Marijuana Vehicle Searches

Closed Container of a Lawful Amount of Marijuana in a Vehicle

H&S § 11362.1(c) and a Vehicle Driver’s Protection from Detention, Search, or Arrest

California’s Marijuana Laws vs. Federal Law

Good Faith and Marijuana Vehicle Searches

The lawful possession of marijuana in a vehicle, by itself, does not supply the necessary probable cause needed to allow for a search of that vehicle for more marijuana.  A closed container of not more than 28.5 grams of marijuana in a vehicle, even though not sealed, is lawful for a person who is 21 years of age or older.  The fact that possession of any amount of marijuana continues to be a violation of federal law does not allow for state officers, investigating a state offense, to search for more marijuana.  An officer’s alleged “good faith” does not provide an exception to the search restrictions under H&S § 11362.1(c).

On July 24, 2019, at around 11:10 p.m., San Francisco P.D. Officers Griffin and Ishida made a lawful traffic stop on defendant’s vehicle for driving in a lane reserved for buses and taxis, a violation of (what the Court referred to as) the “California Traffic Code § 7.2.72.”  (Never heard of the “California Traffic Code.”  This looks more like a local municipal or county code.  But the legality of the traffic stop was not in issue.) As defendant fished around looking for his driver’s license and registration, Officer Griffin observed in plain sight a closed, clear plastic, capped off, tube, about the size of a prescription pill bottle, containing what appeared to be marijuana.  Defendant freely showed it to Officer Griffin after the officer commented on it.  Believing that the presence of a container of marijuana—with a removable cap—provided the necessary probable cause to conduct a search of the entire vehicle for more, the officers had defendant step out of his car so that they could search it.  The search resulted in the recovery of a firearm wedged between the driver’s seat and the center console, along with some ammunition.  Arrested on the spot, defendant was first charged in state court where a preliminary hearing was held. However, a federal grand jury then indicted defendant on one count of being a felon in possession of a firearm and ammunition, per 18 U.S.C. § 922(g)(1) (the state case presumably being dismissed).  Defendant filed a motion to suppress everything recovered from his vehicle, alleging that because he had not more than 28.5 grams of marijuana in a closed plastic container, he did not violate any California laws and that the search was therefore illegal.

The federal district court, in a published decision, granted defendant’s motion to suppress. The Government’s primary argument was that transporting any amount of marijuana in an “unsealed” container is a crime, and although defendant’s pill bottle had a lid on it, it was not “sealed.”  California (in its infinite wisdom) voted in favor of Proposition 64 in November, 2016, decriminalizing the possession of 28.5 grams (an ounce) or less of marijuana (i.e., “cannabis”) by persons 21 years of age or over.  (See H&S Code § 11357)  Proposition 64 also provided that “[c]annibis and cannabis products . . . 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.” (H&S § 11362.1(c)).   This has been interpreted to mean that so long as the driver of a motor vehicle is not violating any of the laws relating to the transportation or use of marijuana, and he is 21 years old or older and possesses a legal amount of the stuff, and so long as there is no other articulable legal cause to search his car for more contraband, conducting such a search is illegal.  Some of the laws a driver can violate, taking it out from under the protective umbrella provided by H&S § 11362.1(c), are driving while under the influence of marijuana (V.C. § 23152(f)), or smoking it while driving (H&S § 11362.3(a)(7) and (8)).  At issue here is a third statutory restriction, providing that you cannot possess an “open container or open package of cannabis or cannabis products while driving.”  (H&S § 11362.3(a)(4))  As noted by the Court:  “The statute in question in this case is Vehicle Code § 23222, which states that, ‘while driving a motor vehicle,’ it is an infraction to possess ‘any receptacle containing any cannabis . . . which has been opened or has a seal broken, or loose cannabis flower not in a container . . . .’ Vehicle Code § 23222(b)(1).”  The bone of contention here was whether this meant that the container had to be not only unopened, but in a “sealed” condition to be lawful.  Citing prior California authority, the Court held that it does not.  (See People v. Shumake (2019) 45 Cal.App.5th Supp. 1.)  Per the Court; “the government’s strained interpretation that any non-sealed container is illegal would render meaningless the final clause, which implies that transporting loose cannabis flower ‘in a container”’ is allowed.”  Per the ruling in Shumake, even though not sealed, a closed container is in compliance with V.C. § 23222(b)(1). The Shumake court ruled that the officer'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).”  Therefore, an officer cannot rely on the presence of a closed (even though not sealed) container of less than an ounce of marijuana—it being lawful—as justification to search a vehicle for more marijuana in that, as provided by H&S § 11362.1(c), “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”  The Court further ruled that the fact that the possession of any marijuana at all is still a violation of federal law (marijuana still being classified federally as a Schedule I controlled substance, illegal to possess pursuant to 21 U.S.C. § 844(a)) does not provide an excuse to skirt the H&S § 11362.1(c) protections from being detained, arrested, or searched.  The Ninth Circuit has already held that local police officers do not have probable cause to arrest when the alleged violation is of federal law in those circumstances where the officers are, at the time, investigating a violation of state law.  (United States v. Jones (U.S. Dist. Ct. 2020) 438 F.Supp.3rd 1039. See also United States v. $186,416.00 in U.S. Currency (9th Cir. 2010) 590 F.3rd 942, 948.  See also  Commonwealth v. Craan (Mass. 2014) 469 Mass. 24: “Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana.”)  Lastly, the Court rejected the Government’s argument that the officers’ “good faith” saves the search in this case.  This argument doesn’t fly because even though the officers did not have the benefit of the Shumake decision—it not being decided until after the search in this case—the relevant statutes were there when they conducted this search.  Neither Shumake nor this decision here is a novel interpretation of the relevant statutes, which the officers are presumed to know and understand.  The good faith exception, therefore, does not apply.  The search of defendant’s vehicle and the recovery of the gun, therefore, was illegal.

Even though this is only a federal trial court decision, it is consistent with People v. Shumake.  And even though Shumake is only a decision out of the Appellate Department of the Alameda Superior Court, there is no decision on this issue from a higher court, state or federal.  So, until there is, this case and Shumake are controlling.  Noting that V.C. § 23222(b)(1) talks about a container “which has been opened or has a seal broken” (Italics added), written in the disjunctive, then it makes sense that there is no requirement that the container actually be sealed. The fact—or whether it is even important—that the pill bottle may have been opened earlier while in the vehicle, and then closed again, is not discussed. (See H&S § 11362.3(a)(4)), when it references the possession of “an open container or open package of cannabis or cannabis products while driving.”) The bottom line is that the container apparently must actually be open when observed by the officer to be illegal.