People v. Gasper

2009 | Cited 0 times | California Court of Appeal | August 14, 2009


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After denial of his motion to traverse a search warrant, defendant Dane Aaron Gasper pleaded no contest to cultivation of marijuana, and other charges were dismissed. (Health & Saf. Code, § 11358.) The trial court granted probation, and defendant appealed.

Defendant contends the adoption of Proposition 215 and related statutory enactments allowing the cultivation and use of marijuana for medical purposes means that marijuana is no longer presumptively illegal, and therefore its smell cannot provide probable cause. We affirm.


On January 24, 2007, South Lake Tahoe Detective Schyler Beaty signed an affidavit for a warrant to search defendant‟s home. The affidavit recites that an unnamed citizen thought defendant might be growing marijuana, saw defendant‟s electrical meter spinning rapidly, and heard a fan running upstairs. Detective Beaty walked by defendant‟s house and smelled "a strong odor of marijuana" and heard the fan, and saw upstairs windows open on both sides of the house, although adjacent houses did not have open windows. Based on his narcotics expertise, set forth in the affidavit, Detective Beaty opined the fans were used for "venting and cooling" rooms where marijuana was being grown. He researched and learned defendant had been convicted of possession for sale of marijuana and transporting methamphetamine. A deputy district attorney reviewed and approved the affidavit.

Defendant‟s house was searched pursuant to the warrant on January 24, 2007, revealing growing marijuana.

Defendant moved to traverse the warrant, claiming Detective Beaty lied in the affidavit. At the hearing, Detective Beaty testified that while "walking down the street" by defendant‟s house, he could smell "fresh marijuana." A police officer testified he smelled marijuana when he arrived at defendant‟s door during execution of the warrant. Defendant testified his filtration system prevented anyone from smelling marijuana from his house. The trial court, who was the magistrate who issued the warrant, found the marijuana smell was critical to probable cause, but defendant had not shown that Detective Beaty lied, therefore the court denied the motion to traverse, and a related motion to disclose the informant‟s name.


Defendant contends the smell of marijuana no longer provides an officer with probable cause to suspect that criminality is afoot.

The Attorney General properly objects that this claim was not tendered to the trial court. The relevance of probable cause in the trial court was the point that if the affiant lied about smelling marijuana, the lie was material to probable cause, a necessary showing for a motion to traverse. (People v. Panah (2005) 35 Cal.4th 395, 456.) However, because defendant raises a legal issue briefed by the parties, and to forestall a claim of incompetence of trial counsel, we reach the issue. (See People v. Hart (1999) 74 Cal.App.4th 479, 485-487.)

Defendant reasons that, after passage of Proposition 215, the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5, "CUA") and the Medical Marijuana Program (id. § 11362.7 et seq.), an officer who perceives marijuana has no way to know if a crime has been committed, and therefore such observation cannot supply probable cause. We disagree.

Possessing or cultivating marijuana are crimes. (Health & Saf. Code, §§ 11357, 11358.) When Detective Beaty smelled the odor of fresh marijuana coming from defendant‟s house, saw the upstairs windows open -- in January, in South Lake Tahoe -- and heard the fan, he rationally concluded based on his experience, that there was a ""fair probability‟" that a search would uncover criminal conduct, and therefore he properly sought and obtained a warrant from the magistrate. (See People v. Thuss (2003) 107 Cal.App.4th 221, 235 [test for issuance of warrant].)

The CUA provides an affirmative defense to charges of possession or cultivation of marijuana to those who qualify as medical marijuana users, giving those persons the burden at trial to raise a reasonable doubt about the lawfulness of their actions, that is, whether they are qualified medical marijuana users. (People v. Mower (2002) 28 Cal.4th 457, 481-483; People v. Fisher (2002) 96 Cal.App.4th 1147, 1151-1152 (Fisher); see People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1443-1444.) The CUA did not legalize marijuana. (See Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 928-929.)

In Fisher, a search warrant was issued based on the aerial observation of growing marijuana. Fisher showed officers serving the warrant a document indicating the marijuana was grown in compliance with the CUA, to no avail. (Fisher, supra, 96 Cal.App.4th at pp. 1149.) On appeal, Fisher claimed the officers had to contact the magistrate in order to determine whether probable cause still existed, in light of Fisher‟s document. (Id. at pp. 1150-1151.) We disagreed, pointing out the warrant was a court order the officers were duty-bound to execute, and they could not question it. (Ibid.) We also noted the CUA ballot information had explained: ""Police officers can still arrest anyone for marijuana offenses. Proposition 215 simply gives those arrested a defense in court, if they can prove they used marijuana with a doctor's approval.‟" (Fisher, supra, at p. 1152, original emphasis.) Because the CUA is structured to provide an affirmative defense, it had no effect on the warrant: "Defendant‟s claim to the officers that he had a certificate that allowed him to legally possess marijuana for medicinal purposes asserted an affirmative defense. Investigation of the truth and legal effect of defenses to criminal charges is what motions and trials are for; to hold otherwise would create disorder and confusion." (Ibid.)

Under the reasoning of Fisher, supra, 96 Cal.App.4th 1147, the CUA has no effect on probable cause. When an officer smells marijuana, she or he is entitled to infer that unlawful activity is occurring, even if a defendant may later successfully raise an affirmative defense in court. (See also People v. Strasburg (2007) 148 Cal.App.4th 1052, 1058-1060 [officer smelled marijuana coming from defendant‟s car, the fact defendant offered to produce a medical marijuana prescription did not render warrantless search of car unlawful; the CUA "provides a limited immunity -- not a shield from reasonable investigation. An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card"].)

Similarly, although the Medical Marijuana Program eliminates "criminal liability" for certain actions by qualified marijuana users, including cultivation (Health & Saf. Code, §§ 11362.765, 11362.77), that, too, provides an affirmative defense at trial. (See People v. Wright (2006) 40 Cal.4th 81, 85, 93-94.) It does not alter probable cause analysis.

Defendant‟s analogy to prescription drugs is of no aid because, contrary to his view, peace officers may arrest a person they see with a bottle of morphine or a prescription pill, and require the person to show she or he had a valid prescription. (See CALCRIM No. 2304; CALJIC No. 12.30.1 [defendant has burden to raise reasonable doubt about possession of valid prescription].) Further, Detective Beaty smelled fresh marijuana, indicating cultivation, which makes the analogy to mere possession of prescription drugs inapt.

In any event, the "good faith" doctrine would save this search. Even assuming, as defendant asserts, that we live in a "new world" in which the smell of marijuana no longer raises an inference of criminality, no court decision has so held and no reasonably well trained peace officer could anticipate such a decision. Officers are charged with having a "reasonable knowledge" of the law, not prescience. (See People v. Fleming (1994) 22 Cal.App.4th 1566, 1573-1574.)

Further, Detective Beaty learned defendant had two drug convictions, including for possessing marijuana for sale, and he had the affidavit reviewed by a deputy district attorney, who agreed that probable cause existed. Thus, the warrant search would be upheld because this would not be a case where "a reasonably well-trained officer in the officer‟s position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant." (People v. Lim (2000) 85 Cal.App.4th 1289, 1296-1297; see People v. Camarella (1991) 54 Cal.3d 592, 606-607 [corroborating some facts and having affidavit approved by deputy district attorney showed officer acted in good faith in seeking warrant].)

We previously denied defendant‟s request for judicial notice, therefore we need not address his arguments based on the material contained in that request.


The judgment is affirmed.

We concur: HULL, J., ROBIE, J.

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