- BLAKES, 72 CA5 904, ___ CR3 ___ (21) #C093856:
Sacramento County Sheriff’s Deputies were assigned to the gang suppression unit. They spotted a gold Chevy Impala with tinted windows. Driving behind the Impala, they ran a records check and determined the Impala was owned and being driven by Def., whose license was suspended.
They initiated a traffic stop based on the window tint violation and driving with a suspended license. Def. drove for about one-tenth of a mile before pulling over into a parking lot and legally parking. Addressing Def. the deputies smelled the odor of marijuana.
They ordered Def. out and pat searched him, finding nothing. They then ordered an impound tow and proceeded to search the car as “incident to a tow.”
They found a burnt marijuana cigarette sticking out of the trash receptacle in the center console, a digital scale with green and white residue on top, and prescription bottles were in the center console. On the floorboard there was a glass jar which contained marijuana with at least one bag tied in a knot. An empty handgun holster was found in the back seat. When shown the holster and asked if there was a gun in the car, Def. said he knew nothing about the holster or any gun. A handgun was found on the rear driver’s side seat. Also in the car was a black backpack containing different identification cards, driver’s licenses, and credit cards.
Def. was arrested and put in handcuffs after the gun was found. The Impala was towed.
Petitioner was charged with felon in possession of a firearm, driving without a valid license, possession of a controlled substance, along with a serious felony and a strike allegation.
Def’s 1538.5 motion was denied. The Court of Appeal, per Blease, Acting P.J., reverses.
Prop 64 legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older. It does not apply when the totality of the circumstances gives rise to a fair probability that an existing cannabis regulation was violated when the search occurred. In this case, two potential violations were possible: DUI MJ and driving with an open container of MJ.
The evidence adduced at the suppression hearing does not carry the People’s burden of proving probable cause to justify the warrantless search. The prosecution presented no evidence that petitioner was impaired; no sobriety test was administered, there was no evidence petitioner drove erratically before the stop, and neither detective testified to observing any indicia of petitioner being intoxicated. Likewise, there was no evidence either detective observed an open container before petitioner’s car was searched.
The fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause in this case. Neither detective could determine if the marijuana was freshly burnt, removing any support for an inference that petitioner was smoking the marijuana while driving. As we found in Johnson, “the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing ‘a couple grams’ of marijuana in the car’s center console, and defendant’s actions outside the car in resisting the officers. The totality of these circumstances did not amount to a ‘fair probability that contraband or evidence of a crime” would be found in defendant’s car.’ [Citation.]” (People v. Johnson, supra, 50 Cal.App.5th at p. 635.)
The Court also held that the impound search was a pretext:
What is not present is an adequate community caretaking function served by the impound here. There was no evidence petitioner’s car blocked traffic or was at risk of theft or vandalism; the Impala was legally parked in a parking space in a public parking lot. Although the detectives testified it was common (and thus part of the policy) to tow when the driver had a suspended license to prevent more driving under a suspended license, this policy does not provide a community caretaking function for the tow. The detectives did not afford petitioner the opportunity to call someone to drive his car to another location. More importantly, the evidence shows the impound decision was motivated by an investigatory purpose.
Blood Draw of Unconscious DUI Suspect Upheld
- Nault, ___ CA5 ___, ___ CR3 ___ (21) #B306460:
Def. tried to pass an 18-wheeler on a stretch of two-lane highway. He crashed into a Honda Civic, killing the driver. Both cars burst into flames.
When CHP arrived Def. was already in an ambulance, semi-conscious, smelling of alcohol. Medical personnel were giving him oxygen and intravenous fluids. The Off. went to get a breathalyzer from his cruiser. When he returned, medics were moving Def. to a helicopter for emergency evacuation.
Another Off. went to the hospital and found Def. unconscious and about to go into surgery. He asked a nurse to draw blood. Two samples were drawn and came up 0.14 BAC. Def. was convicted of second degree murder and gross vehicular manslaughter while intoxicated. His motion to suppress the blood evidence was denied.
The Court of Appeal, per Wiley, J., affirmed.
McNEELY, 569 US 141 (13) held that a warrantless blood draw is presumed unreasonable unless justified by a recognized exception. One such exception is exigent circumstances, which arise when an emergency makes law enforcement needs so compelling that a warrantless search is objectively reasonable.
Subsequently, in Mitchell, 139 SC 2525 (19), the Court held that when a driver is unconscious, the Fourth Amendment “almost always” permits a warrantless blood draw when police officers do not have a reasonable opportunity for a breath test before hospitalization.
The court here rules that Mitchell applies. Def. cited MEZA, 23 CA5 604 (18), where a warrantless draw at the hospital was improper without a warrant. But “Meza was pre-Mitchell. There was no airlift of an unconscious person.”
Good Faith Reliance on Invalidated Precedent
This case came back to Cal on remand after the U.S. Supreme Court invalidated the warrantless pursuit of a misdemeanant in LANGE, 594 US ___, 141 SC 2011, 210 LE2 486 (21).
This time, the CA upholds the search because the CHP officer could have relied in good faith on Cal precedent that LANGE invalidated.
Here, Officer Weikert may not properly be charged with knowledge that his warrantless entry into defendant’s home violated the Fourth Amendment given that multiple California cases—good law at the time—authorized warrantless entry in cases, such as this one, involving the hot pursuit of a fleeing misdemeanant.