13 Cal. App. 5th 1249
Cal. Ct. App. 5th2017Background
- On January 12, 2015, San Francisco officers responded to a broadcast that someone in the area might be armed and approached a group of youths, some known to be gang-associated.
- Officer Solares smelled marijuana on D.W.; D.W. admitted he had just smoked.
- Officers searched D.W.; Officer Ochoa put a hand under D.W.’s backpack and felt a revolver; officers then handcuffed D.W. and removed the gun.
- At the time of the search, possession of under 28.5 grams of marijuana was an infraction in California (non-jailable).
- D.W. moved to suppress the evidence, arguing the search was not justified as a search incident to arrest and there was no probable cause to arrest or to believe he was armed and dangerous.
- The juvenile court denied suppression; this Court (after Supreme Court transfer for reconsideration in light of People v. Macabeo) reversed the jurisdictional findings and ordered suppression.
Issues
| Issue | Plaintiff's Argument (D.W.) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether the search was a lawful search incident to arrest | Search was unlawful: no probable cause to arrest; smell/admission of marijuana alone does not authorize a custodial arrest/search | Officers had probable cause to search for contraband based on strong odor and admission; discovery of gun during lawful contraband search justified | Search was unlawful under Fourth Amendment because officers lacked cause to make a custodial arrest and marijuana possession then was a non-jailable infraction |
| Whether smell/admission of marijuana provided probable cause to believe a jailable offense had occurred | Smell/admission did not establish possession of a jailable amount; at most an infraction | Smell/admission gave reasonable basis to search for contraband | Smell/admission did not establish probable cause of a jailable offense; mere conjecture they possessed a jailable amount |
| Whether a search-incident-to-citation exception exists | No exception; citation does not permit search incident to arrest | Search incident to a valid custodial arrest is allowed; officers acted reasonably | Court applied Macabeo: there is no exception for search incident to citation; search must be tied to a lawful custodial arrest supported by probable cause |
Key Cases Cited
- People v. Macabeo, 1 Cal.5th 1206 (clarifies no search-incident-to-citation exception; custodial arrest supported by independent probable cause required)
- Riley v. California, 573 U.S. 373 (2014) (cell-phone searches implicate significant privacy interests; warrant generally required)
- People v. Hua, 158 Cal.App.4th 1027 (2008) (possession/ingestion of small amounts of marijuana is a nonjailable offense)
- People v. Torres, 205 Cal.App.4th 989 (2012) (concluding smell of marijuana does not necessarily establish possession of a jailable amount)