• Probable Cause Searches of Vehicles
• Probable Cause and the Totality of the Circumstances
• Searches of Vehicles and the Odor of Marijuana

With probable cause to believe a vehicle contains contraband or other evidence of a crime, the vehicle and any containers found therein may be searched without a search warrant.  Probable cause is determined by considering the totality of the circumstances.   The odor of marijuana coming from a vehicle, plus some “additional evidence” indicating that more than a legal amount of marijuana may be found in the car, justifies a warrantless search of that vehicle for more marijuana.

Sacramento Police Department Sergeant Andy Hall, while patrolling the Meadowview neighborhood of the city, observed a Jeep SVU parked on a curb near the 24th Street Bypass Park.  A subject—later identified as defendant Jemondre Dionte Moore—was observed leaning into the open front passenger door of the Jeep.  As Sgt. Hall parked his marked patrol unit behind the Jeep, defendant (apparently seeing the officer approach) turned and walked away, stopping at a gazebo in the middle of the park from where he was able to watch as the sergeant made contact with the driver.  The driver—identified as Brian Bennett—opened the driver’s side door as Sgt. Hall approached.  When he did so, Sgt. Hall could smell a “strong” odor of “fresh marijuana.”  When asked whether there was any marijuana in the Jeep, Bennett nervously claimed there was not, but then told Sgt. Hall there had been marijuana in the car earlier until he smoked it all, showing the sergeant an “empty mason jar that looked like it had marijuana residue in it.”  Sgt. Hall asked Bennett if there was anything illegal in the Jeep.  Bennett nervously responded with an equivocal; “Not that I know of.”  During this discussion, Sgt. Hall observed a backpack on the front passenger floorboard.  When asked about it, Bennet responded that his friend (defendant) had left it there.  Based upon all of the above, plus the fact that the contact was taking place in a “high crime” area of the City, Sgt. Hall decided to search the Jeep for more marijuana, detaining Bennett in his patrol car as he did so.  As Sgt. Hall pulled the backpack from the front passenger floorboard, defendant suddenly approached, claiming ownership of the backpack.  Sgt. Hall told him he was going to do a probable cause search of the backpack. Defendant responded that a probable cause search “didn‘t have anything to do with his property, and he did not want [Hall] to search the backpack.”  Sgt. Hall asked defendant for his name, to which defendant responded; “Are you serious ”  Defendant then turned and walked away, getting into a Mercedes that was parked nearby and which drove away.  Sgt. Hall radioed for another unit to intercept the Mercedes and detain its occupants.  Searching the backpack, Sgt. Hall found a quarter pound of marijuana and a loaded .40-caliber handgun, among other items.  Defendant was taken into custody and charged in state court with (among other charges) being a felon in possession of a firearm, per Penal Code § 29800.  After his motion to suppress the items recovered from his backpack was denied by the trial court, defendant pled guilty and was sentenced to five years in prison.  He appealed.

The Third District Court of Appeal affirmed.  The basic rules are well established:  An exception to the requirement that a search be preceded by the obtaining of a search warrant is the “automobile exception,” allowing for warrantless searches of automobiles whenever an officer has probable cause to believe the vehicle contains contraband or evidence of a crime.  (Carrol v. United States (2011) 267 U.S. 132, 155-156.)  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.” (Ornelas v. United States (1996) 517 U.S. 690, 696.) “(P)robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” (Illinois v. Gates (1983) 462 U.S. 213, 232.) A warrantless automobile search “is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (United States v. Ross (1982) 456 U.S. 798, 809.)  With these rules in mind, the issue in this case was whether, under these circumstances, Sgt. Hall had probable cause to search Bennett’s Jeep and, in the process, its contents; i.e., defendant’s backpack. taking into account the sergeant’s training and experience.  Sgt. Hall testified that he had 12 years of experience as a peace officer.  His current position was as a sergeant supervising the South Sacramento gang enforcement team.  In his 12 years, he participated in approximately one year of academy training which included instruction from numerous drug experts. Sgt. Hall also testified to his extensive experience in the field, including a role as supervisor of the South Sacramento marijuana abatement team in which he investigated illegal indoor marijuana growing operations. He also testified to encountering marijuana for sales or simple possession hundreds of times throughout his career.  With this background, Sgt. Hall further testified to the following facts as they related to this case: (1) The 24th Street Bypass Park is recognized as a high-crime area. (2) Defendant was leaning into the open passenger’s side door of Bennett’s parked Jeep (which, based on Sgt. Hall’s training and experience he believed could have been a hand-to-hand drug transaction). (3) Upon seeing Sgt. Hall, defendant suddenly walked away from the Jeep. (4) When Sgt. Hall approached the vehicle, Bennett opened the driver’s side door from which emanated a strong smell of fresh marijuana. (5) Bennett appeared to be nervous.  (6) When asked about the smell of fresh marijuana, Bennett claimed the smell came from him because he had recently smoked marijuana. (7) Bennett also indicated that the odor might be from an empty mason jar within which appeared to be marijuana residue. (8) When asked if there were illegal items in the Jeep, Bennett responded; “Not that I know of,” the equivocating nature of which further aroused suspicion.  The Court first rejected defendant’s attempt to consider each of the above factors individually, in isolation, arguing how each factor failed to rise to the level needed for probable cause.  The Court instead held that the issue is whether—in considering the “totality of the circumstances”—Sgt. Hall had sufficient probable cause to believe Bennett’s vehicle contained an illegal amount of marijuana.  The Court further rejected defendant’s argument that the odor of marijuana alone was insufficient to establish the necessary probable cause, defendant arguing that because it is now legal to possess up to 28.5 grams (or one ounce) of the substance, there wasn’t sufficient cause to believe that Bennett’s car contained more than this.  (See H&S Code § 11362.1(c); “(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.”)  In support of his argument, defendant cited People v. Lee (2019) 40 Cal.App.5th 853 (See California Legal Update, Vol. 24, #11, Oct. 28, 2019). However, the Lee Court also noted that “possession of a small (legal) amount of marijuana does not foreclose the possibility that [a] defendant possesses a larger (illegal) amount” if there is some “additional evidence beyond the mere possession of a legal amount” to generate probable cause to believe the defendant has more marijuana.  Per Lee:  “While a lawful amount of marijuana is not, on its own, enough to establish probable cause, such a lawful amount may establish probable cause where coupled with other factors contributing to an officer’s reasonable belief the defendant may be in violation of other statutory regulations of marijuana possession.” There was no such “additional evidence” in Lee.  There is in this case.  Here, the Court noted that Sgt. Hall testified to there being a “strong” odor of fresh marijuana emanating from the Jeep that, in his training and experience, he reasonably believed could not be accounted for by the empty mason jar Bennett produced, or from Bennett’s explanation that the smell was caused by the residual traces of recently burnt marijuana. Sgt. Hall also specifically testified to his ability, based upon his training and experience, to distinguish between the smell of burnt marijuana and raw marijuana.  In addition to this, Sgt. Hall testified that the odor he smelled was stronger than what he would have expected from an empty mason jar with nothing in it but marijuana residue.  Further, Sgt. Hall noted Bennett’s nervous behavior along with his equivocal response, “(n)ot that I know of,” when asked if there was anything illegal in the Jeep.  All of this, in combination, contributed to Sgt. Hall’s reasonable belief that the Jeep contained an unlawful amount of marijuana. Bennett’s deceptive statements concerning the source of the odor of marijuana, coupled with these other observations, constituted the necessary “additional evidence” required by Lee.  Based upon this “totality of the circumstances,” Sgt. Hall was held to have had sufficient probable cause to justify the warrantless search of Bennett’s vehicle, and containers (i.e., defendant’s backpack) found therein.

It was apparently not an issue that it was defendant’s backpack where the gun was found, and not elsewhere in Bennett’s car.  Failing to discuss this potential issue is probably because it is also a well-established rule that warrantless searches of a vehicle based upon the automobile exception include any containers found in the vehicle, whether or not the container belongs to the owner of the car.  (See Wyoming v. Houghton (1999) 526 U.S. 295.)  Note, however, that the rules for searching containers found in a vehicle are different when we’re talking about (a) Fourth waiver searches or (b) searches incident to arrest.  Under either of these two legal theories, the search of the backpack may not have been lawful.  The real importance of this case, however, is in describing how little it takes to show an exception to the rule of People v. Lee, as described above.  This current case is also important as an illustration of the value of good police work and an officer’s thorough preparation for testifying in court.  In this case, Sgt. Hall knew what he was doing while investigating what appeared to him to be suspicious drug-related activity, describing the circumstances in detail and not just barreling blindly into starting his search.  This good police work was followed up by a DDA who, leading Sgt. Hall through a detailed description of the sergeant’s training and experience, and then the circumstances of this particular contact, detention, and search, easily differentiated this case from the comparatively bland circumstances of People v. Lee. What I often find disturbing in far too many cases is when an officer gets on the witness stand and testifies to not being able to remember, in detail, what the defendant did, what he (the officer) did, and/or other important facts and circumstances leading up to a search and/or detention and arrest.  Inexcusable; reflecting a total lack of preparation for testifying in court.  That did not happen in this case, and the positive results reflect that fact.   Great job by everyone involved.