Filed 12/12/13 P. v. Moreno 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     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,                                       E057752

v.                                                                       (Super.Ct.No. FMB1100260)

ARTHUR RAYMOND MORENO,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Affirmed.

         Joseph T. Rhea for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Donald

W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

         Following the denial of his motion to suppress evidence pursuant to Penal Code

section 1538.5, defendant and appellant Arthur Raymond Moreno pleaded guilty to a



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violation of Health & Safety Code section 11357, subdivision (a),1 possession of

concentrated cannabis.

       In this appeal, defendant argues the trial court erred when it denied his motion to

suppress evidence found during a search of his vehicle, which was prompted by a police

officer’s detection of a strong odor of marijuana emanating from the vehicle. As

discussed post, the warrantless search was supported by probable cause and, so, we

affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Defendant was charged with possession for sale (§ 11359), transportation

(§ 11360, subd. (a)), and cultivation of marijuana (§ 11358).

       Defendant moved to suppress evidence obtained following a vehicle stop. The

parties stipulated at the beginning of the hearing on defendant’s suppression motion that

the police report would serve as the factual basis for the motion. The court accepted this

report into evidence, and no other testimony or evidence was presented at the hearing.

       The police report was written by San Bernardino County Sheriff’s Deputy Jimmy

Delgado. Deputy Delgado stated in the report that he was working motorcycle patrol

when California Highway Patrol Officer Griffin informed him that she was following two

vehicles and detected a strong odor of marijuana coming from one of them. She had

stopped one vehicle, and Deputy Delgado began following the other one, a GMC pickup

truck. He noticed that the truck had “smoked tail lamp lenses,” which is a Vehicle Code


       1 Statutory references are to the Health and Safety Code unless otherwise
indicated.
                                             2
violation.2 While following the vehicle, he also detected a strong odor of marijuana

coming from the truck. Deputy Delgado pulled the truck over for the Vehicle Code

violation.

       Once he pulled the truck over, Deputy Delgado contacted defendant, who was

driving, and another adult male, who was riding in the passenger seat. He could still

smell a “strong odor of marijuana coming from the vehicle.” Deputy Delgado went back

to his vehicle and conducted a records check on both men. He determined that neither

had any outstanding warrants. He then went back to the truck and had both men exit the

vehicle, placed them in handcuffs, and seated them on the curb.

       Deputy Delgado informed defendant he was not under arrest and was being

detained in reference to the strong odor of marijuana coming from his vehicle. In

response to the officer’s questions, defendant said he had no marijuana in the vehicle, but

he did have a medical marijuana card.

       During the search of the cab of the truck, Deputy Delgado found four cardboard

boxes and a kitchen trash bag containing approximately 200 immature potted marijuana

plants. In the bed of the truck, he found five lawn trash bags containing cut marijuana

plants weighing approximately 100-150 pounds. Defendant was arrested for

transportation of marijuana.

       The trial court denied the motion to suppress evidence. Thereafter, defendant

entered a plea agreement, pleading guilty to possession of concentrated cannabis. In


       2  Vehicle Code section 24600, subdivision (e), provides that tail lamps shall be
red in color.
                                             3
exchange, three other counts were dismissed, and he was placed on three years’ formal

probation with specified terms and conditions.

                                       DISCUSSION

       We apply the well established standard of review to the trial court’s ruling on the

motion to suppress. We defer to the trial court’s factual findings, express or implied,

where supported by substantial evidence. Where, as here, the facts are undisputed, we

exercise our independent judgment in determining whether the search was reasonable

under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

       “Challenges to the admissibility of evidence obtained by a police search and

seizure are reviewed under federal constitutional standards. [Citations.] A warrantless

search is unreasonable under the Fourth Amendment unless it is conducted pursuant to

one of the few narrowly drawn exceptions to the constitutional requirement of a warrant.”

(People v. Schmitz (2012) 55 Cal.4th 909, 916.) One such exception is the automobile

exception, which allows a police officer who has probable cause to believe a lawfully

stopped vehicle contains evidence of criminal activity or contraband to conduct a

warrantless search of any area of the vehicle in which the evidence might be found.

(Arizona v. Gant (2009) 556 U.S. 332, 347; People v. Evans (2011) 200 Cal.App.4th 735,

753.) “Hornbook law states that the Fourth Amendment to the United States Constitution

permits the warrantless search of an automobile with probable cause. [Citations.] 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.’

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[Citation.]” (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1059 (Strasburg).) The

automobile exception applies here since Deputy Delgado had probable cause to search

because he detected the odor of marijuana emanating from defendant’s vehicle.

       Defendant contends, however, that the detection of the odor of marijuana no

longer justifies a search in light of the change in California making simple possession of

less than 28.5 grams of marijuana an infraction.3 He relies on People v. Torres (2012)

205 Cal.App.4th 989 and People v. Hua (2008) 158 Cal.App.4th 1027, to support this

position. We find these cases to be inapposite because neither involved vehicle searches.

       In Torres, the Court of Appeal found that the odor of burning marijuana alone did

not provide probable cause for the entry into and search of a residence. The appellate

court’s task was to determine whether the officers who searched a hotel room based on

exigent circumstances could establish probable cause to believe that evidence of a

jailable offense would be imminently destroyed. The appellate court’s actual holding

was that the odor of burning marijuana, and nothing more, did not provide probable cause

to believe that the occupants possessed more than the minimum amount of marijuana,

28.5 grams, punishable by jail time. (People v. Torres, supra, 205 Cal.App.4th at p. 997-

998.) In People v. Hua, supra, 158 Cal.App.4th at page 1037, the appellate court reached

the same result where the police entered an apartment after observing several individuals

smoking marijuana.

       In the current matter, Deputy Delgado did not search a person’s residence based

on exigent circumstances that evidence of a jailable offense would be destroyed. Neither

       3   Section 11357, subdivision (b).
                                             5
did he smell burning marijuana, which could indicate the presence of a single lit

marijuana cigarette. Rather, he detected a strong odor of fresh marijuana emanating from

defendant’s vehicle when he was some distance away and following the vehicle on a

highway. The strong odor indicated that there was a significant amount of nonburning

marijuana in the vehicle and provided probable cause to believe defendant possessed an

amount of marijuana over the legal limit.

       The court in Strasburg, supra, 148 Cal.App.4th 1052, considered a similar claim

to that made here—i.e., because the defendant possessed a doctor’s prescription for

marijuana, a sheriff’s deputy lacked probable cause to search the defendant’s vehicle

when he approached a vehicle and smelled marijuana. The appellate court found, to the

contrary, that the deputy did have probable cause to search at this point. (Id. at p. 1059.)

The defendant there admitted smoking marijuana, and the deputy sheriff saw another bag

of marijuana in the car after defendant handed him one. “The fact that defendant had a

medical marijuana prescription, and could lawfully possess an amount of marijuana

greater than that [the deputy sheriff] initially found, does not detract from the officer’s

probable cause.” (Id. at pp. 1059-1060.) The court observed the Compassionate Use Act

of 19964 provides a limited immunity and not a shield from reasonable investigation.

Defendant attempts to distinguish Strasburg on the ground that he is not basing his

argument on having a prescription for marijuana. This distinction is without significance.

The crucial point made by the Strasburg court applies with equal force to the facts of this


       4   Section 11362.5.

                                              6
case: the strong odor of marijuana gave Deputy Delgado probable cause to search for

marijuana. We reemphasize that the strong odor of unburned marijuana, which the

officer could detect when merely following defendant’s vehicle, indicated the presence of

a substantial quantity of the substance well over and above the amount that was

punishable only as an infraction. The change in the marijuana possession law did not act

as a shield to prevent Deputy Delgado from conducting a reasonable investigation to

determine whether defendant had committed a misdemeanor or felony.

       Finally, defendant contends that Deputy Delgado did not have probable cause to

handcuff him, which he equates with an arrest. As we have discussed ante, the officer

did have a lawful basis to detain defendant for the Vehicle Code violation and to search

the vehicle. He then could order the occupants out of the vehicle. (Pennsylvania v.

Mimms (1977) 434 U.S. 106 [officer safety is a legitimate reason to order a person out of

their vehicles].) Deputy Delgado went further and handcuffed defendant and made him

sit on the curb. These actions did not necessarily turn a detention into an arrest, however.

(See People v. Celis (2004) 33 Cal.4th 667, 675 [“stopping a suspect at gunpoint,

handcuffing him, and making him sit on the ground for a short period, as occurred here,

do not convert a detention into an arrest”].) In Celis, the court concluded that it was not

unreasonable for the officer to draw his gun and handcuff the suspect briefly because the

officer had reason to believe the defendant was concealing drugs or drug proceeds in the

truck tire he was rolling; the officer was faced with two suspects, each of whom might

flee if the officer stopped one but not the other. Respondent theorizes that these same

factors were present in this case to justify the handcuffing of defendant. We note,

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however, that Deputy Delgado’s report does not expressly set forth any safety concerns

or fear that defendant might flee. Determining the reasonableness of the use of restraints

during a detention requires examination of the facts known to the officer and whether

such restraints were appropriate under the circumstances. (Celis, at p. 675; People v.

Stier (2008) 168 Cal.App.4th 21, 27-28.)

       Nevertheless, the search of a vehicle is not invalidated even if we assume the

handcuffing was unwarranted and resulted in illegal arrest at that point. This is so

because Deputy Delgado did not obtain as a result of these actions either evidence from

searching defendant’s person or his consent to search. As we have already discussed,

Deputy Delgado had probable cause to detain and search based on the strong odor of

marijuana irrespective of his actions in handcuffing defendant and having him sit on the

curb. The trial court did not err in denying defendant’s motion to suppress evidence.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               KING
                                                                                           J.
We concur:


RAMIREZ
                       P. J.

HOLLENHORST
                          J.


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