P. v. LaPierriere
Filed 7/20/12 P. v. LaPierriere CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JEANETTE ANNE LaPERRIERE,
Defendant and Appellant.
H036572
(Monterey
County
Super. Ct.
No. SS091799)
I. Statement of the Case
After the
court denied her motion to suppress
evidence, defendant Jeannette Anne LaPerriere pleaded no contest to
transportation of methamphetamine. (Pen.
Code, § 1538.5; Health & Saf. Code, § 11379.) The trial court suspended imposition of
sentence and placed her on probation with various conditions. On appeal she claims the court erred in
denying her suppression motion. She also
claims that a condition of probation prohibiting the use of drugs and alcohol
is unconstitutional because it lacks a knowledge requirement.
We uphold the
denial of the suppression motion, modify the probation condition to include a
knowledge requirement, and affirm the probation order as modified.
On July 3, 2009, around 4:00 p.m., California Highway Patrol (CHP)
Officer Johnathan Bigelow observed defendant and Cristobal Ferrerra drive into
the parking lot of the CHP office in Monterey,
get out, and came inside. They
approached him and asked about getting a vehicle released. Officer Bigelow immediately smelled the odor
of marijuana on them and looked at his partner Officer K. Dillon. She apparently also smelled the odor and
asked them if they had been smoking marijuana.
They said no. While Officer
Dillon detained them, Officer Bigelow went out and searched their car. On the floor of the passenger side, he found
defendant’s purse, and inside it he found a baggie that contained yellowish
clear crystals that he tentatively identified as methamphetamine. He also found numerous lighters and paraphernalia
consistent with marijuana use. Another
officer tested the crystals which proved positive for methamphetamine. Defendant was then arrested.
III. Denial of the Motion to Suppress
The trial
court denied the motion to suppress based on a finding that the smell of
marijuana emanating from defendant and Ferrerra provided probable cause to
arrest defendant, who had been driving the car, for transporting marijuana.
A. Standard of Review
In
reviewing the ruling on a motion to
suppress, the appellate court defers to the trial court’s factual findings,
express or implied, when supported by substantial evidence. (People
v. Hoyos (2007) 41 Cal.4th 872, overruled on other grounds in
610, 637-643.) However, in determining
whether, on the facts found, there was probable cause to justify the search and
thus whether the search was reasonable, we exercise our
People v. Ramos (2004) 34 Cal.4th 494,
505; Ornelas v. United States (1996)
517 U.S. 690, 699.)
B. Applicable Principles
The Fourth
Amendment to the
States Constitution protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .” (U.S.
Const., 4th Amend.) “A search conducted
without a warrant is unreasonable per se under the Fourth Amendment unless it
falls within one of the ‘specifically established and well-delineated
exceptions.’ ” (
674, quoting Katz v. United States
(1967) 389 U.S. 347, 357; People v.
Thompson (2006) 38 Cal.4th 811, 817-818; Brigham City v. Stuart (2006) 547 U.S. 398, 403;
27, 31.)
Under the
automobile exception to the warrant requirement, police may search a vehicle
without a warrant and without exigent circumstances if there is probable cause
to believe it contains contraband or evidence of a crime. (Maryland
v. Dyson (1999) 527 U.S. 465, 466-467; California
v. Acevedo (1991) 500 U.S. 565, 580; United
States v. Ross (1982) 456 U.S. 798, 804-809.) It is not necessary that the vehicle be
occupied or in use at the time; there need only be probable cause to justify
the search. (E.g., Florida v. White (1999) 526 U.S. 559, 566; People v. Carrillo (1995) 37 Cal.App.4th 1662, 1666-1669;
450, 454-455.)
“Probable
cause to search exists when, based upon the totality of the
circumstances . . . , ‘there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’ [Citations.]”
(People v. Farley (2009) 46
Cal.4th 1053, 1098, quoting Illinois v.
Gates (1983) 462 U.S. 213, 238.) On
the other hand, an officer’s hunch or good faith belief is not enough. (People
v. Martin (1973) 9 Cal.3d 687, 692.)
Rather, the circumstances known to the officer must be such as would
persuade a person of reasonable caution that the area to be searched contains
contraband or evidence of a crime. (
p. 818.)
C. Discussion
Odors may
constitute probable cause if the magistrate “finds the affiant qualified to
know the odor, and it is one sufficiently distinctive to identify a forbidden
substance.” (Johnson v. United States (1948) 333 U.S. 10, 13; see also
668, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22; People v. Gale (1973) 9
Cal.3d 788, 794; United States v. DeLeon
(9th Cir. 1992) 979 F.2d 761, 765; United
States v. Pond (2d Cir. 1975) 523 F.2d 210, 212.) “The obvious truism that the odor of burning
marijuana furnishes probable cause to believe that the substance itself is
present has been given frequent expression by our appellate courts.” (People
v. Lovejoy (1970) 12 Cal.App.3d 883, 887; see Mann v. Superior Court (1970) 3 Cal.3d 1, 7; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059;
1318, 1320-1322; People v. Fitzpatrick (1970)
3 Cal.App.3d 824, 826-827; Vaillancourt
v. Superior Court (1969) 273 Cal.App.2d 791, 797.)
In
Cal.App.3d 824, 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 jacket and finding a plastic bag of
marijuana. He arrested the defendant and
found another bag of marijuana in another pocket. (Ibid.) The court explained that upon smelling the
odor of marijuana, the officer reasonably could infer that “one who has
recently smoked a marijuana cigarette has others in his possession.” (Id.
at pp. 826-827) Thus, the circumstances
provided the officer with probable cause to search and arrest the defendant.
v. Torres (1981) 121 Cal.App.3d Supp. 9 [probable cause to search and
arrest based on odor of PCP emanating from the defendant].)
In this
case, Officer Bigelow saw defendant and Ferrerra drive, park, get out, and come
into the office. He and Officer Dillon
immediately smelled the odor of burnt marijuana, such that they asked the two
people whether they had been smoking.
Under the circumstances, the officers reasonably could infer that they
had recently been smoking marijuana and therefore that they may possess more
either with them or in the car that they had just exited.
had probable cause to search the vehicle under the automobile exception to the
warrant requirement.
name="_ftnref4" title="">[4]
Defendant
claims this case is distinguishable from the marijuana-odor cases cited above. She notes that in every one of those cases,
there were suspicious circumstances or observations by officers in addition to
the odor that supported a finding of probable cause. Here, there was only the odor of marijuana
emanating from her and Ferrerra. They
did not admit they had been smoking marijuana; they did not appear to be under
the influence of marijuana; the officers did not see or smell marijuana smoke
emanating from the car itself; nor did they observe any paraphernalia. Defendant argues that at most, the odor
emanating from them implied that at some time in the past, they had been
present where marijuana was being smoked.
She claims that under the circumstances, it was pure speculation to
infer that there might have been marijuana in the car.
In our
view, the circumstances are essentially the same as People v. Fitzpatrick, supra, 3 Cal.App.3d 824 except that instead
of smelling the odor of marijuana emanating from defendant and Ferrerra while
they were inside the car during a routine traffic stop, Officers Bigelow and
Dillon smelled the odor after watching them exit the car and enter the
office. This factual distinction does
not make a material difference.
Given our
discussion, we conclude that the trial court properly denied defendant’s motion
to suppress.
IV. Probation Condition
At
sentencing, the court suspended imposition of sentence and placed defendant on
probation with numerous conditions, including that she “[n]ot use or possess
alcohol/narcotics, intoxicants, drugs, or other controlled substances without
the prescription of a physician; not traffic in, or associate with people you
know, or have reason to suspect, use or traffic in narcotics or controlled
substances.”
Defendant
claims that the condition is unconstitutional in that it does not require that
she actually know that she may be using or possessing alcohol or drugs.
“[P]robation
is a privilege and not a right, and . . . adult
probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights . . . . [Citations.]”
(People v. Olguin (2008) 45
Cal.4th 375, 384.) However, “[a]
probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition
has been violated,’ if it is to withstand a challenge on the ground of
vagueness. [Citation.]” (In re
Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena
K.) Generally, to pass
constitutional muster, conditions that prohibit possession of specific items or
association with certain persons must require that the probationer knowingly
possess or associate. (E.g.,
1070, 1073; People v. Freitas (2009)
179 Cal.App.4th 747, 752; People v.
Garcia (1993) 19 Cal.App.4th 97, 102.)
The
Attorney General implicitly concedes that the condition does not expressly
require knowledge but urges us to adopt the approach taken by the court in
956. In that case, the Third District
considered whether a probation condition ordering that the defendant not drink
alcohol, possess it, or be in a place where it was the chief item of sale was
invalid because it lacked a knowledge requirement. (Id.
at p. 959.) The court expressed its
frustration with the “dismaying regularity” with which “we still must revisit
the issue in orders of probation” that do not include a qualification that the
defendant must commit the proscribed conduct knowingly. (Id.
at p. 960.) Noting that “there is now a
substantial uncontradicted body of case law establishing, as a matter of law,
that a probationer cannot be punished for presence, possession, association, or
other actions absent proof of scienter” (ibid.),
the Patel court announced that it
would “no longer entertain this issue on appeal” (ibid.) and, moving forward, it would “construe every probation
condition proscribing a probationer’s presence, possession, association, or
similar action to require the action be undertaken knowingly” (
order that “fails to expressly include such a scienter requirement.” (Id.
at p. 961).
In
374, 381, the Fourth District declined to adopt the Patel approach, choosing instead to modify probation conditions to
include a knowledge requirement. We too
decline to follow the Third District’s approach in Patel. Our Supreme Court faced the issue of the lack of a knowledge
requirement in a probation condition and the remedy it mandated was
unequivocal: “[W]e agree with the Court
of Appeal that modification to impose an explicit knowledge requirement is
necessary to render the condition constitutional.” (Sheena
K., supra, 40 Cal.4th at p. 892, italics added.) Until our Supreme Court rules differently, we
will follow its lead on this point. (
(1962) 57 Cal.2d 450, 455.)
Under the
circumstances, we modify the probation condition to prohibit defendant from
knowingly using or possessing alcohol or narcotics, intoxicant, drugs, or other
controlled substances without the prescription of a physician.
V. Disposition
The
probation condition is modified to read as follows: “Not knowingly use or possess
alcohol/narcotics, intoxicants, drugs, or other controlled substances without
the prescription of a physician; not traffic in, or associate with people you
know, or have reason to suspect, use or traffic in narcotics or controlled
substances.”
As
modified, the probation order is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
name="_ftn1" title=""> [1] At the motion to suppress, the parties
stipulated that the court could base its ruling on the information in the
police report. Our summary is based on
that report.
name="_ftn2" title=""> [2] Although the search preceded the arrest, it
is settled that where an officer has probable cause, a search incident to
arrest need not be performed simultaneously with full custodial arrest. The search may precede the actual
arrest. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111; People v. Avila (1997) 58 Cal.App.4th 1069, 1075; see also
855, 861; People v. Fay (1986) 184
Cal.App.3d 882, 891.)
