In re D.W.

Filed 7/6/17; pub. order 8/2/17 (see end of opn.) Opinion on remand from Supreme Court

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re D.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.W., A145470 Defendant and Appellant. (City & County of San Francisco Super. Ct. No. JW15-6002)

In May 2016, we affirmed a judgment declaring D.W. a ward of the court for his commission of three firearm offenses. In doing so, we rejected his argument that a search of his person was invalid under the Fourth Amendment because it did not properly fall within the exception to the warrant requirement for a search incident to an arrest. Our Supreme Court granted review and held the case pending its consideration and disposition of People v. Macabeo (2016) 1 Cal.5th 1206 (Macabeo). Once it decided that case, the court transferred this one back to us for reconsideration in light of Macabeo. No party filed a supplemental brief within the time allowed following transfer from the Supreme Court. (Cal. Rules of Court, rule 8.200(b).) We now reverse. I. BACKGROUND On the afternoon of January 12, 2015, San Francisco police officers Solares, Ochoa, and Johnson were on patrol in the area of Palou Avenue and Newhall Street in

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response to a broadcast that someone in the area might have a firearm. They saw five to eight individuals, most of whom they knew to have gang associations, standing on the corner of Palou and Newhall, in a rival gang area. The officers were concerned that the group might be trying to attract violence and contacted them to find out what they were doing. As Solares approached them, he smelled the odor of marijuana on D.W.’s clothes and breath. Solares said, “Man, you smell like marijuana,” and D.W. admitted he had just smoked some. The officers decided to search D.W. for more marijuana. Ochoa told D.W. to put his hands on his head, and D.W. “tried to pull away like . . . he didn’t want me to search him.” Ochoa put his hand underneath D.W.’s backpack, and felt a revolver. The officers handcuffed D.W. and retrieved the revolver from the backpack. After conducting the search, the officers determined that D.W. was 17 years old. D.W. moved to suppress the evidence obtained in the search. He argued: “In the case at bar, none of the officers on the scene observed any suspected drug contraband in plain view of the minor. . . . Smelling of marijuana is not a crime; being under the influence of marijuana is not a crime. There was no probable cause to search him. There was no probable cause to arrest the minor for anything (and thereby, search him incident to a valid arrest), and there was no reasonable suspicion that he was armed and dangerous.” The court denied the motion to suppress, ruling: “The way the Minor’s argument is sort of framed is even if [D.W.] smelled and made the admission, they didn’t have probable cause to arrest [him]. I think there’s a big distinction [between probable cause] to arrest and [probable cause] to search. . . . [¶] . . . [¶] While the cases mostly talk about cars and vehicles and houses and luggage, the central theme that rises and can be seen through all the cases is that a strong smell can establish probable cause to believe contraband is present and the search is allowable and legal. [¶] . . . [¶] The court does find based upon the totality of the circumstances that the officers did have probable cause and that probable cause was reasonable based upon the facts and circumstance in this particular case and that they found the gun during a lawful search for contraband.”