Filed 7/21/16 P. v. Sanders CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A144585
v.
DAVID ARON SANDERS, (Sonoma County
Super. Ct. No. SCR-641240)
Defendant and Appellant.
Defendant David Aron Sanders seeks reversal of his conviction after a jury trial
for illegal drug activity. He contends the trial court erred in denying his pre-trial motion
to suppress evidence because the evidence was obtained as a result of his unlawful
detention by a police officer who did not have a reasonable suspicion he was engaged in
criminal activity. Therefore, the evidence was obtained in violation of his rights under
the Fourth Amendment of the United States Constitution. We conclude there is
substantial evidence that the police officer had a reasonable suspicion and affirm the
judgment.
BACKGROUND
In June 2014, the Sonoma County District Attorney filed an information charging
defendant with possession of marijuana with the intent to sell (Health & Saf. Code,
§ 11359), allowing a place for preparing or storing a controlled substance (id., § 11366.5,
subd. (a)), and transportation of marijuana (id., § 11360, subd. (a)). Defendant pleaded
not guilty to the charges.
1
Defendant subsequently filed his suppression motion pursuant to Penal Code
section 1538.5, which the People opposed. Defendant sought the exclusion of any
statements by, or observations of, him, any observations by the officer who detained and
arrested him, and any evidence of a crime committed by him. In October 2014, the trial
court held a hearing on the motion.
I.
Shelley Dawson’s Testimony
Shelley Dawson, manager of a storage unit rental facility in Santa Rosa,
California, testified that she called the police from the facility on October 15, 2013,
because she suspected a patron and another man were moving marijuana plants into a
storage unit based on what she smelled and saw. Asked at the hearing when she first
smelled marijuana that day, she said that sometime before 6:00 p.m. a patron came into
her office to pay rent and she told the patron that he “really kind of smell[ed].” The
patron said he had been “trimming, because it is that time of year.”
Dawson said she “could smell a strong odor of marijuana” even after the patron
left. She “went outside and kind of drove around because [the smell] was really strong
outside.” She found “there was little pieces of it like all in the driveway” by the door to
storage unit “D 17.” She went back to her office and determined from records that unit D
17 had been leased that past September to defendant, that three others had access to it,
and that it had been accessed for the first time that day. Dawson called her corporate
office and was told to call 911. She did, telling the police there were “some people there
with a whole bunch of marijuana.”
According to Dawson, after she made the phone calls, she saw from her office
doorway a silver minivan drive into the facility with uncovered marijuana “stacked up in
the back.” The minivan and a white pickup truck drove up to unit D-17. Two people
“unloaded the [minivan] into the storage unit,” putting in “whole plants, roots and all.”
She could tell what it was because the smell was “strong.” She had seen and smelled
marijuana before and that day “[y]ou could smell it all the way down Santa Rosa
Avenue.”
2
Dawson called 911 again and gave a description of the two vehicles and their
license plate numbers. She saw the vehicles circle around the unit and head to the key
pad to exit the facility. About five minutes after her second call, a police car arrived.
Dawson opened a gate for the car and saw it pull straight into the driveway. The officer
pulled up on the left-hand side and the minivan and truck were on the right-hand side.
The officer’s car did not block the other two.
II.
Henri Boustany’s Testimony
Sonoma County Deputy Sheriff Henri Boustany testified that on October 15, 2013,
at around 6:05 p.m. he was dispatched in his patrol vehicle to a facility on Santa Rosa
Avenue to talk to its manager about “her suspicions that there was some illegal activity”
happening at a storage unit there. He “understood that she had called in and said she had
smelled the strong odor of marijuana” at the facility. Boustany could not recall if the
manager reported seeing flakes of marijuana outside a storage unit there or if he just
assumed it. He understood he was dispatched by himself because the suspects were no
longer at the facility.
Boustany further testified that as he drove to the facility, he was “updated . . . that
the vehicles [described as a gold or silver Honda Odyssey minivan and a white truck] had
returned and they were unloading more marijuana.” Boustany was given a license plate
number for the minivan, but could not recall if he was given one for the truck. He located
the storage facility two or three minutes after the update and turned into its driveway.
Boustany noticed the “RP” (presumably “reporting person”) standing to his left
and saw the minivan and truck off to his right, and those vehicles matched the
descriptions he had received. They were inside a gate “[a]nd the driver of the minivan
appears to be at a . . . key code box starting to enter a code . . . or that’s just where he was
parked.” The vehicles “were in a lane of travel.” Boustany entered the facility through a
gate and drove directly to the vehicles. He said, “So I pulled into the storage unit . . .
maybe about a 45-degree angle. I angled in towards the vehicles pointing my . . . patrol
vehicle at those vehicles.” He positioned his vehicle “so that the two vehicles could not
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leave” in an attempt to make contact with the individuals inside them. He was about 50
feet from the gate through which he had entered. The drivers of the two vehicles noticed
him and “seemed shocked or stunned to see a cop car drive in.”
Boustany said he immediately got out of his vehicle to contact or detain the
drivers. Boustany recalled that the truck was behind the minivan and was moving away,
but he could not recall if it did this before or after he got out of his vehicle. Based on the
drivers’ reactions, Boustany suspected the minivan’s driver was trying to leave rather
than “face law enforcement contact” and Boustany “ordered him to stop moving his
vehicle.” Boustany smelled marijuana “[a]s soon as I got out of the vehicle, as soon as I
opened the door it was overwhelming.” He ordered the two suspects out of their vehicles
so he could watch them both in one location, since he was alone and concerned about his
safety.1 They did so and Boustany noticed they “were covered in marijuana flakes.” It
was “obvious” that the two men “were handling more than recreational amounts of
marijuana.”2
On cross-examination, Boustany acknowledged that before detaining defendant,
he had no information indicating that Dawson had previous experience with marijuana
such that she could recognize the plant and its smell.
III.
The Court’s Ruling
After hearing argument, the court denied defendant’s suppression motion. It
found that the sight and smell of marijuana were “commonly known” to Sonoma County
residents, even if not to people in other parts of the country. Therefore, it rejected
defendant’s contention that Boustany did not have a reasonable suspicion that defendant
1
Defendant states in his opening brief that he was the driver of the truck, but
there was no evidence presented at the hearing indicating whether he was driving the
minivan or the truck.
2
There was evidence introduced at the subsequent trial that 230 pounds of
marijuana was found in unit D 17, about 27 bags of marijuana, weighing 24 pounds, and
260.1 grams of finished bud marijuana were found in the minivan, and bundles of tied up
marijuana branches weighing 30 pounds were found in the truck.
4
was engaged in criminal activity because he did not know whether Dawson could identify
the smell and look of marijuana.
IV.
Subsequent Events
Subsequently, defendant was tried and found guilty of the charges brought against
him. The court placed defendant on probation for 48 months, conditioned on his serving
nine months in county jail with credit for time served, and ordered him to pay certain
fines and fees as well as restitution in an amount to be determined. Defendant filed a
timely notice of appeal.
DISCUSSION
Defendant argues that we should reverse his conviction because there was
insufficient evidence to support the trial court’s order denying his suppression motion.
He contends the trial court erred when it found that “all residents of Sonoma County are
familiar with the sight and smell of marijuana,” and argues Boustany had no legitimate
reason to suspect he was doing anything illegal because informant Dawson’s knowledge,
or lack thereof, about marijuana was unknown to Boustany. We conclude there is
substantial evidence to support the court’s ruling.
Penal Code section 1538.5 states that a defendant may move to suppress evidence
on the ground that “[t]he search and seizure without a warrant was unreasonable.”
(Pen. Code, § 1538.5, subd. (a)(1)(A).) An officer may detain an individual, temporarily,
if there is reasonable suspicion to suspect that the person detained may be involved in
criminal activity. (People v. Bennett (1998) 17 Cal.4th 373, 386–387.)
“ ‘ “[A] detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts, that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.” ’ ” (People v. Suff (2014) 58 Cal.4th 1013, 1053–1054.)
Reasonable suspicion cannot be supported based on a mere hunch or feeling that
something does not look right; instead, it must be supported by articulable facts that
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would warrant an officer of reasonable caution to believe that criminal activity is afoot.
(United States v. Sokolow (1989) 490 U.S. 1, 7.)
When evaluating whether an officer had reasonable suspicion to detain someone,
we consider the “ ‘facts known to the officer at the time.’ ” (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 149.) We “ ‘defer to the trial court’s factual findings, express or
implied, where supported by substantial evidence. In determining whether, on the facts
so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.’ ” (People v. Redd (2010) 48 Cal.4th 691, 719.) However,
“[o]n appeal we consider the correctness of the trial court’s ruling itself, not the
correctness of the trial court’s reasons for reaching its decision.” ( Letner and Tobin, at
p. 145.)
The parties first debate when the detention actually occurred. “A detention occurs
when an officer intentionally applies physical restraint or initiates a show of authority to
which an objectively reasonable person innocent of wrongdoing would feel compelled to
submit, and to which such a person in fact submits.” (People v. Linn (2015)
241 Cal.App.4th 46, 57.) Defendant argues the detention occurred when Boustany,
according to Boustany’s own testimony, positioned his patrol vehicle in front of the
minivan and truck so as to impede the drivers’ ability to maneuver around his vehicle—
before he smelled or saw any marijuana. Since Boustany had no basis for relying on
Dawson’s smelling and seeing marijuana, the argument goes, he did not have a
reasonable suspicion that justified defendant’s detention. The People disagree, arguing
Boustany did not detain defendant until after Boustany exited his patrol vehicle and
smelled marijuana, when he ordered the drivers to stop.3 According to the People,
3
The People also argue that technically defendant’s appeal is defective because
no evidence was actually presented below indicating he was subjected to any search or
seizure, but they concede the issue on appeal in order to avoid an ineffective assistance of
counsel claim. In any event, the People’s argument is unpersuasive because the People
conceded in their brief below that the police had detained defendant and searched his
property.
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Boustany’s own observations of marijuana justified his subsequent detention of
defendant.
The trial court made no express finding about when the detention occurred.
However, its analysis rested on its conclusion that Sonoma County residents commonly
know the smell and look of marijuana. This indicates the court may have found the
detention occurred before Boustany got out of his vehicle and detected the odor of
marijuana himself, as defendant argues.
We have some concern about the trial court’s reliance on assumptions about
familiarity with marijuana by Sonoma County residents generally. Our own research
indicates that courts are reluctant to issue warrants based solely on an informant’s
uncorroborated report of smelling marijuana, for example. (See United States v. DeLeon
(9th Cir. 1992) 979 F.2d 761, 765 [holding “a warrant cannot be based on the claim of an
untrained or inexperienced person to have smelled growing plants which have no
commonly recognized odor,” referring to marijuana plants]; cf. United States v. Kerr (9th
Cir. 1989) 876 F.2d 1440, 1445 [finding it material to the existence of probable cause that
an officer, by detecting the odor of marijuana “materially corroborated the informant’s
allegation that [the defendant] was growing marijuana”].) On the other hand, “reasonable
suspicion is a lesser standard than probable cause, and can arise from less reliable
information than required for probable cause . . . .” (People v. Wells (2006)
38 Cal.4th 1078, 1083.) Also, we are aware that in some counties in our state cultivation
and use of marijuana are more prevalent than others, and trial judges are more familiar
that we are with conditions in their counties.
In any event, we need not resolve whether the detention occurred after Boustany
placed his vehicle in front of the minivan and truck, or whether the trial court could rely
on its view of a Sonoma County resident’s general knowledge about marijuana to find
reasonable suspicion. The totality of the circumstances present at the time Boustany
placed his vehicle in front of the minivan and truck provide a sufficient basis to satisfy
the reasonable suspicion standard.
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First, there are several indicia of reliability about Dawson’s reports that were
known to Boustany at that time. Dawson, rather than being an anonymous tipster, had
called the police about one of her own patrons in her capacity as the manager of the
storage unit facility, and had remained there waiting for the police to arrive. An officer
could reasonably infer that a person in such a position would not so act regarding a patron
unless she was particularly sure that she had smelled and seen marijuana. To act
incautiously in such a circumstance could adversely affect her work reputation, as well as
the reputation of the business she managed, with both patrons and the police.
Furthermore, a police officer could reasonably infer that a manager reporting to police
about possible criminal activity at the facility was following a protocol and/or training
that included an emphasis on providing accurate information in such circumstances.
Second, Dawson had called the police twice. (See People v. Dolly (2007) 40 Cal.4th 458,
468 [“The tip’s reliability was further enhanced by the tipster-victim’s second call to
911”].) Third, she had reported significant details, i.e., descriptions of the vehicles
involved, a license plate number for one, and that she had seen the subjects loading
marijuana plants into a storage unit. Finally, Boustany was able to confirm the accuracy
of Dawson’s vehicle descriptions immediately upon his arrival at the facility. (See id. at
p. 468 [noting the tipster provided a “firsthand, contemporaneous description of the
crime” and “an accurate and complete description of the perpetrator and his location, the
details of which were confirmed within minutes by the police when they arrived”].)
Defendant cites two cases in support of his argument. In the first, People v.
Jordan (2004) 121 Cal.App.4th 544 (Jordan), an anonymous caller contacted 911 to
report there was a man at a specific location in possession of a gun. (Id. at p. 548.) The
caller provided a description of the man and his general location. (Id. at p. 549.) The
appellate court found this information of readily observable aspects of a person’s
appearance and location insufficiently reliable to justify the defendant’s detention. (Id. at
pp. 554, 558.)
Defendant also cites People v. Saldana (2002) 101 Cal.App.4th 170, in which the
appellate court reversed the lower court’s denial of a suppression motion for lack of
8
reasonable suspicion. There, an anonymous tipster called police and accurately described
the defendant’s location and vehicle, gave a partial license plate number for the vehicle,
and said the defendant was carrying a gun and a kilo of cocaine. (Id. at pp. 172–173.)
Police observed defendant and learned he had an outstanding warrant, whereupon they
detained him and discovered marijuana and methamphetamine in his vehicle. (Id. at
pp. 172–174.) The appellate court’s ruling hinged largely on the informant’s anonymity,
that his “tip contained no internal indicia of the basis for or reliability of the informant’s
information,” and that police observing defendant saw nothing suspicious about his
conduct. (Id. at pp. 175–176.)
Similarly, in a case cited in Jordan and Saldana, although not by defendant,
Florida v. J.L. (2000) 529 U.S. 266 (J.L.), an anonymous tipster reported to police that a
man, whose appearance and location the tipster accurately described, was carrying a gun,
but the tipster offered no explanation for how he knew this to be the case and police saw
no gun when they encountered the man. The United States Supreme Court found this
anonymous and unexplained tip was insufficient to justify a “stop and frisk” search of the
man because “[a]n accurate description of a subject’s readily observable location and
appearance . . . does not show that the tipster has knowledge of concealed criminal
activity.” (Id. at p. 272.)
Jordan, Saldana and J.L. are inapposite because they involve anonymous tips
from informants whose reliability could not be ascertained. Boustany had information
about Dawson, who was not anonymous. Her position as the manager of a business, her
persistence in calling a second time, and the details she provided (including that she had
seen plants being loaded into a storage unit) were all reasons to believe her report was
reliable. Further, upon arriving at the facility, Boustany observed suspicious aspects of
defendant’s behavior, as he noticed that the two men appeared to be “shocked and
stunned” to see his patrol car when he pulled into the storage facility. “Nervous, evasive
behavior is undoubtedly a potentially significant factor to be considered in determining
whether . . . reasonable suspicion . . . exists.” (People v. Evans (2011)
200 Cal.App.4th 735, 754, citing Illinois v. Wardlow (2000) 528 U.S. 119, 124 [“nervous,
9
evasive behavior is a pertinent factor in determining reasonable suspicion”].)
Defendant’s nervous behavior, when considered with the other evidence, is a further
reason to suspect that defendant might be engaged in criminal activity.
Finally, contrary to defendant’s contention that nothing indicates he posed a
danger to public safety, Boustany encountered him as defendant was about to drive away
from the storage unit facility. Boustany could have reasonably suspected defendant
might pose a risk to others on the public roadway, since Dawson’s report suggested
defendant might be driving while under the influence. (See People v. Wells, supra,
38 Cal.4th at p. 1083 [“California cases indicate that a citizen’s tip may itself create a
reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially
if the circumstances are deemed exigent by reason of possible reckless driving or similar
threats to public safety”].)
In short, we conclude based on the totality of the circumstances that the court’s
order denying defendant’s suppression motion was supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Sanders (A144585)
11