California Criminal Defense Lawyer Blog
You’ve been stopped by the police for speeding. Can the officer search your vehicle without your consent? The answer is yes and no. Yes, the officer can search your vehicle, without your consent, if he or she has probable cause to believe your vehicle contains evidence of a crime. This is one of the so-called automobile exceptions to 4th Amendment protections against unreasonable search and seizure.
Let’s say the officer stops your vehicle and as soon as you roll down the window, a strong waft of cannabis smoke hits the officer’s olfactory senses. While recreational cannabis is legal in California, smoking it while driving is not. In this scenario, the officer can establish probable cause—that is a reasonable belief based on the fact of the strong smell of burning cannabis in the vehicle—that there is evidence of crime in the vehicle, to wit: burned cannabis.
Let’s consider another scenario. The police encounter a group of known gang members in a parking lot. Several individuals are arrested for weapons possession. The car belonging to one of those individuals was parked in the parking lot where the police encounter occurred. Even though this individual (here, the defendant) was not in his car at the time, the police surmised they had probable cause to search the vehicle. And indeed, the law permits the police to search an unoccupied parked car if “there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.) Did the police have probable cause under this standard to believe evidence of a crime might be found in the car?
In a recent case, Mosley v. Superior Court (Apr. 5, 2024) 101 Cal.App.5th 243, the California Appellate Court (Third District Court of Appeal) considered this question. In the Mosley case, the defendant had twice declined consent to search his car. The officers searched anyway based on opinion—an opinion that was based on training and experience—that gang members often hide guns in their cars. Upon a search of the defendant’s car, a gun was found. After the vehicle search, a pat down search of the defendant was conducted based on the discovery of the gun in the defendant’s car. In the pat down search, the officers found a weapon on the defendant’s person.
The appellate court held that the officers failed to articulate objective facts that criminal evidence would be found in the car. The court viewed probable cause under the appropriate standard of “totality of the circumstances” and found that the facts known to the officers at the time was insufficient to establish probable cause. In other words, opinion or speculation, even opinion based on previous experience and officer training, was not enough to establish probable cause. Probable cause requires articulable objective facts.
The appellate court held that because the search of his vehicle was unlawful, the subsequent search of his person where the gun was found was also unlawful. This is known as the “fruit of the poisonous tree.” Consequently, not only was the evidence of the gun in the defendant’s car suppressed, but so was the finding of the gun on the defendant’s person. Without this evidence, the prosecution had no case against the defendant, at least in terms of any gun possession charges.
A motion to suppress can be a powerful defense tool when law enforcement acts unlawfully. Orange County criminal defense attorney William Weinberg will give careful consideration to the facts of your case for any potential motion to suppress. He is available for a complimentary consultation to review your matter. He may be contacted at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.