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Filed 12/16/19

CERTIFIED FOR PUBLICATION

APPELLATE DIVISION OF THE SUPERIOR COURT

OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE SHUMAKE,

Defendant and Appellant.

No. 6093 

(Super. Ct. No. 17-CR-026238)

OPINION

Procedural Background:

This matter came before this panel as an appeal from a denial of a Motion to 

Suppress, heard by the Hon. Margaret Fujioka on November 7, 2018.

Factual Background:

Berkeley Police Officer Megan Jones was on “specialized DUI patrol” on 

September 1, 2017, at about 11:00 p.m. She and her partner were in an unmarked patrol 

car, heading northbound on University Avenue when she saw a Hyundai being driven (by 

Appellant) southbound. There was no front license plate on the Hyundai, a violation of 

Vehicle Code Section 5200. While on “specialized DUI patrol,” Officer Jones looks for 

driving patterns indicating intoxication, such as weaving or other erratic driving. She 

also stops cars for traffic violations, to see if the driver might be impaired. She testified 

that Appellant’s driving was normal, Appellant immediately and safely pulled to the curb 

when she activated her lights and siren, and Appellant was cooperative. Officer Jones 
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testified that she has conducted about 800 DUI investigations, with about 500 involving 

marijuana.

When Officer Jones approached the driver’s door, she noticed a strong smell of 

marijuana, both fresh and “freshly burnt.” She testified that the smell of marijuana may 

linger on clothes or car upholstery for a week or more after it is smoked. She asked 

Appellant if he had any marijuana. He answered that he had “some bud” in the center 

console.

Officer Jones believed that any marijuana transported within a car must be in a 

closed, heat-sealed package. She also believed that if marijuana is contained in that 

manner, she should not be able to smell it. Thus, believing Appellant might be in 

violation of the laws regulating marijuana possession, Officer Jones decided to search the 

car. She had Appellant and his passenger get out of the Hyundai.

She first looked in the center console. Inside was a plastic tube containing 1.14 

grams of marijuana bud, later described as “dried flower.” The tube was closed. It could 

be opened by squeezing the sides of the tube, which flexed the top open. Officer Jones 

testified that when she located the marijuana in the center console it, “gave me more 

probable cause to believe that there was more marijuana inside the vehicle.” (Reporter’s 

Transcript, page 35.) In the ensuing search, Officer Jones found a loaded pistol under the 

driver’s seat. She did not find any more marijuana, or paraphernalia.

After she completed her search, Officer Jones conducted field sobriety tests to 

determine if Appellant was under the influence. She concluded that he was not under the 

influence.

Discussion

1. Standard of Review

The recent case of People v. Flores (2019) 38 Cal.App.5th 617, 626, concisely 

states the standard:

‘As the finder of fact in a proceeding to suppress evidence [citation], the 

[trial] court is vested with the power to judge the credibility of the 

witnesses, resolve any conflicts in the testimony, weigh the evidence and 
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draw factual inferences in deciding whether a search is constitutionally 

unreasonable.’ (People v. Woods (1999) 21 Cal.4th 668, 673.) ‘In 

reviewing a trial court's ruling on a motion to suppress, we defer to the trial 

court's factual findings, express or implied, where supported by substantial 

evidence. And in determining whether, on the facts so found, the search 

was reasonable for purposes of the Fourth Amendment to the United 

States Constitution, we exercise our independent judgment. [Citation.]’ 

(People v. Simon (2016) 1 Cal.5th 98, 120; Woods, [supra,] at p. 673.) We 

consider whether a search or seizure was reasonable under an objective 

standard, based on the facts and circumstances known to the officer but 

without regard to the officer's subjective state of mind. (Scott v. United

States (1978) 436 U.S. 128, 138.)

(People v. Flores (2019) 38 Cal.App.5th 617, 626 [Emphasis added.].) 

2. Analysis

There is no dispute about the facts here. The court found Officer Jones’s 

testimony credible. The basis for the search of the Hyundai was the smell of marijuana,

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the fact that Appellant readily admitted the presence of the marijuana in the center 

console, and the recovery of the plastic tube of marijuana bud or flower. Appellant 

argues that the marijuana recovered from the center console was lawfully possessed, and 

notes that lawful possession of marijuana cannot justify a further search. The Respondent

argues that the smell of marijuana and Appellant’s admission to marijuana possession 

justified Officer Jones’s search. First, we address the legality of the marijuana possessed 

in the center console. Second, we address the legality of Officer Jones’s search of the 

remainder of the car.

A. Cars and Marijuana

A person cannot lawfully drive under the influence of any drug, including 

marijuana (Vehicle Code Section 23152(f).) A driver cannot smoke marijuana while 

driving a car and a passenger cannot smoke marijuana while riding in a car. (Health and 

Safety Code Section 11362.3(a)(7) and (8).) It is illegal to possess an open container of 

cannabis while driving. (Health and Safety Code Section 11362.3(a)(4).) A person over 

 

1 The terms “marijuana” and “cannabis” are used interchangeably herein. The testimony from the hearing 

on the Motion to Suppress used marijuana, and the statutes use cannabis.
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21 years old can possess and transport cannabis in an amount of not more than 28.5 

grams. (Health and Safety Code Section 11362.1(a)(1).)

The statute in question in this case is Vehicle Code Section 23222. In applicable 

part, it is an infraction to possess, “while driving a motor vehicle upon a highway,...any 

receptacle containing any cannabis . . . which has been opened or has a seal broken, or 

loose cannabis flower not in a container . . . .” (Vehicle Code Section 23222(b)(1).) 

B. The Marijuana In The Center Console Was Lawfully Possessed

Appellant described to Officer Jones the 1.14 grams of cannabis as “bud.” Officer 

Jones later described it as “dried flower.” (Reporter’s Transcript, page 30.) The plastic 

tube described by Officer Jones does not appear to have been “sealed” at the time of the 

search and it is unclear if it was ever “sealed.” From Officer Jones’s description of how 

she opened the tube by merely squeezing it, the container had been previously opened, if, 

for no other purpose than to put the cannabis inside it. Appellant is not arguing that the 

cannabis was in a sealed condition. Appellant is arguing that it is “loose cannabis flower 

. . . in a container.” Respondent does not dispute this. Respondent does not directly 

address the legality of the transportation of the 1.14 grams of cannabis flower in a closed 

plastic tube.

A plain reading of the statute mandates the conclusion that the possession of the 

cannabis flower in this case was lawful.

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 Appellant possessed 1.14 grams of loose 

cannabis flower in a closed container. Officer Jones’s belief that any cannabis being 

transported in a vehicle must be in a heat-sealed container is not supported by the plain 

language of Section 23222(b)(1). 

C. The Subsequent Search Was Unlawful

Officer Jones testified that when she discovered the plastic tube of cannabis flower 

in the center console it gave her “more probable cause to believe there was more 

marijuana in the vehicle.” While logical, this inference violates California law. Health 

and Safety Code Section 11362.1 states that “no conduct deemed lawful by this section 

shall constitute the basis for detention, search, or arrest.” Appellant’s container with 1.14 

grams of loose cannabis flower is far below the 28.5 grams permitted by law. As

 

2 Although the rationale is unclear to this court, Proposition 64 differentiates cannabis, which must be in an 

unopened, sealed, container, from “loose cannabis flower,” which only needs to be in a closed container. 
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Appellant was lawfully transporting the marijuana, that marijuana could not then serve as 

the basis for the search of Appellant’s car.

Respondent does not address how to analyze the search of Appellant’s vehicle if 

the evidence of the marijuana in the center console cannot be used to support it. Officer 

Jones clearly relied on it to justify her further investigation. However, as set forth in 

Flores, above, we review the legality of a search based on an objective standard, not the 

subjective state of mind of the officer. Respondent argues that that the smell of 

marijuana coupled with Appellant’s admission of possession of the “bud,” justified the 

search of the entire car. If this court excludes the discovery of the tube of marijuana 

flower in Appellant’s center console as a basis for Officer Jones’ further search, the court 

may still consider whether the loaded gun under the driver’s seat of the car would have 

been found pursuant to the “inevitable discovery” rule.

The inevitable discovery doctrine acts as an exception to the exclusionary 

rule, and permits the admission of otherwise excluded evidence “if the 

government can prove that the evidence would have been obtained 

inevitably and, therefore, would have been admitted regardless of any 

overreaching by the police.” (Nix v. Williams (1984) 467 U.S. 431, 447, 

(Nix ).) The purpose of the exception is “to prevent the setting aside of 

convictions that would have been obtained without police 

misconduct.” (People v. Robles (2000) 23 Cal.4th 789, 800.) It is the 

prosecution's burden to “establish by a preponderance of the evidence that 

the information ultimately or inevitably would have been discovered by 

lawful means.” (Nix, at p. 444; People v. Coffman and Marlow (2004) 34 

Cal.4th 1, 62.)

(People v. Hughston (2008) 168 Cal.App.4th 1062, 1071–1072.)

Without the cannabis from the center console, what remains is the strong smell of 

fresh and recently burnt marijuana, and Appellant’s statement that he possessed a small 

amount of marijuana, which turned out to be within the lawful limit. Respondent relies 

on People v. Fews (2018) 27 Cal.App.5th 553. In Fews, the driver of an SUV, in an area 

of San Francisco known for narcotics sales and violent crime, was driving erratically and 

then abruptly pulled to the curb when a police car drew near. The driver quickly stepped 

out of the vehicle while the passenger (defendant) bent down inside the SUV, as if to hide 

something. The officer detained the driver back inside the SUV, could smell burnt 

marijuana, and saw the driver had a half-smoked cigar of marijuana. This case occurred 
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after the passage of Proposition 64, but possession of such an “open container” in the car 

was (and remains) unlawful. In affirming the trial court’s denial of the motion to 

suppress the gun found in the defendant’s jacket (in a pat search not relevant to our case), 

the appellate court ruled: 

[T]he evidence of the smell of “recently burned” marijuana and the halfburnt cigar containing marijuana supported a reasonable inference that 

Mims was illegally driving under the influence of marijuana, or, at the very 

least, driving while in possession of an open container of marijuana.

(People v. Fews, supra, 27 Cal.App.5th at p. 563.) 

There are significant differences between Fews and the case at hand. First, the 

officers in Fews observed a violation of the cannabis open container law. Second, the 

half-burnt cigar, combined with the smell of burnt marijuana, leads to the inference that 

the occupants very recently smoked marijuana. This would increase the likelihood that 

the occupants were illegally smoking while driving, or that the driver was under the 

influence. Further, the driver of the SUV in Fews drove erratically, and both the driver 

and passenger acted strangely during the stop. 

Here, there was no violation of the open container law. There was no partially 

smoked cannabis in plain view. Also, Officer Jones testified that the smell of marijuana 

can linger for a week or more. Lastly, Appellant’s only traffic violation was a missing 

front license plate, and Appellant quickly and appropriately pulled to the curb and was 

cooperative throughout the stop. These factors, combined with the Appellant’s successful 

completion of the field sobriety test conducted by Officer Jones, do not support applying 

the inevitable discovery rule in this case.

Probable cause is “whether, given all the circumstances . . . , there is 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.) This court concludes that, given the legality 

of personal use of marijuana in the State of California, there was not a fair probability 

that Officer Jones would find evidence of a crime in the Hyundai. Anyone 21 years and 

older can now lawfully smoke marijuana in California, and as Officer Jones testified, the 

smell can linger for more than a week. The law permits possession and transportation of 

up to 28.5 grams of cannabis in a car. Given the language of Vehicle Code Section 

23222(b)(1), upon Appellant telling her he had some “bud” in the center console, Officer 

Jones could have conducted a further inquiry, including asking Appellant about the 
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amount of marijuana, whether it was in a container, where it was located, when he last 

smoked, etc. This is consistent with the type of reasonable inquiry officers use when they 

smell alcohol in a car. Marijuana and alcohol now receive similar treatment under the 

law. Officer Jones may have had justification at that point to administer field sobriety 

tests to ascertain Appellant’s sobriety, but that justification is not tantamount to probable 

cause to search the remainder of Appellant’s car. 

The order denying the Motion to Suppress is reversed. The case is remanded for 

proceedings consistent with this ruling.

 

CERTIFIED FOR PUBLICATION

______________________________________

WISE, P.J.

We concur:

______________________________________

CRAMER, J.

______________________________________

GRILLO, J.
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PARTIES AND ATTORNEYS

People of the State of California,

Plaintiff/Respondent

Carrie Skolnick, Deputy District Attorney

Kristopher Villa Kiriu, Deputy District Attorney

Andre Laking Shumake,

Defendant/Appellant

Brie Jefferson, Assistant Public Defender

Charles Mandeville Denton, Assistant Public Defender

Ali Rad, Assistant Public Defender

Trial Court Judge(s):

• Hon. Margaret Fujioka, Presiding Trial Judge

Trial Court Case Name/Nos: People v. Shumake, Andre Laking

Alameda Superior Ct. No. 17-CR-026238

Appellate No. 6093