Opinion
C057117
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. JAMES ESTES SMITH, Defendant and Appellant.
Not to be Published
Defendant James Estes Smith appeals from a judgment entered after his motion to suppress evidence was denied. Pursuant to a negotiated plea agreement, defendant pled no contest to misdemeanor possession of MDMA (ecstasy) and was placed on three years probation on condition that he successfully completes a Proposition 36 program and serves 180 days in the county jail. Defendant asserts that the trial court erred by not suppressing evidence secured after he was illegally detained by law enforcement. We agree defendant was illegally detained and the evidence should have been suppressed as a direct product of the detention. Accordingly, we reverse.
FACTUAL BACKGROUND
The facts are taken from the evidence presented at the hearing on defendants motion to suppress. In March 2007, at approximately 12:50 a.m., Officers Michael Terry and Anthony Jones of the California Highway Patrol received a broadcast from dispatch relaying the following information received from an anonymous 911 caller: "[T]here was a black Ford Mustang parked in the parking lot [of Mandangos nightclub and 24 Hour Fitness at Fulton Avenue and Hurley Way in Sacramento] with an individual acting suspiciously around it, reaching around the drivers side wheel wells and then reaching in—or going into a wing window of some sort and then entering the vehicle and was slumped down near the steering column. The person was described as an African [American] male adult, wearing a black ball cap and glasses." The caller also provided the vehicles license plate number.
The only indication in the record that the caller provided his name to dispatch exists in the Peoples opposition to defendants motion to suppress evidence. It indicates that the caller identified himself and gives the callers name. However, there is no mention in either the record on the suppression hearing or the record on the preliminary examination that the caller identified himself. Moreover, in their briefs to this court, defendant and the Attorney General agree that the tip was provided by an "anonymous" caller. We accept this agreement by the parties, and will assume for purposes of this opinion that the call was indeed anonymous.
Based on this information, Officers Terry and Jones responded to the location. According to Terry, the description of suspicious activity provided by the caller indicated to him that the individual may be "looking for a way of entry into the vehicle" and "may be trying to steal the car."
Within four minutes, the officers reached the parking lot and found the Mustang parked between Mandangos and 24 Hour Fitness. The nightclub was open and the parking lot was populated with people and cars, although there were only a couple of cars parked in the same aisle as the Mustang. The officers immediately pulled in behind the Mustang and activated the white spotlights on the patrol car. As Jones approached the Mustang from the passenger side and Terry approached from the drivers side, the Mustangs passenger, Michael Choi, emerged from the vehicle with a surprised expression.
As Choi emerged from the Mustang, the officers, with guns drawn, yelled for Choi to: "Get out, get out, get your hands up." Choi complied. Jones then directed Choi back to the patrol car where he was searched and handcuffed.
Once Choi put his hands up, Terrys focus returned to defendant sitting in the drivers seat. Terry ordered defendant to place his hands on the steering wheel, and once Choi was handcuffed by Officer Jones, defendant was ordered out of the vehicle; defendant complied with both commands. Terry then placed defendant in handcuffs and frisked him for weapons. Terry articulated his suspicion for the frisk: "I went to the call believing that he may be stealing a car. I, in my experience, have found car thieves to carry anything from screwdrivers to knives to guns." Terry also testified that after Choi opened the passenger door, he could "immediately" smell the odor of fresh "green marijuana" emanating from inside the Mustang. He also explained that he "performed a preliminary frisk [on defendant] based on the odor of marijuana."
As it turned out, defendant was not armed, but was carrying a small amount of marijuana (3.7 grams) in a Ziploc bag in his right front pocket. According to Terry, as he patted defendant down, he "noticed a crunchy sensation in the right front pocket." Based on his training and experience, he believed that it was "probably packaging for marijuana." Terry then removed the bag from defendants pocket and questioned him about its contents and about the Mustang. Defendant explained that he was in the process of buying the Mustang and that the paperwork was inside the vehicle.
As Terry brought defendant back to the patrol car, Jones mentioned that he had discovered a package containing a white powdery substance he believed to be cocaine located outside of the Mustang near the front passenger wheel well. A search of the Mustang revealed two cell phones, three $20 bills, half a tab of ecstasy in a miniature Ziploc bag, a torn piece of plastic that was consistent with the packaging on the powdery substance found outside of the car, and a duplicate title document indicating that the Mustang was indeed in the process of being sold. At this point, defendant was formally arrested.
DISCUSSION
I.
The Moment of Detention
"[N]ot all personal intercourse between policemen and citizens involves `seizures of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure has occurred." (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16 [20 L.Ed.2d 889, 905, fn. 16].) "As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. . . . `[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the encounter. [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821; accord, People v. Garry (2007) 156 Cal.App.4th 1100, 1106 (Garry).)
"The test for the existence of a show of authority is an objective one, and does not take into account the perceptions of the particular person involved." (Garry, supra, 156 Cal.App.4th at p. 1106, citing In re Manuel G., supra, 16 Cal.4th at p. 821.) Accordingly, the test is not whether the individual perceived that his movement was being restricted by a show of authority, but whether the police conduct would have conveyed this to a reasonable person. (California v. Hodari D. (1991) 499 U.S. 621, 628 [113 L.Ed.2d 690, 698].)
Considering all the circumstances of this fast-moving encounter between law enforcement and the occupants of the Mustang, we conclude that defendant was detained, not when the officers pulled in behind the Mustang in the parking lot, illuminated the vehicle with their spotlights, and approached from both sides, but only when they trained their weapons on the emerging passenger and ordered him to: "Get out, get out, get your hands up."
It is settled that the driver and occupants of a vehicle are detained when a police officer blocks the vehicles only means of departure with the officers patrol car. (People v. Wilkins (1986) 186 Cal.App.3d 804, 809 [detention occurred when officer in marked patrol car parked diagonally behind defendants vehicle so it could not exit parking lot]; see United States v. Burton (7th Cir. 2006) 441 F.3d 509, 510-511 [detention occurred when three bicycle officers surrounded defendants car]; see also United States v. Tuley (8th Cir. 1998) 161 F.3d 513, 515; United States v. Kerr (9th Cir. 1987) 817 F.2d 1384, 1386-1387.) However, in People v. Perez (1989) 211 Cal.App.3d 1492, a police officer parked his patrol car in front of Perezs vehicle, leaving "plenty of room" for Perez to drive away, and activated both spotlights on the patrol car "to get a better look at the occupants and gauge their reactions." (Id. at p. 1494.) The officer then walked over to the car, tapped on the window, and asked the driver to roll down the window. (Ibid.) The appellate court concluded: "[T]he conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave. While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.]" (Id. at p. 1496.)
Similarly, here, there is no evidence in the record indicating that the Mustang was blocked in by the patrol car. Nor does the fact that Terry and Jones pulled in behind the Mustang, activated their spotlights, and approached the vehicle on foot, manifest a sufficient show of police authority to constitute a detention. However, when Choi opened the passenger door, began to emerge from the vehicle, and the officers trained their weapons on him and ordered him out of the vehicle, a reasonable person in defendants position would not have believed himself free to leave. (See People v. Roth (1990) 219 Cal.App.3d 211, 215 [detention occurred when officer shined spotlight on defendant, stopped the patrol car, got out and commanded defendant to approach].)
II.
Defendants Detention Was Not Supported by Reasonable Suspicion of Criminal Activity
Defendant contends that his motion to suppress was wrongly denied because Terry and Jones did not possess a reasonable suspicion that defendant was involved in criminal activity at the time of the detention. We agree.
"`The standards for appellate review of the trial courts determination on a motion to suppress pursuant to section 1538.5 are well settled. The trial courts factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.] [Citation.]" (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395 (Lindsey).)
"To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity." (People v. Conway (1994) 25 Cal.App.4th 385, 388, citing In re Tony C. (1978) 21 Cal.3d 888, 893; see also People v. Souza (1994) 9 Cal.4th 224, 230.) "The guiding principle in determining the propriety of an investigatory detention is `the reasonableness in all the circumstances of the particular governmental invasion of a citizens personal security. [Citations.] In making our determination, we examine `the totality of the circumstances in each case." (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
The main thrust of defendants argument is that the detention was unreasonable because it was based on an uncorroborated anonymous tip. As we explain more fully below, we agree that the uncorroborated anonymous tip in this case does not provide reasonable suspicion justifying the detention. However, we requested supplemental briefing from the parties on the issue of whether Officer Terrys testimony that he "immediately" smelled marijuana after Choi opened the passenger door and was emerging from the Mustang, could provide independent justification for the detention. The Attorney General responded in the affirmative. Defendant responded, "absolutely not." As we also explain below, after reviewing the authorities cited in the supplemental briefs and conducting our own independent research, we conclude that in this instance the smell of marijuana cannot serve to justify this otherwise unlawful detention.
A. The Uncorroborated Anonymous Tip In This Case Does Not Provide Reasonable Suspicion For the Detention
The United States Supreme Court erected the framework for analyzing the reliability of an anonymous tip in Alabama v. White (1990) 496 U.S. 325 (Alabama), and Florida v. J.L. (2000) 529 U.S. 266 (Florida).
In Alabama, the police received an anonymous tip that a woman was carrying about an ounce of cocaine in an attaché case. The informant explained that the woman would leave her apartment at a specified time, get into a car matching a specified description, and drive to a particular motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. They followed her as she took the most direct route to the motel identified in the tip, and stopped her just short of the predicted destination. The officers searched the vehicle with the womans permission, and marijuana was found in an attaché case. The woman was arrested and, during processing at the station, officers found three milligrams of cocaine in her purse. (Alabama, supra, 496 U.S. at p. 327 .) The high court concluded that, while a "close case," and while the anonymous tip alone did not justify the stop, the tip, coupled with observations of the defendants movements in accordance with the informants predictions, made it reasonable to believe the informant had inside information about the suspect and therefore credit his assertion about illegal activity. (Id. at p. 332 .)
As the court explained its reasoning: "`[T]he anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. [Citation.] The fact that the officers found a car precisely matching the callers description in front of the [designated] building is an example of the former. Anyone could have `predicted that fact because it was a condition presumably existing at the time of the call. What was important was the callers ability to predict respondents future behavior, because it demonstrated inside information—a special familiarity with respondents affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to [the identified motel]. Because only a small number of people are generally privy to an individuals itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individuals illegal activities. [Citation.] When significant aspects of the callers predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." (Alabama, supra, 496 U.S. at p. 332 .)
In Florida, supra, 529 U.S. 266, an anonymous caller reported that a young Black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three Black males "`just hanging out [there]." (Id. at p. 268 .) One of the three, J.L., was wearing a plaid shirt. The officers did not see a firearm and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., frisked him, and discovered a gun. (Ibid.) The high court concluded the information received by the police was insufficient to justify the stop and frisk. According to the court, "[t]he tip in the instant case lacked the moderate indicia of reliability present in [Alabama] and essential to the Courts decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informants knowledge or credibility." (Id. at p. 271 .)
The court rejected the states argument that reliability could be based on the informants description of the physical characteristics of the defendant, i.e., a Black male wearing a plaid shirt at a bus stop. The court explained: "An accurate description of a subjects readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." (Florida, supra, 529 U.S. at p. 272 .)
Much like the anonymous tip in Florida, the tip in this case "provided no predictive information and therefore left the police without means to test the informants knowledge or credibility." (Florida, supra, 529 U.S. at p. 271 .) The informant simply described a Black male wearing a black ball cap and glasses "acting suspiciously" around a black Mustang—reaching around the drivers side wheel well, reaching into a side window, and then getting into the vehicle. Here, unlike Alabama, anyone could have "predicted" that a man fitting the description provided by the caller would be in the described Mustang in the indicated parking lot because it was a condition presumably existing at the time of the call. Such details do nothing to validate the reliability of the informants allegations of criminal conduct. Indeed, in this case, the allegations of illegal conduct amounted to a vague description of a man reaching behind a wheel well and into a window. If this, by itself, were enough to provide police with reasonable suspicion to detain a citizen, then any anonymous caller could accurately identify an individual and his or her surroundings, vaguely describe "suspicious" behavior, and watch with impunity from across the street as the individual is detained by authorities.
What was important to the high courts decision in Alabama was the callers ability to predict future behavior. Here, as in Florida, supra, 529 U.S. at p. 272 , the fact that police responded quickly and located the described Mustang in the described parking lot, without more, does not adequately establish that the tip was reliable in its assertion of illegality.
The Attorney General relies heavily on two recent California Supreme Court decisions: People v. Wells (2006) 38 Cal.4th 1078 (Wells), and People v. Dolly (2007) 40 Cal.4th 458 (Dolly). These decisions do not alter our analysis.
In Wells, supra, 38 Cal.4th 1078, the police received an anonymous tip of a "possibly intoxicated driver `weaving all over the roadway." Two or three minutes later, an officer located and immediately stopped the vehicle. The officer did not personally observe the vehicle weaving or otherwise violating any traffic laws. (Id. at p. 1081.) Pointing to the "exigent circumstances" created by drunk drivers on our roadways, our Supreme Court held that the anonymous tip was itself sufficient to raise a reasonable suspicion justifying the traffic stop. (Id. at pp. 1083-1084.)
The court distinguished Florida in four respects. First, the report of a possibly intoxicated driver swerving on the road "poses a far more grave and immediate risk to the public than a report of mere passive gun possession." (Wells, supra, 38 Cal.4th at p. 1087.) Second, "doubts regarding the tipsters reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller." (Ibid.) Third, a brief vehicle stop is less intrusive than "the `embarrassing police search on a public street" involved in Florida. (Wells, supra, at p. 1087.) And finally, the informant gave a "relatively precise and accurate description . . . regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report." (Id. at p. 1088.)
In Dolly, supra, 40 Cal.4th 458, the police received an anonymous tip that a light-skinned Black male had "`just pulled a gun" on the caller and had mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the drivers seat of a gray Nissan Maxima parked at a particular location near a recycling center. Two minutes later, the informant called again and said he had just driven by the Nissan and determined it was black, not gray. (Id. at p. 462.) At about the time of the second call, officers received a dispatch about a light-skinned, Black male with a cast on his arm in a gray Nissan Maxima in the location indicated by the informant who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. Defendant, who was sitting in the drivers seat, matched the description and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. A loaded, .38-caliber revolver was discovered under the front passenger seat of the car. (Ibid.)
Our Supreme Court concluded that, under the totality of the circumstances, the detention did not violate the defendants Fourth Amendment rights. Among those circumstances was the "`grave and immediate risk" posed to the caller and anyone nearby by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) According to the court: "`[A]llegations of the threatening use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action and `is materially distinguishable from the anonymous tip at issue in Florida v. J.L., which involved only an allegation of a concealed weapon." (Ibid.)
The court was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the court, "[t]he police `may ascribe greater reliability to a tip, even an anonymous one, where an informant "was reporting what he had observed moments ago," not stale or second-hand information." (Id. at p. 468, quoting from United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, supra, 40 Cal.4th at p. 468.)
Critical to both decisions was the fact that the conduct reported in the respective tips posed a "grave and immediate risk to the public." (Wells, supra, 38 Cal.4th at p. 1087; accord, Dolly, supra, 40 Cal.4th at p. 465.) In Wells, the court explained that "`a drunk driver is not at all unlike a "bomb," and a mobile one at that." (Wells, supra, at p. 1086, quoting State v. Boyea (2000) 171 Vt. 401, 765 A.2d 862, 867-868.) In Dolly, the court explained that "pointing a revolver at the caller in an apparent threat to shoot him posed a grave and immediate risk not only to the caller but also to anyone nearby. [Citation.]" (Dolly, supra, at p. 465.) The same cannot be said of a report of a suspected vehicle theft. We disagree with the Attorney Generals assertion that "[a] late-night auto-theft in progress poses a more immediate risk to the public than a report of a passive gun possession." While a vehicle theft certainly poses an immediate risk to the property of the owner of the vehicle being stolen, this is not the sort of "grave and immediate risk to the public" justifying immediate police action without corroboration of the anonymous tip. (Wells, supra, at p. 1087; Dolly, supra, at p. 465.) Moreover, unlike Dolly, where there was a first-hand report of violent criminal conduct witnessed by the caller who was the target of the violence, here, the tipster vaguely described conduct, i.e., reaching around a tire and into a window, which may or may not have been criminal in nature.
Our conclusion that the uncorroborated anonymous tip in this case cannot justify defendants detention is further bolstered by several post-Florida Court of Appeal decisions.
In People v. Jordan (2004) 121 Cal.App.4th 544 (Jordan), an anonymous 911 call, which was recorded and transcribed, informed police that a light-skinned African-American male wearing a white shirt, black jacket, and tan pants, was in a specified park and was carrying a concealed handgun. (Id. at pp. 548-549.) Officers responded to the location and found Jordan, matching the description, sitting on a park bench with his hands in his lap. (Id. at p. 550.) One of the officers motioned for Jordan to come over and identified himself as a police officer. When Jordan got up, the officer told him to place his hands in the air, turn around, and walk backward to the officer. Jordan complied. (Ibid.) A subsequent frisk revealed a small-caliber handgun. (Id. at p. 551.)
The Court of Appeal, Fifth Appellate District held the detention to be unlawful under Florida. (Jordan, supra, 121 Cal.App.4th at p. 547.) As the court explained, the mere fact that the tip accurately described a particular person at a particular location "does not adequately establish that the tip was reliable in its assertion of illegality." (Id. at p. 558.) "[T]he officer did not see appellant engage in behavior that suggested criminal activity was afoot." (Id. at p. 559.) The tip did not contain "predictive information from which, if confirmed, the officers could have inferred that the informant also had knowledge of concealed criminal activity." (Ibid.) Nor did the tip contain an explanation from the informant as to how he knew about the gun or when he learned of its presence in Jordans pocket. (Id. at pp. 559-560.) The only fact distinguishing the case from Florida was that the anonymous tip was recorded and transcribed. However, while the record of the call "detracts from any possibility that the tip was the result of police fabrication," it does not render the informant accountable for a false tip. (Id. at p. 562.) "As anonymity decreases and the informants risk of accountability increases, the inference that the tip is reliable strengthens." (Ibid.) The court concluded that the fact that the tip was recorded was not sufficient to distinguish the case from Florida.
Similarly, here, the only meaningful distinction that can be drawn between the facts of this case and those of Florida is the fact that the call was made to 911, resulting in the creation of a log, which indeed "detracts from the possibility that the tip was the result of police fabrication." (Jordan, supra, 121 Cal.App.4th at p. 562.) However, this fact does not render the caller accountable for a false tip. Nor does it, by itself, render an uncorroborated anonymous tip reliable.
Finally, this case is in stark contrast to cases like People v. Butler (2003) 111 Cal.App.4th 150 (Butler), where the tip involved drug dealing and the officer witnessed a hand-to-hand transaction he believed to be a drug deal, and People v. Lindsey (2007) 148 Cal.App.4th 1390 (Lindsey), where the tip involved gunfire outside a residence and the officer witnessed the suspect holding up his pants as if there was something heavy in his waistband. (Lindsey, supra, at p. 1393.) Here, the only conduct witnessed by police prior to the detention was that of the passenger of the Mustang opening the door. Unlike Butler and Lindsey, this observation did nothing to corroborate the tips assertion of illegality.
While the trial court described the passengers conduct as "one of those furtive movements" indicating that the passenger was about to flee the scene, the record does not support this interpretation. Officer Terry testified that as the officers approached the Mustang, the passenger got out of the car, turned to face the officers, "appeared to be surprised" (ostensibly by the fact that two uniformed police officers had their guns drawn and were yelling at him to get out of the car and put his hands up), and put his hands in the air. Moreover, even if we were to agree with the trial courts assessment, a mere furtive gesture, such as "turning ones back on a police officer, even though to the officer the action seems to be a `nervous one," is not enough to supply reasonable suspicion for a detention. (People v. Rosenfeld (1971) 16 Cal.App.3d 619, 622.) We fail to see how the passengers conduct, which would not be sufficient to provide reasonable suspicion for the detention, and which in no way corroborated the tips assertion of illegality, could nevertheless render the tip reliable.
In sum, while the officers immediately corroborated the innocent aspects of the anonymous tip, they did not witness any conduct corroborating the tips assertion of illegality. Nor was the tips reliability strengthened by the informants risk of accountability, as nothing in the record indicates that the police possessed the means to hold the caller accountable for the information provided. Moreover, the conduct reported in the tip did not pose the same sort of "grave and immediate risk to the public" justifying immediate police action without corroboration of the anonymous tip. (See Wells, supra, 38 Cal.4th at p. 1087; Dolly, supra, 40 Cal.4th at p. 465.)
B. The "Immediate" Smell of Marijuana Does Not Serve to Justify This Detention
As a preliminary matter, defendant urges us to discredit Terrys testimony that he smelled the odor of marijuana emanating from the Mustang as inherently improbable in light of the fact that the only marijuana discovered in the search was 3.7 grams found in a Ziploc bag in defendants pants pocket. As defendant points out, the trial court did not believe that Terry could smell the marijuana in defendants pocket from across the car. However, the trial court did credit Terrys testimony that he smelled marijuana coming from the Mustang itself, and posited that such an odor could have lingered from marijuana previously in the vehicle. Defendant calls this "pure speculation, unsupported by any evidence." On the contrary, the evidence that there was an odor of marijuana emanating from the Mustang came directly from Terrys testimony. The trial court believed this testimony. We find it to be immaterial that the court also proposed an explanation for a smell that seemingly had no source. Moreover, the posited explanation is a reasonable one. The standard of review, therefore, requires us to accept as a fact that there was an odor of marijuana coming from the Mustang "immediately" after the passenger door opened.
No one would doubt that the smell of burnt toast in a house with no toast likely came from toast that had previously been burned in the house; nor would we discredit testimony that the house smelled like burnt toast simply because the house no longer contained any toast. It is common knowledge that smells can linger. The trial court merely expressed such knowledge on the record.
However, we do agree with defendant that the smell of marijuana cannot justify a detention that has already occurred. As we have already explained, the instant Choi opened the passenger door and was stepping out, the officers had their guns drawn and were yelling for Choi to get out of the car and put his hands up. The detention occurred that instant. While Officer Terry testified that he "immediately" smelled the odor of marijuana, on this record we cannot find that this happened before the detention. As used by Terry in his testimony, "immediately" means quickly, straightaway, without hesitation or delay. (See People v. Pena (1999) 74 Cal.App.4th 1078, 1084 ["`immediate . . . can mean quickly: the driver emerged from the truck and immediately grabbed the gun"]; "immediately" defined by Websters Collegiate Dict. (11th ed. 2003) p. 621, col. 1.) We accept, as we must, that Terry quickly smelled the odor of marijuana after Choi opened the passenger door. However, the officers had their guns drawn and were yelling for Choi to get out and put his hands up as he was opening the door and stepping out of the vehicle. Thus, as described, the detention occurred instantaneously. While "immediately" means quickly, it does not mean "instantaneously," as would be required for the smell of marijuana to justify this detention. ("Instantaneously" defined by Websters Collegiate Dict. (11th ed. 2003) p. 648, col. 2).)
Because defendants motion to suppress evidence was erroneously denied, the judgment must be reversed and defendant must be allowed to withdraw his plea of no contest. (People v. Ruggles (1985) 39 Cal.3d 1, 13.)
DISPOSITION
The judgment is reversed.
We concur:
NICHOLSON, Acting P. J.
RAYE, J.