By Kathryn Wood and Ankita Joshi
SACRAMENTO – A Sacramento County Superior Court judge here has tossed out drug-related charges after officers followed, and illegally stopped and searched a vehicle—allegedly because of unlawfully tinted windows.
Defense Attorney David Fischer successfully convinced Judge Kara K. Ueda in his motion to suppress the search and seizure because the stop itself for “illegal” tinted windows” was not legal and the subsequent search was not lawful because of the illegal stop and because the “pat search” was not lawful.
On April 25, 2020, Jordon Chang and his friends were followed for a half mile and pulled over on a supposed “tinted windows” vehicle code violation.
In the events that followed, Chang’s vehicle was searched, and he was found to be in possession of 10.1 grams of cocaine and approximately 200 grams of marijuana. Chang appeared in court on the charges of unlawful possession for sale and purchase of a controlled substance.
Det. Chad Lewis testified that his original “suspicion” began when he “encountered a vehicle with dark window tint on at least one of the front windows… and diminished the ability to see through the window,” which is in violation of vehicle code.
He and his partner continued to follow the suspected vehicle through a residential street for a quarter to a half mile before they pulled Chang over, noting that as they traveled, Det. Lewis claimed that he “smelled an odor of marijuana coming from the vehicle.”
However, a traffic stop was not initiated until Chang pulled over at a gas pump at the 7-Eleven. Det. Lewis stated the traffic stop was initiated due to “the vehicle code violation and the suspicion that marijuana was open inside the vehicle.”
DDA Sanders further clarified by posing the question, “[T]o your knowledge and in your experience, is it a vehicle code violation for anyone in the car to be smoking marijuana while driving?” which Det. Lewis affirmed.
At this point, Det. Lewis was then asked to identify and describe the alleged suspect in the courtroom, which he was able to successfully do.
Det. Lewis said he was able to “immediately smell a very strong odor of marijuana emanating from the passengers in the vehicle…as well as loose marijuana scattered over the center console.” One of the passengers in the backseat was also observed as “extremely intoxicated.”
The officers’ suspicion grew when they questioned the passengers of the vehicle about why they were in town. Their explanation was that they had come “specifically for Kiki’s Chicken, which seemed like a long way to go for that kind of food.”
Upon conducting a records check and finding that one of the passengers had a gun registered under his name, Det. Lewis proceeded to ask Chang and his friends to step out of their vehicle. Det. Lewis also proceeded to conduct a “Terry pat search” on Chang.
Det. Lewis discovered “a large quantity of cash” in Chang’s front left pocket, which was then removed and placed on the hood of the vehicle. Once placed on the hood, a small baggie of what seemed to be cocaine fell out.
Det Lewis confirmed whether the substance in the baggie was cocaine or not with Chang before starting a vehicle search on the basis of “probable cause, equal exception search for further evidence of marijuana possession, marijuana being smoked in the vehicle, and possession of marijuana for sale.”
By the end of the vehicle search, Det. Lewis and his partner located “approximately 200 grams of marijuana, three functional digital scales one of which tested positive for cocaine residue, two empty baby bottles, two 100 count boxes of sandwich baggies… various kinds of handgun ammunition scattered about, and a sock filled with handgun ammunition.”
The significance of these findings was clarified by Det. Lewis, who explained that “sandwich baggies are very commonly used for narcotics packaging and baby bottles are very frequently used…to measure promethazine, codeine, cough syrup in their variance due to the sealable nature of the bottle and the fact that they have balance markings on them.”
Based on his background training and experience, Det. Lewis estimated that 0.1 grams of cocaine would be the average dosage, and that Chang was in the possession of about 100 doses. He said the street value would be $500 to $4,000.
Det. Lewis opined, “It is not typical in my experience to have individuals carrying a quantity more than what they would be using in the immediate time frame… not something I’ve ever really encountered, except for individuals with the intent to sell.”
Defense counsel Fischer noted that tolerance levels can vary the amount of a dosage. And since there were five people present in the vehicle, the substances might have been distributed between them, which would significantly decrease the estimated number of doses present.
Fischer continued by making the statement that “a lack of consumption tools doesn’t necessarily mean you can’t use cocaine.”
Det. Lewis disagreed with this, as “it’s improbable in my experience to locate a user that doesn’t have a consumption tool or a whole kit … but it’s not impossible.”
As his line of questioning continued, Fischer presented his first exhibit, displaying the tinting of the vehicle window. Here, he explained that some window tinting is legal, and some is not.
“When you approached the Honda about the window tinting you knew that you could not investigate, confirm, or dispel your suspicion about whether the tinting is legal or not because you didn’t have a window tint meter with you, correct?” Fischer asked.
Det. Lewis admitted he didn’t have the meter. And then attorney Fischer used Det. Lewis’ body cam footage of the window tinting to point out that one can clearly see through the window and “you can tell the tinting of the front windows…are much lighter than the tinting of the back windows.”
Fischer then noted that there were five adults that were present in the vehicle, and at the time of the stop, were all over the age of 21, and reminded Det. Lewis that “as of April 20, 2020, it is lawful for persons 21 years or older to possess up to 28.5 grams of marijuana.”
Fischer then questioned whether Det. Lewis asked for Chang’s consent to search the vehicle, to which he replied, “No, I don’t remember that.”
Instead, he told Chang he was going to search the car, and ordered everyone out of the vehicle. No one in the car was on probation or parole, but one individual was confirmed to own a firearm on file.
Fischer said Det. Lewis conducted a “Terry pat search” where officers are allowed to search a person for potential weapons.
Det. Lewis added that “anything we immediately identify through that initial touch as evidence or contraband” can also be taken into consideration.
“A Terry pat search is specifically when you are patting someone down for weapons to make sure they don’t hurt you correct? So when you touched Mr. Chang’s left front pant pocket you identify cash and pull it out correct?” Fischer asked. “Terry” stops don’t usually allow officers to reach into pockets, only “pat” them.
In the last exhibit that Fischer presented, it displayed Det. Lewis’ body cam video involving the search of the vehicle. It revealed Det. Lewis did not find any other marijuana in the front, other than a bag of less than one ounce.
When asked what made him think that the odor was specifically coming from Chang’s vehicle, Det. Lewis replied that there were no other vehicles, gatherings, or pedestrians nearby. But he did admit the smell could have been coming from elsewhere.
Fischer concluded that the motion to suppress should be granted for multiple reasons.
First, Fischer mentioned “the intention to investigate the window tinting … that is unlawful,” pointing toward the case of People v. Butler which is widely accepted by courts throughout California.
“There is window tinting that is allowed to some extent on passenger vehicles and for that reason it is unlawful to pull someone over just to check window tinting…and especially in a case like this where the tinting of the front windows is much less tinted than the back windows,” Fischer contended.
Additionally, he added that “the officer admitted that it did not form a basis to detain Mr. Chang.”
In People v. Johnson, it concluded that “detaining based on the general smell of marijuana is unlawful.”
“Marijuana is everywhere… the smell of marijuana is everywhere… we can experience that in our normal everyday lives” Fischer claimed, and noted people 21 and over are allowed to have up to one ounce of marijuana.
The “search of the car was based on the smell of burnt and unburnt marijuana” and “Det. Lewis told us that the small amount that he found was much less than an ounce of marijuana,” Fischer explained.
Fischer argued “pulling all of these kids out of the car, handcuffing them, and searching the car based on…these adults and the small amount of marijuana…is not a basis to do that…is not only offensive, it is just unlawful and is not a basis to do that.”
Furthermore, Fischer said with the “Terry pat search” that allows a search for weapons, it is clear that “when he patted the left front pocket of Mr. Chang didn’t find any weapons, he felt cash and reached into his pocket and grabbed it out.
“There are multiple reasons to grant this motion to suppress and I urge the Court to read the cases that have been cited by the parties and grant this motion,” Fischer concluded.
DDA Sanders argued that “upon contact with Mr. Chang and the other occupants, he continued to smell the odor of marijuana and observe marijuana that was open… it was not in a closed container.”
“An open container of marijuana is against the law and that would give Det. Lewis the probable cause to search this vehicle for further instrumentalities of this crime,” DDA Sanders added.
Judge Ueda focused on the discussion of People v. Johnson stating that “the opposition brief tried to distinguish it based on the fact that the container was closed rather than a container being open … however, part of that case also provided that the court says the odor of marijuana alone no longer provides an inference that a car contains contraband because people over the age of 21 can possess and transport up to 28.5 grams of marijuana.”
Judge Ueda asked DDA Sander how she would like the Court to proceed with this matter.
DDA Sander noted that “here we don’t have a closed container of marijuana that is the basis … we have loose, open containers of marijuana which is the distinguishing factor of Johnson.” He added that the detective not only relies on the odor of marijuana; he is “observing the marijuana out in the open as the basis for his search.
“Additionally, the odor of marijuana while the car is driving is distinguishable as well because that is a vehicle code violation,” DDA Sanders claims.
Fischer concluded that he would “urge the court to focus its inquiry on the reasons for the initial detention and find that it was unlawful.”
Kathryn Wood is a third year at UC Davis, majoring in Political Science-Public Service and minoring in Professional Writing and Environmental Policy Analysis and Planning. She is from Petaluma, California.
Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.
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