• Probable Cause Searches of Automobiles
• The Automobile Exception to the Search Warrant Requirement
• The Odor of Marijuana and Searches of Vehicles

A strong odor of burnt marijuana emanating from inside a motor vehicle provides probable cause to search that vehicle under the “automobile exception.”  The fact that the occupants of the car were under the age of 21 insures the legality of a search of the vehicle for the source of the marijuana odor.

Twenty-year-old defendant Phillip Castro and two of his gangster companions were enjoying the pleasures of toking on some very potent weed while sitting in Castro’s car on the evening of June 22, 2020.  Unfortunately for them, 9½-year LAPD veteran Officer Miguel Zendejas (assigned to the Foothill Gang Enforcement Detail) happened to drive by just as the party was reaching it height.  Officer Zendejas’ partner, Officer Organista, ran the registration on the vehicle’s license plate, showing it to be expired.  Intending to inquire as to the expired registration, Officers Zendejas and Organista drove up to defendant’s parked car, the windows to which were all open.  As they did so, Officer Zendejas (as he later testified) could smell the distinctive odor of burnt marijuana emanating from the car.  Officer Zendejas contacted defendant, who was sitting in the driver’s seat.  As he did so, he recognized the right seat passenger and another male lying down in the back seat (as if hiding) to be gang members, both of whom the officer knew to be under the age of 21.  Defendant also admitted that he too was only 20 years of age.  When asked if he was smoking marijuana, defendant admitted that he had been, but claimed that it was two hour earlier. 

The officers suspecting that defendant wasn’t being entirely truthful (shock!), everyone was asked to get out of the car.  For officer safety purposes, defendant and his companions were  handcuffed as the officers searched their vehicle.  Although no marijuana was found, an operational and loaded nine-millimeter handgun with no serial number was recovered from an open duffle bag in the trunk.  After a Miranda advisal, defendant admitted the gun was his.  Charged in state court with carrying a loaded, unregistered handgun in a vehicle, defendant eventually (after a series of lower court rulings which eventually upheld the lawfulness of the search) pled no contest to the charge.  Sentenced to two years of probation with search and seizure conditions and 120 days in jail, defendant appealed.

The Second District Court of Appeal (Div. 1) affirmed.  Defendant’s argument on appeal was (as it was in the trial court) that the search of his car was an illegal warrantless search incident to his arrest, citing In re D.W. (2017) 13 Cal.App.5th 1249.  The Court found the D.W. case to be inapplicable to this situation, however, in that Castro’s arrest did not involve a “search incident to arrest” (as was the case in D.W.), but rather a search based upon probable cause and the “automobile exception” to the search warrant requirement. 

In 2016, the voters passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the possession of up to 28.5 grams (an ounce) of cannabis by individuals 21 years of age or older. (H&S Code § 11362.1(a)(1).)  This new provision specifically provided that lawfully possessed cannabis is “not contraband.” Thus, an adult possessing up to an ounce is lawful conduct under the statute.  The section also notes that such lawful conduct may “not constitute the basis for detention, search or arrest.” (Italics added)

The problem is that defendant and his two companions were all under the age of 21, making the possession of any amount of marijuana illegal, as proscribed by H&S Code § 11357. The protections from “detention, search, or arrest,” as contained in H&S Code § 11362.1(a)(1), did not apply to defendant and his companions. Thus, the only issue left was whether the odor of burnt marijuana (plus defendant’s admission to having smoked marijuana two hours earlier) was sufficient to constitute probable cause to search defendant’s car for the source of that odor.

The Court held that under the circumstance of this case, it was.  Officer Zendejas testified that he noticed a “strong odor” of “burnt marijuana” emanating from the car, lending weight to the officer’s suspicions that the three underage subjects illegally possessed contraband with them in the car.  The fact that defendant claimed the smoking had gone on two hours earlier did not detract from the officer’s probable cause.  “Officer Zendejas’s belief ‘that there was still marijuana in the car based on the current smell of marijuana coming from inside the car’ (Italics added) was reasonable under the circumstances of this case.’”  With that probable cause to believe that there was still marijuana in the car, the “automobile exception” to the warrant requirement allowed for an immediate warrantless search.  As noted by the Court: “Under the so-called automobile exception, officers may search a vehicle without a warrant if it ‘is readily mobile and probable cause exists to believe it contains contraband’ or evidence of criminal activity.” (People v. Johnson (2018) 21 Cal.App.5th 1026, 1034.)  “Once an officer has probable cause to search the vehicle under the automobile exception, they ‘may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.’” (People v. McGee (2020) 53 Cal.App.5th 796, 801.) As also noted by the Court, “where such probable cause exists, a law enforcement officer may search the vehicle ‘irrespective of whether [the offense] is an infraction and not an arrestable offense.’” (Id. at p. 805, quoting People v. Fews (2018) 27 Cal.App.5th 553, 564.)  The search of the car was therefore lawful.

Note that as held by the Court, the 2017 case of In re D.W. does not apply to this case.  D.W. is a “search incident to arrest” case where this case is a “search with probable cause” case.  These are two distinctly different legal theories for which the rules are different even though sometimes overlapping.  First, defendant and his companions weren’t arrested despite having been handcuffed; the handcuffing merely being a safety measure with the officers being outnumbered.   But even if they had been arrested, the illegal possession of less than an ounce of marijuana is a citable offense only.  Because a person cited for possession of less than an ounce of marijuana is not going to be transported to jail (a “non-custodial” arrest), searches incident to a citation (at least without additional probable cause to believe that the subject is carrying on his person even more contraband) violate the Fourth Amendment.  (Knowles v. Iowa (1998) 525 U.S. 113.)

Searches with probable cause, however, constitute a whole different legal theory despite the occasional overlapping.  It is incumbent upon every officer in the field to know the rules for both, and when they apply. With probable cause to believe contraband is present, the general rule is that a search is allowed, but only after obtaining a search warrant.  Searches of a person is one exception to the warrant requirement.  Searches of a motor vehicle is another, often referred to as the “automobile exception.”  This exception is based upon the theory that vehicles have a lessened expectation of privacy (Cady v. Dombrowski (1973) 413 U.S. 433.) and because of their inherent mobility (Carroll v. United States (1925) 267 U.S. 132.). 

Lastly, note that there is some authority for the argument that when a subject possesses a legal amount of marijuana in a vehicle, with nothing to indicate that there might be more, or that it is being transported illegally, an officer does not have sufficient probable cause to search for more.  (See People v. Lee (2019) 40 Cal.App.5th 853; People v. Johnson (2020) 50 Cal.App.5th 620; and People v. Hall (2020) 57 Cal.App.5th 946.)  There is even authority for the argument that the simple odor of marijuana alone is insufficient to justify a search for the source of that odor, there being insufficient evidence to believe that even if there is more in the car, it is illegally possessed.  (Blakes v. Superior Court (2021) 72 Cal.App.5th 904.)  But in this case, despite defendant’s claim that he had been smoking marijuana two hours earlier (inferring that it was all gone), the Officer’s testimony that he noticed a “strong odor” of “burnt marijuana” emanating from the car was sufficient to provide an exception to the above cases.  And even if defendant and his homies weren’t under age, People v. Fews, supra, provides authority for the argument that with that “strong odor” of “burnt marijuana” emanating from the car, the officers had probable cause to suspect that more than the otherwise legal amount of marijuana might be in the car.  Lastly, note the fact that no marijuana was found is also irrelevant; the issue being what the officers reasonably believed when they initiated the search; not what they actually found afterwards.  The search of defendant’s car, therefore, was lawful.