Tuesday, September 25, 2018
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Court of Appeal:
Odor of Marijuana in Vehicle Was Factor Justifying Pat-Down Search of Passenger
Says 2016 Legalization of Possessing Small Amounts of Substance for Personal Use Did Not Preclude Pat-Down and Vehicle Searches in Part Based on That Factor
By a MetNews Staff Writer
The odor of marijuana emanating from a vehicle was a factor police were entitled to take into account in deciding to conduct a pat-down search of the passenger in a car that had been stopped, when coupled by his furtive movements and fidgeting, his baggy coat under which a firearm could be concealed, and the encounter occurring in a high-crime area, the Court of Appeal held yesterday.
Writing for the First District’s Div. One, Justice Robert L. Dondero said a San Francisco Superior Court judge did not err in declining to suppress evidence that a semiautomatic gun was found on the person of the passenger, Calvin Bernard Fews, who pled guilty to being a felon in possession of a firearm.
The fact that possession of small amounts of marijuana was legalized in 2016 by Proposition 64, Dondero said, did not mean that at the time of the 2017 search, the presence of that substance in a vehicle could not serve as a factor raising suspicions, Dondero wrote.
Actions of Driver
The vehicle was stopped after police, in a marked car, saw an SUV speed up, then pull to the curb in a red zone. Based on experience, San Francisco Police Officer Dominic Vannucchi, this led him to suspect the driver wanted to avert a traffic stop—and that his suspicion was heightened when the driver, Lindell Mims, alighted from the vehicle before being asked to do so, then refused get back in the SUV.
The officers could not see Fews’s hands, but he was reaching near the passenger compartment.
Mims admitted there was marijuana in a half-burnt cigar in the vehicle.
Fews was ordered to exit the vehicle, according to testimony, so that the vehicle could be searched, as well as Fews, to determine if he was armed.
Totality of Circumstances
In explaining the affirmance of the conviction, Dondero wrote:
“On appeal, Fews attempts to ‘divide and conquer’ each of these factors as not sufficient in and of itself to justify the patsearch. However, our analysis is based on the totality of the circumstances and not picking each factor apart separately. …Taken together, Mims’s evasive and uncooperative conduct, combined with the high-crime area in which the traffic stop took place, the odor and presence of marijuana, and Fews’s continuous and furtive movements inside the SUV, were sufficiently unusual to raise the officers’ suspicions that Mims and Fews were involved in criminal activity related to drugs and could be armed.”
In light of Proposition 64, Fews argued, possession of a small amount of marijuana could not rationally give rise to a suspicion of criminality. Dondero responded:
“We think this contention overstates the effect of Proposition 64. It remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, to cultivate cannabis plants in excess of statutory limits and in violation of local ordinances, to engage in unlicensed ‘commercial cannabis activity,’ and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving.”
He said the “possibility of an innocent explanation for the possession of marijuana” does not require taking it into account in assessing the need for a search, explaining:
“Because marijuana possession and use is still highly circumscribed by law even after the passage of Proposition 64, the odor and presence of marijuana in a vehicle being driven in a high-crime area, combined with the evasive and unusual conduct displayed by Fews and Mims as discussed above, were still reasonably suggestive of unlawful drug possession and transport to support the…frisk.”
The continued regulation of marijuana, the jurist said, justified the vehicle. The legality of that search, he reasoned, “provides additional support for the validity of the patsearch of Fews on officer safety grounds because, as the magistrate found, the vehicle search would have left one of the officers outnumbered by Mims and Fews, who was wearing baggy clothes that could conceal a weapon.”
The case is People v. Fews, A151727.
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