By Derrick Pal and Kelly Moran
SACRAMENTO – Defense Attorney Rashaan W. Jones argued in a motion to suppress hearing here in Sacramento County Superior Court last Thursday that incriminating evidence collected during a traffic stop was unlawful, receiving an assist from the judge, who peppered Deputy District Attorney Rainey Jacobson with questions.
The defendant, Benjamin McGlothin, was a passenger in a car that was flagged by police as it was parked near a red curb by an apartment complex, a location known by police to be a violent gang area.
DDA Jacobson said “(the officers) immediately smell(ed) burnt marijuana, and there was an actively burning marijuana cigarette in the center console” when the officers went to speak with the individuals in the vehicle, leading them to conduct a search.
Officers carried out a pat down search of both the driver and the defendant, where they discovered a firearm in the defendant’s pocket, and another in the car.
McGlothin currently faces two counts of possession of a firearm by a prohibited person, as well as possession of a controlled substance while armed—all felony charges—as a consequence of this search.
DDA Jacobson also revealed that the officers recognized the driver as a known gang member.
But Judge Stephen Acquisto called the defendant’s treatment into question.
“Is there case law that says if you’re sitting next to a bad guy, that means there’s reasonable cause to frisk you as well?” Acquisto asked. “I don’t care if he’s Al Capone,” he continued, “does that mean the guy sitting next to Al Capone you can frisk?”
Defense counsel Jones argued that “the cops forcibly removed my client from the vehicle, and police officers are not allowed to remove individuals from vehicles unless there is a valid traffic stop, so if it’s a consensual encounter, then what the cops did after is invalid.”
According to Jacobson, the officers who testified earlier in McGlothin’s trial claimed to have “seen Instagram videos of (Price) with guns,” and “knew he had convictions for gun possessions.”
Prosecutor Jacobson also cited the marijuana as probable cause for the officers to search both the driver and the defendant who was sitting next to him, noting the “Terry frisk” to be reasonable, allowing the officers to detain and give a pat-down search to an individual who they believe, with reasonable suspicion, is armed.
“It was the entire situation that gave them reason to believe that Mr. Price specifically was armed, and Mr. McGlothin also had a high chance of being armed,” said Jacobson, “so the officer testified about his prior knowledge about defendant Price… it’s more likely for gang members to be armed in disputed gang territories because they’re more dangerous.”
Judge Acquisto interrupted Jacobson to charge “none of that, none of that applies to McGlothin,” to which Jacobson replied that “they’re in a vehicle right next to each other, if there’s a gun in the car, it is reasonable to believe that they both had access to it.”
“It seems like the officers did it the wrong way, when they did the Terry frisk of McGlothin,” said Judge Acquisto, “they didn’t have a justifiable basis, based on the marijuana.
“Marijuana,” he continued, “it’s a detention, but it’s not a detention that allows you to frisk someone.”
Jacobson went into greater detail, explaining that “(the officers) also looked at defendant McGlothin’s conduct; he was evasive, he was combative, he was argumentative, he wouldn’t keep his hands where they told him to, his behavior also gave them suspicion to believe he was armed, and that they should pat him down for their safety when they took him out of the car.”
Defense attorney Jones argued that “there’s no legal justification for the cops to say, hey Mr. McGlothin you have to stay until we complete the search of the car, and in this case, he was actually detained, they actually searched him first, found the gun, then they searched the car.”
Jones also argued that, although drivers cannot have marijuana in the car, it would have been legal for his client to be in possession of it as a passenger, yet Jacobson refuted that by stating the specific rules concerning marijuana from the health and safety code.
“You cannot have burning marijuana anywhere in a car, it’s illegal for everyone, it’s like an open container of alcohol,” she said.
Jacobson also added that both the driver and passenger were allowed to be detained, which led to the finding of the gun in the car and then the Terry frisk carried out on both defendants, while the police worked to identify who possessed the marijuana, because neither defendant had admitted ownership.
Ultimately Judge Acquisto declared that he had asked enough questions of counsel, and ruled that the frisk was lawful. He set trial for March 22
.
Derrick Pal is a fourth-year student at Sacramento State majoring in Criminal Justice and pursuing a minor in Sociology. He is from Elk Grove, California.
Kelly Moran is currently a senior at Santa Clara University, originally from Connecticut. She is majoring in English, with a focus on British Literature and Professional Writing, and is also minoring in Journalism.
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