THE CALIFORNIA LEGAL UPDATE
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LU Ref#
CAI00014
August 23, 2021
Author Ref. No:
Vol. 26 No. 9
LU Ref#
CAI00014
August 23, 2021
Author Ref. No: Vol. 26 No. 9
CONSOLIDATED ISSUE
Robert Phillips
Deputy District Attorney (Retired)
THIS EDITION’S WORDS OF WISDOM:
“Not only did I fall off the Diet Wagon, I dragged it into the woods, set it on fire, and used the insurance money to buy cupcakes.”
Vehicle Searches and the Odor of Marijuana
COURT CASE REFERENCE: People v. Moore (Apr. 26, 2021) 64 Cal.App.5th 291
LEGAL UPDATES REFERENCE NO. CAC00042
RULES
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.
FACTS
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.
