's view, this violation of the open container law gave the officers probable cause to search the rest of the vehicle.

The magistrate found the search was not valid as an inventory search, but denied defendant's motion, citing either a search incident to arrest for resisting an officer or a probable cause search. The magistrate made the following factual findings related to the probable cause search: (1) the car was parked on the side of a public roadway when the officers approached; (2) an officer smelled the odor of marijuana emanating from defendant's car; and (3) the baggie containing marijuana in the center console was in plain view. The magistrate did not address the district attorney's open container argument. Instead, citing no authority, the magistrate stated "[w]e have marijuana in a vehicle which is still illegal; [P]roposition [64] didn't change the fact that you can only have marijuana in a vehicle if it is locked in a controlled setting." Accordingly, the magistrate found the marijuana "in plain view in a plastic baggie" was "against the law." The magistrate explained she found Waxler controlling, finding the baggie gave the officers "additional probable cause to search the vehicle for other marijuana, which is illegal to have in a vehicle." (Citing People v. Waxler (2014) 224 Cal.App.4th 712, 168 Cal.Rptr.3d 822.)

Defendant subsequently filed a renewed motion to suppress. Based on the transcripts from the preliminary examination, the trial judge considered the renewed motion, disagreeing with the magistrate that the search was valid as a search incident to arrest. Considering whether it was a probable cause search, the trial judge stated, " Fews upholds both Waxler and Strasburg , which say the smell of marijuana does allow for the search of the car." (Citing People v. Fews (2018) 27 Cal.App.5th 553, 238 Cal.Rptr.3d 337 ; People v. Waxler , supra , 224 Cal.App.4th at p. 712, 168 Cal.Rptr.3d 822 ; People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306.) The trial judge found the search lawful as a probable cause search based on the odor of marijuana alone and denied the renewed motion to suppress.

Defendant was initially charged with being a felon in possession of a firearm, possession of ammunition by a prohibited person, and resisting, obstructing, or delaying a peace officer. He was also issued a citation for the marijuana and expired registration. As part of his plea of no contest to a felon in possession of a firearm, the remaining charges were dismissed.

DISCUSSION

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. ( U.S. Const., 4th Amend.) Warrantless searches are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." ( Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585.) One such exception is the automobile exception, which provides "police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found." ( People v. Evans , supra , 200 Cal.App.4th at p. 753, 133 Cal.Rptr.3d 323 ; see also United States v. Ross (1982) 456 U.S. 798, 820-821, 102 S.Ct. 2157, 2170-2171, 72 L.Ed.2d 572, 590-591.) Probable cause is a more demanding standard than mere reasonable suspicion. ( People v. Souza (1994) 9 Cal.4th 224, 230-231, 36 Cal.Rptr.2d 569, 885 P.2d 982.) It exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found ...." ( Ornelas v. United States (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911, 918.) In determining whether a reasonable officer would have probable cause to search, we consider the totality of the circumstances. ( Illinois v. Gates (1983) 462 U.S. 213, 230-231, 238, 103 S.Ct. 2317, 2328-2329, 2332, 76 L.Ed.2d 527, 543-544, 548.)

In 2016, Proposition 64³ legalized the possession of up to 28.5 grams of marijuana by individuals 21 years or older. (§ 11362.1, subd. (a)(1).) The use and possession of marijuana is not unconditional, however; there are various statutory provisions proscribing such use and possession in certain circumstances. (See, e.g., § 11362.3 ; Veh. Code, § 23222, subd. (b).) Notwithstanding any other proscription by law, section 11362.1, subdivision (c) provides that "[c]annabis and cannabis products involved in any way with conduct 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." Thus, section 11362.1, subdivision (c) does not apply when the totality of the circumstances gives rise to a fair probability that an existing marijuana regulation was violated when the search occurred. ( People v. Fews , supra , 27 Cal.App.5th at p. 563, 238 Cal.Rptr.3d 337.)

Defendant argues the officers did not have probable cause to search his car because there was no evidence of marijuana use and the marijuana found in plain view was in a legal amount. The People assert the officers had probable cause in light of pre-Proposition 64 precedent and, in any event, there was evidence defendant was "operating a vehicle with an open container of marijuana ( Health & Saf. Code, § 11362.3, subd. (a)(4) ), or driving a vehicle with an unsecured container of marijuana ( Veh. Code, § 23222, subd. (b) )." Thus, the People assert section 11362.1, subdivision (c) does not apply.

Before we delve into the legal question presented, we frame the facts pertinent to the issue. We next consider the application of pre-Proposition 64 case law to the facts...