People v. Lopez, C090375

CourtCalifornia Court of Appeals
Writing for the CourtRobie, Acting P. J.
Docket NumberC090375
PartiesTHE PEOPLE, Plaintiff and Respondent, v. NOE MUNGIA LOPEZ, Defendant and Appellant.
Decision Date26 August 2020


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Noe Mungia Lopez appeals after entering a no contest plea to possession of hydrocodone for sale in exchange for five years of probation. As a condition of probation, the court ordered defendant to register as a narcotics offender. On appeal, defendant contends the magistrate erred by denying his motion to suppress the evidence seized from his car because the officer lacked probable cause to search the car during a traffic stop. We disagree and conclude the totality of the circumstances surrounding defendant's interaction with the officer established probable cause to search defendant's car. We do, however, agree with the parties that the narcotics registration requirement should be stricken from the order of probation because of the Legislature's repeal of Health and Safety Code1 section 11590.


On October 25, 2018, Stockton Police Officer Daniel Velarde was on assignment with the community response team. While on patrol, Officer Velarde saw a car pull out of a parking lot and drive through a stop sign. Officer Velarde initiated a traffic stop by turning on his overhead lights. The car did not immediately pull over, but instead continued through several intersections before pulling into a parking lot. While he followed the car, Officer Velarde noticed the driver grab a duffel bag from the front passenger seat and place it in the backseat.

Once the driver pulled into the parking lot and stopped, Officer Velarde approached the car and encountered defendant, the sole occupant. Officer Velarde noticed a "strong odor of marijuana c[oming] from the vehicle." Officer Velarde asked defendant how much "money" he had in the car, and defendant replied "[o]nly enough for me to smoke." Officer Velarde then asked where the marijuana was located, and defendant grabbed a clear plastic baggie containing a small amount of marijuana out of the center console. Officer Velarde then removed defendant from the car, detained him in handcuffs, and placed him in the back of his patrol car.

With defendant detained in the patrol car, Officer Velarde proceeded to search defendant's car. When asked by a ride-along passenger, "[h]ey, what [i]s your PC," Officer Velarde stated his probable cause was the odor of marijuana and the baggie defendant produced. He later testified he searched the car "due to the marijuana, . . . very strong odor, and since he only had a little bit in the baggie the odor was more than that was." The strong odor led Officer Velarde to believe the small amount of marijuana defendant showed him was not the only marijuana defendant had in the car.

During the search, Officer Velarde located and searched the duffel bag he saw defendant move into the backseat and seized three "large bags of marijuana" weighing a total of 1,300 grams. Also seized from the duffel bag was a pill bottle with 24 "clear plastic bindles of suspected cocaine," another pill bottle containing suspected hydrocodone, a scale, and a "bulk" of sandwich bags. He also found over $1,600 in defendant's pocket. Elsewhere in the car, Officer Velarde seized two cell phones. After completing the search of defendant's car, Officer Velarde arrested defendant and read him his Miranda2 rights. Defendant said he understood his rights and admitted all seized items belonged to him.

At the preliminary examination, Officer Velarde testified to the above facts relying on his training and experience in investigating and identifying marijuana offenses. As an officer with seven years of experience, Officer Velarde testified he has attended trainings on marijuana identification, and he has investigated the drug "hundreds" of times in the field. He further stated, based on his training and experience, he was able to identify marijuana based on smell alone. He admitted he considered the smell of the marijuana and the baggie defendant showed him to be his probable cause to proceed with the search of the car. Officer Velarde testified the baggie defendant showed him was a cigar bag with a sealing clasp. He testified the zipper at the top was torn off, but repeatedly stated he could not remember whether the baggie was otherwise closed.

Following Officer Velarde's testimony, the court heard argument regarding defendant's motion to suppress all of his statements, the evidence collected from the search of the car, and any evidence collected subsequent to his detention and arrest. Defense counsel argued because the amount of marijuana defendant retrieved from his center console was a lawful amount, Officer Velarde could not rely on its presence to generate probable cause. The prosecution opposed the motion, arguing the recent legalization of marijuana did not change the state of the law and the smell of marijuana,especially the strong smell Officer Velarde testified to, constituted probable cause for him to search the car. The prosecution also argued the cigar bag was not a properly sealed receptacle pursuant to Vehicle Code section 23222, subdivision (b)(1), and was thus an unlawful open container.

The magistrate denied the suppression motion. The magistrate noted Officer Velarde's observation of defendant moving a bag from the front to the back of his car prior to pulling over, stating, "these are things that are gonna [sic] go on in the officer's mind as he's approaching the vehicle." The magistrate found the cigar bag was not a properly sealed receptacle pursuant to Vehicle Code section 23222, subdivision (b)(1). Further, the magistrate found Officer Velarde acted reasonably in not relying on defendant's representation the small amount of marijuana in the baggie was all he had, especially in light of defendant's moving the duffel bag and the extremely strong odor Officer Velarde testified about. As such, the magistrate denied the motion.

Defendant waived the remainder of the preliminary examination and the complaint was deemed an information. Defendant renewed his motion to suppress, and it was once again denied. Defendant then pled no contest to possession of hydrocodone for sale and the court sentenced defendant to five years of probation. As a condition of probation, defendant was ordered to register as a narcotics offender.

Defendant appeals.

IThe Court Properly Denied Defendant's Suppression Motion

Defendant raises two arguments on appeal related to the search of his car. He first argues the totality of the circumstances failed to supply Officer Velarde with probable cause to believe the car contained evidence of a crime. He next argues he was not in violation of Vehicle Code section 23222, prohibiting an open container of marijuana while driving, because the container of marijuana in the center console was closed and because it was not on his person. The People argue Officer Velarde established probable cause to search the vehicle based on the very strong odor of marijuana emanating fromthe car and defendant's possession of an unsealed container of cannabis while driving. We conclude Officer Velarde established probable cause based on the totality of the circumstances surrounding the traffic stop, which included more than the mere smell of marijuana. As such, we will not address whether defendant possessed an unlawful open container under the Vehicle Code.

ARelevant Law

Where a defendant moves to suppress evidence after a preliminary examination, "the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, . . . measuring the facts as found by the trier against the constitutional standard of reasonableness." (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) In so doing, we defer to the magistrate's factual findings and, exercising our independent judgment, determine whether, "on the facts so found, the search or seizure was reasonable under the Fourth Amendment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)

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 ; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183,1196.) One such exception to the warrant requirement is the automobile exception, which allows for warrantless searches of automobiles where an officer has probable cause to believe the vehicle contains contraband or evidence of a crime. (Carroll v. United States (1925) 267 U.S. 132, 155-156 ; see also People v. Evans (2011) 200 Cal.App.4th 735, 753.) Probable cause to search 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 .) An officer who has probable cause to search pursuant to theautomobile exception may then conduct a probing search of all "compartments and containers within the vehicle whose contents are not in plain view." (United States v. Ross (1982) 456 U.S. 798, 800 .)

A warrantless automobile search "is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained." (United States v. Ross, supra...

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