By Gabriel Johnson
MODESTO, CA – Stanislaus County Superior Court Judge Linda McFadden denied a motion this week to suppress evidence obtained from a warrantless search of the accused’s car, which uncovered a gun.
The arresting officer admitted it was the driver’s red shorts and white socks that provided probable cause.
The officer testified Tuesday the traffic stop was initiated because the accused allegedly did not have his headlights activated, and the officer smelled marijuana in the car during the stop.
According to Judge McFadden, possessing less than an ounce of marijuana is legal in California, even while driving, but the officer attempted to establish probable cause to search by testifying he looked at the bag of marijuana the accused possessed and decided it was more than an ounce, the legal amount which can be possessed.
However, the officer said he never weighed the marijuana to verify it was more than an ounce in weight and did not charge the accused with possessing an illegal amount of marijuana.
And, counsel for the defense argued the officer’s opinion without any attempt to verify his suspicion was “not sufficient evidence” to establish probable cause and override the accused’s constitutional right to privacy.
Judge McFadden ruled the officer’s opinion based solely on his observation was enough to establish the marijuana was an illegal amount because she could look at a bag and determine the same, if the bag looked large enough.
The judge also shifted the burden of production and told counsel for defense that “she should have provided evidence” for the defense that the marijuana was not possessed in excess of the legal amount.
The defense then asked the officer if he had any other basis for probable cause to conduct a warrantless search of the vehicle, to which he responded yes, noting, in his opinion, and based on his experience, when men “have red shorts on with white socks they are probably an active gang member” and in his experience “gang members carry guns.”
