• Tacardon, __ C5 ___, ___ CR3 ___, ___ P3 ___ (22) #S264219:
Deputy sheriff on patrol drove past a BMW legally parked in front of a residence. Smoke emanated from slightly open windows. Deputy made eye contact with the occupants as he drove past. He made a U-turn, parked 15 to 20 feet behind the Beemer, and turned on his spotlight—not his emergency lights.
He then approached the BMW at a walking pace. He did not draw a weapon. A woman sitting in the backseat jumped out of the BMW, said she lived there. Deputy directed the woman to stand near the sidewalk behind the BMW where he could see her.
He smelled MJ from the car, used his flashlight to look at the interior. He saw one large and two smaller clear plastic bags on the rear passenger floorboard containing “a green, leafy substance.”
Tacardon was in the driver’s seat. The deputy asked Tacardon if he was on probation or parole. Tacardon said he was on probation. Search of the car nabbed three bags of MJ and a vial with 76 hydrocodone pills.
Tacardon was charged with possession for sale of hydrocodone and marijuana. His 1538.5 motion was granted, based on the detention of the woman and, ipso facto, Tacardon. The Court of Appeal reversed. In analyzing the deputy’s initial approach, the Court of Appeal expressly disagreed with Kidd, 36 CA5 12 (2019), which found an unlawful detention on similar facts.
The California Supreme Court, per Corrigan, J., granted review to resolve “this conflict in the Courts of Appeal.”
In Kidd, the court observed: “motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights. Regardless of the color of the lights the officer turned on, a reasonable person in Kidd’s circumstances ‘would expect that if he drove off, the officer would respond by following with red light on and siren sounding . . . .’ ” (quoting People v. Bailey (1985) 176 Cal.App.3d 402)
The Supreme Court majority disagrees, opining that “the use of a spotlight generally conveys a different meaning to a reasonable person than the use of a patrol car’s emergency lights.”
In other words, a reasonable person would feel free to drive off…and that the cops would not follow. Adopting the “totality of the circumstances” test for such situations, there needs to be something “more” than a spotlight on the car.
[W] decline to state a bright-line rule. A court must consider the use of a spotlight together with all of the other circumstances. It is certainly possible that the facts of a particular case may show a spotlight was used in an authoritative manner. These may include flashing lights at the driver to pull the car over or attempting to blind the driver, which would be relevant considerations under the totality of the circumstances….But use of a spotlight, standing alone, does not necessarily effect a detention.
Justice Liu filed a dissent.
I imagine this conclusion comes as news to anyone who has ever had their car illuminated by a police spotlight. The court apparently envisions that a reasonable person in Tacardon’s circumstances would think, “Oh, the officer who just eyeballed me, made a U-turn, pulled up behind me in his patrol car, pointed a bright spotlight at my car, got out of his car, and is now walking toward me isn’t trying to stop me. He just turned on his spotlight to see what’s going on. Good thing he didn’t turn on his emergency lights . . . looks like I’m free to leave.” This strains credulity.
Parole Search of Auto Did Not Extend to Locked Glove Box
- CLAYPOOL, 85 CA5 1092, 301 CR3 858 (22) #C096620:
Brandon Claypool was driving a Honda Accord with two passengers: Malcolm Clay in the front passenger seat, and parolee Carlos Olivia in the rear seat on the passenger’s side. Police followed until Claypool stopped on residential street.
Olivia informed police he was on parole. Offs. ordered all occupants out and did a parole search of the passenger area, then used Claypool’s key to unlock the glove box. They found a gun and ammo. The encounter was captured on police bodycam.
Claypool was charged with possession of a firearm by a felon, with enhancement for a prior strike. His motion to suppress was denied. He brought a timely petition for writ of mandate and a motion to dismiss. The Court of Appeal, per Robie, Acting P.J., sends this back to the trial court with directions to grant the motion.
As articulated in Schmitz, 55 C4 908 (12), a permissible search based on a passenger’s parole status is limited to “those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.”
Here, the court held that “it does not appear objectively reasonable to believe the back seat passenger, Olivia, might have secreted a gun in the glove box after he saw police.”
Minors Smoking MJ in Car Gave P-C to Search Under Auto Exception
- Castro, 86 CA5 314, 302 CR3 185 (22) #B318174:
Officers saw Castro and another male sitting in a parked car with expired registration, with windows rolled down. There was a strong odor of burning MJ coming from the car.
Officer exited patrol car and made contact with Castro, in the driver’s seat. He recognized the front passenger seat and another male lying in the backseat (who appeared to be hiding) from prior encounters with them, and knew they were minors. He asked Castro if they had been smoking, and Castro said yes. Officer ordered them all out, cuffed them, and searched the car.
He found a nine-millimeter ammunition in the closed center console. He opened the trunk and found an open duffle bag with a loaded nine-millimeter handgun, with no serial number on it.
Castro was charged with carrying a loaded, unregistered handgun in a vehicle. He moved to suppress, contending the search did not fall under the Auto Exception to the warrant requirement. Motion denied.
The Court of Appeal, per Chaney, J., affirmed.
Based on the “strong odor” of “burnt marijuana” emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, the officers had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car. We are unpersuaded by Castro’s argument that probable cause did not exist because he told Officer Zendejas he had smoked marijuana two hours before. Officer Zendejas’s belief “that there was still marijuana in the car based on the current smell of marijuana coming from inside the car” was reasonable under the circumstances of this case. Accordingly, we conclude the officers had probable cause to search the car under the automobile exception, and the trial court did not err in declining to suppress the evidence from the vehicle search.
Castro also asserted that “In light of the passage of Proposition 64, police may no longer search an automobile simply because they smell marijuana inside a vehicle stopped for an expired registration.” But because all of the occupants were under 21, it was still unlawful for them to possess any amount of MJ for recreational use.