Creative Defense Theory Contends a Wrapped Marijuana Cigarette Isn’t An “Open Container”

  • The combination of the smell of unburnt cannabis and the physical properties of the blunt (twisted at the ends and green vegetable matter coming out of the tip) constituted a usable amount of cannabis.
  • Where probable cause to search a vehicle under the automobile exception exists, a law enforcement officer may search the vehicle irrespective of whether [the offense] is an infraction and not an arrestable offense.
  • The paper wrapping around the blunt was no barrier to it being readily used for consumption.

A San Pablo police officer stopped the defendant’s black BMW for illegally tinted windows. Upon approach, he smelled the odor of unburnt cannabis coming from the passenger area and observed in plain view an unsmoked marijuana blunt on the lap of a 22-year-old passenger. The officer testified that he had 11 years of training in cannabis detection, identification and consumption. 

The defendant stated that he was 17 years old, did not have a driver’s license or governmental identification and was driving his girlfriend’s vehicle. A records check of the defendant’s verbally given name did not result in any match. The officer conducted further search of the passenger area looking for more unlawfully possessed cannabis and for discarded identification. He recovered a handgun and ammunition in the glove compartment and an airsoft rifle behind the driver’s seat. A subsequent search located an AR-15 rifle with the serial number removed and ammunition in the trunk. During the stop, the defendant fled the scene on foot, but was apprehended. 

The defendant was charged with possession of an assault weapon and ammunition by a minor and possession of a concealed firearm and ammunition by a minor. He negotiated a plea agreement and was sentenced to 274 days in a juvenile incarceration facility and then released under supervised probation. 

The defendant contended there was no probable cause to search his vehicle and appealed the trial court’s denial of his motion to suppress the evidence. He argued that the cannabis blunt was in possession of an adult passenger, the blunt was a closed container (the paper wrapping the cannabis constituted an enclosure) and the odor of cannabis, without further evidence of criminal activity, did not constitute probable cause to search.