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People v. Waxler

California Court of Appeal, First District, Fifth Division

March 11, 2014

The PEOPLE, Plaintiff and Respondent,
v.
Michael Clarence WAXLER, Defendant and Appellant.

[As Modified on April 3, 2014.]

Superior Court of Del Norte County, No. A137796, William H. Follett, Judge. (Super. Ct. No. CRF129128)

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COUNSEL

Stephanie M. Adraktas, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General, and Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

Jones, P.J.

The question in this case is whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement. The answer is yes, notwithstanding the fact that possession of not more than 28.5 grams (an ounce) " of marijuana, other than concentrated cannabis, is ... an infraction" punishable by a fine. (Health & Saf. Code, ยง 11357, subd. (b).) [1] Under the automobile exception to the warrant requirement, a law enforcement officer may search a vehicle when he or she has probable cause to believe it contains contraband or evidence of a crime. ( Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574 ( Robey ).) Under the current state of California law, nonmedical marijuana— even in amounts within the statutory limit set forth in section 11357, subdivision (b)— is " contraband" and may provide probable cause to search a vehicle under the automobile exception. Moreover, possession of a " 215 card" does

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not vitiate probable cause to search pursuant to the automobile exception. ( People v. Strasburg (2007) 148 Cal.App.4th 1052, 56 Cal.Rptr.3d 306 ( Strasburg ).) [2]

We affirm the trial court's denial of appellant Michael Waxler's motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

We have taken the facts from the preliminary hearing transcript.

The Incident

In February 2012, Del Norte County Sheriff's Deputy Richard Griffin learned a person was illegally dumping trash in a parking lot behind a Crescent City Safeway. Deputy Griffin drove to the Safeway and stopped next to appellant's truck. Appellant was sitting in the driver's seat. As Deputy Griffin " got close" to appellant's truck, he smelled " the odor of burnt marijuana" and " saw a marijuana pipe with ... what appeared to be burnt marijuana in the bowl." The pipe was " on the bench seat right next to" appellant. Deputy Griffin searched the truck and found a methamphetamine pipe and a small bindle containing suspected methamphetamine with a street value of about $50.

Deputy Griffin's partner detained appellant and " Mirandized" [3] him. Appellant initially said he knew the methamphetamine and methamphetamine pipe were in his vehicle. He claimed the methamphetamine " was not his" and had been left in the truck by some friends, who were hitchhikers. Then he " changed his story a couple of times." Later, appellant said the methamphetamine " had been in his truck for a few days because he'd picked up the hitchhiker ... upstate" and " later he changed his story again to say he'd received this meth from the hitchhiker in payment for the ride."

At some point during the conversation, appellant told Deputy Griffin he " had a 215 card" and showed it to him. Deputy Griffin was not sure exactly when he became aware of the 215 card, but he learned about it after he began searching appellant's truck. When asked when he became aware of the 215 card, he testified, "my recollection is [appellant] told me on scene. And I confirmed it at the jail when I actually looked at it after I arrested him for the methamphetamine issue." When defense counsel asked Deputy Griffin whether he had a "recollection if [he] learned about the 215 [card] prior to the search of the vehicle or after the search of the vehicle," Deputy Griffin responded, "My technical search began when I entered the vehicle to retrieve the marijuana pipe. So I didn't learn ...


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