In re D.W.

San Francisco officers, responding to a broadcast that someone in the area might have a firearm, saw individuals, known to have gang associations, on the corner in a rival gang area. Concerned that they might be trying to attract violence, the officers contacted them. Officer Solares smelled marijuana on D.W.’s clothes and breath. D.W. admitted he had just smoked some. Officer Ochoa told D.W. to put his hands on his head, and D.W. “tried to pull away . . . he didn’t want me to search him.” Ochoa put his hand underneath D.W.’s backpack, and felt a revolver. Officers handcuffed D.W. and retrieved the revolver. D.W. was 17 years old. The court denied D.W.’s motion to suppress, stating: there’s a big distinction [between probable cause] to arrest and [probable cause] to search. . . a strong smell can establish probable cause to believe contraband is present and the search is allowable and legal. The court of appeal affirmed a judgment declaring D.W. a ward of the court but, after remand by the California Supreme Court, reversed. Even if the officers could reasonably conclude that the smell of marijuana and D.W.’s admission that he just smoked some meant he had more, it would have been mere conjecture to conclude that he possessed enough to constitute a jailable offense. View "In re D.W." on Justia Law