Filed 12/16/19

                          CERTIFIED FOR PUBLICATION

               APPELLATE DIVISION OF THE SUPERIOR COURT
        OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA




   THE PEOPLE,                                No. 6093
                                              (Super. Ct. No. 17-CR-026238)
   Plaintiff and Respondent,

           v.                                 OPINION

   ANDRE SHUMAKE,

   Defendant and Appellant.




Procedural Background:

      This matter came before this panel as an appeal from a denial of a Motion to
Suppress, heard by the Hon. Margaret Fujioka on November 7, 2018.

Factual Background:

       Berkeley Police Officer Megan Jones was on “specialized DUI patrol” on
September 1, 2017, at about 11:00 p.m. She and her partner were in an unmarked patrol
car, heading northbound on University Avenue when she saw a Hyundai being driven (by
Appellant) southbound. There was no front license plate on the Hyundai, a violation of
Vehicle Code Section 5200. While on “specialized DUI patrol,” Officer Jones looks for
driving patterns indicating intoxication, such as weaving or other erratic driving. She
also stops cars for traffic violations, to see if the driver might be impaired. She testified
that Appellant’s driving was normal, Appellant immediately and safely pulled to the curb
when she activated her lights and siren, and Appellant was cooperative. Officer Jones


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testified that she has conducted about 800 DUI investigations, with about 500 involving
marijuana.

       When Officer Jones approached the driver’s door, she noticed a strong smell of
marijuana, both fresh and “freshly burnt.” She testified that the smell of marijuana may
linger on clothes or car upholstery for a week or more after it is smoked. She asked
Appellant if he had any marijuana. He answered that he had “some bud” in the center
console.

       Officer Jones believed that any marijuana transported within a car must be in a
closed, heat-sealed package. She also believed that if marijuana is contained in that
manner, she should not be able to smell it. Thus, believing Appellant might be in
violation of the laws regulating marijuana possession, Officer Jones decided to search the
car. She had Appellant and his passenger get out of the Hyundai.

        She first looked in the center console. Inside was a plastic tube containing 1.14
grams of marijuana bud, later described as “dried flower.” The tube was closed. It could
be opened by squeezing the sides of the tube, which flexed the top open. Officer Jones
testified that when she located the marijuana in the center console it, “gave me more
probable cause to believe that there was more marijuana inside the vehicle.” (Reporter’s
Transcript, page 35.) In the ensuing search, Officer Jones found a loaded pistol under the
driver’s seat. She did not find any more marijuana, or paraphernalia.

       After she completed her search, Officer Jones conducted field sobriety tests to
determine if Appellant was under the influence. She concluded that he was not under the
influence.

Discussion

1. Standard of Review

        The recent case of People v. Flores (2019) 38 Cal.App.5th 617, 626, concisely
states the standard:

      ‘As the finder of fact in a proceeding to suppress evidence [citation], the
      [trial] court is vested with the power to judge the credibility of the
      witnesses, resolve any conflicts in the testimony, weigh the evidence and

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      draw factual inferences in deciding whether a search is constitutionally
      unreasonable.’ (People v. Woods (1999) 21 Cal.4th 668, 673.) ‘In
      reviewing a trial court's ruling on a motion to suppress, we defer to the trial
      court's factual findings, express or implied, where supported by substantial
      evidence. And in determining whether, on the facts so found, the search
      was reasonable for purposes of the Fourth Amendment to the United
      States Constitution, we exercise our independent judgment. [Citation.]’
      (People v. Simon (2016) 1 Cal.5th 98, 120; Woods, [supra,] at p. 673.) We
      consider whether a search or seizure was reasonable under an objective
      standard, based on the facts and circumstances known to the officer but
      without regard to the officer's subjective state of mind. (Scott v. United
      States (1978) 436 U.S. 128, 138.)
(People v. Flores (2019) 38 Cal.App.5th 617, 626 [Emphasis added.].)

2.      Analysis

        There is no dispute about the facts here. The court found Officer Jones’s
testimony credible. The basis for the search of the Hyundai was the smell of marijuana,1
the fact that Appellant readily admitted the presence of the marijuana in the center
console, and the recovery of the plastic tube of marijuana bud or flower. Appellant
argues that the marijuana recovered from the center console was lawfully possessed, and
notes that lawful possession of marijuana cannot justify a further search. The Respondent
argues that the smell of marijuana and Appellant’s admission to marijuana possession
justified Officer Jones’s search. First, we address the legality of the marijuana possessed
in the center console. Second, we address the legality of Officer Jones’s search of the
remainder of the car.

        A. Cars and Marijuana

       A person cannot lawfully drive under the influence of any drug, including
marijuana (Vehicle Code Section 23152(f).) A driver cannot smoke marijuana while
driving a car and a passenger cannot smoke marijuana while riding in a car. (Health and
Safety Code Section 11362.3(a)(7) and (8).) It is illegal to possess an open container of
cannabis while driving. (Health and Safety Code Section 11362.3(a)(4).) A person over


        1
         The terms “marijuana” and “cannabis” are used interchangeably herein. The testimony from the hearing
on the Motion to Suppress used marijuana, and the statutes use cannabis.

                                                      3
21 years old can possess and transport cannabis in an amount of not more than 28.5
grams. (Health and Safety Code Section 11362.1(a)(1).)

         The statute in question in this case is Vehicle Code Section 23222. In applicable
part, it is an infraction to possess, “while driving a motor vehicle upon a highway,…any
receptacle containing any cannabis . . . which has been opened or has a seal broken, or
loose cannabis flower not in a container . . . .” (Vehicle Code Section 23222(b)(1).)

         B. The Marijuana In The Center Console Was Lawfully Possessed

          Appellant described to Officer Jones the 1.14 grams of cannabis as “bud.” Officer
Jones later described it as “dried flower.” (Reporter’s Transcript, page 30.) The plastic
tube described by Officer Jones does not appear to have been “sealed” at the time of the
search and it is unclear if it was ever “sealed.” From Officer Jones’s description of how
she opened the tube by merely squeezing it, the container had been previously opened, if,
for no other purpose than to put the cannabis inside it. Appellant is not arguing that the
cannabis was in a sealed condition. Appellant is arguing that it is “loose cannabis flower
. . . in a container.” Respondent does not dispute this. Respondent does not directly
address the legality of the transportation of the 1.14 grams of cannabis flower in a closed
plastic tube.

       A plain reading of the statute mandates the conclusion that the possession of the
cannabis flower in this case was lawful.2 Appellant possessed 1.14 grams of loose
cannabis flower in a closed container. Officer Jones’s belief that any cannabis being
transported in a vehicle must be in a heat-sealed container is not supported by the plain
language of Section 23222(b)(1).

         C. The Subsequent Search Was Unlawful

        Officer Jones testified that when she discovered the plastic tube of cannabis flower
in the center console it gave her “more probable cause to believe there was more
marijuana in the vehicle.” While logical, this inference violates California law. Health
and Safety Code Section 11362.1 states that “no conduct deemed lawful by this section
shall constitute the basis for detention, search, or arrest.” Appellant’s container with 1.14
grams of loose cannabis flower is far below the 28.5 grams permitted by law. As

         2
         Although the rationale is unclear to this court, Proposition 64 differentiates cannabis, which must be in an
unopened, sealed, container, from “loose cannabis flower,” which only needs to be in a closed container.

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Appellant was lawfully transporting the marijuana, that marijuana could not then serve as
the basis for the search of Appellant’s car.

       Respondent does not address how to analyze the search of Appellant’s vehicle if
the evidence of the marijuana in the center console cannot be used to support it. Officer
Jones clearly relied on it to justify her further investigation. However, as set forth in
Flores, above, we review the legality of a search based on an objective standard, not the
subjective state of mind of the officer. Respondent argues that that the smell of
marijuana coupled with Appellant’s admission of possession of the “bud,” justified the
search of the entire car. If this court excludes the discovery of the tube of marijuana
flower in Appellant’s center console as a basis for Officer Jones’ further search, the court
may still consider whether the loaded gun under the driver’s seat of the car would have
been found pursuant to the “inevitable discovery” rule.

      The inevitable discovery doctrine acts as an exception to the exclusionary
      rule, and permits the admission of otherwise excluded evidence “if the
      government can prove that the evidence would have been obtained
      inevitably and, therefore, would have been admitted regardless of any
      overreaching by the police.” (Nix v. Williams (1984) 467 U.S. 431, 447,
      (Nix ).) The purpose of the exception is “to prevent the setting aside of
      convictions that would have been obtained without police
      misconduct.” (People v. Robles (2000) 23 Cal.4th 789, 800.) It is the
      prosecution's burden to “establish by a preponderance of the evidence that
      the information ultimately or inevitably would have been discovered by
      lawful means.” (Nix, at p. 444; People v. Coffman and Marlow (2004) 34
      Cal.4th 1, 62.)
(People v. Hughston (2008) 168 Cal.App.4th 1062, 1071–1072.)

        Without the cannabis from the center console, what remains is the strong smell of
fresh and recently burnt marijuana, and Appellant’s statement that he possessed a small
amount of marijuana, which turned out to be within the lawful limit. Respondent relies
on People v. Fews (2018) 27 Cal.App.5th 553. In Fews, the driver of an SUV, in an area
of San Francisco known for narcotics sales and violent crime, was driving erratically and
then abruptly pulled to the curb when a police car drew near. The driver quickly stepped
out of the vehicle while the passenger (defendant) bent down inside the SUV, as if to hide
something. The officer detained the driver back inside the SUV, could smell burnt
marijuana, and saw the driver had a half-smoked cigar of marijuana. This case occurred

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after the passage of Proposition 64, but possession of such an “open container” in the car
was (and remains) unlawful. In affirming the trial court’s denial of the motion to
suppress the gun found in the defendant’s jacket (in a pat search not relevant to our case),
the appellate court ruled:

      [T]he evidence of the smell of “recently burned” marijuana and the half-
      burnt cigar containing marijuana supported a reasonable inference that
      Mims was illegally driving under the influence of marijuana, or, at the very
      least, driving while in possession of an open container of marijuana.
(People v. Fews, supra, 27 Cal.App.5th at p. 563.)

       There are significant differences between Fews and the case at hand. First, the
officers in Fews observed a violation of the cannabis open container law. Second, the
half-burnt cigar, combined with the smell of burnt marijuana, leads to the inference that
the occupants very recently smoked marijuana. This would increase the likelihood that
the occupants were illegally smoking while driving, or that the driver was under the
influence. Further, the driver of the SUV in Fews drove erratically, and both the driver
and passenger acted strangely during the stop.

        Here, there was no violation of the open container law. There was no partially
smoked cannabis in plain view. Also, Officer Jones testified that the smell of marijuana
can linger for a week or more. Lastly, Appellant’s only traffic violation was a missing
front license plate, and Appellant quickly and appropriately pulled to the curb and was
cooperative throughout the stop. These factors, combined with the Appellant’s successful
completion of the field sobriety test conducted by Officer Jones, do not support applying
the inevitable discovery rule in this case.

        Probable cause is “whether, given all the circumstances . . . , there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
(Illinois v. Gates (1983) 462 U.S. 213, 238.) This court concludes that, given the legality
of personal use of marijuana in the State of California, there was not a fair probability
that Officer Jones would find evidence of a crime in the Hyundai. Anyone 21 years and
older can now lawfully smoke marijuana in California, and as Officer Jones testified, the
smell can linger for more than a week. The law permits possession and transportation of
up to 28.5 grams of cannabis in a car. Given the language of Vehicle Code Section
23222(b)(1), upon Appellant telling her he had some “bud” in the center console, Officer
Jones could have conducted a further inquiry, including asking Appellant about the

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amount of marijuana, whether it was in a container, where it was located, when he last
smoked, etc. This is consistent with the type of reasonable inquiry officers use when they
smell alcohol in a car. Marijuana and alcohol now receive similar treatment under the
law. Officer Jones may have had justification at that point to administer field sobriety
tests to ascertain Appellant’s sobriety, but that justification is not tantamount to probable
cause to search the remainder of Appellant’s car.

      The order denying the Motion to Suppress is reversed. The case is remanded for
proceedings consistent with this ruling.

       CERTIFIED FOR PUBLICATION




______________________________________
WISE, P.J.


We concur:




______________________________________
CRAMER, J.




______________________________________
GRILLO, J.




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PARTIES AND ATTORNEYS

 People of the State of California,       Carrie Skolnick, Deputy District Attorney
 Plaintiff/Respondent                     Kristopher Villa Kiriu, Deputy District Attorney
 Andre Laking Shumake,                    Brie Jefferson, Assistant Public Defender
 Defendant/Appellant                      Charles Mandeville Denton, Assistant Public Defender
                                          Ali Rad, Assistant Public Defender


Trial Court Judge(s):

   •   Hon. Margaret Fujioka, Presiding Trial Judge


 Trial Court Case Name/Nos:           People v. Shumake, Andre Laking
                                           Alameda Superior Ct. No. 17-CR-026238
                                           Appellate No. 6093




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