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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