People v. Fews

Filed 9/24/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A151727
v.
CALVIN BERNARD FEWS, (City & County of San Francisco
Super. Ct. No. 227186)
Defendant and Appellant.
Calvin Bernard Fews appeals from a conviction following his guilty plea to being
a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). He contends the
magistrate erred in denying his motion to suppress evidence seized during a patsearch of
his clothing. We affirm the order denying suppression.
STATEMENT OF THE CASE
A felony information charged Fews with possessing (Pen. Code, §§ 29800,
subd. (a)(1); count I), concealing in a vehicle (Pen. Code, § 25400, subd. (a)(3); count II),
and carrying a loaded firearm (Pen. Code, § 25850, subd. (a); count III)). The
information further alleged that Fews suffered five prior prison terms (Pen. Code,
§ 667.5, subd. (b)), three prior strikes (Pen. Code, § 667, subds. (d), (e)), and an
out-on-bail enhancement (Pen. Code, §12022.1, subd. (b)).
Fews filed a motion to suppress to be heard at the preliminary hearing. The
magistrate denied the suppression motion. Thereafter, Fews filed a motion to dismiss
under Penal Code section 995, arguing the magistrate erroneously denied his motion to
suppress at the preliminary hearing (Pen. Code, §§ 1538.5, 995). In a nonstatutory
motion to dismiss, Fews claimed a delay in obtaining police body camera video after the
hearing denied him due process under Brady v. Maryland (1963) 373 U.S. 83. The trial
court denied both motions.
Fews pleaded guilty to count I, felon in possession (§ 29800, subd. (a)(1)). The
court dismissed the remaining charges, suspended imposition of sentence, and placed
Fews on three years’ probation with a time-served jail condition. Fews timely appeals
the superior court’s order denying the motion to suppress. (Pen. Code, § 1538.5,
subd. (m).)
STATEMENT OF THE FACTS1
Around 4:00 p.m. on February 8, 2017, San Francisco Police Officers Dominic
Vannucchi and John Vidulich were in a marked patrol car on Turk Street in the
Tenderloin District when they saw a white Saturn Vue (SUV) in front of their patrol car
speed up and then “abruptly” pull over to stop in a red zone in front of a bar at the corner
of Turk and Larkin. Based on his experience, Vannucchi believed the abrupt stop by the
SUV in front of their police vehicle was done to avoid a traffic stop. After a check on the
SUV showed the registration was expired, Vidulich turned on his forward-facing red
lights and siren.
The driver of the SUV, Lindell Mims, quickly got out of the car before the officers
made contact with him. Vannucchi testified that this increased his suspicions about the
occupants of the SUV because in his experience, some drivers have claimed they cannot
be stopped if they get out of the vehicle. Vidulich asked Mims multiple times to get back
into the SUV, but Mims did not comply. As Vidulich came around the driver’s side of
the SUV, Mims stood facing the open driver’s side door with his hands in the passenger
compartment “reaching back into the vehicle,” while Fews was in the front passenger seat
making “furtive movements around the passenger compartment particularly low on his
body,” but the officers could not see Fews’s hands or what he was doing due to the
1
The facts are drawn from the transcript of the preliminary hearing/motion to
suppress. (See Pen. Code, § 1538.5, subd. (i).)
2
SUV’s tinted windows. Fews “continuously reached around the compartment” with his
hands never rising above the window level, moving “his upper body back and forth
multiple times.” When Vidulich reached the driver’s side of the SUV, Mims turned
toward him. Mims now had a set of keys, a plastic cup, a package of Swisher Sweets
Cigars, and a half-burnt, flattened, and rerolled cigar. Vidulich smelled the odor of
“recently burned marijuana emanating from Mr. Mims and the [SUV]” and believed the
cigar contained marijuana, based on the nature in which it was rolled.
Vannucchi stood at the rear of the SUV broadcasting information on the traffic
stop to dispatch while watching Mims speak with Vidulich and Fews sitting in the SUV.
After completing his broadcast, he approached Vidulich and Mims. Vannucchi
recognized from his training and experience that Mims held a half-burnt “blunt,” a
factory-rolled cigar that is flattened and split to remove tobacco and add marijuana, and
then rerolled. He saw Fews “fidgeting” in the passenger seat with “his body moving back
and forth and from side to side.” Vannucchi asked if there was marijuana in the cigar,
and Mims admitted there was marijuana in the cigar.2 Mims then reached back into the
passenger compartment of the SUV a second time despite being told not to by Vidulich,
and Vidulich saw Fews continuing to make “furtive” movements within the passenger
compartment.
Based on his training and experience, the area of San Francisco they were in, and
the noncompliance from Mims, Vidulich believed that Fews could have been reaching for
something in the compartment, possibly a weapon. The area surrounding Turk and
Larkin is known for narcotics sales and use, and numerous shootings and stabbings in the
area were related to narcotics. Active hot spots for drug markets were within two to five
2
According to the preliminary hearing transcript, Vidulich testified that Mims said
there was marijuana “in his car.” However, the prosecutor later acknowledged that the
word “car” may have been a typographical error, perhaps for the word “cigar.”
3
blocks of the scene of the traffic stop. Vidulich asked Fews to step out of the vehicle, and
Fews complied.
Vidulich then asked Mims to step away from the vehicle and performed a
patsearch of Mims. Vidulich intended “to check the vehicle and make sure that both the
occupants were in compliance with laws regarding marijuana in California” regarding
possession and use, to find documentation for the marijuana, and “to see if there was . . .
[any more] marijuana in the vehicle and, if so, if that was within compliance of state
law.”
When Fews got out of the SUV, the officers saw that he wore multiple layers of
baggy clothing, including a large puffy coat. Vannucchi asked Fews if he had guns or
knives on him or was on probation or parole, and Fews said no. Vannucchi decided to
perform a patsearch of Fews because of the high-crime area they were in, Fews’s
fidgeting in the vehicle, the possibility that Fews’s baggy clothing could conceal a
weapon, and the fact that the officers “were going to be conducting a search of the
vehicle at which point it would be one officer watching the two subjects and the other
officer with his back turned to the vehicle.” As Vannucchi patted down Fews’s jacket, he
felt a hard metal object that he believed to be the butt of a firearm. Fews brought his
hand down towards the right-hand pocket area, but Vannucchi used his left hand to move
Fews’s hand away. Vannucchi then felt into the pocket and recognized the object to be a
firearm. The gun was a loaded .32-caliber Beretta semiautomatic gun. Vannucchi
handcuffed Fews and directed Vidulich to handcuff Mims.
The Magistrate’s Ruling on the Suppression Motion
The magistrate denied Fews’s motion to suppress, finding the officers had
probable cause to search the SUV under People v. Waxler (2014) 224 Cal.App.4th 712,
719 (Waxler), which the magistrate noted was “still good law.” The magistrate further
concluded that Vannucchi’s patsearch of Fews was justified for officer safety because
while one of the officers was conducting the search, the other officer would be
4
outnumbered by the detainees. Additionally, the magistrate cited Fews’s baggy clothes,
fidgeting, and the high-crime area in which the traffic stop took place as factors
supporting the legality of the patsearch of Fews.
DISCUSSION
Fews contends the patsearch was not supported by reasonable suspicion that he
was armed and dangerous, as required under the Fourth Amendment. Fews argues the
justification for the patsearch was officer safety during the intended search of the SUV,
but there was no probable cause to search the vehicle based merely on the odor of
marijuana and the officers’ knowledge of a small amount of marijuana in Mims’s
possession, because a small amount of marijuana is no longer illegally possessed nor
considered “contraband” after the passage of the Control, Regulate and Tax Adult Use of
Marijuana Act, Proposition 64, adopted by voters on November 8, 2016.3 Because the
vehicle search was invalid, Fews argues, the patsearch was likewise invalid.
I. Standard of Review
“The Fourth Amendment of the federal Constitution requires state and federal
courts to exclude evidence obtained from unreasonable government searches and
seizures. [Citation.] Penal Code section 1538.5 allows a defendant to move to suppress
evidence obtained in an improper seizure. [Citation.] Our standard of review ‘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
3
Among other things, Proposition 64 added Health and Safety Code section
11362.1 (section 11362.1), which provides that “it shall be lawful under state and local
law, and shall not be a violation of state or local law, for persons 21 years of age or older
to: [¶] . . . [p]ossess, process, transport, purchase, obtain, or give away to persons 21
years of age or older without any compensation whatsoever, not more than 28.5 grams of
cannabis not in the form of concentrated cannabis . . . .” (§ 11362.1, subd. (a)(1).)
Section 11362.1 further provides that “[c]annabis and cannabis products involved in any
way with conduct deemed lawful by this section are not contraband nor subject to
seizure, and no conduct deemed lawful by this section shall constitute the basis for
detention, search, or arrest.” (Id., subd. (c).)
5
search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment.’ ” (People v. Garry (2007) 156 Cal.App.4th 1100, 1105–1106.)
Where, as here, the defendant challenges the suppression ruling by a motion to
dismiss under Penal Code section 995, we review the determination of the magistrate
who ruled on the motion to suppress, not the findings of the trial court. (People v.
Ramsey (1988) 203 Cal.App.3d 671, 679.) We affirm the magistrate’s ruling if correct on
any theory of the applicable law, even if the ruling was for an incorrect reason. (People
v. Zapien (1993) 4 Cal.4th 929, 976.)
II. The Patsearch
Under Terry v. Ohio (1968) 392 U.S. 1 (Terry), “ ‘[a] police officer may
temporarily detain and patsearch an individual if he believes that criminal activity is
afoot, that the individual is connected with it, and that the person is presently armed.
[Citation.] The issue is whether the officers can point to specific and articulable facts that
give rise to a reasonable suspicion of criminal activity. Reasonable suspicion is a less
demanding standard than probable cause and is determined in light of the totality of the
circumstances. [Citation.]’ [Citation.] ‘ “A detention is reasonable under the Fourth
Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.” ’ ” (People
v. Lindsey (2007) 148 Cal.App.4th 1390, 1395–1396 (Lindsey).)
Fews argues the patsearch was unlawful because there was no probable cause to
conduct the vehicle search. We disagree that the validity of the patsearch is dependent on
a finding of probable cause to conduct the vehicle search. As discussed, the patsearch is
valid if the officers reasonably suspected that Fews was connected to criminal activity
and was armed. (Lindsey, supra, 148 Cal.App.4th at pp. 1395–1396.) Here, the officers
testified that they smelled and observed marijuana in and around the SUV, which
“furnished a rational suspicion that [Mims and Fews] may have been in the possession
6
and transportation of drugs.” (People v. Collier (2008) 166 Cal.App.4th 1374, 1377
(Collier).) The officers further testified that Fews was fidgeting and constantly moving
inside the SUV and keeping his hands out of view while his companion, Mims (who had
initially engaged in what the officers perceived as evasive driving and conduct when
alerted to their presence), ignored the officers’ orders to get back into the SUV and
reached through the driver’s side door despite being ordered not to. Although
nervousness and furtive gestures are not sufficient by themselves to support a patsearch,
“[n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”
(In re H.M. (2008) 167 Cal.App.4th 136, 144.)
Additionally, the incident involved a traffic stop in an area of San Francisco that
the officers knew from experience to involve violent crime related to drugs. (See
Rodriguez v. United States (2015) ___U.S. ___ [135 S. Ct. 1609, 1616] [traffic stops
fraught with danger to police]; In re H.M., supra, 167 Cal.App.4th at p. 146 [“ ‘ “high
crime area” ’ ” of stop is relevant contextual consideration in Terry analysis]; People v.
Superior Court (Kiefer) (1970) 3 Cal.3d 807, 827 [training and experience of officers is
appropriate consideration].) Drug crimes have been recognized as offenses in which the
perpetrators are likely to be armed with guns. (See Collier, supra, 166 Cal.App.4th at
p. 1378 [“ ‘guns often accompany drugs’ ”].)
On appeal, Fews attempts to “divide and conquer” each of these factors as not
sufficient in and of itself to justify the patsearch. However, our analysis is based on the
totality of the circumstances and not picking each factor apart separately. (See United
States v. Arvizu (2002) 534 U.S. 266, 274 [Terry precludes “divide-and-conquer”
analysis].) Taken together, Mims’s evasive and uncooperative conduct, combined with
the high-crime area in which the traffic stop took place, the odor and presence of
marijuana, and Fews’s continuous and furtive movements inside the SUV, were
sufficiently unusual to raise the officers’ suspicions that Mims and Fews were involved in
criminal activity related to drugs and could be armed.
7
Fews argues that after the passage of Proposition 64, law enforcement officers can
no longer assume that a person possessing a small amount of marijuana is armed and
engaged in criminal activity. We think this contention overstates the effect of
Proposition 64. It remains unlawful to possess, transport, or give away marijuana in
excess of the statutorily permitted limits, to cultivate cannabis plants in excess of
statutory limits and in violation of local ordinances, to engage in unlicensed “commercial
cannabis activity,” and to possess, smoke or ingest cannabis in various designated places,
including in a motor vehicle while driving. (Bus. & Prof. Code, §§ 26001, subd. (k),
26037, 26038, subd. (c); see Health & Saf. Code, §§ 11362.1, subd. (a), 11362.2, subd.
(a), 11362.3, subd. (a), 11362.45, subd. (a).) The possibility of an innocent explanation
for the possession of marijuana “does not deprive the officer of the capacity to entertain a
reasonable suspicion of criminal conduct.” (In re Tony C. (1978) 21 Cal.3d 888, 894.)
Because marijuana possession and use is still highly circumscribed by law even after the
passage of Proposition 64, the odor and presence of marijuana in a vehicle being driven
in a high-crime area, combined with the evasive and unusual conduct displayed by Fews
and Mims as discussed above, were still reasonably suggestive of unlawful drug
possession and transport to support the Terry frisk.
For these reasons, we conclude the patsearch undertaken of Fews was, in the
totality of the circumstances, reasonable for Fourth Amendment purposes.
III. The Vehicle Search
Even if we accepted Fews’s argument that the officers’ justification for the
patsearch cannot be separated from their intended search of the SUV, we conclude there
was sufficient probable cause for the vehicle search.
“[A] warrantless search of an automobile is permissible so long as the police have
probable cause to believe the car contains evidence or contraband.” (Robey v. Superior
Court (2013) 56 Cal.4th 1218, 1225.) Probable cause posits “a fair probability that
contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates
8
(1983) 462 U.S. 213, 238.) “[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such activity.” (Id. at p. 243,
fn. 13.)
In People v. Strasburg (2007) 148 Cal.App.4th 1052 (Strasburg), a different panel
of this division held that a police officer had probable cause to search a vehicle based on
the odor of marijuana, despite the defendant’s presentation of a medical marijuana
prescription. (Strasburg, at pp. 1058–1059.) The court rejected the defendant’s
argument that the decriminalization of medicinal marijuana under the Compassionate Use
Act of 1996 (CUA) bars a law enforcement officer from conducting a reasonable search
based on the odor of marijuana. “[T]he officer is entitled to continue to search and
investigate, and determine whether the subject of the investigation is in fact possessing
the marijuana for personal medical needs, and is adhering to the eight-ounce limit on
possession.” (Strasburg, at p. 1060.)
In Waxler, another division of this court followed Strasburg to conclude that a
sheriff’s deputy had probable cause to search the defendant’s truck for contraband after
smelling burnt marijuana near the truck and seeing burnt marijuana in the truck. (Waxler,
supra, 224 Cal.App.4th at p. 719.) “[N]onmedical marijuana—even in amounts within
the statutory limit set forth in [Health and Safety Code] section 11357, subdivision (b)—
is ‘contraband’ and may provide probable cause to search a vehicle under the automobile
exception.” (Waxler, at p. 715.) Thus, the deputy “was entitled to investigate to
determine whether appellant possessed marijuana for personal medical needs and to
determine whether he adhered to the CUA’s limits on possession. . . . It is well settled
that even if a defendant makes only personal use of marijuana found in the passenger
compartment of a car, a police officer may reasonably suspect additional quantities of
marijuana might be found in the car.” (Id. at pp. 723–724.)
Fews provides no compelling reason to depart from Strasburg and Waxler after the
passage of Proposition 64, particularly in light of the facts of the instant case. The
9
continuing regulation of marijuana leads us to believe that Strasburg and Waxler still
permit law enforcement officers to conduct a reasonable search to determine whether the
subject of the investigation is adhering to the various statutory limitations on possession
and use, and whether the vehicle contains contraband or evidence of a crime. (See
Strasburg, supra, 148 Cal.App.4th at p. 1060; Waxler, supra, 224 Cal.App.4th at pp. 721,
723–724; see also People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1059 [holding that
despite Colorado’s legalization of marijuana, “a substantial number of other marijuana-
related activities remain unlawful under Colorado law. Given that state of affairs, the
odor of marijuana is still suggestive of criminal activity.”]; Robinson v. State
(Md.Ct.App. 2017) 152 A.3d 661, 664–665].) Due to the odor of marijuana emanating
from the SUV and Mims, as well as Mims’s admission that there was marijuana in his
half-burnt cigar, there was a fair probability that a search of the SUV might yield
additional contraband or evidence.
Fews contends that marijuana is no longer contraband in California after
Proposition 64. Again, Fews overstates the effect of Proposition 64. Section 11362.1,
subdivision (c), provides that “[c]annabis and cannabis products involved in any way
with conduct deemed lawful by this section are not contraband nor subject to seizure, and
no conduct deemed lawful by this section shall constitute the basis for detention, search,
or arrest.” (Italics added.) Driving a motor vehicle on public highways under the
influence of any drug (see Veh. Code, § 23152, subd. (f)) or while in possession of an
open container of marijuana (Veh. Code, § 23222, subd. (b)(1); People v. McCloskey
(1990) 226 Cal.App.3d Supp. 5, 9) are not acts “deemed lawful” by section 11362.1. On
the contrary, “[s]ection 11362.1 does not permit any person to [¶] . . . [¶] . . . [p]ossess an
open container or open package of cannabis or cannabis products while driving,
operating, or riding in the passenger seat or compartment of a motor vehicle” (Health &
Saf. Code, § 11362.3, subd. (a)(4)) or “[s]moke or ingest cannabis or cannabis products
while driving” a motor vehicle (id., subd. (a)(4)). Here, the evidence of the smell of
10
“recently burned” marijuana and the half-burnt cigar containing marijuana supported a
reasonable inference that Mims was illegally driving under the influence of marijuana, or,
at the very least, driving while in possession of an open container of marijuana. Because
this was not conduct “deemed lawful” by section 11362.1, Fews cannot validly rely upon
the “not contraband” designation of section 11362.1, subdivision (c), in order to avoid the
holding in Waxler.4
Fews cites In re D.W. (2017) 13 Cal.App.5th 1249 for the position that the smell
of marijuana and a defendant’s admission to recently smoking marijuana do not establish
probable cause to search the defendant’s vehicle because it is mere conjecture to
conclude that within the vehicle there is marijuana amounting to more than just an
infraction. However, In re D.W. involved a warrantless search of a defendant’s person
incident to arrest, which requires independent probable cause for the arrest. (In re D.W.,
at p. 1253.) In contrast, the instant matter involves a vehicle search pursuant to the
automobile exception, which requires probable cause that the vehicle contains contraband
or evidence of a crime. Where such probable cause exists, a law enforcement officer may
search the vehicle “irrespective of whether possession of up to an ounce of marijuana is
an infraction and not an arrestable offense.” (Waxler, supra, 224 Cal.App.4th at p. 721.)
4
Fews contends that at the time of the traffic stop in question, there were no
statutes prohibiting the passenger of a motor vehicle from smoking marijuana, and former
Vehicle Code sections 23220 and 23221 only made it illegal for passengers in a motor
vehicle upon a highway to drink alcohol. However, at the time of the incident in
question, Vehicle Code section 23222 stated in pertinent part that “every person who
possesses, while driving a motor vehicle upon a highway . . . , not more than one
avoirdupois ounce of marijuana, other than concentrated cannabis . . . , is guilty of an
infraction . . . .” (Veh. Code, § 23222, subd. (b); see People v. McCloskey, supra,
226 Cal.App.3d Supp. at p. 9.) An infraction is, by definition, a crime. (Pen. Code,
§ 16.) Thus, the possession of even a small amount of marijuana while driving was still
unlawful. These circumstances are akin to the open container rule for alcohol. “[T]here
is no quarrel with the legal proposition that, after observing the open container of alcohol,
the officers had the right to search the vehicle for additional containers of alcohol.”
(People v. Chapman (1990) 224 Cal.App.3d 253, 256.)
11
For these reasons, we conclude there was sufficient probable cause for the
warrantless search of the SUV. This, in turn, provides additional support for the validity
of the patsearch of Fews on officer safety grounds because, as the magistrate found, the
vehicle search would have left one of the officers outnumbered by Mims and Fews, who
was wearing baggy clothes that could conceal a weapon. (See Collier, supra,
166 Cal.App.4th at p. 1377, fn. 1 [“[t]he wearing of baggy clothing, coupled with other
suspicious circumstances, . . . furnishes the requisite facts to support a patdown for
weapons so that the search of the car could be safely performed”].)
DISPOSITION
The judgment is affirmed.
12
_________________________
Dondero, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Banke, J.
People v. Fews A151727
13
Trial Court: San Francisco City and County Superior Court
Trial Judge: Hon. Jeffrey S. Ross
Counsel:
Jeff Adachi, San Francisco Public Defender, Matt Gonzalez, Chief Attorney,
Christopher F. Gauger, Deputy Public Defender, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant
Attorneys General, Rene A. Chacon, Laurence K. Sullivan, Deputy Attorneys General,
for Plaintiff and Respondent.
People v. Fews A151727
14