In re Joseph P. CA1/2

Filed 12/22/20 In re Joseph P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re JOSEPH P., a Person
Coming Under the Juvenile Court
Law.
THE PEOPLE,
Plaintiff and Respondent,
A159187
v.
JOSEPH P., (Solano County
Super. Ct. No. J44732)
Defendant and Appellant.

Minor Joseph P. was observed by a police officer to be in possession of a
marijuana joint, an infraction under Health and Safety Code section 11357.
The officer told Joseph he was going to issue a citation and then searched
Joseph’s backpack, discovering additional marijuana, alcohol, and one pill of
a controlled substance. He arrested Joseph based on the contents of the
backpack, and subsequently recovered a knife from Joseph’s sock. The
juvenile court denied Joseph’s motion to suppress the items recovered by the
officer. Following a contested jurisdictional hearing, the court found true
allegations that Joseph possessed a dirk or dagger, a controlled substance, an
alcoholic beverage, and 28.5 grams of marijuana or less, and he was placed on

1
probation. He appeals, contending his suppression motion was wrongly
denied because the warrantless search was not justified as a search incident
to arrest where the officer intended only to cite him. We agree, and we
reverse the true findings on all counts and the dispositional order.
FACTUAL BACKGROUND1
On the afternoon of May 26, 2019, Napa Police Officers O’Mary and
Medina were on a bicycle assignment at the BottleRock music festival. As
they were patrolling the outer perimeter of the festival, they came to a stop at
the front entrance, where they began to moderate the flow of people arriving
at and leaving the festival. There was a significant police presence in the
area, with two California Highway Patrol officers standing near the main
gate about 50 feet away, another California Highway Patrol K-9 officer right
in front of the main gate about 75 feet away, and two police officers every
block or two.
As they were managing the crowd, O’Mary saw a car pull up and four
youths get out. They walked to the sidewalk, and one of them, Joseph, sat
down on a concrete wall facing O’Mary’s direction. O’Mary, who was about
20 feet away, could see Joseph had something in his mouth that, in the
officer’s experience, appeared to be a hand rolled cigarette or marijuana joint.
O’Mary was looking at Joseph to identify what was in his mouth when
Joseph looked in his direction and quickly reached up, cupped the item in his
hand, took it out of his mouth, and brought it down to his lap. O’Mary
watched Joseph for 30 to 60 seconds, and Joseph just carried on, still holding
the object in his closed hand, which made it appear to the officer he was
trying to conceal it.

1We derive the facts from testimony given at the hearing on Joseph’s
motion to suppress.

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 O’Mary decided to talk to Joseph to determine what the object was, so
he walked up to him and asked how old he was and what was in his hand.
Joseph responded that he was 16 years old and that it was a marijuana joint,
opening his hand to reveal what he was holding. Because it was a violation
of the law for an individual under the age of 21 to possess marijuana, O’Mary
took the joint and asked Joseph for identification. Joseph produced an
Arizona identification card, explaining he lived locally but had lived in
Arizona for a short time. O’Mary thought that “was a little bit off . . . [b]ut it
wasn’t a huge issue at that time.”
O’Mary asked Joseph if he had any more marijuana on him, and Joseph
said he did not. O’Mary then asked him to remove a backpack he was
wearing. Joseph complied, and O’Mary placed it on the concrete wall and
then “eventually ended up searching” it, explaining:
“I searched the backpack to look, to attempt to locate additional
marijuana. From my training and experience people that possess marijuana,
especially a marijuana joint, you don’t buy a marijuana joint. That’s very
uncommon. People typically are buying what is called a dime sack, just a $10
bag of marijuana, a dub sack, which is [a] $20 bag of marijuana, quarter
ounce, an eighth ounce, quarter ounce, half ounce, or in this case an ounce
bag of marijuana. People buy in these quantities and then break them down
to use them in their desired amounts.
“Also from my training and experience people possess and carry these
amounts of marijuana with them as they travel out, be it on a bicycle or on
foot or in a vehicle. It’s very common if you find a small usable amount of
marijuana, there to be additional marijuana accompanying them.”
As O’Mary was searching Joseph’s backpack (about six to eight minutes
into the encounter), Joseph asked Medina if he was under arrest or was going

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to go to juvenile hall. O’Mary told him he was going to be cited and released.
As O’Mary described it: “[H]e seemed kind of antsy . . . his legs were moving
as he was sitting there. And I kind of told him, ‘just relax. We are going to
get you identified and get you a ticket and get you out of here.’ It was like we
were in a very busy area with a lot of different people and a lot of different
avenues of escape. And the juvenile appeared to be in really good physical
condition. It was my concern that, you know, he may be fearful that he’s in
some big trouble, and he may try to leave or run. And earlier during this
event, in past years, or actually this year and past years, I have had people
flee on foot from me, you know, while on a bicycle at this event.”
In Joseph’s backpack, O’Mary found a 750-milliliter bottle of vodka, a
plastic baggie containing “a large amount of marijuana, approximately an
ounce of marijuana,” a jar that contained marijuana, a heat-sealed package
containing three or four marijuana joints, and a pill bottle containing a single
pill. Joseph said it was pain medication for a recent injury to his hand. The
prescription label on the bottle had been removed, but O’Mary determined
the pill was a controlled substance.
After discovering the items in the backpack, O’Mary decided to arrest
Joseph. Asked at the suppression hearing, “And you only decided to arrest
him after you found the additional items in the backpack?” O’Mary
confirmed, “Yeah. It was the totality of everything that was there. You
know, with the large amount of marijuana, full bottle of alcohol, you know, a
pain pill and being in the company of other juveniles, who appeared to be
younger than him was not a good recipe.”
Medina placed Joseph in handcuffs and escorted him to a nearby police
car. O’Mary asked Joseph if he had anything else illegal in his possession,
and Joseph said he had a knife in his sock, which Medina retrieved.

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 PROCEDURAL BACKGROUND
A Welfare and Institutions Code section 602, subdivision (a) petition
filed on May 29, 2019, alleged Joseph committed four offenses: (1) felony
possession of a dirk or dagger; (2) felony possession of a controlled substance;
(3) misdemeanor possession of an alcoholic beverage by minor; and
(4) possession of marijuana 28.5 grams or less. The fourth count—possession
of marijuana—was an infraction in violation of Health & Safety Code section
11357.2
On June 5, Joseph filed a motion to suppress evidence illegally obtained
on May 26.
In an opposition filed June 13, the prosecutor argued that O’Mary’s
initial contact with Joseph was consensual, Joseph’s detention was lawful,
O’Mary had probable cause for custodial arrest, and he conducted a search
incident to lawful arrest.
Joseph’s motion came on for hearing on June 18. Joseph’s counsel
argued that he had been detained so a limited search for weapons was
permissible, but O’Mary’s testimony made it clear that what he conducted
was not a weapons search, and Joseph did not give free and voluntary
consent for the search. According to counsel, probable cause for an arrest did

2 The petition alleged that count four was a violation of Health and
Safety Code section 11357, subdivision (b)(1). However, subdivision (b)(1)
concerns possession by a minor of 28.5 grams or more, while subdivision (a)(1)
concerns possession by a minor of 28.5 grams or less. It thus appears
subdivision (a)(1) was the applicable provision, although both offenses are
infractions, albeit with different punishments.

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not arise until the backpack was searched, and because Joseph was arrested
based on the contents of the backpack, the search was not incident to arrest.3
The court asked if it was accurate that once Joseph admitted he
possessed marijuana, he was in violation of the Health and Safety Code,
which constituted sufficient grounds to arrest him, and that under Atwater v.
City of Lago Vista (2001) 532 U.S. 318, a search incident to arrest for an
infraction did not violate the Fourth Amendment. Joseph’s counsel
responded that O’Mary admitted he had no intention of arresting Joseph
based on the joint he had in his hand and only decided to arrest him after he
searched the backpack.
The prosecutor disagreed that O’Mary’s subjective intent was relevant:
“It’s objective what a reasonable officer could have done in this situation.
And a reasonable officer in this situation could arrest him on the spot for that
marijuana joint.”
Following that brief argument, the trial court denied the motion,
stating:
“The Court will deny the motion to suppress given that a reasonable
officer could have arrested Joseph for the infraction. The officer had the
ability to conduct a search incident to arrest, and as you know the arrest can
occur immediately afterwards. There does have to be probable cause to
arrest prior to the search. And the officer had that.
“And looking at this in a slightly different way, even if this were a

3 Joseph’s opening brief on appeal likewise argues that the officers
lacked probable cause for an arrest prior to the search. In a supplemental
reply brief, Joseph clarifies that he “no longer advances a claim that the
officer lacked probable cause to arrest him for a citation-only offense under
the Fourth Amendment.”

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non-custodial arrest, then People v. Coleman[4] would apply. And in that case
the officer has the ability to conduct a search for evidence of the crime,
contraband or stolen goods and weapons.
“And Officer O’Mary’s testimony about his training and experience that
if there is one marijuana joint, that there is often more marijuana, that would
give him reason to search the backpack for contraband.”
On September 17, Joseph filed a motion for reconsideration of his
suppression motion. The motion was brought by new counsel for Joseph on
the ground that his prior counsel did not present argument regarding
People v. Macabeo (2016) 1 Cal.5th 1206 (Macabeo) in connection with the
initial motion.
On September 24, the matter came on for a hearing on Joseph’s
reconsideration motion and for a contested jurisdictional hearing. After
hearing argument, the court denied the motion. Relying primarily on
Coleman, supra, 229 Cal.App.3d 321 and People v. Brocks (1981)
124 Cal.App.3d 959 (Brocks), it again reasoned that someone who commits an
infraction can be arrested, and since Joseph committed an infraction, O’Mary
could search him incident to arrest.
The contested jurisdictional hearing followed, at the conclusion of
which the court found all four counts to be true. It granted Joseph’s motion
to reduce count 1 to a misdemeanor, and ordered the matter transferred to
Solano County (Joseph’s county of residence).
On November 15, the Solano County juvenile court adjudged Joseph a
ward of the court and placed him under the supervision of the probation
department in his mother’s home.
This timely appeal followed.

4 People v. Coleman (1991) 229 Cal.App.3d 321 (Coleman).

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 After briefing was complete, Joseph, again represented by new counsel,
requested leave to file supplemental briefing to address issues not fully
developed by his prior counsel. We granted his request, and supplemental
letter briefs were filed by both parties.
DISCUSSION
The Fourth Amendment and the Standard of Review
We review issues relating to the suppression of evidence obtained in a
governmental search under federal constitutional standards. (People v.
Troyer (2011) 51 Cal.4th 599, 605.) “The Fourth Amendment to the federal
Constitution prohibits unreasonable searches and seizures.” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.) As the United States
Supreme Court has stated, “ ‘[T]he ultimate touchstone of the Fourth
Amendment is “reasonableness.” ’ [Citation.] Our cases have determined that
‘[w]here a search is undertaken by law enforcement officials to discover
evidence of criminal wrongdoing, . . . reasonableness generally requires the
obtaining of a judicial warrant.’ . . . In the absence of a warrant, a search is
reasonable only if it falls within a specific exception to the warrant
requirement.” (Riley v. California (2014) 573 U.S. 373, 381–382.) “One such
exception is a search incident to lawful arrest. . . . [¶] . . . [¶] A search
incident to arrest ‘has traditionally been justified by the reasonableness of
searching for weapons, instruments of escape, and evidence of crime when a
person is taken into official custody and lawfully detained.’ ” (Macabeo,
supra, 1 Cal.5th at pp. 1213–1214.) The People bear the burden of
establishing that the exception applies. (People v. Schmitz (2012) 55 Cal.4th
909, 933.)
“The standard of review of a trial court’s ruling on a motion to suppress
is well established and is equally applicable to juvenile court proceedings.

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‘ “On appeal from the denial of a suppression motion, the court reviews the
evidence in a light favorable to the trial court’s ruling. [Citation.] We must
uphold those express or implied findings of fact by the trial court that are
supported by substantial evidence and independently determine whether the
facts support the court’s legal conclusions.” ’ ” (In re Lennies H. (2005)
126 Cal.App.4th 1232, 1236.)
The Search of Joseph’s Backpack Violated the Fourth
Amendment Prohibition Against Unreasonable Searches
As noted above, and as recognized long ago, a warrantless search
incident to arrest is generally permissible under the Fourth Amendment.
(People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812 [“It is now settled
that as an incident to a lawful arrest, a warrantless search limited both as to
time [citation] and place [citation] may be made”].) The question here is
whether the Fourth Amendment permits a warrantless search where there
was probable cause for an arrest, but the offense was an infraction and the
officer intended to issue a citation rather than effectuate a custodial arrest.
In Macabeo, supra, 1 Cal.5th 1206, our Supreme Court recently answered
this question in the negative. Macabeo and cases discussed therein are
equally applicable to the facts here and compel us to conclude that the search
of Joseph’s backpack ran afoul of the Fourth Amendment.
In Macabeo, supra, 1 Cal.5th 1206, two officers were on patrol early one
morning when they spotted Macabeo riding a bicycle. They were following
him with their headlights off when they observed him fail to stop at a stop
sign, a Vehicle Code infraction that provided for a citation but not arrest.
They activated their overhead lights and stopped him. One of the officers
asked Macabeo a series of standard questions, which he answered, although
he gave inconsistent responses about his probation status. When asked to
walk toward the police car, put his hands up, and spread his feet, Macabeo

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offered that he had nothing illegal on him. One officer asked if he had “ ‘any
problem with me taking stuff out of your pockets,’ ” and he responded, “ ‘go
ahead.’ ” The officer removed a number of items, including Macabeo’s phone.
He gave the phone to the second officer, who searched it and discovered
images of underaged girls. Macabeo was arrested for possession of the
photos. (Id. at pp. 1210–1212.)
The trial court denied a motion by Macabeo to suppress the
photographs. It accepted the prosecutor’s argument that the search of the
phone was constitutional because Macabeo was lawfully searched incident to
arrest since he “could have been” arrested for running the stop sign. The
Court of Appeal affirmed. (Macabeo, supra, 1 Cal.5th at p. 1212.)
Our Supreme Court reversed, rejecting the People’s successful
argument below that the search constituted a permissible search incident to
arrest because the officers could have arrested Macabeo for failing to stop at
the stop sign. (Macabeo, supra, 1 Cal.5th at pp. 1217–1219.) In advancing
this argument, the People relied on Rawlings v. Kentucky (1980) 448 U.S. 98
(Rawlings), in which the United States Supreme Court, in upholding a
warrantless search, stated, “Where the formal arrest followed quickly on the
heels of the challenged search of petitioner’s person, we do not believe it
particularly important that the search preceded the arrest rather than vice
versa.” (Id. at p. 111.) According to the Macabeo Court, the People “read far
too much into the Rawlings comment about the order in which discovery of
probable cause is made and the effectuation of a formal arrest takes place. In
Rawlings, the court concluded there was probable cause to arrest based on
his voluntary statements made before any search of his person. [Citation.]
Rawlings merely established that when an arrest is supported by probable
cause, after-acquired evidence need not be suppressed because an otherwise

10
properly supported arrest was subsequently made formal.”5 (Macabeo at
p. 1217.)
Macabeo also found the People’s argument to be “in tension” with
Knowles v. Iowa (1998) 525 U.S. 113 (Knowles). (Macabeo, supra, 1 Cal.5th
at pp. 1217–1219.) Knowles was stopped for speeding in Iowa. The police
officer issued him a citation, although Iowa law also permitted the officer to
arrest him. The officer then conducted a full search of Knowles’s car, found
drugs and drug paraphernalia, and arrested him. (Knowles, at p. 114.)
Knowles moved to suppress the evidence recovered from his car, arguing
“that the search could not be sustained under the ‘search incident to arrest’
exception . . . because he had not been placed under arrest.” The trial court
upheld the search on the grounds that Iowa law authorized the police officer
to arrest defendant or issue a citation and also provided that “the issuance of
a citation in lieu of an arrest ‘does not affect the officer’s authority to conduct
an otherwise lawful search.’ ” (Id. at pp. 114–115.) The Iowa Supreme Court
affirmed, “reasoning that so long as the arresting officer had probable cause
to make a custodial arrest, there need not in fact have been a custodial
arrest.” (Id. at pp. 115–116.)
The United States Supreme Court reversed. It began its analysis by
recognizing the “two historical rationales for the ‘search incident to arrest’
exception: (1) the need to disarm the suspect in order to take him into
custody, and (2) the need to preserve evidence for later use at trial.”

5In Rawlings, supra, 448 U.S. 98, officers entered a home to serve an
arrest warrant. While there, they smelled marijuana smoke and observed
marijuana seeds. They obtained a search warrant and asked one of the
occupants of the house to empty her purse. She did so, revealing various
drugs. She told Rawlings to take what was his, and he admitted the drugs
belonged to him. Officers then searched Rawlings, found substantial cash
and a knife, and arrested him. (Id. at pp. 100–101.)

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(Knowles, supra, 525 U.S. at p. 116.) And it concluded that once the citation
was issued neither rationale justified the search. (Id. at pp. 117–118.) As to
officer safety, the Court explained that the threat from issuing a traffic
citation “is a good deal less than in the case of custodial arrest” since a
routine traffic stop is “a relatively brief encounter” while a custodial arrest
involves “ ‘the extended exposure which follows the taking of a suspect into
custody and transporting him to the police station.’ ” (Id. at p. 117.) With
respect to evidence preservation, the Court reasoned there was no evidence
related to the offense to be preserved since “[o]nce Knowles was stopped for
speeding and issued a citation, all the evidence necessary to prosecute that
offense had been obtained. No further evidence of excessive speed was going
to be found . . . .” (Id. at p. 118.)
After discussing Rawlings, Knowles, and other cases (including
Virginia v. Moore (2008) 553 U.S. 164, United States v. Chadwick (1977)
433 U.S. 1, Chimel v. California (1969) 395 U.S. 752, and Riley v. California,
supra, 573 U.S. 373), Macabeo then summarized their significance, as
follows:
“These cases, taken together, stand for the following principles. When
a custodial arrest is made, and that arrest is supported by independent
probable cause, a search incident to that custodial arrest may be permitted,
even though the formalities of the arrest follow the search. (Rawlings.)
There is no exception for a search incident to citation. (Knowles.) If an
actual arrest takes place, a search incident to that arrest is allowed if it is
supported by federal Fourth Amendment jurisprudence, more restrictive
state law notwithstanding. (Moore.) Even the search incident exception may
be limited when attendant circumstances show the arrestee had no potential

12
to put an officer in jeopardy, to escape, or to destroy evidence. (Chimel,
Chadwick, Riley.)
“These authorities make clear that Rawlings does not stand for the
broad proposition that probable cause to arrest will always justify a search
incident as long as an arrest follows. Otherwise, Knowles would have been
decided differently. The officer in Knowles had probable cause to arrest for a
traffic infraction, but elected not to do so. (Knowles, supra, 525 U.S. at
p. 114.) Once it was clear that an arrest was not going to take place, the
justification for a search incident to arrest was no longer operative.”
(Macabeo, supra, 1 Cal.5th at pp. 1218–1219.)
Applying these principles to the circumstances of Macabeo’s case, our
Supreme Court concluded that the facts there were “analogous to Knowles,
and the high court’s rationales for not applying the incident search exception
have equal force here.” (Macabeo, supra, 1 Cal.5th at p. 1219.) According to
the Court, the threat to the officers that stopped Macabeo was the same as
the threat to the officer in Knowles, and “these officers were no more likely to
find additional evidence of his failure to stop at a stop sign by searching him
than the officers in Knowles were likely to find evidence of speeding.” Thus,
the Court concluded that the search did not qualify as incident to arrest
under the Fourth Amendment.6 (Ibid.)

6 In his supplemental letter brief, Joseph cites as “critical” the following
statement by the Macabeo court: “Nor does it appear that there are objective
indicia to suggest, as the People’s argument presumes, that the officers would
have arrested defendant in violation of state law.” (Macabeo, supra,
1 Cal.5th at p. 1219.) Based on this, he proposes that we adopt the following
rule: “[T]he search incident to arrest doctrine authorizes a pre-arrest search
of a person and items within reaching distance where there are objective
indicia to suggest an officer would have arrested—and not simply cited and/or
released—the person based on information known to the officer prior to the
initiation of the search.” The statement on which Joseph relies was made in

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 Macabeo compels reversal here. It is enough to echo the Court’s
takeaway from Knowles: “There is no exception for a search incident to
citation.” (Macabeo, supra, 1 Cal.5th at p. 1218.) O’Mary’s testimony at the
suppression hearing—that he told Joseph they were going to “get [him] a
ticket and get [him] out of here”—confirmed that he did not intend to arrest
Joseph for possession of the joint.7 The People claim he made this statement
“because [Joseph] seemed ‘antsy’, and O’Mary feared [he] might flee, not
because he actually intended to cite and release” Joseph. This claim is
contradicted by O’Mary’s testimony that he decided to arrest Joseph only
after he searched the backpack. When asked, “And you only decided to arrest
him after you found the additional items in the backpack?” he responded,
“Yeah. It was the totality of everything that was there. You know, with the
large amount of marijuana, full bottle of alcohol, you know, a pain pill and
being in the company of other juveniles, who appeared to be younger than
him was not a good recipe.” While O’Mary may have had other options (see,
e.g., Welf. & Inst. Code, § 625, subd. (a)), it is clear he intended to issue a
citation, nothing more.
Beyond that, the rationales for the search incident to arrest exception
do not apply here. The threat to officer safety was minimal since the

the context of distinguishing Macabeo’s situation from Virginia v. Moore,
supra, 553 U.S. 164, and was not the Macabeo court’s endorsement of the rule
Joseph proposes.
7 We are cognizant that an officer’s subjective intentions “play no role
in ordinary, probable-cause Fourth Amendment analysis.” (Whren v. United
States (1996) 517 U.S. 806, 813; accord, Devenpeck v. Alford (2004) 543 U.S.
146, 153 [“an arresting officer’s state of mind (except for the facts that he
knows) is irrelevant to the existence of probable cause”]; People v. Ovieda
(2019) 7 Cal.5th 1034, 1052.) But O’Mary’s intention in this regard goes not
to the question of probable cause but to whether this was a search incident to
a citation or a search incident to an arrest.

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issuance of the citation was to be “a relatively brief encounter.” (Knowles,
supra, 525 U.S. at p. 117; accord, Macabeo, 1 Cal.5th at p. 1219.) Further,
there was significant law enforcement present in the nearby surrounds. As
to the preservation of evidence of a crime, possession of marijuana by a minor
is an infraction whether the minor has 28.5 ounces or less (Health & Saf.
Code, 11357, subd. (a)(1)) or more than 28.5 ounces (id., § 11357, subd. (b)(1)),
as are possession by a minor for sale (id., § 11359, subd. (a)) and unlawful
transportation, importation, sale, or gift (id., § 11360, subd. (a)(1)). Thus,
Joseph’s offense was going to be an infraction whether or not O’Mary
searched him and found additional marijuana.
A recent decision by our colleagues in Division Three provides further
support for our conclusion. In In re D.W. (2017) 13 Cal.App.5th 1249, three
San Francisco police officers were patrolling an area in response to a report of
someone with a firearm. They saw a number of individuals with known gang
affiliations standing on a corner in rival gang territory. Concerned about the
possibility of violence, the officers made contact with the group, which
included D.W. One of the officers smelled marijuana on D.W.’s clothes and
breath and commented that he smelled like marijuana. D.W. admitted he
had just smoked some. The officers decided to search him for more
marijuana and told him to put his hands on his head. When D.W. responded
by trying to pull away, one of the officers put his hand underneath D.W.’s
backpack and felt a revolver. The officers handcuffed D.W. and removed the
revolver from the backpack. After the search, the officers determined D.W.
was 17 years old. (Id. at p.1251.)
The trial court denied D.W.’s move to suppress the weapon (In re D.W.,
supra, 13 Cal.App.5th at p. 1251), but the Court of Appeal reversed. It relied
on the principles summarized in Macabeo, most notably that “ ‘[t]here is no

15
exception for a search incident to citation.’ ” (In re D.W., supra,
13 Cal.App.5th at p. 1253, quoting Macabeo, supra, 13 Cal.App.5th at
p. 1218.) And it concluded that “the search fails to satisfy the Fourth
Amendment because when officers decided to search D.W., they had neither
cause to make a custodial arrest nor evidence that he was guilty of anything
more than an infraction.” (In re D.W. at p. 1253.) Instead, the court
explained, the officers “searched D.W. because he smelled like marijuana and
admit[ted] to recently smoking some. But at the time of this search in 2015,
possession of less than 28.5 grams of marijuana was an infraction punishable
by a fine of not more than $100. (Health & Saf. Code, § 11357, former subd.
(b).) Under California law ingestion or possession of marijuana was a minor,
nonjailable offense. (People v. Hua (2008) 158 Cal.App.4th 1027, 1037.)
Moreover, even if the officers could reasonably conclude that the smell of
marijuana and D.W.’s admission that he just smoked some meant he had
more, it would have been mere conjecture to conclude that he possessed
enough to constitute a jailable offense.” (Ibid.)
Joseph’s situation differs from that in In re D.W. in that the officers
there lacked probable cause for an arrest, while here Joseph’s possession of
marijuana constituted probable cause. But that distinction does not render
In re D.W. inapposite. In re D.W. reiterated what the Supreme Court
recognized in Macabeo: “a lawful arrest supported by probable cause
provides authority for a search, but that ‘there is no exception for a search
incident to citation.’ ” (In re D.W., supra, 13 Cal.App.5th at p. 1252.) Here,
there was no lawful arrest, and thus no authority for a search.
While these California authorities provide ample support for our
conclusion, we find further affirmation of our position in State v. Lee (2017)
402 P.3d 1095 (Lee), where the Supreme Court of Idaho considered whether

16
an officer had probable cause for a search incident to arrest where the officer
“could have” arrested Lee for driving without privileges but instead told him
he was going to issue a citation and then searched him and found drug-filled
containers. (Id. at pp. 1099, 1103.) The facts of that case were these: An
officer saw Lee driving and suspected, due to a prior encounter, that he was
driving without a valid license. After Lee came out of a store, the officer
made contact with him and asked for his driver’s license. Lee began patting
his pockets and said he did not have his license on him. The officer did a pat-
down search for weapons and felt several cylindrical items in a pocket, which
he removed. One of the items was a pocketknife, the other two were
containers that the officer believed contained contraband. The officer told
Lee that he was “ ‘detained right now’ ” and “ ‘he was ‘going to get a citation
for driving without privileges,’ ” and placed him in the patrol car. He then
examined the containers which did, in fact, contain contraband. He arrested
Lee for drug-related offenses and driving without privileges. (Id. at p. 1099.)
Noting that Lee’s appeal from the denial of a suppression motion
asserted only federal constitutional claims (Lee, supra, 402 P.3d at p. 1100),
the court discussed Knowles, supra, 525 U.S 113 at length. (Lee, at pp. 1103–
1104.) After observing that “the only difference between Knowles and this
case is that Knowles was issued a citation before the search,” the court
agreed with Lee that “the distinction between actually issuing a citation and
stating that a citation will be issued is a distinction without a difference
because the historical rationales [for a search incident to arrest] are not
present in both situations—when a citation is actually issued and when an
officer states that he is going to issue a citation.” (Lee, supra, 402 P.3d at
p. 1104.) As those rationales applied to that case, there was no need for
evidence preservation since “all the evidence that was needed to issue Lee a

17
citation for driving without privileges had already been obtained before the
search,” and the officers had already frisked Lee for weapons and he knew
that “no other weapons would be found in the containers” because they were
containers that would typically contain contraband. (Ibid.)
The Lee court also discussed out-of-state authorities holding “that the
search incident to arrest exception should not apply when no arrest is to take
place.” (Lee, supra, 402 P.3d at p. 1104.) These decisions included People v.
Reid (N.Y. 2014) 26 N.E.3d 237, 239 (“It is irrelevant that, because probable
cause existed, there could have been an arrest without a search. A search
must be incident to an actual arrest, not just to probable cause that might
have led to an arrest, but did not”); State v. Taylor (Ariz. Ct. App. 1990)
808 P.2d 324, 325 (officers are not “free to search anyone they might arrest
but have no intention of arresting under a search incident to arrest theory”);
and Macabeo, supra, 1 Cal.5th 1206. (Lee, supra, at p. 1105.) After agreeing
with the rationale of Reid, Taylor, and Macabeo, the Lee court stated: “The
reasonableness of a search is determined by the totality of the circumstances,
and a search incident to arrest is not reasonable when an arrest is not going
to occur. We determine if an arrest is going to occur based on the totality of
the circumstances, including the officer’s statements. While the subjective
intent of an officer is usually not relevant in Fourth Amendment analysis,
statements made by the officer of his intentions along with other objective
facts are relevant in the totality of circumstances as to whether an arrest is
to occur. If an arrest does not occur, and objectively the totality of the
circumstances show an arrest is not going to occur, an officer cannot justify a
warrantless search based on the search incident to arrest exception.” (Lee, at
p. 1105.)

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 Applying that standard, the Lee court concluded that the search of
Lee’s containers was unlawful. The officer told Lee he was going to be cited
for driving without privileges. It was only after the officer searched him and
discovered the containers of drugs that he decided to arrest him. These
circumstances, the court said, showed that no arrest was going to happen
prior to the search, the search was thus incident only to a citation, and the
search incident to arrest exception to the warrant requirement did not apply.
(Lee, supra, 402 P.3d at pp. 1105–1106.) That was the situation here:
O’Mary told Joseph he was going to be cited for possession of the joint; it was
only after O’Mary searched Joseph’s backpack and found alcohol and
additional drugs that he decided to arrest him. As in Lee, these
circumstances “show[ed] that no arrest was going to [happen prior to the
search], the search was [thus] incident only to an intended citation, . . . and
the search incident to arrest exception to the warrant requirement did not
justify the search.” (Ibid.)
The juvenile court here primarily relied on a trio of cases—Atwater v.
City of Lago Vista, supra, 532 U.S. 318, Coleman, supra, 229 Cal.App.3d 321,
and Brocks, supra, 124 Cal.App.3d 959—to deny Joseph’s motion. The People
rely on them as well. None of those cases justified O’Mary’s search. Atwater
held that the Fourth Amendment did not forbid a warrantless arrest for a
misdemeanor seatbelt violation punishable by a fine. (Atwater, supra,
532 U.S. at p. 323.) This has no bearing on whether the Fourth Amendment
permits a search incident to a citation where the offender committed only an
infraction and the officer did not intend to make an arrest.
As to Coleman, supra, 229 Cal.App.3d 321 and Brocks, supra,
124 Cal.App.3d 959, neither case involved the commission of an infraction,
which was the basis of O’Mary’s decision to cite, rather than arrest, Joseph.

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Instead, both involved officers searching for evidence of the jailable offense
they had reason to believe defendant committed—again, not the situation
here.
As they did in Macabeo, the People also rely on the statement in
Rawlings that “Where the formal arrest followed quickly on the heels of the
challenged search of petitioner’s person, we do not believe it particularly
important that the search preceded the arrest rather than vice versa.”
(Rawlings, supra, 448 U.S. 98 at p. 111.) According to them, under Rawlings,
the fact the “officers did not formally arrest [Joseph] until after the search of
the backpack is immaterial, because O’Mary had probable cause to arrest
[him] based on [his] admission that he possessed a marijuana joint.” But, as
discussed above, Macabeo already rejected this reading of Rawlings.
(Macabeo, supra, 1 Cal.5th at p. 1217)
In a nutshell, a “ ‘search must be incident to an actual arrest, not just
to probable cause that might have led to an arrest, but did not.’ ” (People v.
Lee, supra, 402 P.3d at p. 1105, quoting People v. Reid, supra, 26 N.E.3d at
p. 239.) As O’Mary only intended to cite Joseph, the search incident to arrest
exception did not apply. The warrantless search of Joseph’s backpack thus
violated the Fourth Amendment.
The True Findings on All Counts Must Be Reversed
Joseph urges us to reverse the juvenile court’s jurisdictional findings on
all four counts, as well as the resulting dispositional order. The People argue
that the true findings as to counts 1 and 4 should not be reversed, implicitly
conceding that reversal of counts 2 and 3 is warranted if we conclude, as we
do, that the search was unlawful. We believe Joseph is correct: the true
findings on all counts must be reversed.

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 As to count 1 (possession of a dirk or dagger), the People assert that the
exclusionary rule should not apply to the knife recovered from Joseph’s sock
because of the inevitable discovery rule. Pursuant to that rule, evidence
seized in violation of the Fourth Amended need not be excluded “if the
prosecution can establish by a preponderance of the evidence that the
information would inevitably have been discovered by lawful means.”
(People v. Carpenter (1999) 21 Cal.4th 1016, 1040; accord, Nix v. Williams
(1984) 467 U.S. 431, 444.)
In support of their claim that the inevitable discovery rule should apply
to the knife, the People argue only this: “O’Mary testified that he found the
knife in appellant’s sock after asking appellant if ‘there was anything
additional illegal on his person,’ to which appellant responded that there was
a knife in his sock. [Citation.] Though the officer posed this question after
searching appellant’s backpack, the evidence suggested he would have posed
the question based on the marijuana joint alone. As previously explained,
O’Mary’s observations of appellant with the marijuana joint and appellant’s
admission that he possessed marijuana led the officer to believe appellant
had additional marijuana on his person. Even assuming the illegality of the
search of the backpack, O’Mary did not exploit that illegality to obtain
appellant’s admission that he had a knife. (See Wong Sun v. United States
(1963) 371 U.S. 471, 488 [‘the more apt question [in determining whether to
suppress “fruit of the poisonous tree” evidence] is “whether, granting
establishment of the primary illegality, the evidence to which instant
objection is made has been come at by exploitation of that illegality or instead
by means sufficiently distinguishable to be purged of the primary taint”
[Citation]’); see also People v. Avila (1997) 58 Cal.App.4th 1069, 1075 [‘[t]he
Fourth Amendment was not designed to protect a defendant from his own

21
candor’].)” The People have not established that the knife would have been
discovered by legal means.
Joseph admitted possession of the knife only after the illegal search of
his backpack and after he had been placed in handcuffs. It is pure
speculation that had O’Mary proceeded with citing Joseph for possession of
the joint he also would have asked Joseph if he had anything else illegal on
him and, further, that Joseph would have responded with candor. (See
People v. Wallace (2017) 15 Cal.App.5th 82, 95.) The prosecutor could have
developed a record on this at the suppression hearing, but did not do so. The
People’s speculation now is inadequate to make the requisite showing.
As to count 4 (possession of 28.5 ounces of marijuana or less), the
People argue that “the search of the backpack had no bearing on [Joseph’s]
guilt for this allegation [and] it need not be reversed.” But for the illegal
search of the backpack, however, Joseph would not have been arrested. It
naturally follows that without the search, this Welfare and Institutions Code
section 602, subdivision (a) proceeding would not have been commenced.
Count 4 cannot thus be sustained.
DISPOSITION
The juvenile court’s jurisdictional findings and the dispositional order
are reversed.

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 _________________________
Richman, J.

We concur:

_________________________
Kline, P.J.

_________________________
Stewart, J.

In re Joseph P. (A159187)

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