Opinion
B230581
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. NELSON EDDY DOUGLAS, Defendant and Appellant.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA 049100)
APPEAL from a judgment of the Superior Court for the County of Los Angeles. Hayden A. Zacky, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
SUMMARY
Defendant Nelson Eddy Douglas was lawfully stopped by the police at about 11:00 o'clock one night driving a car with all windows except the windshield tinted black. The officers told him to roll down all the windows because they were so darkly tinted, the officers could not see inside the car. When defendant rolled down the windows, a strong odor of marijuana came from inside the car. The officers asked defendant to get out of the car and smelled the marijuana odor coming from defendant. No one else was in the car. After the officers searched the car, one of the officers searched defendant. The officer asked defendant if he had anything illegal, and defendant said he had a pocket knife in each of his pockets. The officer patted defendant down and felt a baggie of pills in one of defendant's pockets alongside the pocket knife. The officer removed the baggie from defendant's pocket along with the pocket knife. After advising defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), the officer asked him what the pills were and defendant admitted they were Ecstasy.
Defendant was charged in a one-count information with possession of a controlled substance, Ecstasy, a felony. (Health & Saf. Code, § 11377, subd. (a).) He moved to suppress the evidence as the product of an illegal search at the preliminary hearing (Pen. Code, § 1538.5), and moved to set aside the information on the same ground. (Pen. Code, § 995.) Both motions were denied. Defendant then pled guilty, was placed on deferred entry of judgment, and filed a timely notice of appeal. Finding no Fourth Amendment violation, we affirm.
FACTS
Officer Giovanni Lampignano and his partner stopped defendant's car because of "completely black" tinted windows. They approached the driver's side of the car. When defendant rolled down the windows, Officer Lampignano smelled the "very strong" odor of marijuana. Based on the odor, he asked defendant to get out of the car, and smelled the marijuana odor coming from defendant. The officers searched the car. There is no evidence any marijuana was found in the car.
After defendant got out of the car, Officer Lampignano asked him "if he had anything illegal on him," and defendant said he had a pocket knife in each of his pockets. Officer Lampignano testified that he was looking for the source of the marijuana odor, and that, first, he patted defendant down to get the weapons, going directly to the pockets to retrieve the knives. In the process of retrieving the knife from the right front pocket, he felt a baggie with pills in it. He knew the pills were not marijuana but he did not know what the pills were by touch. He pulled out both the knife and the baggie in one motion. Officer Lampignano pulled out the baggie because he wanted to know what was inside it. After Officer Lampignano pulled out the baggie, his partner read defendant his Miranda rights and defendant agreed to speak to the officers. They asked defendant what the pills were, and he told them they were Ecstasy.
At the preliminary hearing, defense counsel argued the testimony showed the search was a protective search based on officer safety, which does not allow the police to remove items other than weapons unless it is immediately apparent that an item is contraband. (Minnesota v. Dickerson (1993) 508 U.S. 366, 375.) Defendant asserted the same theory when he sought to set aside the information under Penal Code section 995. The prosecutor argued the officer could have taken defendant into custody based on the traffic violation, and could have conducted a driving under the influence investigation and booked defendant into custody. Defense counsel responded there was no probable cause to arrest defendant, and that smelling marijuana was a "pretextual reason" for the search, as no marijuana was found either on defendant or in the car. The court denied the section 995 motion, explaining that it "presume[d] the police could have elected to take the defendant into custody" on the traffic infraction, and therefore had the right to search incident to that infraction, as well as to search for the source of the marijuana and for officer safety.
DISCUSSION
In reviewing the denial of a suppression motion, we defer to the magistrate's findings of fact, but use our independent judgment to determine whether, on the facts found, the search was reasonable under Fourth Amendment standards. (People v. Russell (2000) 81 Cal.App.4th 96, 102.)
"Where . . . a motion to suppress is submitted to the superior court on the preliminary hearing transcript, '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, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.'" (People v. Hua (2008) 158 Cal.App.4th 1027, 1033.)
Searches and seizures conducted without prior approval of a judge or magistrate "'"are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions."'" (Minnesota v. Dickerson, supra, 508 U.S. at p. 372.) Here, respondent contends the warrantless search of defendant was justified as a search incident to a lawful arrest, "a traditional exception to the warrant requirement of the Fourth Amendment." (United States v. Robinson (1973) 414 U.S. 218, 224 (Robinson).) Specifically, respondent argues that the strong odor of marijuana furnished probable cause to arrest defendant for possession of marijuana, justifying the subsequent search of his pockets as a search incident to arrest.
Respondent does not contend the search was justified under the principles of Minnesota v. Dickerson, supra, 508 U.S. at pp. 375-376, which permit a police officer investigating whether a suspect has committed a crime to seize an object felt through the suspect's outer clothing during a protective patdown search when the contour or mass of the object makes it immediately apparent the object is contraband. We do not find the seizure of the pills in defendant's pocket would have been lawful under Minnesota v. Dickerson, because Officer Lampignano testified he did not know the pills were contraband when he felt them in the baggie in defendant's pocket. Rather, we find the officers had probable cause to arrest defendant for possession of marijuana, allowing them to conduct a full search of his person incident to a lawful arrest. We briefly reprise the relevant principles.
First, "[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." (Robinson, supra, 414 U.S. at p. 235.) In Robinson, the police had probable cause to and did arrest defendant for operating a motor vehicle after revocation of his license; the police effected a full-custody arrest and searched the defendant's person, discovering heroin. (Id. at pp. 220-223; see also People v. Diaz (2011) 51 Cal.4th 84, 88 [warrantless search, 90 minutes after the defendant's arrest, of a cell phone taken from the defendant's person is valid "as being incident to a lawful custodial arrest"].)
Second, a search incident to an arrest may precede the arrest. (People v. Ingle (1960) 53 Cal.2d 407, 413.) "The crucial point is whether probable cause to arrest existed prior to the search . . . ." (People v. Fay (1986) 184 Cal.App.3d 882, 892.) "[T]he officer's entry into the individual's pocket can only be justified if the officer's sensorial perception, coupled with the other circumstances, was sufficient to establish probable cause to arrest the defendant for possession of narcotics before the entry into the pocket. That is, an officer can make an interior pocket search for contraband only as an incident to an arrest, not merely as part of a detention. If there was no probable cause to arrest the individual for possession of narcotics before the officer seized the item from the pocket, the search was invalid. The probable cause may be furnished by the officer's actual tactile perception of narcotics during a pat-search for weapons [citation], or by the officer's identification of an item which, when coupled with other circumstances, creates a reasonable inference that the item is contraband [citation]." (People v. Valdez (1987) 196 Cal.App.3d 799, 806; see also People v. Dibb (1995) 37 Cal.App.4th 832, 835-836 ["Whether an officer's suspicion that an object contained within a person's clothing consists of narcotics, derived at least in part from a patdown of a person's outer clothing, permits the officer to conduct a full-blown search of the individual or to seize the object felt depends on whether the officer had probable cause to arrest the person for narcotics possession; the warrantless search then becomes justified as a search incident to arrest."].)
Third, "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." (Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354 (Atwater); People v. McKay (2002) 27 Cal.4th 601, 618 (McKay) ["so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest—even one effected in violation of state arrest procedures— does not violate the Fourth Amendment"].)
Based on these principles, the only issue for our consideration here is whether the officers had probable cause to arrest defendant for possession of marijuana before the search of his pockets. Probable cause has been generally defined as a state of facts that "would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." (People v. Ingle, supra, 53 Cal.2d at p. 412.) Probable cause is a "fluid concept—turning on the assessment of probabilities in particular factual contexts . . . ." (Illinois v. Gates (1983) 462 U.S. 213, 232.)
Here, defendant was validly stopped at 11:00 o'clock at night driving a car with all windows except the windshield tinted "completely black." Because the officers could see nothing through the tinted windows, they told defendant to roll them all down, and when he did, a strong odor of marijuana came from the car. When he got out of the car, Officer Lampignano smelled the odor of marijuana emanating from defendant. There was no one else in the car who might have been smoking marijuana. These circumstances would lead a person of "ordinary care and prudence to . . . conscientiously entertain an honest and strong suspicion" (People v. Ingle, supra, 53 Cal.2d at p. 412) that defendant was in possession of marijuana.
The California Supreme Court has stated that the odor of marijuana furnishes "'"probable cause to believe . . . that contraband may be present."'" (People v. Cook (1975) 13 Cal.3d 663, 668 [rejecting defendants' contention that the odor of unburned marijuana did not furnish probable cause to search car that had been stopped for a traffic infraction; probable cause existed for the search and exigent circumstances were clearly present; "there was no practical alternative to an on-the-scene search of the vehicle" (id. at p. 669)], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant relies on People v. Cantor (2007) 149 Cal.App.4th 961, where the police, during a traffic stop, smelled marijuana and asked for and received consent to a "real quick" search of defendant's car. (Id. at p. 964.) After a methodical search of the car's passenger compartment, its trunk, under its hood, and then its interior again several times found nothing incriminating, the officer used a screwdriver to disassemble a machine in the trunk, inside of which was a bag with cocaine. The court found this "exhaustive" search exceeded the scope of defendant's consent and reversed on that basis. (Id. at pp. 964-966.) Cantor is not analogous here, where the scope of a consensual search is not in issue. Defendant also relies on People v. Temple (1995) 36 Cal.App.4th 1219. In Temple, the court held that the odor of unburnt marijuana coming from a vehicle did not justify the search or the arrest of the defendant, one of five occupants of the vehicle, because there was nothing to connect defendant in particular to the odor of marijuana, and a search or seizure of a person "'must be supported by probable cause particularized with respect to that person.'" (Id. at pp. 1226-1227.) Temple does not assist defendant here, because no one else was in the car and the odor was emanating from defendant himself as well as from the car.
People v. Fitzpatrick (1970) 3 Cal.App.3d 824 is particularly pertinent. There, a police officer stopped an automobile with one headlight out. When the driver rolled down the window, the officer smelled the odor of burned marijuana, most distinctively on the person of the driver when he stepped out of the car. (Id. at p. 825.) The officer searched the driver, reaching into a pocket of his sport jacket and finding a plastic bag of marijuana. He arrested defendant and found another bag of marijuana in the other coat pocket. (Ibid.) The court said: "Since the search here was incident to the arrest, the question is whether senses other than sight may justify an officer in making an arrest for a felony." (Id. at p. 826.) The court's answer was yes, and the court further observed that "an officer may arrest without a warrant, when he 'has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed' [citation]." (Ibid.) The court found it reasonable for the officer to infer that "one who has recently smoked a marijuana cigarette has others in his possession." (Id. at pp. 826-827).
Possession of marijuana is no longer a felony but, as we have seen, when an officer has probable cause to believe an individual has committed "even a very minor criminal offense in his presence," he may arrest the offender without violating the Fourth Amendment. (Atwater, supra, 532 U.S. at p. 354; McKay, supra, 27 Cal.4th at p. 605 ["custodial arrests for fine-only offenses do not violate the Fourth Amendment"].)
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People v. Torres (1981) 121 Cal.App.3d Supp. 9 (Torres) is to like effect. Torres involved the odor of mint and ether, indicative of PCP. After a traffic stop, officers detected a strong PCP smell emanating from the person of the defendant. (Id. at p. 11.) One of the officers began to search the defendant for both weapons and contraband, beginning with a patdown for weapons, and felt a soft object in defendant's boot, which proved to be a baggie filled with PCP-soaked mint leaves. Defendant was then arrested. The court of appeal held that the distinctive odor gave the officers probable cause to believe that PCP was present and, once they learned the odor came from defendant, they had "information sufficient to meet the objective standard of probable cause to arrest defendant for possession of PCP." (Id. at pp. 11-12.) "The warrantless nature of the search for weapons and drugs was justified as incident to the arrest for possession of PCP." (Id. at p. 12.) Since the officer had probable cause to arrest before the search, it did not matter whether he formed the intention to arrest before or after the search. (Ibid.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
BIGELOW, P. J.
RUBIN, J.