People v. Waxler
Citation | 224 Cal.App.4th 712,168 Cal.Rptr.3d 822 |
Decision Date | 03 April 2014 |
Docket Number | A137796 |
Court | California Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Michael Clarence WAXLER, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 266 et seq.
Superior Court of Del Norte County, No. A137796, William H. Follett, Judge. (Super. Ct. No. CRF129128)
Stephanie M. Adraktas, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, and Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.
The question in this case is whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement. The answer is yes, notwithstanding the fact that possession of not more than 28.5 grams (an ounce) “of marijuana, other than concentrated cannabis, is ... an infraction” punishable by a fine. (Health & Saf. Code, § 11357, subd. (b).) 1 Under the automobile exception to the warrant requirement, a law enforcement officer may search a vehicle when he or she has probable cause to believe it contains contraband or evidence of a crime. ( Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574 ( Robey ).) Under the current state of California law, nonmedical marijuana—even in amounts within the statutory limit set forth in section 11357, subdivision (b)—is “contraband” and may provide probable cause to search a vehicle under the automobile exception. Moreover, possession of a “215 card” does not vitiate probable cause to search pursuant to the automobile exception. ( People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ).) 2
We affirm the trial court's denial of appellant Michael Waxler's motion to suppress.
We have taken the facts from the preliminary hearing transcript.
In February 2012, Del Norte County Sheriff's Deputy Richard Griffin learned a person was illegally dumping trash in a parking lot behind a Crescent City Safeway. Deputy Griffin drove to the Safeway and stopped next to appellant's truck. Appellant was sitting in the driver's seat. As Deputy Griffin “got close” to appellant's truck, he smelled “the odor of burnt marijuana” and “saw a marijuana pipe with ... what appeared to be burnt marijuana in the bowl.” The pipe was “on the bench seat right next to” appellant. Deputy Griffin searched the truck and found a methamphetamine pipe and a small bindle containing suspected methamphetamine with a street value of about $50.
Deputy Griffin's partner detained appellant and “Mirandized” 3 him. Appellant initially said he knew the methamphetamine and methamphetamine pipe were in his vehicle. He claimed the methamphetamine “was not his” and had been left in the truck by some friends, who were hitchhikers. Then he “changed his story a couple of times.” Later, appellant said the methamphetamine “had been in his truck for a few days because he'd picked up the hitchhiker ... upstate” and “later he changed his story again to say he'd received this meth from the hitchhiker in payment for the ride.”
At some point during the conversation, appellant told Deputy Griffin he “had a 215 card” and showed it to him. Deputy Griffin was not sure exactly when he became aware of the 215 card, but he learned about it after he began searching appellant's truck. When asked when he became aware of the 215 card, he testified, When defense counsel asked Deputy Griffin whether he had a “recollection if [he] learned about the 215 [card] prior to the search of the vehicle or after the search of the vehicle,” Deputy Griffin responded, and said he “saw the pipe first before ... doing any questioning.” As Deputy Griffin explained,
The People charged appellant with transportation of methamphetamine (§ 11379 (Count 1)) and with possession of methamphetamine (§ 11377 (Count 2)). Appellant moved to suppress, claiming Deputy Griffin “did not have any reason to believe” appellant was “under the influence of marijuana or any other drug, ... attempting to operate a vehicle while under the influence of marijuana, or ... committing any crime at the time that would warrant a search of the vehicle.”
According to appellant, the amount of “completely un-smoked marijuana ... in the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are allowed by law.” Appellant claimed Deputy Griffin's observation of marijuana in the truck “could not have supported an arrest” because possession of up to 28.5 grams of marijuana is an infraction under section 11357. Finally, appellant argued the possession of “personal use medical marijuana” was legal with a doctor's recommendation. The suppression motion attached a valid physician's statement recommending the use of marijuana for medical conditions (§ 11362.5) and a valid Washington State medical marijuana card.
In opposition, the People argued Deputy Griffin had probable cause to search appellant's truck after observing “an odor of marijuana.” They also contended the CUA “does not provide immunity from arrest or criminal prosecution” and that possession of a 215 card is “an affirmative defense to the crimes of possession and cultivation of marijuana at trial” and does “not protect one from a valid search nor arrest.” The parties stipulated appellant had a valid 215 card on the day of the incident.
At the conclusion of the preliminary hearing, the court denied appellant's motion to suppress and held him to answer the charges. The court explained,
Appellant pled guilty to possession of methamphetamine (§ 11377 (Count 2)). The court dismissed the methamphetamine transportation charge (§ 11379 (Count 1)) and reduced the methamphetamine possession conviction to a misdemeanor (Pen. Code, § 17, subd. (b)). The court suspended imposition of sentence and placed appellant on probation.
‘ ” ( People v. Leath (2013) 217 Cal.App.4th 344, 350, 158 Cal.Rptr.3d 449.)
“[T]he Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause.” (Strasburg, supra, 148 Cal.App.4th at p. 1059, 56 Cal.Rptr.3d 306.) Under the automobile exception to the warrant requirement, (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100, 59 Cal.Rptr.3d 633 (Nasmeh ); Ornelas v. United States (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 [ ].)
(Nasmeh, supra, 151 Cal.App.4th at p. 100, 59 Cal.Rptr.3d 633.) The automobile exception is also “rooted in the reduced expectation of privacy in a vehicle [and] the fact a vehicle is inherently mobile.” (People v. Evans (2011) 200 Cal.App.4th 735, 753, 133 Cal.Rptr.3d 323; California v. Carney (1985) 471 U.S. 386, 394, 105 S.Ct. 2066, 85 L.Ed.2d 406 (Carney ) [vehicle's inherent mobility]; Arizona v. Gant (2009) 556 U.S. 332, 345, 129 S.Ct. 1710, 173 L.Ed.2d 485 [ ].) Under the automobile exception, ...
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