People v. Nguyen CA6

Filed 11/10/22 P. v. Nguyen CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049094 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1906750)

v.

TONY KIM NGUYEN,

Defendant and Appellant. Tony Kim Nguyen appeals from a judgment entered after he pleaded no contest to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)),1 carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1)), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1)), and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). Nguyen contends that the trial court erred in denying his motion, made under section 1538.5, to suppress evidence seized during the search of his vehicle. We conclude that the officers did not have probable cause to search his vehicle, and therefore we reverse and remand for further proceedings. I. FACTS AND PROCEDURAL BACKGROUND On the evening of November 4, 2018, San Jose Police Officer Brandon German conducted an enforcement stop on a car driven by Nguyen after German observed

1 Undesignated statutory references are to the Penal Code.

expired registration tags. Officer Ronald Hisatomi, who was following German in a separate patrol car, also participated in the traffic stop.2 In response to German’s signaling, Nguyen pulled into a parking lot. As German walked up to the driver’s side of the car, he could smell burnt marijuana. Nguyen, who was the driver of the car, immediately handed German his driver’s license. There was a passenger in the front of the car, and she also provided German with her driver’s license. German returned to his patrol car to conduct a records check, then he re- approached and asked if there was anything illegal in the car. In response, Nguyen held up a jar with marijuana inside it. It was a small jar with a closed lid. German believed that Nguyen was transporting marijuana illegally because the jar did not appear to him to be a sealed package issued by a cannabis dispensary. German asked Nguyen for consent to search the car, but Nguyen declined. German then told Nguyen to step out of the car, and when he did, German saw a “green leafy-like substance” on the seat and a “vape pen” in the center console. As Nguyen stepped out of the car, German smelled the same odor of marijuana, which he characterized as a “burnt marijuana” smell, that he had noticed when he first approached the vehicle. German was aware of the difference in smell between marijuana vapor and marijuana smoke, and what he smelled during the traffic stop was not marijuana vapor. Hisatomi walked up to Nguyen as he exited the car and told Nguyen that he could smell marijuana as he approached the car. After Nguyen exited the car, German announced that he was going to search the vehicle. German then instructed the passenger to exit the car, and as he patted her down German asked, “were you guys smoking in the car now?” When the passenger replied, “no,” German responded, “it just smells like that from before or what?”