After winning a motion to suppress, the district attorney appealed the case and just yesterday we found that the order was overruled and the appellate court found that because the officer said he smelled marijuana, that was enough “probable cause” for the officer to take out of the defendants pocket, a baggy, and search for anything illegal.
This decision shows me that once a court is given “discretion”, they can do whatever they want, unless, the upper court decides by their own “discretion” that the lower court was in error.
So we still have a chance if we appeal this decision to the appellate court in Sacramento, and if they like us, and/or they don’t like the appellate department Judges in the county court, they can use their “discretion” and overturn the decision. I think we and the district attorney would then have one more chance, and that would be at the State Supreme Court.
I can tell you right now, that ain’t happening. Why, because it takes too much time, energy and money to do all that work, and in the end, it’s a crapshoot.
This decision also tells me that the demurrer and mandamus is the way to go and may be the only way to go. We will have to wait another week or 10 days to see how that “theory” works out. For now we must take this decision and deal with it, however it gives me the idea that if the constitution is still in effect, we should prevail in the end upon a jurisdictional challenge.