People v. Morgan CA4/2 ( 2015 )

Filed 3/11/15 P. v. Morgan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059403
v. (Super.Ct.No. SICRF1253273002)
TIMOTHY CLIFFORD MORGAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. Brian Lamb and Barry
Hammer, Judges.* Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
*
Barry Hammer is a retired judge of the San Luis Obispo Superior Court
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Timothy Clifford Morgan pleaded no contest to a drug
charge after the lower courts twice denied his motion to suppress evidence under Penal
Code section 1538.5. The appeal raises the single issue that the trial court erred in
denying his motion to suppress. We affirm.
FACTS AND PROCEDURAL HISTORY
The charges arose out of a traffic stop on February 4, 2012. Officer Brent
Gillespie of the Bishop Police Department was on patrol at nearly 11:00 p.m., when he
saw a black sedan traveling east on Elm Street. The black sedan made a right turn onto
Central Avenue without displaying a turn signal. Officer Gillespie followed. The black
sedan made a second turn, westbound onto East Pine Street. Again, no rear turn signal
light displayed. However, Officer Gillespie could see an auxiliary turn signal light
flashing on the sedan’s side mirror, even though the sedan’s taillight was not blinking.
As the black sedan executed the second turn, Officer Gillespie also saw a large crack in
the sedan’s windshield. He decided to make a traffic stop on the black sedan.
Officer Gillespie approached the stopped sedan on the passenger side. As he
walked alongside the sedan, he could see a lot of trash and other debris in the passenger
compartment; he said he also could smell the odor of marijuana emitting from the
passenger side window. Officer Gillespie never mentioned this odor throughout the
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encounter, however. Defendant was driving the sedan; Kelly Lynn Greene was sitting in
the front passenger seat.
Officer Gillespie believed it was “past practice” to have a driver get out of the
stopped vehicle when he was writing a traffic citation. Accordingly, Officer Gillespie
had defendant step out of the sedan and stand with Officer Gillespie next to his patrol car
while he checked the validity of defendant’s driver’s license. Defendant gave Officer
Gillespie his driver’s license, automobile registration, and proof of insurance. Officer
Gillespie verified that there were no outstanding warrants for defendant. Backup officers
soon arrived, but stood aside while Officer Gillespie conducted his investigation. Officer
Gillespie thought defendant seemed “overly nervous” while standing by the patrol car,
and he noticed that defendant’s hand was shaking. However, after verifying defendant’s
documentation, Officer Gillespie wrote a citation for failure to use turn signals and
having a defective windshield. He advised defendant that defendant was then free to
leave. Officer Gillespie issued the citation within about five minutes of the traffic stop.
Defendant walked back toward the sedan.
After telling defendant that he was free to leave, Officer Gillespie decided to
initiate another contact with defendant. Officer Gillespie asked if he could speak to
defendant; defendant walked back to Officer Gillespie’s patrol car. Officer Gillespie
determined in his own mind at that point that defendant was no longer free to leave.
Officer Gillespie then asked whether defendant had anything illegal in the car. At
first, defendant denied having anything illegal, but then admitted there was a marijuana
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pipe in the sedan. Officer Gillespie asked if defendant had an authorization card for
medical marijuana; defendant gave the officer documentation showing that “he had been
recommended for marijuana usage.” Officer Gillespie told defendant that he was going
to “verify your card.” Defendant asked if he was free to leave, and the officer said no.
No testimony or evidence was proffered to show what Officer Gillespie did to verify the
validity, or lack thereof, of defendant’s authorization for medical marijuana use.
Once defendant had told Officer Gillespie about the marijuana pipe, the officer
intended to search the sedan. Officer Gillespie then approached Greene, the passenger in
the sedan, and asked her if there was anything illegal in the car. Greene admitted there
was a marijuana pipe under the seat.
Officer Gillespie proceeded to search the sedan. He found two marijuana pipes,
one under the seat and one in a cup holder. He also found a closed box behind the
driver’s seat. The box was decorated with stickers depicting leaves of marijuana plants.
Officer Gillespie asked defendant and Greene for permission to open the box, but both
refused. Nevertheless, Officer Gillespie opened the box and found marijuana and a
quantity of cash, as well as a smaller, locked box inside. He proceeded to open the
second box. Inside the smaller box, he found suspected methamphetamine, packaging
materials, scales, and other drug paraphernalia.
As a result, defendant was arrested, and he was charged in a criminal complaint
with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a))
(count 1); possession of methamphetamine for sale (Health & Saf. Code, § 11378)
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(count 2); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))
(count 3); and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 4).
Defendant filed a motion to suppress the evidence under Penal Code
section 1538.5. The court denied the motion.
Defendant waived his right to a preliminary hearing on the charges, and the
prosecutor filed an information alleging the same violations as were contained in the
felony complaint. Defendant renewed his motion to suppress in the trial court. The court
conducted a hearing, and again denied the motion.
After these rulings, defendant agreed to plead no contest to count 2 (possession of
methamphetamine for sale), in exchange for dismissal of the remaining counts. The court
suspended imposition of sentence and placed defendant on formal probation for 36
months.
Defendant filed a notice of appeal.
ANALYSIS
I. Standard of Review
“ ‘The denial of a 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.
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[Citations.]’ [Citations.]” ’ [Citation.]” (People v. Waxler (2014) 224 Cal. App. 4th 712,
718.)
II. The Search Was Supported by Probable Cause
Defendant contends that Officer Gillespie did not have probable cause to search
the sedan because defendant had provided some evidence to show that he could lawfully
possess marijuana. We disagree.
The salient case is People v. Strasburg (2007) 148 Cal. App. 4th 1052. There, an
officer on patrol saw two men sitting in a parked car in a gas station parking lot. The
officer stopped next to the parked car and got out of his patrol vehicle. As the officer
approached the driver’s side door of the parked car, the driver opened the door. The
officer immediately smelled the odor of marijuana emanating from the parked car. The
driver admitted he had been smoking marijuana just before the officer arrived, but said
that he had a medical marijuana card. Although the driver asked the officer to look at his
marijuana card (actually a prescription), the officer refused, in the mistaken belief that the
medical marijuana law did not apply in that county. The officer asked the driver if he had
any marijuana on his person or in the car. The driver produced a baggie of marijuana,
weighing about three quarters of an ounce. The officer asked the driver to get out of the
car; as the driver did so, the officer saw in plain sight another baggie of marijuana inside
the car. The second baggie contained about 2.2 grams of marijuana. The officer detained
the driver, frisked him, and placed him in the back of the patrol car. The officer then
proceeded to search the car. The search turned up additional marijuana, about one and
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one-half pounds, and a scale capable of weighing the entire quantity of marijuana. (Id. at
pp. 1055-1056.)
The driver moved to suppress the evidence obtained during the search. He argued
that, once he had produced a card or prescription for medical marijuana, the officer had
no right to detain, frisk, or search the driver or his car. The trial court denied the motion
to suppress evidence, ruling that, once the officer had smelled the odor of marijuana
coming from the parked car, the driver’s possession of a marijuana card did not deprive
the officer of the right to continue investigating the matter. After the trial court denied
the motion to suppress, the driver entered a no contest plea and was placed on probation.
(People v. Strasburg, supra, 148 Cal. App. 4th 1052, 1056-1057.)
On appeal, the appellate court affirmed. The Compassionate Use Act of 1996
(Prop. 215, as approved by voters, Gen. Elec. (November 5, 1996) (CUA); see Health &
Saf. Code, § 11362.5) provides for a limited immunity from prosecution for violation of
the general criminal statutes prohibiting possession or cultivation of marijuana. (Health
& Saf. Code, §§ 11357, 11358.) Some years after passage of Proposition 215, in 2003
the Legislature enacted a Medical Marijuana Program (MMP), providing for voluntary
issuance of medical marijuana identification cards by the Department of Health Services.
(Health & Saf. Code, § 11362.7, et seq.) Qualified patients under the MMP are permitted
to possess a limited quantity of dried marijuana for personal medicinal use. (Health &
Saf. Code, § 11362.77, subd. (a).) Even qualified patients are not permitted to use
marijuana under certain circumstances, including inside a motor vehicle when it is being
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operated. (Health & Saf. Code, § 11362.79, subd. (d).) The limited immunities provided
by the CUA and the MMP afford a qualified patient an affirmative defense in case of
prosecution for unlawful possession or cultivation of marijuana. However, the court
relied on California Supreme Court precedent that the CUA (and presumably the MMP
legislation) does not provide immunity from arrest or investigation. (People v. Strasburg,
supra, 148 Cal. App. 4th 1052, 1058, citing People v. Mower (2002) 28 Cal. 4th 457, 468-
469.)
Defendant argues that this case can be “easily distinguished” from Strasburg,
because the driver in that case readily admitted having smoked marijuana in the car just
before the officer arrived, and because the driver produced one baggie of marijuana, the
officer saw a second baggie in plain view in the vehicle, and the driver admitted that
there was even more marijuana inside the car. (People v. Strasburg, supra, 148
Cal. App. 4th 1052, 1055-1056.) The officer in Strasburg had both smelled the odor of
marijuana coming from the car, and observed the presence of marijuana in the car. Here,
defendant argues, Officer Gillespie may have smelled some odor of marijuana coming
from the black sedan, but he did not see any marijuana in the passenger compartment, nor
did he have evidence that any marijuana had recently been smoked inside the sedan.
Indeed, Officer Gillespie either did not, or could not, distinguish the odor of burnt
marijuana from unburnt marijuana. Defendant argues that, “[a]bsent the facts described
by Strasburg, namely the suspicious manner in which the vehicle was parked, the
officer’s knowledge that the defendant possessed marijuana in the vehicle, and the fact
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that the defendant admitted to smoking inside of the vehicle, [Officer] Gillespie lacked
probable cause to search [defendant’s] vehicle.”
We are not persuaded. The most prominent factor in Strasburg was the odor of
marijuana emanating from the parked car. “The operative issue is whether [the officer]
had probable cause to search defendant’s car at the moment he smelled the odor of
marijuana, at the outset of his encounter with defendant who was with another person in a
parked car in a public parking area.” (People v. Strasburg, supra, 148 Cal. App. 4th 1052,
1058-1059.) The court went on to state that, “[u]nder the facts and circumstances of this
case, [the investigating officer] had probable cause to search defendant’s car for
marijuana after he smelled the odor of marijuana. (People v. Dey (2000) 84 Cal. App. 4th
1318, 1320-1322 [101 Cal. Rptr. 2d 581]; see People v. Hunter (2005) 133 Cal. App. 4th
371, 378-382 [34 Cal. Rptr. 3d 818].)” (Id. at p. 1059.)
The Strasburg court flatly rejected the notion that possession of an authorization to
use medical marijuana dispelled probable cause to search a motor vehicle for contraband.
“[I]n light of Mower’s guidance that the Act does not impair reasonable police
investigations and searches[,] [a] physician’s prescription or an identification card under
Article 2.5, . . . does not provide an automatic protective aegis against reasonable
searches.” (People v. Strasburg, supra, 148 Cal. App. 4th 1052, 1058.) As in “[People v.]
Mower, supra, 28 Cal. 4th 457, the California Supreme Court held that the Act does not
confer a complete immunity from prosecution to a qualified patient. Rather, the Act
confers a limited immunity from prosecution, meaning that the qualified patient can raise
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his status as an affirmative defense at trial or as a ground to set aside an indictment or
information prior to trial on the ground of insufficient evidence. [Citation.] [Fn.
omitted.] But the status of qualified patient does not confer an immunity from arrest.
Law enforcement officers may arrest a qualified patient for marijuana offenses where
they have probable cause, based on all of the surrounding facts including qualified patient
status, when they have reason to believe, for instance, that the arrestee does not possess
marijuana for his personal medical purposes. [Citation.]” (People v. Strasburg, supra,
148 Cal. App. 4th 1052, 1058.)
The possession of marijuana is still a crime, and the CUA and the MMP provide
only a limited immunity from criminal penalties. That is, those statutes will provide a
defense to a criminal charge, not immunity from investigation or arrest. The possession
of a medical marijuana card, prescription, or other authorization does not change the
nature of marijuana as contraband. Even qualified patients may not use marijuana in a
motor vehicle that is being operated. Even qualified patients may not possess more than
a specified quantity of marijuana.
The odor of marijuana emanating from a vehicle is evidence that marijuana is
present in or has recently been used in the vehicle. The odor of marijuana indicates the
likely presence of marijuana, but does not specify the quantity present. Neither does it
indicate who possessed the marijuana. The odor of marijuana thus provides probable
cause for further investigation and search: the marijuana present may not have belonged
to a qualified patient; even if possessed by a qualified patient, it may have been
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unlawfully used in an operating motor vehicle; and even if possessed by a qualified
patient, it may exceed the allowable amount. As the Strasburg court pointed out, the
defendant “was not sitting at home nursing an illness with the medicinal effects of
marijuana.” (People v. Strasburg, supra, 148 Cal. App. 4th 1052, 1060.) Likewise,
defendant here likely had marijuana in a moving vehicle, not at home.
The probable possession of marijuana in a moving vehicle brings any search
within the automobile exception to the warrant requirement of the Fourth Amendment.
(See United States v. Ross (1982) 456 U.S. 798, 804-809 [2 L. Ed. 2d 572, 102 S. Ct.
2157]; Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L. Ed. 543, 45 S. Ct.
280]; People v. Chavers (1983) 33 Cal. 3d 462, 467-468 [189 Cal. Rptr. 169, 658 P.2d
96].) The scope of such a warrantless search is defined by the nature of the items being
sought: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that may conceal the object of the
search.” (United States v. Ross, supra, 456 U.S. 798, 824-825.) The search of the black
sedan was supported by probable cause, and justified the search into any containers
capable of holding marijuana.
The court below properly relied on Strasburg as the controlling case, and properly
denied defendant’s motion to suppress evidence.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
HOLLENHORST
J.
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