Filed 3/11/15 P. v. Morgan CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E059403

v.                                                                       (Super.Ct.No. SICRF1253273002)

TIMOTHY CLIFFORD MORGAN,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Inyo County. Brian Lamb and Barry

Hammer, Judges.* Affirmed.

         Erica Gambale, under appointment by the Court of Appeal, for Defendant and

Appellant.




         *
         Barry Hammer is a retired judge of the San Luis Obispo Superior Court
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.



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       Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and

Respondent.

       Defendant and appellant Timothy Clifford Morgan pleaded no contest to a drug

charge after the lower courts twice denied his motion to suppress evidence under Penal

Code section 1538.5. The appeal raises the single issue that the trial court erred in

denying his motion to suppress. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       The charges arose out of a traffic stop on February 4, 2012. Officer Brent

Gillespie of the Bishop Police Department was on patrol at nearly 11:00 p.m., when he

saw a black sedan traveling east on Elm Street. The black sedan made a right turn onto

Central Avenue without displaying a turn signal. Officer Gillespie followed. The black

sedan made a second turn, westbound onto East Pine Street. Again, no rear turn signal

light displayed. However, Officer Gillespie could see an auxiliary turn signal light

flashing on the sedan’s side mirror, even though the sedan’s taillight was not blinking.

As the black sedan executed the second turn, Officer Gillespie also saw a large crack in

the sedan’s windshield. He decided to make a traffic stop on the black sedan.

       Officer Gillespie approached the stopped sedan on the passenger side. As he

walked alongside the sedan, he could see a lot of trash and other debris in the passenger

compartment; he said he also could smell the odor of marijuana emitting from the

passenger side window. Officer Gillespie never mentioned this odor throughout the



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encounter, however. Defendant was driving the sedan; Kelly Lynn Greene was sitting in

the front passenger seat.

       Officer Gillespie believed it was “past practice” to have a driver get out of the

stopped vehicle when he was writing a traffic citation. Accordingly, Officer Gillespie

had defendant step out of the sedan and stand with Officer Gillespie next to his patrol car

while he checked the validity of defendant’s driver’s license. Defendant gave Officer

Gillespie his driver’s license, automobile registration, and proof of insurance. Officer

Gillespie verified that there were no outstanding warrants for defendant. Backup officers

soon arrived, but stood aside while Officer Gillespie conducted his investigation. Officer

Gillespie thought defendant seemed “overly nervous” while standing by the patrol car,

and he noticed that defendant’s hand was shaking. However, after verifying defendant’s

documentation, Officer Gillespie wrote a citation for failure to use turn signals and

having a defective windshield. He advised defendant that defendant was then free to

leave. Officer Gillespie issued the citation within about five minutes of the traffic stop.

Defendant walked back toward the sedan.

       After telling defendant that he was free to leave, Officer Gillespie decided to

initiate another contact with defendant. Officer Gillespie asked if he could speak to

defendant; defendant walked back to Officer Gillespie’s patrol car. Officer Gillespie

determined in his own mind at that point that defendant was no longer free to leave.

       Officer Gillespie then asked whether defendant had anything illegal in the car. At

first, defendant denied having anything illegal, but then admitted there was a marijuana



                                              3
pipe in the sedan. Officer Gillespie asked if defendant had an authorization card for

medical marijuana; defendant gave the officer documentation showing that “he had been

recommended for marijuana usage.” Officer Gillespie told defendant that he was going

to “verify your card.” Defendant asked if he was free to leave, and the officer said no.

No testimony or evidence was proffered to show what Officer Gillespie did to verify the

validity, or lack thereof, of defendant’s authorization for medical marijuana use.

       Once defendant had told Officer Gillespie about the marijuana pipe, the officer

intended to search the sedan. Officer Gillespie then approached Greene, the passenger in

the sedan, and asked her if there was anything illegal in the car. Greene admitted there

was a marijuana pipe under the seat.

       Officer Gillespie proceeded to search the sedan. He found two marijuana pipes,

one under the seat and one in a cup holder. He also found a closed box behind the

driver’s seat. The box was decorated with stickers depicting leaves of marijuana plants.

Officer Gillespie asked defendant and Greene for permission to open the box, but both

refused. Nevertheless, Officer Gillespie opened the box and found marijuana and a

quantity of cash, as well as a smaller, locked box inside. He proceeded to open the

second box. Inside the smaller box, he found suspected methamphetamine, packaging

materials, scales, and other drug paraphernalia.

       As a result, defendant was arrested, and he was charged in a criminal complaint

with transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a))

(count 1); possession of methamphetamine for sale (Health & Saf. Code, § 11378)



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(count 2); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a))

(count 3); and possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 4).

       Defendant filed a motion to suppress the evidence under Penal Code

section 1538.5. The court denied the motion.

       Defendant waived his right to a preliminary hearing on the charges, and the

prosecutor filed an information alleging the same violations as were contained in the

felony complaint. Defendant renewed his motion to suppress in the trial court. The court

conducted a hearing, and again denied the motion.

       After these rulings, defendant agreed to plead no contest to count 2 (possession of

methamphetamine for sale), in exchange for dismissal of the remaining counts. The court

suspended imposition of sentence and placed defendant on formal probation for 36

months.

       Defendant filed a notice of appeal.

                                        ANALYSIS

                                   I. Standard of Review

       “ ‘The denial of a suppression motion may be challenged by an appeal from the

judgment entered after defendant’s guilty or no contest plea. [Citations.] “ ‘The standard

of appellate review of a trial court’s ruling on a motion to suppress is well established.

We defer to the trial court’s factual findings, express or implied, where supported by

substantial evidence. In determining whether, on the facts so found, the search or seizure

was reasonable under the Fourth Amendment, we exercise our independent judgment.



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[Citations.]’ [Citations.]” ’ [Citation.]” (People v. Waxler (2014) 224 Cal.App.4th 712,

718.)

                    II. The Search Was Supported by Probable Cause

        Defendant contends that Officer Gillespie did not have probable cause to search

the sedan because defendant had provided some evidence to show that he could lawfully

possess marijuana. We disagree.

        The salient case is People v. Strasburg (2007) 148 Cal.App.4th 1052. There, an

officer on patrol saw two men sitting in a parked car in a gas station parking lot. The

officer stopped next to the parked car and got out of his patrol vehicle. As the officer

approached the driver’s side door of the parked car, the driver opened the door. The

officer immediately smelled the odor of marijuana emanating from the parked car. The

driver admitted he had been smoking marijuana just before the officer arrived, but said

that he had a medical marijuana card. Although the driver asked the officer to look at his

marijuana card (actually a prescription), the officer refused, in the mistaken belief that the

medical marijuana law did not apply in that county. The officer asked the driver if he had

any marijuana on his person or in the car. The driver produced a baggie of marijuana,

weighing about three quarters of an ounce. The officer asked the driver to get out of the

car; as the driver did so, the officer saw in plain sight another baggie of marijuana inside

the car. The second baggie contained about 2.2 grams of marijuana. The officer detained

the driver, frisked him, and placed him in the back of the patrol car. The officer then

proceeded to search the car. The search turned up additional marijuana, about one and



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one-half pounds, and a scale capable of weighing the entire quantity of marijuana. (Id. at

pp. 1055-1056.)

       The driver moved to suppress the evidence obtained during the search. He argued

that, once he had produced a card or prescription for medical marijuana, the officer had

no right to detain, frisk, or search the driver or his car. The trial court denied the motion

to suppress evidence, ruling that, once the officer had smelled the odor of marijuana

coming from the parked car, the driver’s possession of a marijuana card did not deprive

the officer of the right to continue investigating the matter. After the trial court denied

the motion to suppress, the driver entered a no contest plea and was placed on probation.

(People v. Strasburg, supra, 148 Cal.App.4th 1052, 1056-1057.)

       On appeal, the appellate court affirmed. The Compassionate Use Act of 1996

(Prop. 215, as approved by voters, Gen. Elec. (November 5, 1996) (CUA); see Health &

Saf. Code, § 11362.5) provides for a limited immunity from prosecution for violation of

the general criminal statutes prohibiting possession or cultivation of marijuana. (Health

& Saf. Code, §§ 11357, 11358.) Some years after passage of Proposition 215, in 2003

the Legislature enacted a Medical Marijuana Program (MMP), providing for voluntary

issuance of medical marijuana identification cards by the Department of Health Services.

(Health & Saf. Code, § 11362.7, et seq.) Qualified patients under the MMP are permitted

to possess a limited quantity of dried marijuana for personal medicinal use. (Health &

Saf. Code, § 11362.77, subd. (a).) Even qualified patients are not permitted to use

marijuana under certain circumstances, including inside a motor vehicle when it is being



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operated. (Health & Saf. Code, § 11362.79, subd. (d).) The limited immunities provided

by the CUA and the MMP afford a qualified patient an affirmative defense in case of

prosecution for unlawful possession or cultivation of marijuana. However, the court

relied on California Supreme Court precedent that the CUA (and presumably the MMP

legislation) does not provide immunity from arrest or investigation. (People v. Strasburg,

supra, 148 Cal.App.4th 1052, 1058, citing People v. Mower (2002) 28 Cal.4th 457, 468-

469.)

        Defendant argues that this case can be “easily distinguished” from Strasburg,

because the driver in that case readily admitted having smoked marijuana in the car just

before the officer arrived, and because the driver produced one baggie of marijuana, the

officer saw a second baggie in plain view in the vehicle, and the driver admitted that

there was even more marijuana inside the car. (People v. Strasburg, supra, 148

Cal.App.4th 1052, 1055-1056.) The officer in Strasburg had both smelled the odor of

marijuana coming from the car, and observed the presence of marijuana in the car. Here,

defendant argues, Officer Gillespie may have smelled some odor of marijuana coming

from the black sedan, but he did not see any marijuana in the passenger compartment, nor

did he have evidence that any marijuana had recently been smoked inside the sedan.

Indeed, Officer Gillespie either did not, or could not, distinguish the odor of burnt

marijuana from unburnt marijuana. Defendant argues that, “[a]bsent the facts described

by Strasburg, namely the suspicious manner in which the vehicle was parked, the

officer’s knowledge that the defendant possessed marijuana in the vehicle, and the fact



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that the defendant admitted to smoking inside of the vehicle, [Officer] Gillespie lacked

probable cause to search [defendant’s] vehicle.”

       We are not persuaded. The most prominent factor in Strasburg was the odor of

marijuana emanating from the parked car. “The operative issue is whether [the officer]

had probable cause to search defendant’s car at the moment he smelled the odor of

marijuana, at the outset of his encounter with defendant who was with another person in a

parked car in a public parking area.” (People v. Strasburg, supra, 148 Cal.App.4th 1052,

1058-1059.) The court went on to state that, “[u]nder the facts and circumstances of this

case, [the investigating officer] had probable cause to search defendant’s car for

marijuana after he smelled the odor of marijuana. (People v. Dey (2000) 84 Cal.App.4th

1318, 1320-1322 [101 Cal.Rptr.2d 581]; see People v. Hunter (2005) 133 Cal.App.4th

371, 378-382 [34 Cal.Rptr.3d 818].)” (Id. at p. 1059.)

       The Strasburg court flatly rejected the notion that possession of an authorization to

use medical marijuana dispelled probable cause to search a motor vehicle for contraband.

“[I]n light of Mower’s guidance that the Act does not impair reasonable police

investigations and searches[,] [a] physician’s prescription or an identification card under

Article 2.5, . . . does not provide an automatic protective aegis against reasonable

searches.” (People v. Strasburg, supra, 148 Cal.App.4th 1052, 1058.) As in “[People v.]

Mower, supra, 28 Cal.4th 457, the California Supreme Court held that the Act does not

confer a complete immunity from prosecution to a qualified patient. Rather, the Act

confers a limited immunity from prosecution, meaning that the qualified patient can raise



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his status as an affirmative defense at trial or as a ground to set aside an indictment or

information prior to trial on the ground of insufficient evidence. [Citation.] [Fn.

omitted.] But the status of qualified patient does not confer an immunity from arrest.

Law enforcement officers may arrest a qualified patient for marijuana offenses where

they have probable cause, based on all of the surrounding facts including qualified patient

status, when they have reason to believe, for instance, that the arrestee does not possess

marijuana for his personal medical purposes. [Citation.]” (People v. Strasburg, supra,

148 Cal.App.4th 1052, 1058.)

       The possession of marijuana is still a crime, and the CUA and the MMP provide

only a limited immunity from criminal penalties. That is, those statutes will provide a

defense to a criminal charge, not immunity from investigation or arrest. The possession

of a medical marijuana card, prescription, or other authorization does not change the

nature of marijuana as contraband. Even qualified patients may not use marijuana in a

motor vehicle that is being operated. Even qualified patients may not possess more than

a specified quantity of marijuana.

       The odor of marijuana emanating from a vehicle is evidence that marijuana is

present in or has recently been used in the vehicle. The odor of marijuana indicates the

likely presence of marijuana, but does not specify the quantity present. Neither does it

indicate who possessed the marijuana. The odor of marijuana thus provides probable

cause for further investigation and search: the marijuana present may not have belonged

to a qualified patient; even if possessed by a qualified patient, it may have been



                                             10
unlawfully used in an operating motor vehicle; and even if possessed by a qualified

patient, it may exceed the allowable amount. As the Strasburg court pointed out, the

defendant “was not sitting at home nursing an illness with the medicinal effects of

marijuana.” (People v. Strasburg, supra, 148 Cal.App.4th 1052, 1060.) Likewise,

defendant here likely had marijuana in a moving vehicle, not at home.

       The probable possession of marijuana in a moving vehicle brings any search

within the automobile exception to the warrant requirement of the Fourth Amendment.

(See United States v. Ross (1982) 456 U.S. 798, 804-809 [2 L.Ed. 2d 572, 102 S.Ct.

2157]; Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L.Ed. 543, 45 S.Ct.

280]; People v. Chavers (1983) 33 Cal.3d 462, 467-468 [189 Cal.Rptr. 169, 658 P.2d

96].) The scope of such a warrantless search is defined by the nature of the items being

sought: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies

the search of every part of the vehicle and its contents that may conceal the object of the

search.” (United States v. Ross, supra, 456 U.S. 798, 824-825.) The search of the black

sedan was supported by probable cause, and justified the search into any containers

capable of holding marijuana.

       The court below properly relied on Strasburg as the controlling case, and properly

denied defendant’s motion to suppress evidence.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               McKINSTER
                                                           J.
We concur:



RAMIREZ
                    P. J.



HOLLENHORST
                       J.




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