People v. Hall

57 Cal.App.5th 946

271 Cal.Rptr.3d 793

The PEOPLE, Plaintiff and Respondent,

v.Dontaye T. HALL, Defendant and Appellant.

A157868

Court of Appeal, First District, Division 2, California.

Filed November 24, 2020

Walter K. Pyle, Berkeley, under appointment of the Court of Appeal, for Defendant and Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share, Ashley Harlan, Deputy Attorneys General, for Plaintiff and Respondent

Miller, J.

When defendant Dontaye T. Hall was pulled over for a vehicle-equipment violation in 2018, a police officer observed in the car "a clear plastic baggie" of what appeared to be marijuana. Based on this observation, two police officers searched Hall's car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall's motion to suppress the evidence found in this search.

Since the passage of Proposition 64 by voters in 2016, however, it has been legal for persons 21 years of age and older to possess and transport small amounts (up to 28.5 grams) of marijuana. ( Health & Saf. Code,¹ § 11362.1, subd. (a)(1).) We now join those courts that have held the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867, 253 Cal.Rptr.3d 512 ( Lee ); People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6, 259 Cal.Rptr.3d 405 ( Shumake ); People v. Johnson (2020) 50 Cal.App.5th 620, 634, 264 Cal.Rptr.3d 103 ( Johnson ); People v. McGee (2020) 53 Cal.App.5th 796, 801–802, 266 Cal.Rptr.3d 650 ( McGee ).)

Under Proposition 64, a driver is not permitted to "[p]ossess an open container or open package of cannabis or cannabis products" (§ 11362.3, subd. (a)(4)), but there was no evidence in this case that the plastic baggie observed by the officers was an "open container." We therefore reverse the order denying Hall's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

Hall's motion to suppress was heard at his preliminary hearing, where the only witness was San Francisco police officer Steve Colgan, who testified as follows.

Traffic Stop and Car Search

Around 11:00 p.m. on September 3, 2018, Colgan and his partner were on duty in a marked patrol vehicle in the area of Capp and 18th Streets when they saw a late model Dodge Charger with a nonoperational license plate lamp. He and his partner initiated a traffic stop, and the car pulled over in a parking lot. Hall was the driver, and there was another occupant in the front passenger seat.

Looking inside the car, Colgan observed in the center console "a clear plastic baggie, inside of which was a green leafy substance," which he believed was marijuana. He also saw in the cup holders "an ashtray filled with ashes," "burnt cigar wrappers, commonly used to wrap marijuana," and "a green leafy substance, that appeared to be broken up" "in the lap of the driver."

Colgan did not see any smoke in Hall's car. Defense counsel asked if he smelled the cigar wrappers to determine whether the smell was consistent with marijuana, and Colgan responded that he did not. The officer was not otherwise asked about odors emanating from the car or Hall, and he did not mention smelling marijuana (either burnt or unburnt). Nor did Colgan observe any signs indicating Hall was under the influence. Defense counsel asked whether the officer had any information that Hall "was armed and dangerous, or anything like that," before he was pulled over. Colgan answered no, "there was nothing prior on the vehicle or Mr. Hall, that I was aware of."

Colgan and his partner decided to search the car based on the presence of marijuana in the car. He testified, "due to the fact that having an open container of marijuana is a violation of the law, [we determined] that we would search the vehicle to possibly find additional evidence of that crime." Hall and his passenger complied with the officers’ commands to get out of the car and sit down nearby. On the floor of the rear passenger's side, Colgan found a backpack with all the compartments "zipped up, or at least most of the way." He opened the main compartment and found a black pistol.

Argument and Denial of the Motion to Suppress

Defense counsel argued the officers had no probable cause to search Hall's car after the traffic stop because they had no reason to believe Hall was either armed and dangerous or involved in any criminal activity. The prosecutor responded that the search "was not based on the traffic stop, it was based on seeing a plain view of the apparent open containers of marijuana in the car, which then did justify the search, and the officers might find contraband related to that offense."

Judge Braden C. Woods, acting as magistrate, denied the motion to suppress finding, "[b]ased upon the totality of the circumstances and the evidence in this case, ... the officers did act reasonably during each step of the process." The magistrate reasoned that persons are not permitted to possess open containers of cannabis or cannabis products or to smoke or ingest cannabis or cannabis products while driving. (See § 11362.3, subds. (a)(4) and (7).)

Denial of Motion to Set Aside the Information and Disposition

Hall was held to answer on two felony weapons counts and an infraction. By information, he was charged with carrying a loaded firearm in a public place ( Pen. Code, § 25850, subd. (a) ), carrying a concealed firearm in a vehicle, (id. , § 25400, subd. (a)(1)), and having no license plate lamp, an infraction ( Veh. Code, § 24601 ). Hall moved to set aside the information under Penal Code section 995, renewing his argument that the search of his car violated the Fourth Amendment. The trial court (Hon. Eric R. Fleming) denied the motion.

The parties then reached a plea agreement. Hall entered a plea of no contest to a single misdemeanor firearm offense (carrying a loaded firearm, Pen. Code, § 25850, subd. (a) ), the remaining charges were dismissed, the trial court suspended imposition of sentence, and Hall was placed on probation for three years, with six months to be served in county jail.

DISCUSSION

A. The Automobile Exception to the Warrant Requirement

The Fourth Amendment of the United States Constitution protects against "unreasonable searches and seizures" and generally requires a warrant before an officer may conduct a search. Warrantless searches "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." ( Katz v. U.S. (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, fn. omitted.)

One such exception to the warrant requirement is the automobile exception, under which an officer may search a vehicle without a warrant so long as the officer has probable cause to believe the vehicle contains contraband or evidence of a crime. ( Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574.) "Probable cause is a more demanding standard than mere reasonable suspicion." ( Lee , supra , 40 Cal.App.5th at p. 862, 253 Cal.Rptr.3d 512.) Probable cause exists when "the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found." ( Ornelas v. U.S . (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911.)

The prosecution bears the burden of establishing an exception applies. ( People v. Macabeo (2016) 1 Cal.5th 1206, 1213, 211 Cal.Rptr.3d 34, 384 P.3d 1189.)

B. Standard of Review

" ‘[I]n proceedings under [Penal Code] section 995 it is the magistrate who is the finder of fact; the superior court ... sits merely as a reviewing court; it ... cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate.’ " ( People v. Gonzalez (2017) 2 Cal.5th 1138, 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074.)

Thus, we disregard the lower court's rationale for denying the motion to set aside the information and directly review the court's ruling at the preliminary hearing denying Hall's motion to suppress.

"We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." ( People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.) We determine probable cause considering the totality of the circumstances. ( Johnson , supra , 50 Cal.App.5th at p. 625, 264 Cal.Rptr.3d 103.) We may affirm the ruling if it is correct on any theory, even if the trial court's reasoning was incorrect. ( People v. McDonald (2006) 137 Cal.App.4th 521, 529, 40 Cal.Rptr.3d 422.)

C. Analysis

The Attorney General contends probable cause existed to search Hall's car, first, because observation of marijuana inside a vehicle always justifies a search of the entire vehicle and, second, because the marijuana in this case was in an "open container" in violation of law. We consider each of these asserted grounds for probable cause to conduct the search.

1. Marijuana in the Car Did Not Justify the Search

The Attorney General claims, "An officer who observes that a vehicle contains marijuana is entitled to search the vehicle to determine whether the defendant in fact possesses the marijuana for personal use and has adhered to legal limits or has additional quantities stashed in other parts of the car."

Under section 11362.1, subdivision (a)(1), enacted as part of Proposition 64, it is lawful for persons 21 and older to possess and transport up to 28.5 grams of cannabis. Subdivision (c) of the statute ( § 11362.1(c) ) further provides, "[c]annabis and...