No More Search Incident to Reefer?

  • IN RE D.W., 13 CA5 1249, 221 CR3 332 (17):

San Francisco police were on patrol in response to a broadcast that someone in the area might have a firearm. They saw five to eight individuals, most of whom they knew to have gang associations, standing on the corner in a rival gang area. The officers were concerned that the group might be ready to rumble.

Officers approached D.W, smelled marijuana on his clothes and breath. One officer said, “Man, you smell like marijuana,” and D.W. admitted he had just blazed.

The officers decided to search D.W. to see if he had more hippie lettuce. They patted down his backpack felt a revolver. After conducting the search, the officers determined that D.W. was 17 years old.

D.W. moved to suppress the gun. He argued: “In the case at bar, none of the officers on the scene observed any suspected drug contraband in plain view of the minor. . . . Smelling of marijuana is not a crime; being under the influence of marijuana is not a crime. There was no probable cause to search him. There was no probable cause to arrest the minor for anything (and thereby, search him incident to a valid arrest), and there was no reasonable suspicion that he was armed and dangerous.”

The trial court denied the motion. The Court of Appeal, per Siggins, J., reversed.

The People tried to justify this as a “search incident.” But incident to what? Not arrest, because, as the court explains:

But at the time of this search in 2015, possession of less than 28.5 grams of marijuana was an infraction punishable by a fine of not more than $100. (Health & Saf. Code, § 11357, subd. (b).) Under California law ingestion or possession of marijuana was a minor, non-jailable offense. (People v. Hua (2008) 158 Cal.App.4th 1027, 1037.) Moreover, even if the officers could reasonably conclude that the smell of marijuana and D.W.’s admission that he just smoked some meant he had more, it would have been mere conjecture to conclude that he possessed enough to constitute a jailable offense.

This case may be used as authority post Prop. 64. California’s booyah-friendly Health & Safety Code adds the following at H&S 11362.1(c):

Marijuana and marijuana products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.


Distressed Dogs Justified Entry Into Yard

  • Williams, ___ CA5 ___, ___ CR3 ___ (17) #B275226

A field officer with the Los Angeles County Department of Animal Control responded to a report of a loose horse out near Lancaster. He followed the horse slowly in his vehicle until the horse stopped at a property and tried to get in through a fence.

The officer heard several dogs barking at the place. He walked along the outside of the fence toward the horse to try to determine if the dogs were loose and could frighten or injure the horse. He saw the dogs were confined in “makeshift” kennels of chain link fencing and plywood inside the yard.

He called for backup and a trailer for the horse. The other officer arrived and they knocked at the property but got no response. They heard several dogs barking in the back yard, as well as a dog barking and “whining” from inside the garage. There was a strong smell of “excessive” fecal matter. One officer looked through a broken window in the upper corner of the garage door. There was a dog inside, in conditions that appeared “unhealthful.” He also saw a “slat mill” partially covered by a tarp. A slat mill is a device used in the training of fighting dogs.

They went through an open gate into the backyard, and found several pit bulls in cages, two of them with scars.

They took several photos. The owner arrived and was issued a misdemeanor citation for the horse. Several weeks later a search warrant was served on the property.

The officers recovered 19 pit bulls (11 adults and 8 puppies), many of which were emaciated or had sores or scars. They also recovered the slat mill device and three boxes of documents related to dog fighting, among other items.

Defendants’ motion to suppress was denied. The Court of Appeal, per Grimes, J., affirmed.

The primary issue was whether exigent circumstances allowed the officers to enter the yard and make the observations that were the basis for the search warrant.

Defendants argue there were no circumstances that justified the officers proceeding into the back yard after having looked in the garage. Given the facts known to the officers, it was not unreasonable for them to be concerned about the condition of the dogs they could hear barking incessantly from the back yard. They could have reasonably believed they were justified to walk into the back yard and briefly check on the dogs in the kennels that were visible from outside the fence.


Speculative Impound Scenario Not Enough to Justify Inevitable Discovery Exception 

  • WALLACE, ___ CA5 ___, ___ CR3 ___ (17) #A149049

Defendant sought reversal of the judgment against him for possession of a baton or similar weapon in violation of Penal Code section 22210, which the court entered after a negotiated disposition of his case.

Officer Ambrose of the Fairfield Police Department found the baton in defendant’s vehicle after defendant was stopped by another officer for a traffic violation and then arrested at the scene by Ambrose as a suspect in a domestic violence incident.

Defendant argued that the trial court erred when it denied his motion to suppress evidence relating to the baton on the ground that it was obtained during an inventory search of his vehicle.

The People did not defend the search as a valid inventory search or otherwise that it was constitutionally permissible. Rather, they asserted that the judgment should be affirmed because police inevitably would have discovered the baton in the course of impounding the vehicle and taking an inventory of its contents.

But the court concluded there was no substantial evidence either that the evidence was obtained as the result of a valid inventory search, or even that one occurred.

The People’s inevitable discovery argument fails because it requires us to build speculative inference on top of speculative inference …

First, as already discussed, the record is silent as to whether anyone even considered towing the vehicle …

Second, there is no indication that the vehicle was actually towed …

It is possible that defendant’s vehicle was towed but, again, a mere possibility does not rise to the level of substantial evidence.