Thursday, March 13, 2014
A California appellate court issued a decision earlier this week considering "whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement."
The defendant was a medical marijuana patient and among the issues in the case was whether California's medical marijuana laws impact this question. As I posted yesterday, the Seventh Circuit recently issued some defense-friendly dicta on this question. The California court, however, held squarely for the government.
That appellant possessed a valid 215 card does not vitiate Deputy Griffin's probable cause to search the truck pursuant to the automobile exception.
That California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception. Here, Deputy Griffin was entitled to investigate to determine whether appellant possessed marijuanafor personal medical needs and to determine whether he adhered to the CUA's limits on possession. “Otherwise, every qualified patient would be free to violate the intent of the medicalmarijuana program expressed in section 11365.5, and deal marijuana from his car with complete freedom from any reasonable search.” (Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the preliminary hearing that people often possess more marijuana than allowed under the CUA and “hide” additional quantities of marijuana in their vehicles. It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities ofmarijuana might be found in the car. (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter, supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of defendant's car” did not foreclose possibility of additional “drugs being found in the trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].)
The full opinion is here (PDF).