- LEE, 40 CA5 853, 253 CR3 512 (19) #D073740
Following a traffic stop, officers asked Def. for license, which he did not have. Ordered out and patted down. A small amount of marijuana was in his pocket.
Offs then searched Lee’s car without a warrant and discovered 56 grams of cocaine, a firearm, and other items associated with selling narcotics. After Lee was charged with various drug and weapons offenses, he filed a motion to suppress the evidence obtained from the warrantless vehicle search. The trial court granted Lee’s motion, rejecting the People’s contentions that the search was proper under the automobile exception as supported by probable cause or, alternatively, as an inventory search of a vehicle following an impound.
The Court of Appeal, per Dato, J., affirmed.
Last year, Fews, 27 CA5 553, 238 CR3 337 (18) #A151727, held that even after Prop. 64, a legal amount of marijuana possessed during an auto stop could provide probable cause to search the vehicle if other factors give rise to an inference of unlawful activity. In Fews, the odor of MJ, “furtive movements,” and a blunt in the driver’s hands indicated driving UI or with an “open container” of MJ.
Here, however:
With the passage of Proposition 64 by voters in 2016, California law now permits adults 21 years of age and older to legally possess up to 28.5 grams, or about one ounce, of marijuana. (§ 11362.1, subd. (a)(1).) Critically, the statute expressly provides that “[c]annabis and cannabis 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.” (§ 11362.1, subd. (c), italics added.) … California law now specifically states that up to one ounce of marijuana possessed by an adult age 21 or over is not contraband.
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If by this argument the People mean simply that possession of a small (legal) amount of marijuana does not foreclose the possibility that defendant possesses a larger (illegal) amount, they are obviously correct. But there must be evidence—that is, additional evidence beyond the mere possession of a legal amount—that would cause a reasonable person to believe the defendant has more marijuana. (Emphasis in original.)
The People also argued that the search was valid as an inventory search. But the court rejected this:
We likewise find no error in the trial court’s conclusion that the search was not valid as an inventory search. The search here served no community caretaking function. And based on the manner in which the search was conducted and the statements of the officer to Lee and his passenger, the trial court reasonably found that the primary purpose of the search was not to inventory the contents of Lee’s car, but rather to investigate Lee for possible criminal behavior. (Emphasis in original.)
Patdown of Robbery Suspect Invalid Without Facts Indicating Armed and Dangerous
- JEREMIAH S., ___ CA5 ___, 254 CR3 88 (19) #A155856
San Francisco woman robbed of her purse and iPhone by “two young black men” wearing hoodies. Police used the Find My iPhone app to locate the phone by Pier 19. Offs on patrol picked up the dispatch. The offs spotted two minors matching the description and detained them. There was no sign of a weapon on Def., but the Off patted him down because “a robbery occurred” and he knew that “most robberies involve a weapon or most robbers tend to have weapons on their persons.” Off recovered the stolen iPhone.
Def’s motion to suppress was denied. The Court of Appeal, per Fujisaki, J., reversed.
Based on our independent review of the undisputed facts, we conclude the officer who conducted the patsearch did not present specific and articulable facts to support a reasonable suspicion that Jeremiah was armed and dangerous. In so concluding, we decline to recognize a rule that would essentially validate any patsearch of a suspected robber who is lawfully detained following a report of a fresh robbery, regardless of the particular circumstances.
So what sorts of articulable facts should be considered?
Considerations relevant to this inquiry typically include visible bulges or baggy clothing that suggest a hidden weapon; sudden movements or attempts to reach for an object that is not immediately visible; evasive and deceptive responses to an officer’s questions about what the individual was doing; and unnatural hand postures that suggest an effort to conceal a weapon…Other relevant circumstances can include the type of crime at issue; the detained individual’s suspected involvement in such a crime; and the searching officer’s experience with such crimes and their associated weapon use in the particular location of the detention. [Citations omitted].
Seizing Defendant’s Dash Cam Valid Under Exigent Circumstances
- Tran, ___ CA5 ___, ___ CR3 ___ (19) #D074605
Def was involved in a collision with a motorcycle when his car crossed a double yellow line on a sharp curve in the road. At the time of the accident, the motorcycle rider sustained serious injuries, and it was believed that he could die from those injuries.
Arriving Off approached Def who was sitting on the side of the road with a backpack. Off asked Def if he had a dashboard camera. Def admitted he had one. Off then asked if he had removed the camera from his vehicle, and Def stated he had. Off asked where it was, and Def said in his backpack. Off asked Def to get it and give it to him, fearing that Def might somehow destroy the video evidence on the dash cam.
Offs later secured a search warrant to examine the dash cam evidence. Def was charged with reckless driving. He moved to suppress the dash cam evidence. Denied.
The Court of Appeal, per Huffman, Acting P.J., affirmed.
The People argued that the seizure of the evidence was valid under the exigent circumstances (possible destruction of evidence). The court agreed:
Based on the record before us, we conclude that all the circumstances, and the rational inferences stemming from them, existing at the time Palmer seized the dashboard camera would have caused a reasonable officer to believe that immediate acquisition of the camera was necessary to preserve the potential evidence on it. Palmer’s testimony at the suppression hearing supports a rational inference that the camera contained footage of Tran driving. Palmer further relied on his investigation of the scene, his experience in dealing with high-performance cars with dashboard cameras, his knowledge of dashboard cameras, the fact Tran removed the camera from the car and placed it in his backpack, and Tran’s hesitancy in providing the camera to conclude he must seize the camera to prevent the destruction of evidence. His response was objectively reasonable.