California Court of Appeals Confirms Lawful Possession of Marijuana Does Not Provide Police Probable Cause for Vehicle Search.
This article is a review of the recent decision in Court of Appeal in California, People v. Hall (Cal. Ct. App., Nov. 24, 2020, No. A157868).
Facts of the case
On September 3, 2018, defendant and appellant Dontaye T. Hall was driving in the San Francisco area when he was pulled over for a nonoperational license plate lamp.
Officer Steve Colgan testified at Hall's preliminary hearing that as he approached the vehicle:
- he observed a clear plastic baggie containing a leafy green substance he believed to be marijuana in the center console, and
- he also observed an ashtray filled with ashes and burnt cigar wrappers commonly used to roll marijuana, and
- he testified that he saw broken up marijuana in the lap of the driver.
Notably, Colgan did not see smoke in the car. When asked if he smelled the cigar wrappers to determine if they were consistent with marijuana smoke, Colgan admitted he had not.
Colgan failed to testify to any other odors emitting from the car, whether indicating burnt or unburnt marijuana.
There were likewise no other factors indicating that that Hall was armed and dangerous or otherwise in the commission of a public offense.
In short, the only evidence in law enforcement's possession potentially justifying a search was the presence of marijuana itself.
Denial of Defendant's PC 995 Motion to Suppress
Colgan testified that possession of an “open container” of marijuana is unlawful, and therefore he and his partner searched the vehicle for additional evidence.
The search yielded a handgun in a backpack. Hall's motion to suppress was denied as was his motion to set aside the information pursuant to Penal Code 995 PC.
Given the denial of his motions and having no other realistic defense, the defendant:
- pled no contest to a misdemeanor firearms offense, and
- was placed on summary probation.
Hall appealed on Fourth Amendment grounds. In defending the trial court's decisions, the Attorney General argued that:
- the presence of marijuana in a vehicle always justifies a search of the entire vehicle to determine whether, in fact, the occupant is in compliance with the legal limits on possession, and
- that an “open container” of marijuana constitutes probable cause to search a vehicle.
California's Proposition 64 Marijuana Reforms
The First Appellate District, Division Two, rejected the first argument, citing Health and Safety Code 11362.1(c), enacted as part of California’s Proposition 64 marijuana reforms, which provides that:
- “cannabis 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.”
The court held that the plain language of the statute prevents the presence of marijuana, by itself, from constituting probable cause to search a vehicle.
The court noted that its holding was consistent with other Courts of Appeal to have addressed the same issue in other appellate districts.
Smell of burnt marijuana does not sufficient probable cause
Going even further, the appellate court held that:
- even the smell of burnt marijuana,
- absent further investigation into the amount of marijuana consumed, and
- the timing of the smoking,
- would not constitute probable cause.
Similar to an alcohol-related DUI stop, the fact that an individual consumed an unspecified amount of marijuana at an unknown time in the past does not establish probable cause that a crime has occurred.
As there was no testimony creating an inference that Hall possessed more than 28.5 grams of marijuana in the clear plastic baggie – the legal limit for adults – and no evidence that he was driving under the influence of marijuana, Colgan's search was unlawful.
No substantial evidence of an open container
The Court of Appeals next addressed the Attorney General's second argument; that the presence of an “open container” provided probable cause to search.
Even after the enactment of Proposition 64, several categories of marijuana-related conduct remain unlawful.
As relevant here, Health and Safety Code 11362.3(a)(4) HS makes it unlawful to:
- “possess 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.”
At the motion to dismiss stage, the trial court implied a requirement in the “open container” prohibition that a lawful container include some kind of permanent seal, as with a prescription jar with a cap.
The court had quipped that even a child can take apart a plastic baggie. The Court of Appeals found that this distinction was unsupported by precedent.
In prior cases, Courts of Appeal have found that a plastic baggie knotted at the top was not “open” for purposes of an “open container” determination.
Marijuana in Vehicle Did Not Justify Vehicle Search
Finally, the court rejected the argument that the “broken up” marijuana in Hall's lap, i.e. crumbs of marijuana, also qualified as an open container. The court invoked the legal maxim:
- “de minimis non curat lex,” – the law does not concern itself with trifles;
- as set forth in prior decisions concerning miniscule amounts of marijuana for the proposition that;
- since such a small amount of substance could not form the basis of a conviction;
- it likewise could not support a violation for either an open container, or
- for marijuana flower not in a container under Vehicle Code § 23222(b)(1).
Other crucial facts that supported reversal of the conviction
The court reiterated the critical facts which supported its reversal of Hall's conviction:
- Colgan did not smell marijuana, either burnt or unburnt;
- Hall complied with officer commands and otherwise lacked any indicia of being armed and dangerous; and
- Colgan did not suspect Hall of driving under the influence, much less articulate any facts to support that inference.
Considering the totality of the circumstances known to the officers during the traffic stop, the court concluded there was no probable cause to justify the search of Hall's vehicle.
The Hall case provides much needed guidance on the changes in Fourth Amendment doctrine which must necessarily flow from California's legalization of recreational marijuana possession and use by adults over 21 in Proposition 64.
It is certainly possible, and likely probable, for officers in the future to articulate more carefully factors such as suspected intoxication, strong odor of burnt marijuana, etc. to justify warrantless car searches.
However, the Hall case stands for the unambiguous proposition that the presence of marijuana, without more, no longer serves as a free pass to search the entirety of a vehicle during a traffic stop in California.
Criminal Defense for California Marijuana Related Charges
If you have been arrested and charged with a marijuana related crime, contact our team of experienced Los Angeles criminal defense lawyers to review the details of your case.
Depending on the specific circumstances, we might be able to make a reasonable argument that police lacked probable cause to pull you over or search your vehicle.
Also, through a process known as prefiling intervention, we may be able to negotiate with the prosecutor to avoid the formal filing of charges before court.
Eisner Gorin LLP is a top ranked criminal defense law firm who represents people in all Southern California courts, including Los Angeles County, Hollywood, Santa Monica, Beverly Hills, Orange County, Ventura County, Riverside, and San Bernardino.
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