Friday, December 19, 2014

Marijuana, the Automobile Exception and the Text Messages

After Dwight Corey Kennedy was charged – in a “seven-count information” – with “possession of methamphetamine while armed with a loaded gun (Health & Safety Code § 11370.1(a), possession of methamphetamine for sale (Health & Safety Code § 11378), two counts of the sale or transportation of marijuana (Health & Safety Code § 11360(a), two counts of possession of marijuana for sale (Health & Safety Code § 11359) and cultivation of marijuana (Health & Safety Code § 11358), he filed a motion to suppress.  Kennedy v. Superior Court, 2014 WL 5468967 (California Court ofAppeals 2014).
To understand the motion to suppress, it is necessary to understand how the case arose.  As the Court of Appeals explains, on August 5, 2011,
at around 7:30 p.m., Alameda County Sheriff's Deputy Michael Dalisay saw [Kennedy] drive into the parking lot of a liquor store in San Leandro. There was no one else in the car with [him]. [Kennedy] parked in front of the store. His car occupied two parking spaces in the store's parking lot. Deputy Dalisay recognized [him] from two previous encounters in which [Kennedy] had been arrested.

The deputy recalled that one of the previous encounters occurred earlier in 2011. Dalisay knew [Kennedy]'s criminal behavior consisted of driving with a suspended license and reckless driving, but he did not know why [his] license had been suspended. Before making any contact with [Kennedy], Dalisay checked to see if [he] had a suspended license by contacting dispatch. The deputy had no reason to believe [Kennedy] was armed or that he was involved in any drug-related activity.

Dalisay and another officer, Sergeant Schuler, waited until [Kennedy] left the liquor store before approaching him. Schuler walked to the driver's side of the vehicle as [he] opened the door while Dalisay approached from the passenger side. Dalisay smelled a `very strong odor’ of unburned marijuana coming from the inside of [Kennedy]'s vehicle.

The sergeant spoke first and asked [him] for his driver's license. [Kennedy] was upset and protested that he had never been arrested before. After further discussion and another request for [Kennedy]'s license, [he] produced a California identification card but not a driver's license. [Kennedy]'s identification showed he resided at 573 Empire Street in San Lorenzo (hereafter `573 Empire’). It was later determined that 573 Empire was the home of [his] mother, Lisa Romero.

Schuler placed [Kennedy] in handcuffs. The deputy confirmed [Kennedy]'s license was suspended and told [him] that he was under arrest for driving on a suspended license in violation of Vehicle Code section 14601.1. [Kennedy] was in handcuffs for about five minutes before being placed under arrest.

The officers performed a search of [Kennedy]'s vehicle. They found packages of marijuana in a storage compartment located in the driver's door as well as a cell phone in the same area. The marijuana was packaged in two clear baggies that were tied at the top. One baggie contained about two grams of marijuana while the other contained 15 grams. The officers also found empty Ziploc baggies in the trunk. The vehicle's registration, which was recovered during the search, revealed the car was registered to [Kennedy]'s mother at 573 Empire.
Kennedy v. Superior Court, supra.  We will come back to the vehicle search.
After they arrested Kennedy for driving with a suspended license, the officers searched him, finding and seizing
a cell phone from his pants pocket as well as $5,941 in cash. [Kennedy] claimed he had earned the cash while working for a moving company. A few minutes after retrieving the cell phone, Dalisay began looking at its contents. One thing that caught his attention was a series of text messages from the previous day. One text message was from someone identified as `Rooser’ and read, `I am going to need a [whole one] in a min.’ A responsive text message read, `I will be there in a min.’
Kennedy v. Superior Court, supra. 
The court explains that Dalisay knew from
his experience in law enforcement that a `whole one’ on the street refers to one ounce of an illicit drug. He concluded that the phone recovered from [Kennedy] served as the means for communicating with potential buyers. Dalisay testified that he had been involved in over 100 marijuana sales cases in the seven years he had been in the sheriff's department.
Kennedy v. Superior Court, supra. 
Since Dalisay “believed there would be further evidence relating to drug sales at a suspected drug trafficker's residence, including more drugs, money, and items such as scales”, he also believed had had probable cause to get a warrant to search 573 Empire. Kennedy v. Superior Court, supra.  But instead of getting a warrant (which would involve “time and trouble”), he and other officers went to 573 Empire to see if the owner of the premises would consent to a search.  Kennedy v. Superior Court, supra.  When the officers arrived there, they spoke with Kennedy’s mother, Lisa Romero, who refused to consent to let the officers search the house. Kennedy v. Superior Court, supra. 
Dalisay decided he had reason to believe there could be weapons and/or someone who might destroy evidence, so the officers conducted a protective sweep of the premises, finding a black pistol lying on Kennedy’s bed.  Kennedy v. Superior Court, supra.  One officer then went to obtain a search warrant; when he returned, the officers searched the house, finding “methamphetamine, ecstasy, a scale, a gun, two mature marijuana plants, and a large bag containing marijuana, among other items.”  Kennedy v. Superior Court, supra.  These items provided the basis for “the first five counts of the seven-count information against” Kennedy. Kennedy v. Superior Court, supra. 
After he was charged in the information noted earlier, Kennedy filed motions to suppress (i) the evidence found in his vehicle and (ii) the evidence found in the search of his mother’s house.  Kennedy v. Superior Court, supra.  This post only examines the first motion, i.e., the one seeking suppression of evidence found in his vehicle.
In that motion to suppress, Kennedy argued, to begin with, that the search of his
vehicle was illegal. He first argues it was not a valid search incident to arrest under Arizona v. Gant, 556 U.S. 332 (2009), in which the U.S. Supreme Court held that an arrest for a traffic violation generally does not justify a search of an arrestee's vehicle absent genuine safety or evidentiary concerns. Arizona v. Gant, supra. We agree with [Kennedy] that, without more, merely being arrested for driving with a suspended license did not justify a search of the vehicle incident to petitioner's arrest. The Attorney General does not dispute this conclusion.
Kennedy v. Superior Court, supra. 
Kennedy  argued that “the `supposed’ smell of marijuana did not constitute probable cause to support a warrantless search of the vehicle.” Kennedy v. Superior Court, supra.  So,  he claimed the search violated the 4th Amendment.  Kennedy v. Superior Court, supra. 
As Wikipedia notes, the 4th Amendment prohibits “unreasonable” searches and seizures, which means that “reasonable” searches and seizures are not unconstitutional.  As Wikipedia also explains, the default way in which a search and/or seizure can be “reasonable” if it is conducted pursuant to a warrant – a search warrant or an arrest warrant (a seizure warrant).  But, as i tgoes on to explain, the Supreme Court has held that searches and seizures can also be “reasonable” if they fall into one of the “exceptions” to the warrant requirement it has recognized over the years.
One of those exceptions is the “motor vehicle exception” which, as Wikipedia notes
allows an officer to search a vehicle without a search warrant as long as he or she has probable cause to believe that evidence or contraband is located in the vehicle. The exception is based on the idea that there is a lower expectation of privacy in motor vehicles due to the regulations under which they operate. Additionally, the ease of mobility creates an inherent exigency to prevent the removal of evidence and contraband. In Pennsylvania v. Labron, 518 U.S. 938 (1996), the U.S. Supreme Court said 

`If a car is readily mobile and probable cause exists to believe it contains contraband, the 4th Amendment permits the police to search the vehicle without more.’

`The scope of the search is limited to only what area the officer has probable cause to search. . . . The . . . also allows officers to search any containers found inside the vehicle that could contain the evidence or contraband being searched for. The objects searched do not need to belong to the owner of the vehicle.'
The Court of Appeals therefore noted  that the critical issue in determining whether the search of Kennedy’s vehicle violated the 4th Amendment was whether Dalisay had probable cause to believe contraband or other evidence of a crime was in the vehicle.  Kennedy v. Superior Court, supra.  It began its analysis by explaining that the California courts have
`concluded the odor of unburned marijuana . . . may furnish probable cause to search a vehicle under the automobile exception to the warrant requirement.’ (People v. Waxler, (California Court of Appeals 2014) 224 Cal.App.4th 712. . . . Under established California law, the deputies in this case had probable cause to search petitioner's vehicle as a result of detecting a strong odor of marijuana. [Kennedy] advances a number of arguments why we should not apply this longstanding precedent in his case. His arguments lack merit. . . . 
Kennedy v. Superior Court, supra.
Kennedy claimed the odor of marijuana does not establish probable cause for a
warrantless vehicle search in light of the recent `decriminalization’ of the possession of small amounts of marijuana. Under Health and Safety Code section 11357, subdivision (b), the possession of 28.5 grams or less of marijuana is punishable as an infraction. A person who possesses more than 28.5 grams of marijuana is guilty of a misdemeanor. (Health & Safety Code, § 11357(c)). [Kennedy] also points out that certain individuals who transport or process marijuana intended for personal medical use may be immune from prosecution for drug-related offenses. (See People v. Mentch (California Court of Appeals 2008) 45 Cal.4th 274). . . .

[A]ccording to [Kennedy], the mere fact officers detect the odor of marijuana does not provide probable cause to believe contraband is present or that a crime has been committed. [He] relies upon a decision of the Supreme Judicial Court of Massachusetts in Commonwealth v. Cruz (2001) 459 Mass. 459. In Cruz, the Massachusetts court concluded the odor of burned marijuana alone did not justify a warrantless vehicle search because the state had changed the possession of one ounce or less of marijuana . . . to a civil violation. Commonwealth v. Cruz, supra. The court reasoned that the mere smell of marijuana did not give rise to suspicion of a `criminal offense.’ Commonwealth v. Cruz, supra.
Kennedy v. Superior Court, supra.
This Court of Appeals noted that California courts had rejected Kennedy's claims:
In People v. Strasburg, 148 Cal. App. 4th 1052, 56 Cal.Rptr.3d 306 (California Court of Appeals 2007), the court rejected the notion that probable cause for a search is lacking when marijuana odor is present and the defendant possesses a physician's recommendation for medical marijuana or a state-issued medical marijuana card. The court reasoned that the medical marijuana laws provide a `limited immunity—not a shield from reasonable investigation.; People v. Strasburg, supra. An officer with probable cause to search is entitled to `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.’ People v. Strasburg, supra.

In People v. Waxler, 224 Cal.App.4th 712, 168 Cal.Rptr.3d 822 (California Court of Appeals 2014), the court held that `[t]he automobile exception is not limited to situations where the officer smells or sees more than 28.5 grams of marijuana in the vehicle [citation]; the observation of any amount of marijuana . . . establishes probable cause to search pursuant to the automobile exception.’ The Waxler court specifically declined to follow the Massachusetts court in Cruz and explained its reasoning as follows:

`Cruz does not apply here for at least two reasons. First, in contrast to Massachusetts, possession of up to an ounce of nonmedical marijuana in California is a “crime.”’ (California Penal Code § 16).  Second, neither the California Supreme Court nor the U.S. Supreme Court has limited the automobile exception to situations where the defendant possesses a ‘criminal amount of contraband.’ People v. Waxler, supra. [Kennedy] has presented no compelling grounds for this court to depart from the holdings in Strasburg or Waxler.
Kennedy v. Superior Court, supra (emphasis in the original).
Finally, the Court of Appeals  took up Kennedy’s argument that the automobile exception
should not apply here because his vehicle was not `readily mobile.’ Presumably, [his] point is that the vehicle was not mobile because there was no one else to drive the vehicle away after he was placed under arrest. The contention is meritless.
Ready mobility is not the sole basis for the exception to the warrant requirement. (Californiav. Carney, 471 U.S. 386 (1985)) The exception is also based on a lesser expectation of privacy in one's vehicle as opposed to one's home. Califoria v. Carney, supra. Further, the application of the exception `is not contingent upon whether the particular automobile could actually be moved at the time of the search.’ People v. Superior Court (Overland), 203 Cal.App.3d 1114, 250 Cal.Rptr. 458 (California Court of Appeals 1988).
Kennedy v. Superior Court, supra.
The Court of Appeals therefore affirmed the denial of Kennedy’s motion to suppress.  Kennedy v. Superior Court, supra.

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