Carter v. Super.
Filed 1/23/13
Carter v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
DANA DERRELL CARTER, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. | E056039 (Super.Ct.No. FVI1102926) OPINION |
ORIGINAL
PROCEEDINGS; petition for writ of mandate. Lorenzo R. Balderrama, Judge. Petition granted.
Phyllis
Morris, Public Defender, and John Zitny, Chief Deputy Public Defender, for
Petitioner.
No
appearance for Respondent.
Michael
A. Ramos, District Attorney, and Eric M. Ferguson, Deputy District Attorney,
for Real Party in Interest.
In
this case, we issued an order to show cause to consider the legality of a
search that resulted in the seizure of a baggie of marijuana from the person of
defendant and petitioner Dana Carter (defendant). We conclude that the seizure was illegal and
that the trial court erred in denying his motion
to suppress the evidence from the seizure.
Accordingly, we will grant defendant’s petition for writ of mandate.
STATEMENT
OF FACTS
Defendant
is charged with possession of marijuana for sale (Health & Saf. Code,
§ 11359) with a
Code, § 186.22, subd. (b)(1)(A)). He was
separately charged with a felony violation of Penal Code section 186.22,
subdivision (a).
Defendant
filed his motion to suppress (Pen. Code, § 1538.5) before the preliminary
hearing, so the motion was decided based on the evidence presented at that
time. The primary witness was Deputy
Quintard. He testified that on
December 28, 2011, he observed a vehicle pull up to a stop sign beyond the
limit line. He also observed that the
vehicle had illegally tinted windows.
(Veh. Code, §§ 22450, 26708.5.)
When he contacted the driver (defendant), the deputy smelled “the unique
odor of marijuana emitting from the car.â€
The
deputy asked defendant when he had last smoked marijuana. Defendant replied that he had come from a
house where many people were smoking marijuana.
The deputy then had defendant get out of the vehicle “[t]o see if he was
possibly under the influence. . . .†He
then conducted a patdown search because it was his experience that people
involved with drugs often carried weapons.
The deputy felt a “large, I guess it would be a bulge inside the top of
his shorts†and removed it. It was a
baggie of marijuana. A further search of
defendant’s person revealed three more packages of marijuana, $609 in cash, and
incriminating materials on defendant’s cell phone.
On
cross-examination the deputy was asked if the “bulge†felt like a weapon, and
he replied, “No. It didn’t feel like a
weapon. I didn’t know what it was at
that time.â€
The
trial court denied defendant’s motion to suppress evidence, reasoning that the
right to conduct a patdown or frisk was “basically automatic†when drugs were
believed to be involved. This petition
followed.
DISCUSSION
First,
the trial court’s legal conclusion was incorrect. There is no dispute that the detention of
defendant was proper both based on the traffic violations and the smell of
marijuana. (See infra for further discussion.)
On the other hand, the propriety of the
patdown search is at least
debatable. The basic rule is that a
peace officer may conduct such a search when he “is justified in believing that
the individual whose suspicious behavior he is investigating at close range is
armed and presently dangerous to the officer or to others.†(Terry
v. Ohio (1968) 392 U.S. 1, 24.) The
test for permissibility has evolved to the well-established “totality of the
circumstances . . . which is of necessity fact driven.†(People
v. Osborne (2009) 175 Cal.App.4th 1052, 1059 (Osborne).) In the same case,
the court goes on to recognize that “[c]ourts have consistently recognized that
certain crimes carry with them the propensity for violence, and individuals
being investigated for those crimes may be patsearched without further
justification.†(Ibid.) Osborne applied this approach to a burglary investigation on the
theory that a burglar might be reasonably expected to possess sharp “tools of
the trade,†which might be used as weapons.
(Id. at pp. 1060-1061.)
that allow patdown searches in cases of suspected
with which persons committing such crimes are armed. For example, in People v. Limon (1993) 17 Cal.App.4th 524, 534-535 (
where the officers were outnumbered,
transactions were taking place, and the area was known for the prevalence of
weapons. More recently, in a case
factually very similar to this, the court upheld a patdown search of a passenger
in a car detained for a traffic violation when the investigating officer
recognized the smell of marijuana emanating from the vehicle. (People
v. Collier (2008) 166 Cal.App.4th 1374, 1378.) However, the decision does not approve
patdowns in all such cases as the
court repeatedly stresses that the driver in that case was larger than the
investigating deputy and was also dressed in “baggy shorts that hung down to
his ankles and an untucked shirt that extended to his midlegs.†(Id.
at pp. 1376, 1378.) The court
simply held that it was reasonable to suspect that the baggy clothing concealed
a weapon. (Id. at p. 1378.) With respect to the female driver, who was
wearing “tight-fitting clothing,†the court noted that she was not patted down
and commented that “[h]ad appellant been wearing nonbaggy clothing, we doubt
that [the deputy] would have entertained a suspicion that appellant might be
armed.†(Id. at p. 1377, fn. 1.)
The inference may be drawn that any such suspicion on the deputy’s part
would not have been objectively reasonable and would not have justified a
patdown.
In
this case, at the time the deputy patted defendant down, he had no reason to
suspect drug trafficking, just marijuana use and/or driving under the
influence. Nor is there any indication
in the record that there was anything else suspicious or threatening about
either defendant or the area in which the traffic stop was made. Hence, the legality of the patdown itself is
very tenuous insofar as it was based on “officer safety.â€
However,
we need not determine the legality of the patdown because the seizure of the
baggie was clearly unlawful as it exceeded the scope of a protective
frisk. The deputy testified candidly
that he did not know what the bulge was and actually testified that it did not
feel like a weapon. This concession was
reasonable, as it is apparent that since it was, in fact, a baggie of
marijuana, it could not have felt like a weapon of any sort. (Cf. Limon,
supra, 17 Cal.App.4th at p. 535 [hard
magnetic key box reasonably believed to possibly be a knife and properly
removed].) Nor is there any testimony to
support a theory that the deputy recognized the bulge as probable
contraband. (Cf. Minnesota v. Dickerson (1993) 508 U.S. 366, 375-376 [the “plain
touch†doctrine]; People v. Dibb (1995)
37 Cal.App.4th 832, 836-837.) The
removal of the baggy was unnecessary for “officer safety†and cannot be
justified on that basis.
Apparently
recognizing the weakness of their position in the trial court, before this court
the People have proffered a different legal theory to justify the seizure of
the baggy. They argue that defendant
could have been arrested (or was
arrested) and the search was therefore justifiable as one “incident to
arrest.†We disagree. Although we dispose of these new arguments on
the merits, we feel constrained to stress that with the People’s failure to
develop evidence in the trial court relating to these claims, we are left in an
appellate never-never land, expected to rule on the basis of suppositions,
“what-ifs,†and “within the realm of possibilities.†We cannot, and do not, say that the People’s
additional theories are all necessarily factually unfounded; only that no facts
to support them appear in the record.
And of course it is well established that as to facts and evidence, we
are bound by that record. (
(1982) 31 Cal.3d 921, 927 at fn. 5; see also Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 997 at fn. 4.)
The
first argument is that defendant could have been arrested for possession of
marijuana.
principle that the odor alone, in that case also emanating from a vehicle,
justifies the arrest of the driver for possession. On the other hand, in People v. Collier, supra,
acknowledged that although the recognizable odor of marijuana certainly
justified the deputy in detaining defendant for investigation, it did not, in and
of itself, constitute probable cause to arrest him. We agree with the latter approach. Although possession of marijuana and driving
under the influence of marijuana (or any drug) are public offenses (Health
& Saf. Code, § 11357; Veh. Code,
§ 23152), merely smoking, or having
smoked, it is not; and, in our view, the suspicion that marijuana
justify an arrest for possession at the moment.
For
the same reason, we would reject the People’s argument that
contraband on his person justified the search.
Of course, there was no testimony that the deputy harbored a suspicion
of unauthorized possession; rather, he testified only that he conducted the patdown
because he believed persons involved with drugs might carry weapons—that is,
for “officer safety.†Again, we stress
that we are limited to the evidence in the record. In any event, the deputy did not have probable
cause to so suspect that actual contraband was on defendant’s person. The People’s reliance on People v. Coleman (1991) 229 Cal.App.3d 321 (Coleman) is misplaced. In
that case, officers had received a tip that drugs were being sold out of a
described vehicle at a described location.
Arriving at the location, they saw a vehicle matching the description
surrounded by numerous people. When the
driver attempted to leave and was stopped for a traffic violation, officers saw
a hand-rolled cigarette on the car center console and placed the driver under
arrest for possession of marijuana. In
patting the driver down, an officer felt what he believed to be a baggie of
rock cocaine (it was also partially protruding from the driver’s pocket)
and removed it. The court simply holds
that under all of the circumstances, there was probable cause to believe that
he had drugs
on his person and the search was
therefore proper. (Id. at pp. 326-327.)
name="_ftnref6" title="">[6] In this case, by contrast, there was no
specific information that would support a belief that defendant possessed
quantities of contraband on his person at that point in time and, as we have
noted, the deputy never testified that he believed the “bulge†was, or might
be, contraband. The fact that defendant
told the officer that he had been at a party where marijuana was smoked added
nothing to the odor emanating from the car; neither, separately or together,
constituted probable cause to believe that defendant had drugs on his person at
that moment.
Although
the People now disclaim any intent to rely upon such a theory, arguably under
Vehicle Code violations the deputy testified he had observed, even if defendant
had qualified to be merely cited. But as
defendant points out, if a detainee is not actually arrested, there is no basis
for a “search incident†to arrest.
116-117 (Knowles).) When an officer arrests a person, there is an
obvious need to find out whether there is anything dangerous or questionable on
the person of the arrestee who is going to be in the back of the patrol
car. Furthermore, an arrest is a
stressful event that increases the risk that the person arrested might react
with violence. (Ibid.) These concerns are
simply not present when a person is not actually placed under arrest. Indeed, in McKay, the court expressly distinguished Knowles on the basis that “[n]o one disputes the fact of the
custodial arrest here. . . .†(
The
People attempt to justify the search by arguing that Knowles does not apply because “a custodial arrest
the defendant was also arrested after
the search, which the court found to be illegal. (Knowles,
“search incident to arrest,†it is, or should be, self-evident that a search
cannot be justified as “incident†to an arrest when it occurs
through that search that probable cause to arrest is found.
In
short, even if the deputy had legal cause to pat defendant down, on the
evidence adduced at the preliminary hearing, he had no legal basis to seize the
“bulge†without any expressed belief that it was either a weapon or contraband. (Recall that he testified honestly, “I didn’t
know what it was at that time.â€) Because
defendant had not been arrested for any offense (and there was not even any
testimony that the deputy intended to arrest him), the seizure of the baggy
cannot be justified as incident to an arrest.
Accordingly,
the trial court erred in denying defendant’s motion to suppress, and we will
grant the petition for writ of mandate.
DISPOSITION
The
petition is granted. Let a peremptory
writ of mandate issue directing the San Bernardino Superior Court to vacate its
order denying defendant’s motion to suppress, and to enter a new order granting
said motion. Upon the finality of this
decision, the stay previously ordered shall be lifted.
Petitioner
is directed to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
subdivision (i), as authorizing the petition.
In fact, that subdivision deals with an original or renewed motion in
the superior court after the preliminary hearing, and provides that, “After the
special hearing is held, any review thereafter desired by the defendant prior
to trial shall be by means of an extraordinary writ of mandate or prohibition
filed within 30 days after the denial of his or her motion at the special
hearing.†At least one practice text
comments that if the motion is denied at the preliminary hearing, the defendant
may not then seek review either by appeal or writ. (1 Erwin et al., Cal. Criminal Defense
Practice (2012) Search and Seizure Motions, ch. 23, p. 23-66.) However, as authority they cite only Penal
Code section 1466, which only prohibits the defendant from appealing the ruling. As the
People did not object, and the matter being fully briefed, we see no impediment
to considering the petition on its merits.
messages, which the deputy testified referred to drug sales and a price list
for marijuana. The deputy also answered
two incoming calls from persons asking about purchasing marijuana.
