Filed 12/26/13 P. v. Keding CA1/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

BRYAN ERNEST KEDING, 

 Defendant and Appellant. 

 A136147 

 (Sonoma County 

 Super. Ct. No. SCR-600252) 

INTRODUCTION 

 In 2011, a Sonoma County Sheriff’s deputy stopped defendant Bryan Ernest 

Keding for speeding on the highway. Upon contacting Keding, the officer smelled an 

odor of marijuana emanating from the car. Defendant denied having any marijuana in the 

vehicle, but suggested the odor might be coming from his person, since he had smoked 

marijuana earlier (he had a medical marijuana recommendation). The deputy testified he 

can distinguish between the smell of burned marijuana and the smell of unburned 

marijuana, and it was the smell of unburned marijuana emanating from the car. A 

subsequent search of the vehicle yielded, among other things, a duffle bag containing 24 

pounds of marijuana. Defendant was convicted by his plea of possessing of more than 

28.5 grams of marijuana, an offense that carries a maximum punishment of six months in 

the county jail and/or a $500 fine. (Health & Saf. Code,1

 § 11357, subd. (c).) 

 1

 All further statutory references are to the Health and Safety Code unless 

otherwise indicated. 
2

 On appeal, defendant contends the search of his car was illegal. He maintains 

(1) there were no articulable facts to lead a reasonable officer to believe that he possessed 

more than an ounce of marijuana; (2) under California law, the possession and 

transportation of one ounce or less of marijuana is an infraction; and (3) the search for 

evidence of an infraction violates the Fourth Amendment because (a) an infraction is a 

civil matter, (b) defendant is a qualified medical marijuana patient, and (c) the 

automobile exception to the Fourth Amendment does not apply to searches for evidence 

of petty offenses. We disagree and affirm the judgment of conviction. 

STATEMENT OF THE CASE 

A felony complaint charged defendant with possession of marijuana for sale, 

transportation of marijuana, driving on a suspended license, and speeding. (§§ 11359, 

11360, subd. (a); Veh. Code, §§ 14601, subd. (a), 22349, subd. (a).) The preliminary 

hearing and defendant’s motion to suppress evidence (Pen. Code, § 1538.5) were heard at 

the same time. The motion was denied and defendant was held to answer on both 

felonies and the speeding infraction. Following the filing of an information alleging the 

same charges, defendant renewed his motion to suppress in combination with a motion to 

set aside the information. (Pen. Code, §§ 1538.5, 995.) Both motions were denied. The 

information was amended to add a fourth count, possession of more than one ounce of 

marijuana (§ 11357, subd. (c)), to which defendant pleaded guilty in exchange for 

dismissal of the first three counts on the prosecution’s motion. Imposition of sentence 

was suspended and defendant was placed on probation for 36 months. He timely appeals 

the superior court’s order denying the motion to suppress. (Pen. Code, § 1538.5, subd. 

(m).) 
3

STATEMENT OF THE FACTS2

On the evening of April 10, 2011, Sonoma County Sheriff’s Deputy Terry White 

observed a silver Honda on the freeway going 75 miles per hour in a 65-mile-per-hour 

zone. Deputy White initiated a traffic stop and contacted the driver, defendant Keding. 

Deputy White approached the vehicle on the passenger’s side and talked to defendant 

through the opened window. He “could smell the odor of marijuana coming from the 

vehicle,” so he asked if defendant had a medical marijuana recommendation for the use 

of marijuana. Defendant said yes. Asked if he had any marijuana with him, defendant 

said no, but offered that the odor detected by the deputy might be coming from his 

person, since he had smoked marijuana earlier. However, according to Deputy White, 

“burnt marijuana has a different odor than nonburnt marijuana. It wasn’t what I was 

smelling.”3

 

 After defendant stepped out of the car at White’s request, White searched it. In 

the cargo area of the vehicle White found, among other things, a duffle bag containing 24 

one-pound bags of marijuana and one smaller bag of marijuana; and a black garbage bag 

containing three one-pound bags of marijuana and one smaller bag of marijuana. 

DISCUSSION 

 Defendant argues that the trial court erred in denying his motion to suppress 

because there was no articulable basis for a reasonable belief that defendant was in 

 2

 The statement of facts is drawn from the testimony adduced at the joint 

preliminary hearing/motion to suppress evidence. (See Pen. Code § 1538.5, subd. (i) [“If 

the motion was made at the preliminary hearing, unless otherwise agreed to by all parties, 

evidence presented at the special hearing shall be limited to the transcript of the 

preliminary hearing and to evidence that could not reasonably have been presented at the 

preliminary hearing, except that the people may recall witnesses who testified at the 

preliminary hearing.”].)

3

 Deputy White, an 18-year law enforcement veteran, testified about his extensive 

training and experience related to the investigation of narcotics cases, including his 

attendance at various law enforcement training seminars dealing specifically with 

medical marijuana, and “hundreds of occasions” on which he had “seen, handled and 

smelled marijuana in different stages [of growth].” He also testified that his expertise in 

knowing burned marijuana from unburned marijuana came from his experience. 
4

possession of more than one ounce of marijuana. He hypothesizes that such a belief is 

critical to the legality of the search here because he is a “qualified patient” within the 

meaning of the Compassion Use Act of 1996 (CUA) (§ 11362.5) and the Medical 

Marijuana Program (MMP) (§ 11362.7 et seq.). Boiled down to its essential parts, 

defendant’s argument is that there was a “complete lack of articulable facts . . . to 

establish a reasonable suspicion” defendant possessed more than one ounce of marijuana 

during the traffic stop. Since possession of less than one ounce of marijuana is not a 

crime but a civil matter in California, the search for evidence of an infraction is per se 

unreasonable under the Fourth Amendment, and the automobile exception to the Fourth 

Amendment’s warrant requirement does not permit the warrantless search for evidence of 

a petty offense. We disagree. Before explaining our reasons for doing so, we set forth 

the standard of review which governs our analysis. 

A. Standard of Review

 In this case the magistrate who presided at the preliminary hearing is the finder of 

fact, and his or her factual resolutions are binding on this court as well as the trial court. 

(People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223; § 1538.5, subd. (i).) In reviewing 

the denial of defendant’s motion to suppress evidence under Penal Code section 1538.5, 

we defer to the magistrate’s express and implied factual findings if they are supported by 

substantial evidence (People v. Woods (1999) 21 Cal.4th 668, 673), and indulge all 

inferences in favor of the lower court’s order. (People v. Brown (1990) 216 Cal.App.3d 

1442, 1447.) We exercise independent judgment to determine whether, on the facts 

found by the fact finder, the search was lawful. (People v. Woods, at pp. 673–674.) 

B. The CUA and MMP 

We first address defendant’s underlying contention that defendant’s status as a 

medical marijuana patient should have immunized him from Deputy White’s 

investigatory scrutiny. The CUA, enacted in 1996 by the initiative process as part of 

Proposition 215, provides in relevant part: “Section 11357, relating to the possession of 

marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a 

patient . . . who possesses or cultivates marijuana for the personal medical purposes of the 
5

patient upon the written or oral recommendation or approval of a physician.”4

 

(§ 11362.5, subd. (d).) 

As our supreme court explained in People v. Kelly (2010) 47 Cal.4th 1008 (Kelly), 

“the CUA provides an affirmative defense to prosecution for the crimes of possession 

and cultivation. [Citations.] The CUA does not grant immunity from arrest for those 

crimes, however. So long as the authorities have probable cause to believe that 

possession or cultivation has occurred, law enforcement officers may arrest a person for 

either crime regardless of the arrestee’s having a physician’s recommendation or 

approval.” (Id. at p. 1013; see also People v. Mower (2002) 28 Cal.4th 457, 467; People 

v. Strasburg (2007) 148 Cal.App.4th 1052, 1058; Littlefield v. County of Humboldt

(2013) 218 Cal.App.4th 243, 250.) 

 In 2003, the Legislature enacted article 2.5 of division 10, chapter 6 of the Health 

and Safety Code, known as the Medical Marijuana Program. (§ 11362.7 et seq.) “At the 

heart of the MMP is a voluntary ‘identification card’ scheme that, unlike the CUA—

which, as noted, provides only an affirmative defense to a charge of possession or 

cultivation—provides protection against arrest for those and related crimes. Under the 

MMP, a person who suffers from a ‘serious medical condition,’ . . . may register and 

receive an annually renewable identification card that, in turn, can be shown to a law 

enforcement officer who otherwise might arrest the program participant or his or her 

primary caregiver.” (Kelly, supra, 47 Cal.4th at p. 1014, fns. omitted; § 11362.71.) 

 4

 Section 11362.5 also provides in relevant part that the purpose of the CUA is 

“[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for 

medical purposes where that medical use is deemed appropriate and has been 

recommended by a physician who has determined that the person’s health would benefit 

from the use of marijuana” and “[t]o ensure that patients . . . who obtain and use 

marijuana for medical purposes upon the recommendation of a physician are not subject 

to criminal prosecution or sanction. [¶] . . . [¶] . . . Nothing in this section shall be 

construed to supersede legislation prohibiting persons from engaging in conduct that 

endangers others, nor to condone the diversion of marijuana for nonmedical purposes.” 

(Id., subds. (b)(1)(A), (B) & (b)(2).) 
6

 Defendant maintains he comes within the “safe harbor provision” of the MMP 

because he has a medical marijuana recommendation and, as such, is a “qualified patient” 

within the meaning of the CUA and MMP.5

 However, so far as this record shows, he did 

not possess an identification card. Thus, his status as a “qualified patient” under the 

CUA and MMP did not immunize him from reasonable police investigations or searches. 

(People v. Strasburg, supra, 148 Cal.App.4th at p. 1058.) “[T]he [CUA] provides a 

 5

 “A ‘qualified patient’ is defined by the MMP as ‘a person who is entitled to the 

protections of Section 11362.5 [the CUA], but who does not have an identification card 

issued pursuant to this article.’ (§ 11362.7, subd. (f).)” (Kelly, supra, 47 Cal.4th at 

p. 1016, fn. 7.) 

The MMP’s “safe harbor provision”—section 11362.77, subdivision (f)—

authorizes possession of certain amounts of medical marijuana. “It provides that a 

‘qualified patient or a person holding a valid identification card . . . may possess amounts 

of marijuana consistent with this article [that is, as provided in subdivisions (a)–(c) of 

section 11362.77.]’ ” (Kelly, supra, 47 Cal.4th at p. 1016.) Qualified patients may 

possess “no more than eight ounces of dried marijuana.” (§ 11362.77, subd. (a).) 

However, the CUA does not “specify an amount of marijuana that a patient may 

possess or cultivate; it states instead that the marijuana possessed or cultivated must be 

for the patient’s ‘personal medical purposes.’ [Citation.] An early decision construed 

this provision of the CUA as establishing ‘that the quantity possessed by the patient or 

the primary caregiver, and the form and manner in which it is possessed, should be 

reasonably related to the patient’s current medical needs.’ ” (Kelly, supra, 47 Cal.4th at 

p. 1013, italics added by Kelly.) Kelly found that in enacting quantitative limits on the 

amounts of marijuana qualified patients could possess or cultivate in section 11362.77, 

the Legislature impermissibly amended the CUA without voter approval. (Kelly, at 

p. 1012.) “By extending the reach of section 11362.77’s quantity limitations beyond 

those persons who voluntarily register under the MMP and obtain an identification card 

that provides protection against arrest—and by additionally restricting the rights of all 

‘qualified patients’ and ‘primary caregivers’ who fall under the CUA—the challenged 

language of section 11362.77 effectuates a change in the CUA that takes away from 

rights granted by the initiative statute.” (Id. at p. 1043.) 

Nevertheless, the court invalidated the statute only insofar as it prevented a 

qualified patient from asserting, “as a defense in court, that he or she possessed or 

cultivated an amount of marijuana reasonably related to meet his or her current medical 

needs [citation] without reference to the specific quantitative limitations specified by the 

MMP.” (Kelly, supra, 47 Cal.4th at p. 1049.) The court declined to sever 

section 11362.77 from the MMP or otherwise declare it void. (Kelly, at p. 1049.) 
7

limited immunity—not a shield from reasonable investigation. An officer with probable 

cause to search is not prevented from doing so by someone presenting a medical 

marijuana card or a marijuana prescription.” (Id. at p. 1060.) 

C. An Infraction Is Not a Civil Matter 

 Defendant’s next contention—that possession of less than one ounce of marijuana 

is not a criminal offense, because it is an infraction—is also incorrect. Pursuant to Penal 

Code section 16, an infraction is a crime or public offense. A violation of section 11357, 

subdivision (c)—possession of less than one ounce of marijuana—is an infraction. 

Therefore, it is a crime or public offense, albeit a minor one. (See also Pen. Code §§ 17, 

19.8.) As defendant acknowledges, Penal Code section 1524, subdivision (a)(3) 

authorizes the issuance of a warrant upon a showing of probable cause “[w]hen the 

property or things are in the possession of any person with the intent to use it as a means 

of committing a public offense.” Defendant relies on cases describing infractions as 

noncriminal because “[p]roceedings on infractions are not attended by the same 

constitutional safeguards attending felony or misdemeanor prosecutions.” (People v. 

Sava (1987) 190 Cal.App.3d 935, 939 [rule forbidding successive prosecutions]; People 

v. Battle (1975) 50 Cal.App.3d Supp.1, 6 [rights to jury trial, appointed counsel].) 

However, “ ‘cases are not authority for propositions not considered.’ ” (Sonic-Calabasas 

A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160.) Neither Sava nor Battle is authority for 

defendant’s assertion that Penal Code section 1524, subdivision (a)(3) “does not apply to 

infractions because an infraction is neither a crime nor a public offense.” 

 Nor is there any basis for defendant’s assertion that an infraction, for the purposes 

of the Fourth Amendment, is a “civil matter.” “If an officer has probable cause to 

believe that an individual has committed even a very minor criminal offense in his 

presence, he may, without violating the Fourth Amendment, arrest the offender.” 

(Atwater v. Lago Vista (2001) 532 U.S. 318, 354 [mandatory seat belt law].) “Under 

Atwater, all that is needed to justify a custodial arrest is a showing of probable cause. . . . 

We must therefore conclude that there is nothing inherently unconstitutional about 

effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 27 Cal.4th 
8

601, 607 [riding a bicycle the wrong way on a residential street].) Likewise, under the 

Fourth Amendment, all that is needed to justify the search of an automobile properly 

stopped on a highway is probable cause to believe the automobile “contains contraband, 

evidence of a crime, or was itself an instrumentality of the commission of one.” (People 

v. Laursen (1972) 8 Cal.3d 192, 201.) “In this class of cases, a search is not unreasonable 

if based on facts that would justify the issuance of a warrant, even though a warrant has 

not actually been obtained.” (United States v. Ross (1982) 456 U.S. 798, 809, fn. 

omitted.) 

 We concluded that neither defendant’s status as a qualified patient under the CUA 

and MMP, or section 11357, subdivision (c)’s status as an infraction, provided any 

impediment to Deputy White’s investigation into the origin of the unburned marijuana 

smell emanating from defendant’s car. We therefore now turn to the question whether 

Deputy White had probable cause to search defendant’s car for evidence of the unlawful 

possession of marijuana. 

D. Probable Cause: Defendant’s Evasive Reply and the Odor of Unburned Marijuana 

Defendant argues probable cause was lacking here because Deputy White could 

not determine the quantity of marijuana from smell alone, and had no articulable basis for 

inferring that defendant was being untruthful when he denied possessing any marijuana. 

We disagree. Probable cause posits “a fair probability that contraband or evidence of a 

crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.) 

“[P]robable cause requires only a probability or substantial chance of criminal activity, 

not an actual showing of such activity.” (Id. at p. 243, fn. 13.) Deputy White testified 

that he smelled the odor of unburned marijuana through the opened car window. It was 

an odor with which he was very familiar, based on his extensive training and experience. 

Defendant’s explanation for the odor—that he had been smoking marijuana earlier—

contradicted the evidence under the deputy’s nose. Under these circumstances the officer 

was entitled to infer that defendant’s denial of marijuana possession was probably untrue, 

and that his admission to smoking marijuana earlier, even if true, was designed to deflect 

the deputy from searching for the source of the unburned marijuana smell coming from 
9

the car. The magistrate expressly credited Deputy White’s testimony, and substantial 

evidence supports the inference that defendant’s responses to White’s inquiries were 

evasive. Under the appropriate standard of review, we must defer to the magistrate’s 

express and implied factual findings if they are supported by substantial evidence, and 

indulge all inferences in favor of the lower court’s order. (People v. Woods, supra,

21 Cal.4th at p. 673; People v. Brown, supra, 216 Cal.App.3d at p. 1447.) 

 The magistrate’s findings support the conclusion that Deputy White had probable 

cause to search defendant’s vehicle. Case law establishes that the odor of unburned 

marijuana, alone or in combination with other circumstances, may justify the search of a 

car for marijuana. (People v. Cook (1975) 13 Cal.3d 663, 667–669, overruled on other 

grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; United States v. Johns (1985) 

469 U.S. 478, 482; People v. Strasburg, supra, 148 Cal.App.4th at p. 1055.) Here, the 

odor of unburned marijuana, coupled with defendant’s evasive responses to the deputy’s 

inquiries, provided probable cause for the search of the car for the source of the odor. 

The motion to suppress was properly denied. 

DISPOSITION 

 The judgment is affirmed. 
10

 _________________________ 

 Dondero, Acting P.J. 

We concur: 

_________________________ 

Banke, J. 

_________________________ 

Becton, J.*

 *

 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.