In re D.W., A145470A

On Jan 12, 2015, San Francisco officers responded to a radio report someone in the area might have a firearm and approached a group of youths on a corner in a rival gang area.
Officer Solares smelled marijuana on D.W.’s clothes and breath; D.W. admitted he had just smoked.
Officers decided to search D.W.; as Officer Ochoa reached under D.W.’s backpack he felt a revolver; officers handcuffed D.W., retrieved the revolver, and learned D.W. was 17.
D.W. moved to suppress the gun, arguing the search was not justified under the Fourth Amendment because there was no probable cause for a custodial arrest and no reasonable suspicion he was armed and dangerous.
The juvenile court denied suppression, finding probable cause to search for contraband based on the marijuana odor; this court originally affirmed but the Supreme Court remanded for reconsideration in light of People v. Macabeo.
On remand this court reversed the jurisdictional findings, holding the search violated the Fourth Amendment because officers had neither probable cause for a custodial arrest nor a basis to treat the marijuana smell as furnishing probable cause for a jailable offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether search was lawful as incident to arrest	Officers had probable cause to search for contraband based on marijuana odor	Odor/admission of marijuana does not establish probable cause for custodial arrest or a jailable offense; search unlawful	Search unlawful: no probable cause for custodial arrest; search-incident exception inapplicable
Whether smell/admission of recent marijuana use justifies search	Smell provides probable cause to believe contraband present and permits search	Smell only indicates a nonjailable infraction (possession/ingestion) and is insufficient to justify custodial arrest or search incident to arrest	Smell/admission alone, given statutory treatment as an infraction, did not establish probable cause of a jailable offense and could not justify a custodial-search exception
Applicability of Macabeo (search-incident limits)	Search incident to custodial arrest applies where arrest supported by probable cause	Macabeo forecloses a search-incident-for-citation exception; custodial arrest required for the exception	Followed Macabeo: no exception for citation; search incident to arrest requires independent probable cause to arrest
Whether exclusionary rule / good-faith exception applies	(People did not argue good-faith exception on remand)	N/A	Court did not decide admissibility under good-faith; declined to address it because People did not argue it

People v. Macabeo, 1 Cal.5th 1206 (clarifies limits on search-incident-to-arrest; no exception for search incident to citation)
People v. Hua, 158 Cal.App.4th 1027 (discusses that marijuana ingestion/possession may be a nonjailable infraction and limits on inferring quantity)
People v. Torres, 205 Cal.App.4th 989 (addresses evidentiary limits of odor in establishing quantity sufficient for a jailable offense)