Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County No. NJ22657, John C. Lawson II, Temporary Judge., Pursuant to Cal. Const., art. VI, § 21.
Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Jonathan R. (the minor) appeals from the juvenile court’s order of wardship (Welf. & Inst. Code, § 602) after a finding he unlawfully possessed marijuana (Health & Saf. Code, § 11357, subd. (b)). He was ordered home on probation. The minor challenges the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The evidence at the suppression hearing established on the afternoon of April 24, 2007, Los Angeles Police Officer Kenneth Snyder and his partner responded to an anonymous report of narcotics activity outside a building. Upon arrival, the officers saw six males gathered in front of the building. Snyder got out of his patrol car and asked the group, “Who lived [in the building]?” Receiving no response, Snyder repeated his question to the group. The minor stepped forward and, “yelled, ‘I live here;’” using a “very aggressive tone.” Snyder approached the minor and noticed he had red, glassy eyes. Snyder’s partner said he detected the odor of marijuana in the area. The minor appeared to Snyder to possibly be under the influence of marijuana, and the officer decided to detain him for narcotics investigation.
While his partner stood with the other males, Officer Snyder asked the minor some questions. The minor answered he was 17 years old, and had previously been arrested for marijuana possession and currently possessed nothing illegal. Snyder also conducted a pat search for officer safety. In touching the minor’s pants pocket, he felt a hard object, which he inquired about and the minor said was “nothing.” Snyder manipulated the object through the fabric suspecting it was a container for narcotics and concluded the object was a cigarette lighter, which Snyder believed was in violation of Penal Code section 308, subdivision (b). When Snyder started to retrieve the cigarette lighter, he felt a soft plastic baggie tucked behind the lighter, which he removed from the minor’s pocket. The baggie contained a green leafy substance that resembled marijuana. Snyder arrested the minor for possession of marijuana and searched his person. Inside another pocket, the officer found a glass smoking pipe and another baggie of marijuana.
Penal Code section 308, subdivision (b), provides: “Every person under the age of 18 years who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance shall, upon conviction, be punished by a fine of seventy-five dollars ($75) or 30 hours of community service work.” We know of no published authority that a cigarette lighter is within the purview of this statute. We need not reach this issue, however, in light of our determination the detention was lawful, and the search was valid as incident to the minor’s arrest.
At the conclusion of the hearing, the minor moved to suppress the marijuana and glass pipe as the fruit of an unlawful detention and search. The juvenile court denied the motion.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion to suppress, whether arising from a juvenile court or adult criminal proceeding (see In re William V. (2003) 111 Cal.App.4th 1464, 1468), the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Brendlin (2006) 38 Cal.4th 1107, 1113; People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (Brendlin, at p. 1113; People v. Ramos (2004) 34 Cal.4th 494, 505.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art. I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562; see People v. Brendlin, supra, 38 Cal.4th at pp. 1113-1114.)
2. The Investigative Detention Was Valid
The minor makes much of the fact Officer Snyder and his partner initially contacted him in response to an anonymous and uncorroborated tip. The minor relies heavily on comparisons to Florida v. J.L. (2000) 529 U.S. 266 [120 S.Ct. 1375, 146 L.Ed.2d 254] (J.L.) to argue the officers lacked individualized suspicion of any criminal wrongdoing. We find the factual circumstances in those cases entirely distinguishable. In J.L., the officers received an anonymous tip describing a young man wearing a plaid shirt on a street corner. He was purportedly carrying a gun. The officers immediately detained and searched J.L. without any corroboration of illegal activity. The court found the officers lacked a reasonable suspicion to detain and search J.L. because the stop was based entirely on an anonymous tip, lacking corroboration and having no predictive value. (J.L., supra, 529 U.S. at p. 272.)
The decision in J.L. is of no significance in this case, because the minor was not detained based solely on the anonymous tip. After Officer Snyder and his partner arrived, circumstances developed which gave rise to a reasonable suspicion the minor was currently involved in criminal activity. Before subjecting the minor to questioning, Snyder took note of his aggressive behavior, and red, glassy eyes. Snyder’s partner informed him there was an odor of marijuana in the area where the males were standing. This information provided Snyder with reasonable suspicion the minor was using or in possession of marijuana. (People v. Souza (1994) 9 Cal.4th 224, 231 [“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”]; accord, United States v. Cortez (1981) 449 U.S. 411, 417-418 [101 S.Ct. 690, 66 L.Ed.2d 621]; United States v. Arvizu (2002) 534 U.S. 266, 277- 278 [122 S.Ct. 744, 151 L.Ed.2d 740].) The investigatory detention of the minor was valid.
3. The Marijuana and Glass Pipe Were Lawfully Seized in a Search Incident to the Minor’s Arrest
Possession of marijuana is a misdemeanor offense under current law. (Health & Saf. Code, § 11357, subd. (b).) An officer may make a misdemeanor arrest when he has “probable cause to believe that the person to be arrested has committed a public offense in the officer's presence.” (Pen. Code, § 836.) An officer may thoroughly search an individual incident to a lawful arrest. (See New York v. Belton (1981) 453 U.S. 454, 459-460 [101 S.Ct. 2860, 69 L.Ed.2d 768].) Moreover, when the formal arrest follows quickly on the heels of the challenged search, it is not important that the search preceded the arrest rather than vice versa. (Rawlings v. Kentucky (1980) 448 U.S. 98, 111 [100 S.Ct. 2556, 65 L.Ed.2d 633].)
Although Health and Safety Code section 11357, subdivision (b) provides, that in most circumstances, a person arrested for possessing marijuana shall be cited and released and shall not be subject to booking, a custodial arrest supported by probable cause does not violate the Fourth Amendment solely because it violates state law procedures. (People v. McKay (2002) 27 Cal.4th 601, 614-617.)
Here, prior to conducting the pat search, Officer Snyder was aware of facts that would lead a person of ordinary care and prudence to strongly suspect the minor had recently smoked marijuana and was carrying the drug somewhere on his body. Snyder testified the minor had red, glassy eyes, exhibited aggressive behavior, and was in an area emitting the smell of marijuana. During the investigatory detention, the minor admitted to Snyder he had a prior arrest for marijuana possession. Common sense dictates these facts collectively provided Snyder with probable cause to arrest the minor. That such evidence amounted to probable cause is supported by several California cases in which the odor of marijuana alone was found to constitute sufficient probable cause. In People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826-827, there was probable cause to arrest the defendant who smelled of burned marijuana during a traffic stop because the officer could reasonably infer that marijuana was present on the person of someone who had recently smoked it. In Mann v. Superior Court (1970) 3 Cal.3d 1, 7, the court noted officers who smelled marijuana smoke in a home had probable cause to believe a crime was being committed in their presence and to arrest the defendants. In People v. Cook (1975) 13 Cal.3d 663, 669-670, the court concluded the scent of marijuana emanating from a car’s trunk provided the probable cause that was a prerequisite for a search under the automobile exception to the warrant requirement. (See also People v. Lovejoy (1970) 12 Cal.App.3d 883, 887; People v. Rice (1970) 10 Cal.App.3d 730, 740; People v. Peterson (1970) 9 Cal.App.3d 627, 633; People v. Christensen (1969) 2 Cal.App.3d 546, 548; People v. Nichols (1969) 1 Cal.App.3d 173, 175.)
The minor also contends Officer Snyder’s pat search was not justified by viable officer safety concerns within the meaning of Terry v. Ohio (1968) 392 U.S. 1, 27 (88 S.Ct. 1868, 20 L.Ed.2d 889]) and his manipulation of the object while patting the minor’s pocket contravened the “plain touch” or “plain feel” doctrine of Minnesota v. Dickerson (1993) 508 U.S. 366, 371, fn. 1 [113 S.Ct. 2130, 124 L.Ed.2d 334].) However, we need not reach these issues in light of our conclusion Snyder had probable cause to arrest the minor before undertaking the pat search and his search was incident to that arrest.
Because we conclude Officer Snyder had probable cause to arrest the minor, the search of the minor’s pocket containing the cigarette lighter and the baggie of marijuana was proper as a search incident to his arrest. The record shows the minor was immediately placed under formal arrest after the officer recovered the first baggie of marijuana. Accordingly, we find the search of the pocket yielding the cigarette lighter and the marijuana was contemporaneous with the minor’s arrest. The motion to suppress evidence was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.