Chapter 22: Marijuana Searches

Notes

[1] CAL: P v. Moore (2021) 64 CA5 291, 300 [while possession of “a lawful amount of marijuana is not, on its own, enough to establish probable cause, such a lawful amount may establish probable cause when coupled with other factors contributing to an officer’s reasonable belief that defendant may be in violation of other statutory regulations of marijuana possession”]; P v. Hall (2020) 57 CA5 946, 948 [“lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle”]; P v. Lee (2019) 40 CA5 853, 866 [“Lee’s possession of a small and legal amount of marijuana provides scant support for an inference that his car contained contraband.”]; P v. Fews (2018) 27 CA5 553, 562 [after passage of Proposition 64, the law “permits law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence of a crime”]; Health & Saf. Code § 11362.1(c) [“Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”].

[2] CAL: Health & Saf. Code §§ 11357(a)(1); P v. Castro (2022) 86 CA5 314, __ [“all occupants of the car were under 21 years of age”].

[3] CAL: Health & Saf. Code § 11362.1(a).

[4] CAL: P v. Castro (2022) 86 CA5 314, __ [“Based on the ‘strong odor’ of ‘burnt marijuana’ emanating from Castro’s car, Castro’s admission he had smoked marijuana, and the fact all occupants of the car were under 21 years of age, the officers had probable cause to believe they would find contraband or evidence of a crime (e.g., marijuana possessed by someone under 21) in the car.”]; Blakes v. Superior Court (2021) 72 CA5 904, 912 [“The fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause in this case. Neither detective could determine if the marijuana was freshly burnt, removing any support for an inference that petitioner was smoking the marijuana while driving.”]; P v. Johnson (2020) 50 CA5 620, 634 [“the odor of marijuana alone no longer provides an inference that a car contains contraband because individuals over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana.”]; P v. Gale (1973) 9 C3 788, 794 [“strong odor of fresh marijuana”]; P v. Nichols (1969) 1 CA3 173, 175 [“The odor of marijuana justified the officer’s belief that marijuana was in the house.”]; P v. Benjamin (1999) 77 CA4 264, 273 [“The strong aroma of fresh marijuana can establish probable cause to believe contraband is present.”]. NOTE — Possession of marijuana in violation of federal law: A search that is lawful under California law does not become unlawful merely because the search would have violated federal law. US v. Talley (2020 N.D. Cal.) 467 F.Supp.3d 832, 837 [“Here, federal law cannot provide an alternate basis for probable cause. To hold otherwise would allow officers to disregard entirely California’s directive that no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”]. COMPARE: US v. Malik (9C 2020) 963 F3 1014, 1016 [probable cause based solely on odor in vehicle plus suspect’s admission he smoked in the vehicle three to four hours earlier].

[5] CAL: P v. Johnson (2020) 50 CA5 620.

[6] CAL: Health & Saf. Code § 11362.45(i) [medical marijuana laws are not affected by the restrictions imposed by the laws pertaining to legalization of marijuana].

[7] CAL: Health & Saf. Code § 11362.3(a)(4). Compare: P v. Hall (2020) 57 CA5 946, 957 [the officer’s entire testimony on the container of marijuana in Hall’s car was: “I observed clear plastic baggies, inside of which was a green leafy substance” … The officer offered no description of the state of the plastic bag].

[8] NOTE: There is some confusion as to whether a container of marijuana in a vehicle must be “closed” or “sealed.” The source of this confusion is the interrelationship between the Health & Safety Code and the Vehicle Code. The Vehicle Code prohibits driving a vehicle in which there is a container of marijuana that “has been opened or has a seal broken.” Veh. Code § 23222(b)(1). But the Health & Safety Code requires only that these containers be closed. Health & Saf. Code § 11362.3(a)(4). So, which statute governs? For the following reasons, it seems apparent that it is the Health & Safety Code:

1. Health & Saf. Code § 11362.1(a) states that its provisions override “any other provision of law.” Because the Health & Safety Code and the Vehicle Code conflict on this issue, the Health & Safety Code governs. Also see P v. Johnson (2020) 50 CA5 620, 634 [“Based on the plain language of the statute and its legislative history, we conclude section 11362.3, subdivision (a)(4) applies to a container or package of cannabis that is open when found”]; P v. Fews (2018) 27 CA5 553, 563 [“Section 11362.1 does not permit any person to possess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.”]; US v. Talley (2020 N.D. Cal.) 467 F.Supp.3d 832, 835 [court rejects the government’s argument that “any non-sealed container is illegal”]; P v. Shumake (2019) 45 CA5 Supp. 1 [court rejects the argument that cannabis transported in a vehicle “must be in a heat-sealed container.” The only case holding marijuana and alcohol containers must both be sealed is P v. McGee (2020) 53 CA5 796, 804, stating the driver violated section 11362.3(a)(4) because the officer “witnessed the passenger in possession of an unsealed container of marijuana.” The plain language of section 11362.3(a)(4) says otherwise.]

2. Health & Saf. Code § 11362.1(c) states: “Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Thus, marijuana in a closed but unsealed container is “not contraband,” and will not, in and of itself, provide probable cause to search.

[9] CAL: P v. Johnson (2020) 50 CA5 620, 633–34 [court rejects argument that marijuana in a plastic bag knotted at the top was in an “open” container; “The baggie at issue in this case was not open when found” and therefore did not violate the open container rule].

[10] CAL: Health & Saf. Code §§ 11362.3(a)(7); 11362.3(a)(8).

[11] CAL: Health & Saf. Code §§ 11362.3(a)(7); 11362.45(a); P v. Waxler (2014) 225 CA4 712, 721 [the officer “had probable cause to believe appellant’s truck contained contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in the truck, irrespective of whether possession of up to an ounce of marijuana is an infraction and not an arrestable offense”]. OTHER: US v. Talley (2020 N.D. Cal.) 467 F.Supp.3d 832, 835 [“a person cannot smoke marijuana while driving or while a passenger in a car”].