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Warrantless Vehicle Search if Smell of Pot, Minors?

At about 10:20 p.m. on June 22, 2020, Los Angeles Police Officers Zendejas and Organista were on patrol in the Pomona area.  The two officers were assigned to the Foothill Gang Enforcement Detail.

The two officers observed a car parked along the side of the road with two men in it.  Officer Organista was able to run the registration on the car, which came back expired.  The officers then approached the parked car, which had its windows rolled.down.

Officer Zendejas noticed there was a strong odor of freshly burnt marijuana coming from inside the car.  Officer Zendejas then contacted the driver of the car, Phillip Castro.  Zendejas also saw a man lying in the back seat, who appeared to be trying to hide from the officers. 
Zendejas recognized the male in the backseat as a minor he had prior encounters with and the male in the front seat and also knew he was a minor from prior encounters with him.  Zendejas also knew the two minors in the car were gang members.

Castro told Zendejas that he was 20 years old and had smoke marijuana about two hours earlier.

Zendejas knew that under Proposition 46, the three males were not allowed to possess or smoke marijuana until age 21.

Zendejas and Organista then ordered the three males out of the car and handcuffed them for officer safety because the area was an area of high gang activity and two of the males were known gang members.

The officers then conducted a “narcotics investigation search” of the car without a warrant.  Zendejas later explained at a motion to suppress hearing in Pomona Superior Court that he had reason to believe there was still marijuana in the car based on the smell of freshly burnt marijuana coming from the car. 

Officer Zendejas found one Xanax pill and one round of nine-millimeter ammunition in the center console of the car.  Officer Zendejas then searched the trunk and found a loaded nine-millimeter handgun with no serial number on it in an open duffel bag.  Castro then admitted that the handgun was his.  Castro was then arrested.

The officers did not find any marijuana.

Under Penal Code § 1538(a)(1)(A), Castro made a motion to suppress evidence from the vehicle search, arguing that it was a warrantless search that did not fall within the automobile exception to the Fourth Amendment.

The judge granted Castro’s motion to suppress, relying upon In re D.W. (2017) 13 Cal. App. 5th 1249, a case which examined whether a search of a minor’s “person was invalid under the Fourth Amendment because it did not properly fall within the exception to the warrant requirement for a search incident to an arrest.”  Id., at 1251.  The judge then dismissed the case against Castro.

Months later, the district attorney’s office filed a motion for an order compelling the judge to reinstate the complaint under Penal Code § 871.5, arguing the judge’s dismissal of the case after improper suppression of evidence was erroneous as a matter of law.

The judge granted the motion, finding that the reliance on In re D.W., supra, was in error because In re D.W. did not deal with the automobile exception, citing to People v. Strassburg (2007) 148 Cal. App. 4th 1052, which permitted a search of a car when the driver was underage and officers smelled marijuana.  Id., at 1059.

The District Attorney’s Office then filed a complaint again against Castro, charging him with carrying a loaded, unregistered handgun in a vehicle (Penal Code §§ 25850(a) and 25850(c)(6)).

Castro then filed a motion to suppress again, which the judge denied.  Castro then entered a plea of no contest and was placed on two years of formal probation.

Castro then filed an appeal with the Second Appellate District Court in downtown Los Angeles, arguing that the search did not fall within the automobile exception to the Fourth Amendment.  People v. Johnson (2018) 21 Cal. App. 5th 1026, 1034.  Castro did not cite to In re D.W., supra, in his appeal.

The Second Appellate District found there was probable cause to search Castro’s car without a warrant based on the officer’s observation of a “strong  odor” of freshly burnt marijuana and that there were two minors they knew from prior encounters.  Castro, the driver, also admitted to being under 21.  In other words, all three occupants could not possess marijuana or smoke it.  The officer had reason to believe there was still marijuana in the car based on the smell of freshly burnt marijuana, so the search was legal.

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