THE CALIFORNIA LEGAL UPDATE
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LU Ref# CAI00051
October 23, 2024
Author Ref. No: Vol. 29 No. 11
LU Ref# CAI00051
October 23, 2024
Author Ref. No:   Vol. 29 No. 11
CONSOLIDATED ISSUE

Robert Phillips
Deputy District Attorney (Retired)

THIS EDITION’S WORDS OF WISDOM:
“It’s frustrating when you know all the answers but nobody bothers to ask you the questions.”
CASES INDEX
CASE BRIEF
Marijuana Case Brings Clarity on Open Containers in Vehicles and Whether a Warrantless Search is Lawful
COURT CASE REFERENCE: In re Randy C. (May 3, 2024) 101 Cal.App.5th 933
LEGAL UPDATES REFERENCE NO. CAC00164
RULES
An officer’s plain-sight observation of marijuana in a vehicle that is not properly enclosed in a sealed container, as required by H&S § 11362.3(a)(4), provides the necessary probable cause to justify a warrantless search of the rest of the vehicle for more marijuana. Other illegal items (e.g., illegal firearms) observed in the process are admissible in court.
FACTS
On Nov. 10, 2022, at around 11 p.m., 17-year-old defendant Randy C. was driving a borrowed BMW in the city of San Pablo. With him was an unnamed 22-year-old companion. San Pablo Police Officer Dugonjic — an 11-year veteran of the department with training and experience in marijuana identification and consumption, as well as the legality of tinted windows— observed the defendant driving and determined that its windows were in violation of Vehicle Code § 26708(a), illegally tinted windows. Officer Dugonjic conducted a traffic stop. Upon contacting the defendant, it was determined that he did not have a driver’s license and he acknowledged being 17. While discussing this with the defendant, Officer Dugonjic noticed the smell of unburnt marijuana coming from within the vehicle. He also observed that the defendant’s passenger had an unburnt and unsmoked “marijuana blunt” on his lap, in plain view, with “a little bit of green at [its] tip.” Officer Dugonjic determined that the marijuana was a usable amount and not in a closed container, a violation of H&S Code § 11362.3(a)(4).   The officer knew from his training and experience that marijuana is often smoked in paper wrappers taken from tobacco products. In constructing a marijuana blunt, the tobacco is removed from its wrapper and replaced with marijuana. According to Officer Dugonjic, if there is enough marijuana to be manipulated in such a manner, it is a useable amount. The officer had the defendant get out of the BMW and he conducted a pat-down search. He also ran the defendant’s name with San Pablo P.D.’s communications, but did not find a match. He then searched the car’s front passenger compartment to try to find any identification for the defendant or his passenger.   Officer Dugonjic later testified that he was also looking for additional marijuana in the car. Instead of identification documentation or marijuana, he found a handgun in the glove compartment and an airsoft rifle, which was visible behind the driver’s seat. The defendant attempted to flee on foot but was taken into custody. A continued search of the car resulted in the recovery from the car’s trunk an AR-15 firearm with no serial number.   Five days later, a wardship petition was filed pursuant to Welfare & Institutions Code § 602(a), alleging several firearms and ammunition offenses, as well as resisting arrest. The defendant’s subsequent motion to suppress the firearms and ammunition — arguing insufficient probable cause to search the vehicle — was denied. He therefore admitted to various felony offenses in a plea bargain, declared a ward of the court and was committed to juvenile hall for 274 days with credit for 55 days' time served. The defendant appealed.