Filed 7/28/20; Certified for publication 8/18/20 (order attached)




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    THIRD APPELLATE DISTRICT
                                                  (San Joaquin)
                                                         ----




 THE PEOPLE,                                                                C088342

                   Plaintiff and Respondent,                             (Super. Ct. No.
                                                                    STK-CR-FER-2018-0009346)
          v.

 TYRONE BRENDON MCGEE,

                   Defendant and Appellant.




         Defendant appeals after entering a no contest plea to being a felon in possession of
a firearm. On appeal, he challenges the trial court’s denial of his motion to suppress
evidence seized during a search of the car he was driving and a female passenger’s purse.
We conclude the presence of an unsealed bag of marijuana plainly visible on the
passenger’s person constitutes probable cause to search the passenger’s purse. Since the
purse contained a gun which defendant pled to possessing, we affirm.




                                                          1
                  FACTUAL AND PROCEDURAL BACKGROUND
       On July 28, 2018, Stockton Police Officers Greg Spears and David Muser were on
patrol as part of the “Community Response Team.” The officers initiated a traffic stop of
the car defendant was driving after noticing its registration had expired. After defendant
pulled over, Officer Spears approached the driver’s side of the car and encountered
defendant, while Officer Muser approached the passenger’s side and encountered a
female passenger. As they approached the car, both officers noted the scent of unburned
marijuana. When asked about the scent by Officer Spears, defendant denied having any
marijuana in the car; however, Officer Muser saw what appeared to be an unsealed bag of
marijuana in the passenger’s cleavage. After Officer Muser said he could see the
marijuana, Officer Spears removed defendant from the driver’s seat and informed him
they were going to search the car. Defendant did not consent to a search but was
cooperative. Officer Muser also removed the passenger from the car. After retrieving the
bag of marijuana from the passenger, Officer Muser confirmed it was, in fact, unsealed.
       While both defendant and the passenger were out of the car, Officer Muser noticed
a zipped purse on the passenger floorboard. Officer Muser searched the purse for
“anything illegal, any contraband that could be in the vehicle,” and seized a loaded
handgun from the purse. Officer Muser read defendant his rights pursuant to Miranda.1
After acknowledging he understood his rights, defendant explained he came into
possession of the handgun after a fight earlier that day. The other individual had dropped
the gun in the struggle, and defendant picked it up as the individual ran away. Defendant
further admitted he placed the gun in the passenger’s purse when he noticed the officers
behind his car.
       Officer Muser testified to the above facts at the preliminary examination. After
the preliminary examination, defendant moved to suppress evidence of all statements
made by him and any evidence seized in the search. Defense counsel argued because




1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

                                             2
marijuana is now legal in the state, the scent of unburned marijuana does not indicate
defendant or the passenger were breaking the law and thus cannot give rise to a probable
cause search. The prosecution opposed the motion, arguing while it is now legal to
possess small amounts of marijuana, “probable cause to search for marijuana can exist if
there’s probable cause to believe the marijuana was in violation of additional Health and
Safety Code sections that would criminalize such possession. [¶] In this particular case it
appears that the marijuana was not in a sealed or closed container, which would have
been a violation of . . . Health and Safety Code section 11362.3, which still prohibits such
an act. [¶] Additionally, it is unlawful given [Vehicle Code] section 23222 . . . with
regards to having such items in possession on a highway, . . . with the cannabis or
cannabis products with a broken seal, or loose marijuana.” The prosecution further
argued the presence of a lawful amount of marijuana supports probable cause to search
for unlawful amounts.
       The magistrate agreed with the prosecution and likened the presence of an
unsealed bag of marijuana to unsealed containers of alcohol. The magistrate reasoned
because an open container of alcohol, despite being merely an infraction, establishes
probable cause to search for additional open containers, the same should be said for
marijuana. The magistrate denied the motion to suppress on these grounds. After the
trial court denied defendant’s renewed suppression motion following the prosecution’s
filing of an information, defendant pled no contest to being a felon in possession of a
firearm and admitted having served a prior prison term. The court struck the allegation of
a prior prison term and sentenced defendant to the low term of 16 months.
                                      DISCUSSION
       Defendant argues the search incident to arrest and the automobile exception do not
justify the warrantless vehicle search performed by Officers Spears and Muser. The
People argue only that the search of the passenger’s purse was justified by probable cause
and thus valid under the automobile exception. We agree with the People.
       Where a motion to suppress is submitted after the filing of an information, “the
appellate court disregards the findings of the superior court and reviews the determination


                                             3
of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor
of the factual determinations of the magistrate, . . . and measuring the facts as found by
the trier against the constitutional standard of reasonableness.” (People v. Thompson
(1990) 221 Cal.App.3d 923, 940.) In so doing, we defer to the magistrate’s factual
findings and, exercising our independent judgment, determine whether, “on the facts so
found, the search or seizure was reasonable under the Fourth Amendment.” (People v.
Glaser (1995) 11 Cal.4th 354, 362.)
       The Fourth Amendment guarantees the right to be free from unreasonable searches
and seizures. (U.S. Const., 4th Amend.) Warrantless searches are presumed
unreasonable, “subject only to a few specifically established and well-delineated
exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585]; see
also People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1196.) Defendants
may move to suppress evidence obtained through an unlawful search. (Pen. Code,
§ 1538.5.)
       The automobile exception provides “police who have probable cause to believe a
lawfully stopped vehicle contains evidence of criminal activity or contraband may
conduct a warrantless search of any area of the vehicle in which the evidence might be
found.” (People v. Evans (2011) 200 Cal.App.4th 735, 753; see also Carroll v. United
States (1925) 267 U.S. 132, 149 [69 L.Ed. 543, 549].) Once an officer has probable
cause to search the vehicle under the automobile exception, they “may conduct a probing
search of compartments and containers within the vehicle whose contents are not in plain
view.” (United States v. Ross (1982) 456 U.S. 798, 800 [72 L.Ed.2d 572, 578].)
Probable cause to search exists “where the known facts and circumstances are sufficient
to warrant a man of reasonable prudence in the belief that contraband or evidence of a
crime will be found.” (Ornelas v. United States (1996) 517 U.S. 690, 696 [134 L.Ed.2d
911, 918].)
       Defendant argues this exception does not apply because the enactment of
Proposition 64 legalized possession of small amounts of marijuana for personal use.
Thus, a legal amount of marijuana can no longer be considered contraband or provide the


                                             4
basis for a probable cause search of an entire car. The People disagree for two reasons.
First, the People argue the “discovery of a limited amount of contraband . . . in the
passenger area of a vehicle supplies the necessary probable cause to search the entire
vehicle for more.” (Citing People v. Dey (2000) 84 Cal.App.4th 1318, 1322; People v.
Hunter (2005) 133 Cal.App.4th 371, 380.) Second, the People argue open containers of
marijuana are analogous to open containers of alcohol, and because open containers of
alcohol are sufficient to establish probable cause, the same can be said for open
containers of marijuana. (People v. Souza (1993) 15 Cal.App.4th 1646, 1653.)
                                               I
               The Mere Presence Of A Lawful Amount Of Marijuana Does
                    Not Generate Probable Cause To Search For More
       The People substantially rely on pre-Proposition 64 authority in making the
argument that Officers Spears and Muser had probable cause to search the vehicle based
solely on their observation of a lawful amount of marijuana on the passenger’s person.
The People assert that recent amendments legalizing marijuana possession do not change
the status of the law. We disagree.
       Section 11362.1 of the Health and Safety Code,2 as amended by Proposition 64,
provides, “Cannabis and cannabis products involved in any way with conduct deemed
lawful by this section are not contraband nor subject to seizure, and no conduct deemed
lawful by this section shall constitute the basis for detention, search, or arrest.”
(§ 11362.1, subd. (c).) The plain language of section 11362.1, subdivision (c) indicates
the Legislature’s intent to remove cannabis from the ranks of contraband that gives rise to
probable cause searches. As such, and in light of recent precedent, the People’s first
argument, that the mere presence of a lawful amount of marijuana is sufficient to
establish probable cause to search under the automobile exception, is without merit.




2      Further section references are to the Health and Safety Code unless otherwise
specified.

                                               5
       Marijuana law has changed considerably in the past several decades. In 1996, the
voters enacted Proposition 215, which decriminalized possession of marijuana for
medicinal purposes by persons suffering from serious illnesses. (People v. Strasburg
(2007) 148 Cal.App.4th 1052, 1057.) Under Strasburg, possession of marijuana, even for
medicinal purposes, does not invalidate probable cause to search. (Id. at p. 1060.)
Rather, it is an affirmative defense for the defendant to raise at trial. (Ibid.) When
possession of small amounts of marijuana was later decriminalized, the courts maintained
that the presence of any amount of marijuana still “establishes probable cause to search
pursuant to the automobile exception.” (People v. Waxler (2014) 224 Cal.App.4th 712,
725.) Proposition 64, enacted by the voters in 2016, legalized the possession of up to
28.5 grams of marijuana by adults 21 years of age and older. (§ 11362.1, subd. (a)(1).)
Even after the enactment of Proposition 64, courts held officers may still conduct a
probable cause search pursuant to the automobile exception to determine whether a
subject is properly adhering to the statutory limitations on possession and use that
remained in effect. (People v. Fews (2018) 27 Cal.App.5th 553, 562.)
       This area of the law is rapidly developing, such that the law has evolved
considerably since the People filed its brief. In People v. Lee (2019) 40 Cal.App.5th 853,
the court held a defendant’s possession of a small amount of marijuana could not justify a
probable cause search. (Id. at p. 856.) After initiating a traffic stop, officers discovered a
small amount of marijuana on the defendant during a patsearch. (Id. at p. 857.) Officers
then searched the vehicle and uncovered cocaine and a firearm. (Id. at pp. 858-859.)
Finding the lawful amount of marijuana seized from defendant’s person could not
establish probable cause to search the vehicle, the trial court granted the defendant’s
motion to suppress. (Id. at p. 860.) Reasoning “[t]he recent legalization of marijuana in
California means we can now attach fairly minimal significance to the presence of a legal
amount of the drug,” the appellate court affirmed the trial court’s granting of the motion
to suppress. (Id. at p. 861.) The presence of a legal amount of marijuana, however,
“does not foreclose the possibility that defendant possesses a larger (illegal) amount.”
(Id. at p. 862.) Therefore, pursuant to Lee, there must be additional evidence, beyond


                                              6
mere possession of a legal amount of marijuana, to support a reasonable belief the
defendant has an illegal amount or is violating some other statutory provision. (Ibid.)
                                              II
             Officer Muser’s Observation Of An Unsealed Bag Of Marijuana
              On The Passenger Established Probable Cause To Search The
                Passenger’s Purse Pursuant To The Automobile Exception
       While Lee stands for the proposition the mere presence of a legal amount of
marijuana, without more, cannot establish probable cause to search, the Lee court was
careful to distinguish its facts from those found in Fews, which found facts sufficient to
establish probable cause. (People v. Lee, supra, 40 Cal.App.5th at p. 866.) The Lee court
noted the reasoning from Fews did not apply because the officer in Lee “did not smell the
odor of burnt marijuana -- suggesting the possibility of driving under the influence -- and
there was no evidence of marijuana in an open container in [the defendant]’s car.” (Lee,
at p. 866.) Additionally, in Fews, officers saw the defendant making “furtive
movements,” and the driver of the vehicle admitted the half-burnt cigar in his hand
contained marijuana. (People v. Fews, supra, 27 Cal.App.5th at p. 557.) The Fews court
cited section 11362.1, subdivision (c), which clearly states that only cannabis and
cannabis products deemed lawful by that section were no longer considered contraband
for search purposes. (Fews, at p. 563.) However, even in light of section 11362.1,
driving a motor vehicle while under the influence of any drug (Veh. Code, § 23152,
subd. (f)) and possession of unsealed cannabis products while operating a motor vehicle
(Veh. Code, § 23222, subd. (b)(1)) remain unlawful. (Fews, at p. 563.) Because the
driver was holding a half-burnt marijuana cigar, his conduct did not fall under the
exemptions carved out by Proposition 64. (Fews, at p. 563.) Therefore, because the
driver’s possession of a half-burnt marijuana cigar supported the inference he was
“illegally driving while under the influence of marijuana, or, at the very least, driving
while in possession of an open container of marijuana,” the officers had probable cause to
search the vehicle. (Ibid.)



                                              7
       This case is more analogous to Fews than it is to Lee. When Officers Spears and
Muser approached defendant’s car, Officer Muser saw an unsealed bag of marijuana in
the passenger’s cleavage. Defendant’s argument that the unsealed marijuana visible on
the passenger could not justify probable cause to search the car is unavailing. The
relevant question is whether there was probable cause to search the passenger’s purse
pursuant to the automobile exception. We conclude there was.
       Defendant argues pursuant to Vehicle Code section 23222, subdivision (b), a
passenger’s possession of a lawful amount of marijuana while in a car is not unlawful. In
making this argument, defendant fails to acknowledge the passenger’s violation of
section 11362.3, subdivision (a)(4), which states that while the possession of up to 28.5
grams of marijuana is now lawful pursuant to section 11362.1, it remains unlawful to
“[p]ossess an open container or open package of cannabis or cannabis products while
driving, operating, or riding in the passenger seat or compartment of a motor vehicle.”
(Italics added.) As such, defendant’s reliance on Vehicle Code section 23222,
subdivision (b) is unavailing.
       Officer Muser witnessed the passenger in possession of an unsealed container of
marijuana in violation of section 11362.3, subdivision (a)(4). The presence of this
contraband provided probable cause to believe the passenger possessed other open
containers. (See People v. Souza, supra, 15 Cal.App.4th at p. 1653 [“an open container
within plain view provides probable cause to believe that other open containers may be
found in the vehicle”].) Officer Muser therefore had probable cause to search the
passenger and her purse for further evidence of contraband. (People v. Lee, supra,
40 Cal.App.5th at p. 866; see also People v. Fews, supra, 27 Cal.App.5th at p. 563.)
Officer Muser’s search of the purse, as a “compartment[] [or] container[] within the
vehicle whose contents [were] not in plain view,” was therefore justified under the
automobile exception. (United States v. Ross, supra, 456 U.S. at p. 800 [72 L.Ed.2d at
p. 578].) That defendant spontaneously admitted the contraband gun found within the
purse was his does not affect the validity of the search of the passenger’s property.



                                             8
       Defendant disagrees with this conclusion and points us to In re D.W. (2017)
13 Cal.App.5th 1249 and People v. Torres (2012) 205 Cal.App.4th 989. In In re D.W.,
the court held the smell of marijuana, even when coupled with a defendant’s admission to
having just smoked some, was not sufficient to justify probable cause to search because it
was “mere conjecture” for the officers to conclude they would find more marijuana
amounting to a jailable offense. (In re D.W., at p. 1253.) However, defendant’s analogy
of his case to In re D.W. is without merit, as In re D.W. concerned a search incident to
arrest, which requires independent probable cause to arrest, and here we are concerned
with the automobile exception. (Ibid.)
       Defendant’s analogy to Torres is similarly unavailing, as Torres concerned the
search of a hotel room based on exigent circumstances. (People v. Torres, supra,
205 Cal.App.4th at p. 992-993.) The Torres court held a warrantless search of a
defendant’s hotel room, based solely on suspicion of simple possession of marijuana, at
the time a misdemeanor, was unjustified. (Id. at pp. 996, 998.) A guest’s room in a hotel
is considered a home for the purposes of the Fourth Amendment. (People v. Ortiz (1995)
32 Cal.App.4th 286, 291.) Therefore, officers are required to show “ ‘probable cause to
believe that the entry [based on exigent circumstances] is justified by . . . factors such as
the imminent destruction of evidence or the need to prevent a suspect’s escape.’ ”
(People v. Thompson (2006) 38 Cal.4th 811, 817-818.) The automobile exception, in
contrast, requires only a showing of probable cause the vehicle contains contraband or
evidence of a crime. (People v. Evans, supra, 200 Cal.App.4th 735, 753.) “Where such
probable cause exists, a law enforcement officer may search the vehicle ‘irrespective of
whether [the offense] is an infraction and not an arrestable offense.’ ” (People v. Fews,
supra, 27 Cal.App.5th at p. 564, quoting People v. Waxler, supra, 224 Cal.App.4th at
p. 721.)
       Having established the open container of marijuana found on the passenger was
contraband, we conclude there was probable cause to search the passenger’s purse
pursuant to the automobile exception. (See People v. Souza, supra, 15 Cal.App.4th at
p. 1653.) Therefore, defendant’s final argument -- that the search was unjustified because


                                              9
the officers lacked probable cause to believe defendant was guilty of anything greater
than an infraction -- is unavailing, as the distinction between misdemeanors and
infractions is irrelevant to the probable cause analysis under the automobile exception.3
                                      DISPOSITION
       The order of the trial court denying defendant’s motion to suppress is affirmed.




                                                  /s/
                                                  Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Renner, J.




3       In his final prayer for relief, defendant asks this court to examine Officer Muser’s
subjective intent in initiating the stop and searching the car, pointing to Officer Muser’s
own admission that his role as part of the “Community Response Team” was to
“perform[] proactive traffic stops . . . try[] to deter crime, find things, anything that’s
illegal.” Where the court finds that officers have probable cause to search, the officer’s
subjective intent in performing the search is irrelevant. (Kentucky v. King (2011) 563
U.S. 452, 464 [179 L.Ed.2d 865, 877-878]; see also People v. Carrington (2009)
47 Cal.4th 145, 168.) Because Officer Muser initiated the traffic stop after noticing the
car had expired registration, we conclude the traffic stop was reasonable. (See Whren v.
United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 95].) As this court is bound by
both California and United States Supreme Court precedent, defendant’s final argument
is unavailing, and we will not consider the issue of Officer Muser’s subjective intent
when initiating the traffic stop or conducting the search.

                                             10
Filed 8/18/20
                              CERTIFIED FOR PUBLICATION



                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (San Joaquin)
                                              ----




 THE PEOPLE,                                                            C088342

                  Plaintiff and Respondent,                       (Super. Ct. No.
                                                             STK-CR-FER-2018-0009346)
          v.
                                                                ORDER CERTIFYING
 TYRONE BRENDON MCGEE,                                            OPINION FOR
                                                                  PUBLICATION
                  Defendant and Appellant.


THE COURT:
        The opinion of this court filed July 28, 2020, was not certified for publication in
the Official Reports. For good cause it now appears the opinion should be published in
its entirety in the Official Reports and it is so ordered.
BY THE COURT:

/s/
Raye, P. J.

/s/
Robie, J.

/s/
Renner, J.




                                               1
                                     EDITORIALS


      APPEAL from an order of the Superior Court of San Joaquin County, Ronald A.
Northup, Judge. Affirmed.

      Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A Hokans, Jessica C. Leal and Doris A. Calandra, Deputy Attorneys General, for
Plaintiff and Respondent.




                                           2
