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This article explains how to prevail on a motion to suppress evidence from an illegal search of a parked vehicle, assuming the arresting officer based his probable-cause justification on:
This article is based on a motion I recently won on behalf of a client who was facing eight years in prison, and whose entire case was dismissed as a result.
As any experienced criminal defense attorney knows from painful personal experience, prevailing on a Motion to Suppress Evidence – more commonly referred to as a “1538.5 motion” (based on California Penal Code section 1538.5) – is a rare occurrence.
This motion involves filing a brief with the criminal court to exclude evidence that was illegally seized by the police. A 1538.5 motion – also simply known as a “1538.5” – is sometimes known as a dispositive motion because if you prevail, it may literally dispose of the entire case if it gets dismissed.
This state law is grounded on the fundamental right of Americans to be free from unreasonable searches and seizures as set forth in the Fourth Amendment of the U.S. Constitution.
This basic civil right was also adopted in the Declaration of Rights in the California Constitution at Article 1, Section 13.
I’ve filed more 1538.5’s over the past fifteen-plus years than I can count, and have prevailed on more than my fair share, but as I always tell my clients, the chances of getting one granted are very low. The explanation is simple: judges will look for any reason to deny the motion because they prefer to have the case tried on the merits as opposed to dismissing outright based on a “technicality”.
Notwithstanding, on August 31, 2020, a superior court judge at the Inglewood courthouse granted my motion to suppress and immediately dismissed the entire case against my client.
The Vehicle “Stop”
On the afternoon of February 6, 2020, my soon-to-be client, “Oscar”, was sitting alone in his red 2013 Nissan Altima sedan in an Inglewood neighborhood – in the area of Dixon Avenue and 104th Street – that had recently seen a spike in gang activity. His car was parked legally, parallel to the curb of a sidewalk in a residential neighborhood, and the engine was not running or idling.
At that moment, an Inglewood PD cruiser with three uniformed officers from the police department’s anti-gang unit slowly approached the Nissan from the opposite direction. As he would later testify on the stand at the 1538.5 hearing (which was also scheduled at the same time as the preliminary hearing), “Officer Mendoza” became suspicious of the car because he believed its windows were illegally tinted. He therefore conducted a “traffic stop” for an “equipment violation” (an infraction – see below).
As he would again testify, he believed the windows were illegally tinted because he claimed he was unable to see into the car. This critical allegation would later come back to discredit him. He would admit at the hearing under oath – after a great deal of prodding on my part – that he knew the car was not only legally parked, but that its engine was not idling.
As a result, Ofc. Mendoza stopped his patrol car so that its driver’s-side front end was directly diagonal across from Oscar’s driver’s-side front end, and flashed his lights (without the siren). Then he and his two fellow officers emerged from the roller and surrounded the Nissan, hands on their holstered pistols.
The Smell of Burnt Marijuana
As Ofc. Mendoza approached the driver’s-side door of the Nissan , Oscar rolled down his window and asked if anything was wrong. Ofc. Mendoza told him that his windows were illegally tinted, then leaned in and – as he would again testify – he claimed he smelled the odor of burnt marijuana.
As a result – after checking his driver’s license, registration, and insurance – he asked Oscar to step out of the vehicle, which he did. He then handcuffed Oscar and sat him down on the curb while the other two officers looked on.
Ofc. Mendoza – who was a veteran on the Inglewood force – then decided that the (alleged) smell of marijuana gave him probable cause to search the rest of the car for, as he testified, “additional contraband.”
The Open Container
When he leaned into the car, the officer also saw an open beer can, which he found to be half full, and which was cold to the touch and still perspiring with condensation. As he told the judge at the prelim, he believed this open container also gave him probable cause to search the rest of the car – again, for “additional evidence of contraband.”
He would write in his report that he “detained” Oscar in handcuffs because of the two California Vehicle Code infractions for “driver in possession of marijuana” and “driver in possession of open container” – see below.
The (Illegally) Seized Evidence
The first thing Ofc. Mendoza found inside the car during the search was a half-smoked joint (not smoldering) in the ashtray. The second thing he found was a cooler in the back seat filled with five empty beer cans. Next he found – when he opened the glove compartment – two nine-millimeter bullets. Then he found what he was clearly hoping to find: a nine-millimeter semi-automatic pistol with a loaded clip, also in the glove box.
As a result, my client – who was an ex-felon with a prior Strike conviction under California Penal Code section 667(a)&(b) and California Penal Code section 1192.7 for First-Degree Residential Burglary under California Penal Code section 460(a)) – was charged with illegally possessing a handgun under California Penal Code section 29800(a)(1) (Felon in Possession of a Firearm), as well as other related charges.
Based on his prior record, he was easily looking at up to three years in county jail plus five years in state prison for the strike enhancement, pursuant to Penal Code section 667(a)(1), or a total of eight years’ incarceration.
This would have been devastating to him, of course, not least because he had worked so hard to turn his life around from his earlier years when he had been involved in some criminal activity. For years now he had held a solid, well-paying full-time job and enjoyed a happy family life with his wife, a two-year-old son, and a second baby on the way.
So why the gun? Oscar lived in a local neighborhood with significant gang activity and, therefore, carried a gun in the car for protection. He had even been shot at simply for driving around in the vicinity, and had previously been robbed at gunpoint. (For the record, Oscar had never been a gang member and certainly wasn’t one now.)
Officer Mendoza’s police report was fairly straightforward and laid out all the facts – at least how he saw them. Notwithstanding, he was suspiciously vague therein as to whether the vehicle had been moving at the time of the “traffic stop”. He actually called it a “stop” in the report despite the fact that Oscar had not been pulled over, nor had he been alleged to have driving at the time, or even recently before the “stop”.
In the report, of course, Ofc. Mendoza identified the “illegally tinted” windows as his pretext for the “stop”. To support that pretext, he included in the report a crucial piece of evidence: photographs that he personally took of the vehicle’s tinted windows, which clearly reveal all of the contents inside the car. In other words, his own photographs directly contradicted his allegation that the windows were so dark, he couldn’t see into the vehicle.
And, of course, he cited the smell of burnt marijuana, followed by the sight of both the half-smoked joint and the half-empty beer can as justification for the warrantless search.
Finally, Ofc. Mendoza cited all the relevant state laws (statutes and codes), which he used to justify his warrantless probable cause search – see below.
California Vehicle Code section 26708 (illegally tinted windows)
The language in the Vehicle Code regarding tinted windows explicitly only criminalizes – albeit via an infraction pursuant to California Penal Code section 17(d) – windows that have less than 70% transparency but only if the vehicle is being driven.
Specifically, Vehicle Code section 26708, which addresses the issue of when windows are considered to be illegally tinted, states:
(a)(1) A person shall not drive any motor vehicle with [illegally tinted windows]. […]
(3) This subdivision applies to a person driving a motor vehicle with [illegally tinted windows] [….]
California’s Vehicle Exception to Warrantless Searches When There is Probable Cause
The issue of probable cause justifying a search in the absence of a warrant has always been one of the most hotly contested issues in California criminal cases. For the uninitiated, probable cause exists when a law enforcement officer or agent can articulate specific facts known to him or her which give rise to a reasonable suspicion that the alleged perpetrator has committed or is in the process of committing a criminal offense.
See, e.g., United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985).
The federal Ninth Circuit Court of Appeals, which governs all federal courts in California and heavily influences all state courts therein as well, has consistently held that a police stop must be lawful in order to possibly justify a search of the vehicle based on probable cause, and that otherwise “the results of the subsequent [ ] search should [be] suppressed.”
See U.S. v. Wallace, 213 F.3d 1216, 1217 (9th Cir. 2000).
Thus, in Oscar’s case, I argued in the motion that because Veh. Code § 26708 essentially prohibits criminalizing parked automobiles for having illegally tinted windows, Ofc. Mendoza’s pretextual “stop” must also be prohibited.
In other words, I argued, even if Ofc. Mendoza did have probable cause to search Oscar’s car based on the smell of burnt marijuana, the patrolman never had the right to approach his car in the first place and, therefore, all the evidence was seized illegally. In turn, based on the legal doctrine known as “the fruit of the poisonous tree”, the entire case must therefore be dismissed.
On November 8, 2016, California voters overwhelming approved Proposition 64, known as the Adult Use of Marijuana Act (AUMA), which gave adults over twenty years old the lawful right to – among other things – possess and transport up to twenty-eight grams of marijuana,. Prop. 64 was thereafter codified at California Health and Safety Code section 11362.1(a)(1) & (2).
Accordingly, several months before the hearing, the California Court of Appeals issued a landmark ruling in a case with facts very similar to Oscar’s. In doing so, the appellate court overruled all of its prior opinions, which upheld warrantless vehicle searches for additional contraband. Specifically, the court had consistently ruled that probable cause arose whenever an officer saw or smelled marijuana in a vehicle.
The appellate court now held, however, that the legalization of marijuana no longer criminalized its use or transportation and, therefore, it could no longer be considered contraband. Accordingly, the sight or smell of it (whether fresh or burnt) could no longer justify the search of a vehicle.
The only exception, the court stated, is that if the now-legal marijuana was being used in an illegal way, such as by someone driving a vehicle, then that useage would constitute an infraction, which in turn might then possiblly justify a search based on probable cause.
Specifically, California Vehicle Code section 23222(b)(1) prohibits someone from possessing an open container of marijuana “while driving a motor vehicle….”
But since Oscar wasn’t driving, I argued, Ofc. Mendoza had no right to search the car.
The logic in the new Court of Appeal case applied equally to an open container of alcohol, I wrote in the motion. And, indeed, the same Vehicle Code section, 23222, subdivision (a), only prohibits someone from possessing an open container of alcohol “while driving a motor vehicle….” As a result, I argued that Ofc. Mendoza had no right to search for additional alcohol in the parked vehicle.
The 1538.5 Hearing
My Opening Arguments — The Tinted Windows
I first explained that the Inglewood PD officers had no legal right to accost my client simply because they believed his windows were illegally tinted. I then read the relevant Vehicle Code section which clearly stated that the violation only applies when the vehicle is being driven. I then argued that since my client’s car was legally parked, the entire case should be dismissed based on that irrefutable fact alone.
My Cross-Examination of Officer Mendoza
Not surprisingly Ofc. Mendoza was extremely cagey and evasive on the stand, forcing me to essentially ask each important question in different ways before I finally pinned him down to an answer that would eventually help discredit him.
I first needed to irrefutably establish that Oscar’s car was not only legally parked at the time of the “stop”, but that there was no evidence that it had even recently been driven. As such, I elicited the following admissions from Ofc. Mendoza:
The Deputy DA tried her best to counter my arguments but the language in the relevant V.C. section regarding tinted windows and open containers was clear and unequivocal – if the vehicle was not in motion, there can be no infraction and, hence, no pretext to stop or search.
As far as the marijuana smell and sight of the half-smoked joint, she did exactly what I thought she would do: she recited cases that had served prosecutors well for years – i.e., those opinions which held that the sight or smell of marijuana provided probable cause to conduct a warrantless search of a vehicle.
As far as the tinted windows and open container, I briefly reiterated the V.C. sections regarding infractions pertaining only to moving vehicles.
I then turned my attention to the big issue – the one the prosecutor had felt confident she would win. Specifically, I read from my case law, particularly the one issued only several months earlier, that explicitly overruled and superseded the very same cases the ADA had just cited and quoted.
After both the prosecutor and myself said everything we had to say, the judge said he would take a recess to carefully consider the arguments. I knew that he was going to take a hard look at the cases I had cited and quoted – particularly those overruling and superseding the ADA’s outdated marijuana cases.
After what seemed like an eternity, but was probably no more than 90 minutes, the judge returned to the bench and stated on the record that based upon his reading of the case law I had provided, he agreed that since there was no evidence presented, or even an allegation that Oscar had been driving the vehicle at the time of the “stop”. As such, he ruled as follows:
Oscar’s allegedly-illegally tinted windows did not justify the “stop” and, therefore, Ofc. Mendoza had no reasonable suspicion to confront Oscar. In fact, the judge explicitly stated that the officer had failed to articulate any facts as to why he believed the windows were illegally tinted;
Because smoking marijuana is only an infraction when the user is driving, neither the smell nor even the sight of marijuana (here, the half-smoked joint but otherwise an open container of marijuana) would justify a warrantless search.
In other words, as a result of legalization, marijuana – when it’s not being unlawfully used (such as while driving) – is no longer considered contraband under California law and, therefore, can never justify a warrantless search; and
Because possessing an open container of alcohol is only an infraction while driving, it cannot be considered contraband for the purpose of justifying a warrantless search.
“Based on the case law presented by defense counsel,” the judge stated, “and based on the uncontested fact that the car was parked at the time just prior to the search, I have no choice but to dismiss the case. The defendant is free to go.”
The look on Oscar’s face is exactly why I love doing what I do. He went home that same day and was in the delivery room one week later when his daughter was born.