Opinion
A165867
11-29-2023
THE PEOPLE, Plaintiff and Respondent, v. JOHN LAWRENCE GRUBERT, Defendant and Appellant.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. SC212211A)
RODRIGUEZ, J.
John Lawrence Grubert pled guilty to carrying a loaded concealed firearm in a vehicle without being the registered owner of the firearm. (Pen. Code, § 25400, subds. (a)(1), (c)(6); undesignated statutory references are to this code.) Officers discovered the firearm, along with drugs and drug paraphernalia, while searching Grubert's car. On appeal, Grubert argues the trial court erred in denying his motion to suppress because officers did not have reasonable suspicion to detain him or probable cause to search his car, and they unduly prolonged his detention during the search. We affirm.
The parties stipulated to the facts presented at the preliminary hearing.
In March 2020, Grubert and a woman smoked a blunt - "a cigarette that has cannabis inside of it" - while sitting in Grubert's car at a hotel parking lot frequented by people on probation. Grubert sat in the driver's seat, and the car straddled two spaces. Based on the car's position, Detective Andrew Rehberg - an officer with specific training and experience in narcotics investigation and enforcement including possession of suspected drugs or paraphernalia - and Officer Tony Raitano approached on foot. The car's windows were down, and Rehberg smelled an "overwhelming odor" of burnt cannabis emanating from the car.
Rehberg asked Grubert why he was at the hotel. Grubert admitted he had a blunt and smoked in the car. When Rehberg asked how much cannabis he had, Grubert became noticeably nervous, got out of the car, and tried to leave. At that point, Rehberg suspected Grubert violated laws prohibiting smoking of cannabis in public, driving with an open container of cannabis, and possession of an unlawful amount of cannabis; Rehberg detained Grubert.
Once detained, Grubert admitted he had a jar of cannabis under the driver's seat. He did not specify the jar's size or whether it was open. Rehberg testified that, in his experience, a jar generally contained a "substantial amount of cannabis" near the legal limit of one ounce. Raitano stood with Grubert while Rehberg conducted a search. As Rehberg was looking for the jar, Grubert told Raitano "he was really scared because he had loaded firearms in the car" in a red bag behind the driver's seat. Raitano yelled at Rehberg and told him what Grubert had said. A subsequent search behind the seat revealed two loaded guns. Grubert said he inherited the guns from his father and knew they were loaded. Rehberg checked the guns' registrations and discovered one was not registered to Grubert or his father. Rehberg searched the rest of the car and found .845 grams of methamphetamine and a methamphetamine pipe, both of which Grubert admitted were his. Rehberg cited Grubert for possessing loaded firearms, controlled substances, drug paraphernalia, and having controlled substances and firearms together.
At the preliminary hearing, Grubert moved to suppress evidence seized during the search. (§ 1538.5.) Grubert argued officers detained him without reasonable suspicion, did not have probable cause to believe he illegally possessed marijuana, and therefore did not have probable cause to search his car. The magistrate denied the motion and concluded the totality of the circumstances, including Grubert's nervousness and walking away from the car upon questioning by Rehberg, supported the suspicion of illegal activity.
The district attorney charged Grubert with multiple felonies for having methamphetamine and loaded guns, including carrying a loaded and concealed firearm in a vehicle without being the registered owner of the firearm. (§ 25400, subds. (a)(1), (c)(6).) Grubert moved to set aside the information and renewed his motion to suppress. (§ 995.) The trial court rejected both motions. Grubert pled guilty to carrying a loaded and concealed firearm in a vehicle without being the registered owner of the firearm. The prosecution dismissed the remaining charges. The court suspended imposition of sentence and placed Grubert on probation for two years, including 90 days in county jail stayed pending successful completion of probation.
DISCUSSION
Grubert argues the trial court erroneously denied his motion to suppress. He contends officers lacked reasonable suspicion to detain him for anything other than smoking in public. Moreover, they lacked probable cause to search his car and, relatedly, unduly prolonged his detention while searching the car. We disagree.
Grubert forfeited his argument that officers unduly prolonged his detention by failing to raise it below. (People v. Williams (1999) 20 Cal.4th 119, 136.) We nonetheless review the merits of his argument because he makes an ineffective assistance of counsel claim. (Hale v. Morgan (1978) 22 Cal.3d 388, 394 ["[A] litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts."].)
The Fourth Amendment prohibits unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8.) Generally, officers must obtain a warrant before conducting a search - warrantless searches are presumptively unreasonable. (People v. Williams, supra, 20 Cal.4th at p. 127.) Defendants may move to suppress evidence obtained via unreasonable, warrantless searches or seizures. (§ 1538.5, subd. (a)(1)(A).) Upon a challenge to the lawfulness of a search or seizure, the prosecution must demonstrate, by a preponderance of the evidence, the applicability of an exception to the warrant requirement. (People v. Romeo (2015) 240 Cal.App.4th 931, 939.) When reviewing a suppression motion, we" 'defer to the trial court's factual findings, express or implied, where supported by substantial evidence'" -" 'evidence that is reasonable, credible, and of solid value.'" (People v. Hall (2020) 57 Cal.App.5th 946, 951; People v. Ortiz (2012) 208 Cal.App.4th 1354, 1362.) Based on those facts, we independently review whether" 'the search or seizure was reasonable under the Fourth Amendment.'" (Hall, at pp. 951-952.)
Grubert initially contends he was unlawfully detained for possessing an open container of cannabis while driving or riding in a car (Health &Saf. Code, § 11362.3, subd. (a)(4)) and possessing an unlawful amount of cannabis (id., § 11357, subd. (b)(2)). We disagree.
A detention is a seizure during which officers intentionally restrain a person's freedom of movement by use of authority. (People v. Flores (2019) 38 Cal.App.5th 617, 626-627; People v. Linn (2015) 241 Cal.App.4th 46, 57.) A detention is intended to" 'permit a speedy, focused investigation to confirm or dispel . . . suspicion of criminal activity.'" (People v. Soun (1995) 34 Cal.App.4th 1499, 1516.) Investigative detentions must be supported by a reasonable suspicion, a less demanding standard than probable cause. (People v. Souza (1994) 9 Cal.4th 224, 230-231.) It" 'can arise from information that is less reliable than that required to show probable cause.'" (Id. at p. 231.) A detention is reasonable if there are specific articulable facts that, when viewed under the totality of the circumstances, objectively manifest the detained person may be involved in criminal activity. (People v. Suff (2014) 58 Cal.4th 1013, 1053-1054.)
Reasonable suspicion to detain Grubert for criminal activity beyond smoking in public exists here. When officers arrived on the scene - a hotel parking lot frequented by probationers - the "strong odor" of burnt marijuana was emanating from Grubert's car. The smell intensified as the officers neared the car, which was inappropriately straddling multiple parking spaces. Grubert, who was sitting in the driver's seat, admitted he recently smoked marijuana in the car and possessed a blunt. Based on the "overwhelming odor coming from the vehicle," Rehberg asked Grubert about the amount of marijuana in the car. Grubert became nervous and evasive, got out of the car, and tried to walk away. (People v. Souza, supra, 9 Cal.4th at p. 233 [evasive conduct is a factor for determining the existence of reasonable suspicion of criminal activity].) Under the totality of the circumstances, officers had reasonable suspicion to detain to" 'confirm or dispel'" whether Grubert possessed an unlawful amount of marijuana or an open container, in addition to citing him for smoking in public. (People v. Soun, supra, 34 Cal.App.4th at pp. 1516-1517.) The detention was lawful.
Grubert next contends officers lacked probable cause to search his car without a warrant. We are unpersuaded.
Under the automobile exception to the warrant requirement, officers may search a car without a warrant if the car is readily mobile and there is probable cause - meaning" 'fair probability' on which 'reasonable and prudent [people,]'" act - to believe the vehicle contains evidence of criminal activity or contraband. (Florida v. Harris (2013) 568 U.S. 237, 244 (Harris); People v. Moore (2021) 64 Cal.App.5th 291, 297 (Moore).) When evaluating whether a reasonable officer has probable cause to search the vehicle, we consider the totality of the circumstances rather than viewing "singular facts in a vacuum." (Moore, at pp. 297-298.) 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.'" (California v. Acevedo (1991) 500 U.S. 565, 570.)
Here, officers could reasonably conclude Grubert's car contained evidence of criminal activity. Grubert parked his car askew over two parking spots in an area frequented by people on probation. He was in the driver's seat, and an overwhelming odor of burnt marijuana emanated from the car. He admitted to smoking in the car with his passenger and that he had a blunt in the car. More importantly, he did not respond to Rehberg's question regarding the amount of marijuana he possessed. Rather, he appeared nervous, exited the car, and attempted to walk away from Rehberg and his car. Rehberg's observations of Grubert's behavior, Grubert's admissions, and Grubert's evasive conduct contributed to the officer's reasonable belief the car contained evidence of criminal activity - namely an unlawful amount of marijuana or an open container. (Moore, supra, 64 Cal.App.5th at pp. 299, 301 [considering defendant leaving car when officer approached, driver's nervousness, and equivocal responses to questioning as factors supporting probable cause to conduct a search].) We find these facts provide a" 'fair probability'" the area around the driver's seat contained evidence of criminal activity. (Harris, supra, 568 U.S. at p. 244.)
As Rehberg was conducting the search, Grubert told Raitano he had loaded guns behind the driver's seat, further supporting probable cause to search that area. (§ 25850, subds. (a) [prohibiting carrying loaded firearms in public or in a vehicle], (c)(6).) Because Grubert had loaded guns within arm's reach of the driver's seat - one of which was not registered to him - and because Grubert admitted to unlawfully smoking marijuana, likely had an open container given how recently he had smoked in his car, and acted nervously when Rehberg asked him how much cannabis he had, Rehberg had probable cause to search the rest of the car for weapons, an open container, and an unlawful amount of marijuana. (People v. Benites (1992) 9 Cal.App.4th 309, 328 [discovery of loaded shotgun in rear of van supplied probable cause to search remainder of vehicle].)
Grubert disagrees, relying on a series of cases finding no probable cause to search the defendants' cars in the absence of marijuana possession or use violations. (See, e.g., People v. Johnson (2020) 50 Cal.App.5th 620, 635 [car did not have registration, had a closed baggie with a legal amount of marijuana, smelled like marijuana, and Johnson resisted arrest]; People v. Lee (2019) 40 Cal.App.5th 853, 866 [defendant possessed legal amount of marijuana, delivered marijuana legally, carried $100 to $200 in cash, and tensed up when arrested]; Blakes v. Superior Court (2021) 72 Cal.App.5th 904, 909, 912-913 [officers only smelled marijuana]; People v. Hall, supra, 57 Cal.App.5th at pp. 954, 957-958 [officers merely observed a legal amount of marijuana in closed container].) But the circumstances here are distinguishable. Before the search, Grubert admitted to smoking in the car. Indeed, he concedes Rehberg had reasonable suspicion to suspect he smoked cannabis in a public place in violation of the Health and Safety Code. (Health &Saf. Code, § 11362.3, subd. (a)(1).) While lawful conduct under the Health and Safety Code, such as smoking or ingesting cannabis or possessing a lawful amount of cannabis, may not "constitute the basis for detention, search, or arrest," unlawful conduct, such as what Grubert admitted to here, supports existence of probable cause. (Health &Saf. Code, § 11362.1, subd. (c); see, e.g., People v. Castro (2022) 86 Cal.App.5th 314, 320 [probable cause where 20 year old admitted illegally smoking marijuana in car with others under 21].) His admissions, evasive behavior, and unlawful conduct, taken together with the fair probability of an open container in the car, supported probable cause to search the car at each stage of the search. (Harris, supra, 568 U.S. at pp. 243-244; Moore, supra, 64 Cal.App.5th at pp. 299, 301; People v. Benites, supra, 9 Cal.App.4th at p. 328; Castro, at p. 320.)
Grubert - relying on People v. Macabeo - also argues "there is no exception" to the warrant requirement "for a search incident to citation," and therefore the search was unlawful. (People v. Macabeo (2016) 1 Cal.5th 1206, 1218.) This argument is misplaced. We agree there is no search incident to citation exception to the warrant requirement, and such an exception did not authorize the search of the car. But unlike Macabeo, this case involves probable cause to search under the automobile exception. (Macabeo, at pp. 1218-1219.) Macabeo concerned probable cause to arrest under the search incident to arrest exception. (Ibid.) There, officers detained Macabeo for riding his bike through an intersection without stopping at a stop sign. (Id. at pp. 1210-1211.) After an investigation that did not provide probable cause to arrest, officers searched the contents of Macabeo's phone without a warrant or his permission and found unlawful photos of minors. (Id. at pp. 1211-1212; 1218-1219.) Our high court found the warrantless search of Macabeo's phone unreasonable, explaining the search incident to arrest exception - the exception relied on by the prosecution to justify the search - did not apply. (Id. at pp. 1218-1219.) Without at least probable cause to arrest, the court explained, officers could not search under the search incident to arrest exception. (Ibid.) Here, just as in Macabeo, there was no lawful search incident to arrest. (Ibid.) But that is where the similarities end. Rehberg had no need for probable cause to arrest, only probable cause to search. As discussed above, he was well within the confines of the automobile exception when he searched beneath the driver's seat, then the area directly behind the driver's seat, and then the entire car. (Harris, supra, 568 U.S. at pp. 243-244; Moore, supra, 64 Cal.App.5th at pp. 299, 301; People v. Benites, supra, 9 Cal.App.4th at p. 328; People v. Castro, supra, 86 Cal.App.5th at p. 320.) Under the automobile exception, "the distinction between misdemeanors and infractions is irrelevant to the probable cause analysis." (People v. McGee (2020) 53 Cal.App.5th 796, 805.)
Finally, we reject Grubert's argument that his detention during the search was unreasonably prolonged. "An investigatory stop exceeds constitutional bounds" if "extended beyond what is reasonably necessary under the circumstances that made its initiation permissible." (People v. Russell (2000) 81 Cal.App.4th 96, 101.) But as discussed above, the circumstances developed during the initial detention provided reasonable suspicion to prolong it. (Id., at p. 102.) During the search of the driver's seat,
Grubert admitted to possessing loaded firearms, resulting in an additional search of his entire car. The record lacks any evidence regarding the duration of the detention or the time it took to perform the search. On this record, we cannot conclude the officers unreasonably prolonged the detention.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Fujisaki, Acting P. J. Petrou, J.