By Sydney Kaplan
ALAMEDA, CA – Alameda County Superior Court Judge Kimberley Cowell Wednesday granted a motion to suppress evidence in Javier Arturo Ortiz’s preliminary hearing here for charges for possession of an unregistered and loaded firearm.
Ortiz was pulled over back in 2019 over a license plate issue. The police officer on the scene reported smelling burned marijuana as well as seeing tidbits of marijuana “on a plate.”
The responding officer used the marijuana as justification to search Ortiz’s vehicle and allegedly patted down Ortiz and each of the passengers. It was during this search that the officer found a loaded and unregistered firearm.
During this preliminary hearing, the defense, led by Deputy Public Defender Catherine McCulloch, requested the evidence be suppressed on the grounds of an illegal search and seizure.
McCulloch argued that marijuana “remnants” are seldom enough legal grounds for conducting a vehicle search and a pat down.
It was noted here that the responding officer neglected to specify whether the marijuana was “a usable amount” or “fragments” in the police report.
The defense used a similar case from the California Supreme Court Case, People v Hall, to justify their request to suppress evidence.
In that Hall case, back in 2018, Hall was pulled over for a vehicle equipment violation. When an officer identified a “clear plastic baggie” with what appeared to be marijuana, Hall’s car was searched. Hall was charged with a felony for carrying a loaded firearm in a public place.
Initially, Hall’s motion to suppress was denied, however, the court of appeals reversed the trial court’s decision in 2020.
The defense in this current case argued that “probable cause was not found in the Hall case, nor is it found here.”
The prosecution responded by pointing out the marijuana visible was “on a plate” and not in a closed container. Additionally, the prosecution stated that they believed the “fragments” combined with the presence of burned marijuana odor provided just cause.
There was debate over the legality of the car search, however. The defense seemed to be more upset by the pat search.
“The pat down is what I find to be most egregious,” McCulloch retorted, as “pat [searches] cannot be justified by hunches… there must be a specific cause to believe [the pat search] would prevent violent [escalation].”
The prosecution added it believed the responding officer had “reasonable concern” on the grounds of the early morning hour and the fact that he was outnumbered.
However, it was pointed out that Ortiz and the rest of the passengers showed no violent behavior or inclinations. Ortiz was allegedly “fully compliant and respectful,” giving the officer no reason to believe he, nor the other passengers, would be violent.
“There was a license plate issue and it was dark, [the responding officer] could not see into the car,” Judge Cowell acknowledged, “I don’t see an issue with the initial stop nor find it to be [based in] rac[ism].”
In the end, Judge Cowell granted the motion to suppress. She cited a lack of reasonable suspicion for the pat search as her primary reasoning.
Judge Cowell made it very clear she wanted the gun to be destroyed.
“It’s unlicensed so it’s not anyone’s gun and does not need to exist. I will suppress this motion as long as the gun is destroyed,” Cowell firmly stated. In speaking directly to the defendant she said, “Please, don’t buy any more guns.”
Despite making a decision rather quickly, Cowell did acknowledge the ambiguity in this case after a decision was made, noting, “It’s undoubtedly a close one, I have to say.”
