People v. Waxler

224 Cal.App.4th 712

168 Cal.Rptr.3d 822

The PEOPLE, Plaintiff and Respondent,

v.Michael Clarence WAXLER, Defendant and Appellant.

A137796

Court of Appeal, First District, Division 5, California.

Filed March 11, 2014

As Modified on Denial of Rehearing April 3, 2014

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 266 et seq.

Superior Court of Del Norte County, No. A137796, William H. Follett, Judge. (Super. Ct. No. CRF129128)

Stephanie M. Adraktas, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, and Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

Jones, P.J.

The question in this case is whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement. The answer is yes, notwithstanding the fact that possession of not more than 28.5 grams (an ounce) “of marijuana, other than concentrated cannabis, is ... an infraction” punishable by a fine. (Health & Saf. Code, § 11357, subd. (b).) ¹ Under the automobile exception to the warrant requirement, a law enforcement officer may search a vehicle when he or she has probable cause to believe it 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 ( Robey ).) Under the current state of California law, nonmedical marijuana—even in amounts within the statutory limit set forth in section 11357, subdivision (b)—is “contraband” and may provide probable cause to search a vehicle under the automobile exception. Moreover, possession of a “215 card” does not vitiate probable cause to search pursuant to the automobile exception. ( People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ).) ²

We affirm the trial court's denial of appellant Michael Waxler's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

We have taken the facts from the preliminary hearing transcript.

The Incident

In February 2012, 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.

Deputy Griffin's partner detained appellant and “Mirandized” ³ him. Appellant initially said he knew the methamphetamine and methamphetamine pipe were in his vehicle. He claimed the methamphetamine “was not his” and had been left in the truck by some friends, who were hitchhikers. Then he “changed his story a couple of times.” Later, appellant said the methamphetamine “had been in his truck for a few days because he'd picked up the hitchhiker ... upstate” and “later he changed his story again to say he'd received this meth from the hitchhiker in payment for the ride.”

At some point during the conversation, appellant told Deputy Griffin he “had a 215 card” and showed it to him. Deputy Griffin was not sure exactly when he became aware of the 215 card, but he learned about it after he began searching appellant's truck. When asked when he became aware of the 215 card, he testified, “my recollection is [appellant] told me on scene. And I confirmed it at the jail when I actually looked at it after I arrested him for the methamphetamine issue.” When defense counsel asked Deputy Griffin whether he had a “recollection if [he] learned about the 215 [card] prior to the search of the vehicle or after the search of the vehicle,” Deputy Griffin responded, “My technical search began when I entered the vehicle to retrieve the marijuana pipe. So I didn't learn about it then. I don't know how long it was after that or not” and said he “saw the pipe first before ... doing any questioning.” As Deputy Griffin explained, “Even if he has a valid medical marijuana card I still have to confirm how much he has on him or if there are other issues with it. [H]e can have a valid card and have half a gram present in a pipe. I've seen many times people hide a quarter ounce or more.... So I still have to confirm how much marijuana is inside the vehicle. From my training and experience it's still an arrestable offense. [ ] I have to determine whether it's legally possessed or not.”

The Charges, Motion to Suppress, and Plea

The People charged appellant with transportation of methamphetamine (§ 11379 (Count 1)) and with possession of methamphetamine (§ 11377 (Count 2)). Appellant moved to suppress, claiming Deputy Griffin “did not have any reason to believe” appellant was “under the influence of marijuana or any other drug, ... attempting to operate a vehicle while under the influence of marijuana, or ... committing any crime at the time that would warrant a search of the vehicle.”

According to appellant, 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.” Appellant 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. Finally, appellant argued the possession of “personal use medical marijuana” was legal with a doctor's recommendation. The suppression motion attached a valid physician's statement recommending the use of marijuana for medical conditions (§ 11362.5) and a valid Washington State medical marijuana card.

In opposition, the People argued Deputy Griffin had probable cause to search appellant's truck after observing “an odor of marijuana.” They also contended the CUA “does not provide immunity from arrest or criminal prosecution” and that possession of a 215 card is “an affirmative defense to the crimes of possession and cultivation of marijuana at trial” and does “not protect one from a valid search nor arrest.” The parties stipulated appellant had a valid 215 card on the day of the incident.

At the conclusion of the preliminary hearing, the court denied appellant's motion to suppress and held him to answer the charges. The court explained, “I think the possession of the 215 card is an affirmative defense. The observation of marijuana is sufficient to justify the officer's investigating further. It's up to the defendant at that point to say, ... I've got a 215 card. And once that's brought to [the law enforcement officer's] attention I think [the officer] has no further justification. But in the absence of an affirmative defense being asserted at that time I think he has a right to proceed as he did.”

Appellant pled guilty to possession of methamphetamine (§ 11377 (Count 2)). The court dismissed the methamphetamine transportation charge (§ 11379 (Count 1)) and reduced the methamphetamine possession conviction to a misdemeanor (Pen. Code, § 17, subd. (b)). The court suspended imposition of sentence and placed appellant on probation.

DISCUSSION

I.Standard of Review

“The denial of the suppression motion may be challenged by an appeal from the judgment entered after defendant's guilty or no contest plea. [Citations.] ‘ “The standard of appellate review of a trial court's ruling on a motion to suppress is well established. 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. [Citations.]” [Citations.]’ ” ( People v. Leath (2013) 217 Cal.App.4th 344, 350, 158 Cal.Rptr.3d 449.)

II.The Automobile Exception to the Warrant Requirement

“[T]he Fourth Amendment to the United States Constitution permits the warrantless search of an automobile with probable cause.” (Strasburg, supra, 148 Cal.App.4th at p. 1059, 56 Cal.Rptr.3d 306.) Under the automobile exception to the warrant requirement, “[w]hen the police have probable cause to believe an automobile contains contraband or evidence they may search the automobile and the containers within it without a warrant. [Citation.]” (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100, 59 Cal.Rptr.3d 633 (Nasmeh ); Ornelas v. United States (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 [probable cause to search exists “where 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”].)

“The ‘ “specifically established and well-delineated” ’ [citation] automobile exception to the Fourth Amendment's warrant requirement is rooted in the historical distinctions between the search of an automobile or other conveyance and the search of a dwelling. [Citation.]” (Nasmeh, supra, 151 Cal.App.4th at p. 100, 59 Cal.Rptr.3d 633.) The automobile exception is also “rooted in the reduced expectation of privacy in a vehicle [and] the fact a vehicle is inherently mobile.” (People v. Evans (2011) 200 Cal.App.4th 735, 753, 133 Cal.Rptr.3d 323; California v. Carney (1985) 471 U.S. 386, 394, 105 S.Ct. 2066, 85 L.Ed.2d 406 (Carney ) [vehicle's inherent mobility]; Arizona v. Gant (2009) 556 U.S. 332, 345, 129 S.Ct. 1710, 173 L.Ed.2d 485 [reduced expectation of privacy in an automobile].) Under the automobile exception, “ ‘ “[i]...