The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING DEFENDANT'S FED. R. MOTION FOR ACQUITTAL AND AFFIRMING BENCH RULINGS DENYING MOTIONS TO DISMISS AND SUPPRESS (ECF Nos. 8, 32, 40)
The following recaps and reaffirms the Court's rulings on Defendant Jason Parker's ("Defendant's") motions to suppress and to dismiss and constitutes its statement of decision on Defendant's motion for acquittal.
On August 23, 2011, a criminal Complaint was filed in this Court charging Defendant with the five misdemeanor counts enumerated below:
Count 1: Possession of a concealed weapon, in violation of California Penal
Code section 12025 (a)(1)(6)(A)(B) as assimilated pursuant to 18 U.S.C. § 13; Count 2: Possession of controlled substance Marijuana (less than 1 oz.) in violation of 36 C.F.R. § 4.35(b)(2);
Count 3: Driving on a suspended license in violation of 36 C.F.R. § 4.2(b) incorporating California Vehicle Code section 14601.1(a);
Count 4: Expired vehicle registration in violation of 36 C.F.R § 4.2(b) incorporating California Vehicle Code section 4000(a);
Count 5: Obstructing traffic in violation of 36 C.F.R. § 4.13 On September 2, 2011, Defendant filed a motion to suppress physical evidence and statements. (Def.'s Mot. to Suppress, ECF No. 4.) Opposition was filed. (Pl.'s Opp. to Mot. to Suppress, ECF No. 7.) On September 21, 2011, an evidentiary hearing was held, and the motion to suppress was denied. (ECF No. 8.)
Jury trial was scheduled to commence on August 31, 2012. (ECF No. 24.) Defendant moved to dismiss Counts 1 and 2 of the Complaint. (Def.'s Mot. to Dismiss Certain Counts, ECF No. 28.) On August 21, 2012, the government filed a First Amended Complaint. (Am. Compl., ECF No. 29.) The First Amended Complaint charged Defendant with:
Count 1: Possession of a concealed weapon, in violation of 35 C.F.R. § 2.4(f); Count 2: Driving on a suspended license in violation of 36 C.F.R. § 4.2 (b) incorporating California Vehicle Code section 14601.1(a);
Count 3: Having an expired vehicle registration in violation of 36 C.F.R. § 4.2(b) incorporating California Vehicle Code section 4000(a); and Count 4: Obstructing traffic in violation of 36 C.F.R. § 4.13. (Id.)
Inasmuch as the First Amended Complaint did not include the previously charged Class A misdemeanor violation (California Penal Code section 12025(a)(1)(6)) and the remaining charges were all Class B misdemeanors, no right to jury trial remained. Accordingly, on September 6, 2012, trial commenced after the Court, on that date, tentatively denied Defendant's then still-pending motion to dismiss Count 1 charging possession of a concealed weapon. The United States presented evidence on the four counts in the First Amended Complaint. Defendant moved for judgment of acquittal in accordance with Fed. R. Crim. P. 29. Post trial briefing was submitted in support of and in opposition to Defendant's said motion. The matter is now deemed submitted.
The following facts, compiled from the exhibits admitted into evidence at the suppression hearing and at trial, as well as the testimony and stipulations presented at or in connection with each proceeding, are believed to be undisputed:
On the afternoon of August 20, 2011, Yosemite National Park Law Enforcement Ranger David Pope was dispatched to investigate reported traffic congestion near Curry Village, a facility providing visitor amenities in Yosemite Valley in Yosemite National Park. On arrival at a large parking area (commonly referred to as the Curry Village Orchard Lot), Ranger Pope observed a Chevrolet pick-up truck parked in a paved drive used for travel within and around the parking lot. (Generally, cars looking for a parking space at that location circle rows of cars parked side-by-side and essentially perpendicular to the two lanes of travel used by those looking for parking.) The Chevrolet pick-up was parked in one of the two lanes of travel and at the end of and perpendicular to a row of parked cars. It was unoccupied. It contained assorted camping-type gear in and behind the front seat of the cab and in the pick-up bed. Also in the pick-up bed was a cooler such as is used for food storage.
According to Ranger Pope, the parked truck constricted the two-lane roadway to one lane and interfered with the flow of traffic, which was heavy, in the parking lot. Ranger Pope commenced writing a parking violation citation when he was approached by a male, subsequently identified as Defendant. According to Ranger Pope, Defendant identified himself as the owner of the truck, said he had stopped only temporarily to inquire about possible camping accommodations, and proposed to move the vehicle to a more appropriate parking spot. Ranger Pope requested and was given Defendant's California Department of Motor Vehicles identification. Ranger Pope then noticed that the registration sticker on the vehicle's license plate had expired. His radio check with dispatch reportedly confirmed that the pick-up's registration had expired. Ranger Pope requested that additional rangers come to the scene. He was joined by Law Enforcement Rangers Scott Bicknese and Scott Jacobs. Defendant's passenger, whom defendant referred to as his girlfriend, also arrived at the scene.
Defendant advised that he believed he had registration documentation in the vehicle, and it would show the vehicle was in fact then registered. Ranger Jacobs asked to see it. Defendant offered to retrieve it but, according to Jacobs, invited Ranger Jacobs not to accompany him. (Ranger Pope also recalled Defendant indicating that he would rather get a ticket than have Ranger Pope get the registration.) Ranger Jacobs did accompany him. While Ranger Pope remained with the girlfriend who was sitting on the back bumper of the truck, Ranger Jacobs followed directly behind Defendant to the driver's side door of the truck. According to Ranger Jacobs, when the door was opened, he immediately smelled the distinct and very strong odor of green marijuana emanating from the inside of the passenger compartment. Ranger Jacobs also testified that before going to the glove box where he said the registration was located, Defendant first began "rummaging" in the center console area. The two then crossed in front of the car and moved towards the passenger door.
Ranger Jacobs asked Defendant how much marijuana he had. Defendant
said he had none. Ranger Jacobs advised he had smelled it. Defendant
claimed to "have a personal use of marijuana in the car."*fn1
Defendant also was asked if he had any weapons in the car. He
initially replied that he did not.
Reportedly because of the odor of marijuana coming from the cab, Ranger Bicknese was directed to and did initiate a search of the vehicle. As the search began, Defendant indicated that there was in fact marijuana in the vehicle and after again indicating he had no weapons, said he "may have a handgun in the car." Defendant was patted down and he and his girlfriend directed to sit by a tree away from the vehicle and in the company of one or more of the rangers.
On beginning his search of the cab of the vehicle, Ranger Bicknese detected the "overwhelming" and "smokey" smell of recently smoked marijuana.
The search produced a closed glass jar (labeled "California Medical Cannabis Patient Co-op") reportedly containing approximately 7 grams of marijuana. The jar was found in a plastic shopping bag sitting on the back of the center console. Defendant said the marijuana was his. Ranger Pope testified that after the jar was located but while it was still closed and in the vehicle, he could smell a strong odor of marijuana while standing at the open door of the truck. (He did not describe the odor as either that of raw, unsmoked or smoked marijuana.)
Also, in the map pocket behind the driver's seat of the pick-up, under blankets and sleeping bags and hidden from view, was a holstered, unloaded, Makarov, caliber 9x18, semi-automatic pistol and a loaded magazine (not in the pistol). Defendant acknowledged the pistol was his, a gift his father had given him approximately three weeks earlier.
Defendant was arrested and charged as aforesaid.
A. Procedural History; Issues
As noted, on September 2, 2011, Defendant filed a motion to suppress evidence seized at the scene of the arrest on the grounds that the vehicle was searched without a warrant, without Defendant's consent and without probable cause to suspect it contained contraband. Defendant also argued that statements made at the scene should be suppressed because they were made in response to custodial interrogation without his having been advised of his Miranda rights.
However, at the hearing, the defense agreed, first, that the rangers did have reasonable suspicion based upon the expired registration tag on the license plate to briefly detain and question Defendant about the validity of the registration. Second, the defense agreed that the crucial issue on the motion to suppress was whether the officers' statements that they could smell marijuana were credible thereby giving them probable cause to search the vehicle for evidence that the crime of possessing marijuana in the National Park was being committed. The defense acknowledged that if the officers did detect the odor of marijuana in the car, it would not have been inappropriate for them to have searched the car.
The issues were briefed and the evidentiary hearing held on September 11, 2011. At the conclusion of the hearing the Court denied the motion to suppress for reasons stated on the record.
However, at trial, defense counsel asked the Court to consider whether the evidence presented at trial justified reconsideration of the ruling on the motion to suppress. The Court has carefully reviewed the additional evidence presented at trial and applicable law and, for the reasons below, concludes that the motion was correctly denied.
The defense focuses its challenge to the evidence on the argument that the rangers' claimed detection of the aroma of marijuana coming from Defendant's vehicle was and is not credible.
In this regard, evidence was presented, and unrefuted, that there were other odors in the air at the scene including the smell of commercial food cooking nearby and possibly campfires. More significantly, Defendant testified that just prior to his contact with law enforcement, he and his girlfriend had been traveling in the cab of the truck for about two hours during which time she smoked approximately ten cigarettes and he smoked one to two grape flavored cigars. He sated that the cab smelled like smoke as "it always does." The defense also noted the conflict between the two officers as to whether the odor detected was that of smoked or un-smoked marijuana. Finally, the defense noted that Defendant's bumper sticker and hair style associated him with Rastifarians who are identified with marijuana usage; it was argued that the rangers in effect searched Defendant's car not based upon probable cause to believe it contained contraband, but because they had improperly "profiled" him as a marijuana smoker.
The Fourth Amendment of the Constitution of the United States prohibits unreasonable searches and seizures. Searches conducted pursuant to a warrant issued on a finding of probable cause generally may be considered reasonable. Katz v. United States, 389 U.S. 347, 356 (1967). There are, however, exceptions, excusing the need for a warrant prior to conducting a search. One exception allows a vehicle to be searched without a warrant if there exists probable cause sufficient to justify issuance of a warrant. United States v. Ross, 456 U.S. 798 (1982). This vehicular exception to the warrant requirement exists because vehicles are mobile and can be quickly driven beyond the jurisdiction in which a warrant is sought and because there is a lesser expectation of privacy in vehicles traveling in the open public than in, say, a private home. California v. Carney, 471 U.S. 386, 390-90 (1985).
Once it is determined that there is probable cause to believe a vehicle contains contraband, a warrantless search of every part of that vehicle, and such contents as might conceal the object of the search, is justified. Ross, 456 U.S. at 825; Wyoming v. Houghton, 526 U.S. 295, 301 (1999). The odor of marijuana emanating from a vehicle creates sufficient probable cause to justify a warrantless search of the vehicle. Maryland v. Dyson, 527 U.S. 465, 467 (1999); United States v Ojeda-Rodriquez, 502 F.2d 560, 561 (9th Cir, 1974), cert. denied, 420 U.S. 910 (1975); United States v. Barron, 472 F.2d 1215, 1217 (9th Cir. 1973); United States v. Chelgren, No. CR-S-10-182 KJM, 2010 WL 3210839 (E.D. Cal. Aug. 10, 2010).
Although the warrantless search in Chelgren ensued from a traffic stop, it was not the traffic violation which gave the officer probable cause to search the vehicle, but rather the smell of marijuana detected after the stop . Chelgren, 2010 WL 3210839, at *7-12. "[T]he fact that an agent familiar with the odor of marijuana smelled such an odor emanating from the automobile . . . alone was ...