Searches of Vehicles for Marijuana

H&S Code § 11362.1(c) and the Lawful Possession of Marijuana

Sealed vs. Closed Baggies of Marijuana in a Vehicle

The lawful possession of an ounce or less of marijuana in a vehicle does not, by itself, provide the necessary probable cause to search the vehicle.  A baggie of marijuana found in a vehicle need not be sealed to be lawful, so long as it is not actually open when observed.

At about 11:00 p.m. on September 3, 2018, San Francisco P.D. Patrol Officer Steve Colgan and his partner observed defendant Dontaye T. Hall driving a vehicle with a license plate light out.  Initiating a traffic stop and contacting defendant, Officer Colgan observed in plain sight in the center console “a clear plastic baggie, inside of which was a green leafy substance” which appeared to be . . . (are you ready for this ) . . . MARIJUANA!  He also saw in the cup holders “an ashtray filled with ashes,” “burnt cigar wrappers, commonly used to wrap marijuana,” and “a green leafy substance, that appeared to be broken up” in defendant’s lap.  Later, in his testimony, Officer Colgan admitted that he did not attempt to smell the cigar wrappers.  There was also no testimony about any smoke being observed or odors that might have been emanating from the vehicle or from defendant himself, or that there was any odor of marijuana at all; burnt or unburnt.  It was also admitted by Officer Coglan that defendant did not appear to be under the influence of anything.  The officer further admitted in testimony that he had no prior knowledge that defendant might be armed and/or dangerous.  It was also apparently assumed (there being no evidence presented on this issue) that the observed marijuana was less than an ounce.  It was therefore based solely upon the observed baggie of marijuana that the officers decided to search defendant’s vehicle for any additional evidence of the crime of “an open container of marijuana.”  In searching defendant’s car, a pistol was discovered in a backpack on the floor on the rear passenger’s side.  Charged in state court with carrying a loaded firearm in a public place (P.C. § 25850(a)), carrying a concealed firearm in a vehicle, (P.C. § 25400(a)(1)), and the infraction offense of having no license plate lamp (V.C. § 24601), defendant’s motion to suppress the firearm as the product of an illegal search was denied by both the preliminary hearing magistrate and (in a P.C. § 995 motion to dismiss) the trial court judge.  Defendant therefore pled no contest in a negotiated plea to a single misdemeanor firearm offense (carrying a loaded firearm) with the remaining charges dismissed.  Sentenced to three years of probation and six months in county jail, defendant appealed.

The First Appellate District (Div.2) reversed.  On appeal, the People argued that the search of defendant’s vehicle was lawful under the so-called “automobile exception” to the search warrant requirement, the officers having observed in plain sight an “open container” of marijuana which provided the necessary probable cause to believe that evidence of a crime would be found.  The Court disagreed, noting that observation of an ounce or less of marijuana in a container no longer provides probable cause to believe that more might be found in a vehicle.  The Court further held that the baggie of marijuana in this case was not “open;” a necessary element of the crime of illegally possessing an ounce or less of marijuana in a vehicle.

(1) The Automobile Exception to the Search Warrant Requirement:  It has long been considered an exception to the general search warrant requirement that an officer may search a vehicle without a warrant so long as the officer has probable cause to believe the vehicle contains contraband or evidence of a crime.  (Pennsylvania v. Labron (1996) 518 U.S. 938, 940; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225.)  However, enacted as part of Proposition 64 (November 8, 2016)—legalizing the possession and transportation of up to an ounce (28.5 grams) of marijuana (i.e., “cannabis”) by persons 21 years of age or older (see H&S Code § 11362.1(a)(1))—is subdivision (c) of H&S Code § 11362.1, which provides, “[c]annabis 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.” (Italics added.)  Based upon this provision, defendant’s possession of marijuana in his car, not being illegal (assuming that defendant’s baggie was not “open;” see below), does not provide the necessary probable cause to search the rest of his vehicle for more marijuana.  As has already been decided by the Fourth District Court of Appeal in People v. Lee (Oct. 3, 2019) 40 Cal.App.5th 853, at pg. 862: “(T)he presence of a lawful amount of marijuana in a vehicle cannot, by itself, justify an officer's search for more marijuana on the theory that if a person has a lawful amount of marijuana, there may be a greater, unlawful amount of marijuana in the person’s car. Instead, ‘there must be evidence—that is, additional evidence beyond the mere possession of a legal amount—that would cause a reasonable person to believe the defendant has more marijuana.’” (See California Legal Update, Vol. 24, #11, Oct. 28, 2019.)  In this case, there is no evidence that defendant was doing anything illegal (again, assuming that the baggie he possessed was unopened).  Under the specific terms of H&S § 11362.1(c), therefore, defendant’s possession of that baggie cannot be used to establish the necessary probable cause to search the rest of his car for more marijuana.  (See also People v. Shumake (Dec. 16, 2019) 45 Cal.App.5th Supp. 1 [California Legal Update, Vol. 25, #5, Aug. 16, 2020)], and People v. Johnson (June 15, 2020) 50 Cal.App.5th 620 [California Legal Update, Vol. 25 #9, July 14, 2020].) 

(2)  An Open Baggie of Marijuana:  The People argued on appeal that defendant’s possession of his baggie of marijuana was not lawful because it was open, or at least had been opened at one time, taking it’s possession out from under the protection of H&S Code § 11362.1(c).  Pursuant to subdivision (a)(4) of section 11362.1, a person is not permitted to “[p]ossess 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, boat, vessel, aircraft, or other vehicle used for transportation.”  Unfortunately, there was no evidence presented during the motion to suppress as to whether defendant’s baggie was actually open or not.  Either way, however, the superior court magistrate assumed that the baggie was not “permanently sealed,” and therefore had to be in violation of section 11362.1(a)(4).  On appeal, however, the Appellate Court held that the lack of a permanent seal is not relevant to the issue of whether or not a baggie is “open,” for purposes of section 11362.1(a)(4) and (c).  Prior case authority has held, for instance, that a baggie being merely “knotted at the top” is not an open container.  (People v. Johnson, supra.)  Other authority, state and federal (albeit trial-level court decisions, and both decided after the events leading up to this current decision), has held that section 11362.1(a)(4) does not require that the container of marijuana be sealed in order to be closed.  (See People v. Shumake (2019) 45 Cal.App.5th Supp. 1 [California Legal Update, Vol. 25, #5, Apr. 16, 2020]; and United States v. Talley (June 15, 2020) __ F. Supp.3rd __ [2020 U.S. Dist. LEXIS 106004] [California Legal Update, Vol. 25, #13, Nov. 29, 2020].)  It is the People’s burden to prove every element of an offense.  Having failed to prove that defendant’s baggie was actually open (as opposed to “knotted at the top,” or even just zipped shut), the Appellate Court had to assume that it was closed.  Further, the Court rejected the People’s alternate argument that other apparent loose marijuana observed in defendant’s vehicle (ashes in an ashtray and some “green leafy substance that appeared to be broken up” marijuana in defendant’s lap) constituted marijuana in an open container. Per the Court: “Nothing in the record indicates the magistrate considered the ash, ‘remnants,’ and/or the substance on Hall’s lap to constitute either an ‘open container or open package of cannabis or cannabis products,’” or that what was observed constituted a “usable amount.”

Conclusion:  Defendant’s possession of an ounce or less of marijuana in his vehicle was lawful pursuant to H&S Code § 11362.1(a)(1) and (a)(4).  As such, subdivision (c) of section 11362.1 commands that defendant’s marijuana is not to be considered contraband nor subject to seizure, nor constitute a legal basis for defendant’s detention, search, or arrest.  Defendant’s conviction, therefore, was reversed.  The matter remanded to the trial court with directions to set aside its order denying the motion to suppress, enter an order granting the motion, allow defendant to withdraw his plea, and conduct further proceedings consistent with this opinion.

The burning issue (pardon the pun) left undecided is what it takes, in addition to the lawful possession of marijuana, to give an officer the probable cause he needs to conduct a full warrantless search of the suspect’s vehicle.  I believe we can still make the argument with a straight face that if, in the officer’s training and experience, he or she “smells” what he or she can honestly testify to as indicative of either “bulk” or “burning” marijuana (it still being illegal to possess more than an ounce of marijuana (H&S § 11357) and/or smoke while driving (H&S §§ 11362.3(a)(7)) or riding as a passenger in (H&S § 11362.3(a)(8)) a motor vehicle), then a full vehicle search for the source of that odor is lawful.  It might be argued that People v. Johnson (2020) 50 Cal.App.5th 620, seems to say otherwise.  The Court in Johnson held to be illegal a search of a vehicle based upon the odor of marijuana and the observation of a small knotted baggie of marijuana in the center console.  My counter argument is that if the odor can be accounted for only by the legal baggie that is observed, as was apparent in Johnson, then we’re done.  But if not, such as when it smells like “bulk” or freshly “burnt” marijuana, then we have the necessary probable cause to go looking for the source of that odor.  There was no testimony in Johnson of the odor of “burning,” or “bulk,” marijuana, either of which, had it been observed, would have indicated a violation of H&S Code § 11362.1.  Other jurisdictions tend to agree with me.  For instance, in Colorado, where recreational marijuana use is also lawful, it has been decided that despite such legalization, “a substantial number of other marijuana-related activities remain unlawful under Colorado law. Given that state of affairs, the odor of marijuana is still suggestive of criminal activity.”  (People v. Zuniga (Colo. 2016) 372 P.3rd 1052, 1059 [2016 CO 52]; see also Robinson v. State (Md.Ct.App. 2017) 451 Md. 94 [152 A.3rd 661, 664–665], from the state of Maryland, in support of this same argument.)  So make some California or Ninth Circuit case law for me and we’ll see how this argument holds up.