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Name: People v. Fews
Case #: A151727
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 09/24/2018

Patsearch of vehicle passenger who police suspected was armed and involved in criminal activity related to drugs (marijuana) was reasonable under the Fourth Amendment. Police officers in San Francisco observed an SUV abruptly pull over in a high-crime area. After finding the registration for the SUV was expired, the officers activated their red lights and siren behind the SUV. The driver (Mims) quickly got out of the SUV and did not comply with orders to get back into the vehicle. Once the officers reached the driver’s side of the car, they smelled marijuana and found Mims with a half-burnt cigar, which he admitted contained marijuana. During this time, a passenger in the SUV, Fews, was making “furtive movements around the passenger compartment.” An officer asked Fews (who was wearing multiple layers of baggy clothing and a puffy coat) to step out of the vehicle. The officer performed a patsearch and discovered a gun. Fews was charged with a number of firearm offenses and filed a motion to suppress, which was denied. He challenged the ruling in a Penal Code section 995 motion, which was also denied. He pleaded guilty to being a felon in possession of a firearm and appealed the court order denying his motion to suppress. Held: Affirmed. A police officer may temporarily detain and patsearch an individual if he reasonably suspects the individual is connected to criminal activity and armed. Here, “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.” Although Proposition 64 legalized some marijuana use and possession, it is still highly circumscribed by the law and the presence of marijuana in a vehicle under the circumstances of this case reasonably suggested unlawful drug possession and transportion.

Probable cause supported vehicle search where officers smelled burned marijuana and driver admitted half-burnt cigar contained marijuana because officers could reasonably infer Vehicle Code violations involving marijuana had occurred. On appeal Fews argued that the justification for the patsearch was officer safety during an intended search of the SUV, but there was no probable cause to search the vehicle based on the officers’ knowledge that Mims possessed a small amount of marijuana after the passage of Proposition 64. He argued that because the vehicle search was invalid, the patsearch was invalid. The Court of Appeal disagreed that the validity of the patsearch was dependent on a finding of probable cause to conduct the vehicle search. However, even if the court accepted Fews’s argument that the officers’ justification for the patsearch cannot be separated from their intended search of the SUV, it concluded there was sufficient probable cause for the vehicle search. A warrantless search of an automobile is permissible so long as the police have probable cause to believe the car contains evidence or contraband. Even though California has greatly reduced criminalization regarding marijuana, there are still prohibitions. The continuing regulation of marijuana permits law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence of a crime. Driving a motor vehicle on public highways under the influence of any drug or while in possession of an open container of marijuana are not acts “deemed lawful” by Proposition 64. “Here, the 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.” The court distinguished In re D.W. (2017) 13 Cal.App.5th 1249, which involved a warrantless search of a defendant’s person incident to arrest, not a vehicle search.