• Fernandez v. California, 571 U.S. ___. 134 SC 1126 (14) #12-7822:
This is a case that came out of California, Fernandez, 208 CA4 100, 145 CR3 51 (12). The facts:
Police officers observed a suspect in a violent robbery run into an apartment building, and heard screams coming from one of the apartments. They knocked on the apartment door, which was answered by Roxanne Rojas, who appeared to be battered and bleeding. When the officers asked her to step out of the apartment so that they could conduct a protective sweep, petitioner came to the door and objected.
Suspecting that he had assaulted Rojas, the officers removed petitioner from the apartment and placed him under arrest. He was then identified as the perpetrator in the earlier robbery and taken to the police station. An officer later returned to the apartment and, after obtaining Rojas’ oral and written consent, searched the premises, where he found several items linking petitioner to the robbery. The trial court denied petitioner’s motion to suppress that evidence, and he was convicted. The California Court of Appeal affirmed. It held that because petitioner was not present when Rojas consented to the search, the exception to permissible warrantless consent searches of jointly occupied premises that arises when one of the occupants pre- sent objects to the search, Georgia v. Randolph, 547 U. S. 103, did not apply, and therefore, petitioner’s suppression motion had been properly denied.
The Supreme Court, 6-3, affirmed. Justice Alito writing for the majority:
Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.
The petitioner argued that police motive could result in a co-occupant being removed for the sole purpose of getting consent from the other occupant. The Court refused to put in a subjective test, holding “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.”
But in dissent, Justice Ginsburg wondered, “Does an occupant’s refusal to consent lose force as soon as she absents herself from the doorstep, even if only for a moment? Are the police free to enter the instant after the objector leaves the door to retire for a nap, answer the phone, use the bathroom, or speak to another officer outside? Hypothesized practical considerations, in short, provide no cause for today’s drastic reduction of Randolph’s holding and attendant disregard for the warrant requirement.”
Odor of MJ Plus Pipe With MJ in Bowl Gives P-C For Vehicle Search
• Waxler, 224 CA4 712, 168 CR3 822 (14):
Del Norte County Sheriff’s Deputy Richard Griffin learned a person was illegally dumping trash in a parking lot behind a Crescent City Safeway. Deputy Griffin drove to the Safeway and stopped next to appellant’s truck. Appellant was sitting in the driver’s seat. As Deputy Griffin “got close” to appellant’s truck, he smelled “the odor of burnt marijuana” and “saw a marijuana pipe with . . . what appeared to be burnt marijuana in the bowl.” The pipe was “on the bench seat right next to” appellant. Deputy Griffin searched the truck and found a methamphetamine pipe and a small bindle containing suspected methamphetamine with a street value of about $50.
At the prelim Def. argued that the amount of “completely un-smoked marijuana . . . in the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are allowed by law.” He claimed Deputy Griffin’s observation of marijuana in the truck “could not have supported an arrest” because possession of up to 28.5 grams of marijuana is an infraction under section 11357.
Suppression denied. The Court of Appeal, per Jones, P.J., affirmed.
Both sides cited Strasburg, 148 CA4 1052, 56 CR3 306 (07), which held that observation of a “useable quantity of marijuana . . . in the passenger compartment” of the defendant’s car “provided probable cause for the search of the vehicle’s trunk.”
However, Def. argued that when Strasburg was decided in 2007, marijuana possession was a misdemeanor and now, possession of less than an ounce of marijuana is merely a nonjailable offense.
To which the court utters a collective, So?
Appellant is correct that possession of up to an ounce of marijuana is an infraction, punishable by a fine. (§ 11357, subd. (b).) He seems, however, to misunderstand the automobile exception to the warrant requirement. A “warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband.” (Robey, supra, 56 Cal.4th at p. 1225, italics added, citing Chambers v. Maroney (1970) 399 U.S. 42, 48; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 266, p. 1083.)