Monday, September 24, 2018

People v. Fews (Cal. Ct. App. - Sept. 24, 2018)

The stuff about the Terry stop in the first portion of today's opinion seems right to me.  I'm not sure there was much that I can individually put my finger on to say that it was X or Y that alone made me think that the occupants of the vehicle were likely to be up to no good in some fashion.  Yet like the Court of Appeal (and the trial court), there was nonetheless something that seemed distinctly wrong about a vehicle in the Tenderloin suddenly pulling over when the police pull behind it, with the driver then immediately hopping out of the vehicle and refusing to get back in when the police told him to, all the while smelling of marijuana and having the occupants of the vehicle make repeated furtive movements throughout.

Something just doesn't seem right about that.  So much so that I'm okay with the officers doing a Terry stop-and-frisk for their own protection.  And when that frisk discovers a loaded firearm in the front jacket pocket of the passenger; well, to be honest, I'm just not all that surprised.  Which is why I'd have allowed the stop-and-frisk in the first place.  Officer safety.

Now, the second part of the opinion, by contrast, seems unnecessary and less self-evident.  The Court of Appeals volunteers that even if the stop-and-frisk wasn't okay, a search of the automobile would still have been fine given the existence of marijuana.  I know that there are other opinions that say a similar thing, but I see no reason to reach that point given Part I.  And, as I said, it's a lot closer.  Yes, marijuana is only a "little" legal in California -- there are a lot of limitations, and you can still be busted for various things.  But I think it's a tough question how far the police are able to go when all they have on you is that you're carrying a personal amount of weed, which may well be -- and in the vast majority of case, is (I suspect) -- legal under California law.  At some point, it seems to me that for probable cause purposes, we're likely to view weed the same way we view, say, opiods.  Sure, it's possible that a guy carrying valium is doing something illegal, since it might not be his prescription, he might illegally be dealing, he might illegally be carrying a carload of the stuff, etc.  But if all you know about the guy is that he's got three or four pills, standing alone, I'm not sure that's probable cause of a crime sufficient to permit you to inventory the vehicle, arrest the guy, etc.  So given that eventual (and/or current) reality, I see no need to wax poetic about a topic that even the Court of Appeal admits isn't raised by the present case, in which the stop-and-frisk was just fine.

Some times it just makes sense to leave well enough alone.  This seems like one of those times to me.