We are thrilled to be able to bring you the first update for this website. Check back here for our next update. We will be posting every month.
Our next Case Law Class is scheduled for August 28, 2020 from 8 a.m. to 5 in Chico, California. This one-day K-9 Case Law Update Seminar is designed to educate and update canine handlers, canine administrators, Deputy District Attorneys and others involved in canine deployments, training, liability and prosecution. This course will provide the students with up to date canine case law regarding detection and apprehension canines. Our instructor, Elizabeth Norton, a retired Supervising Deputy District Attorney, will help canine handlers and administrators better understand canine liability, case law and courtroom presentation. We will cover policies, compensation issues, report writing, courtroom testimony, use of force, suspect interviews, injury documentation, detection canine legal issues, and other topics. In addition, Elizabeth is an expert in narcotics cases, including marijuana and BHO cases. She will discuss how the new California Marijuana laws can affect you. Each student will be provided a canine manual. Please go to meyerspolicek9.com to sign up.
Update for April 2020:
Has legalization of marijuana changed the legal landscape of vehicle searches for law enforcement?
Let’s explore the general issue first. Contraband comes in many colors and flavors (all controlled substances, such as cocaine, methamphetamine, heroin, etc.,) and prior to “legalization” of marijuana in 2016, marijuana and other controlled substances were treated alike. Now, however, change is coming. Narrowing the issue, does finding a “legal” amount of contraband in the passenger area of a car, such as during a search pursuant to probable or with a plain-sight observation, provide a LE officer with probable cause to search the rest of the vehicle for more contraband?
The former rule was that finding a limited amount of evidence does not necessarily provide probable cause to believe more might be contained in other areas of the car, such as the trunk or the engine compartment. See Wimberly v. Superior Court (1976) 16 Cal.3rd 557; People v. Gregg (1974) 43 Cal.App.3rd 137.
The intermediate rule was that once LE has probable cause for an item, LE may search anywhere in the vehicle where the item logically could be found. People v. Dey (2000) 84 Cal.App.4th 1318; finding that the old rule, as expressed in Wimberly, was in effect overruled by United States v. Ross (1982) 456 U.S. 789, establishing a “bright line” test for vehicle searches.
Dey was affirmed in People v. Hunter (2005) 133 Cal.App.4th 371, where a vehicle’s trunk was searched based upon a limited amount of marijuana found in the passenger area. The Hunter court went on to rule that even if Wimberly were still the rule, the arresting LE in this case had “probable cause” to believe that more contraband would be found in the trunk based upon the vehicle occupants’ suspicious actions when first stopped and the fact that one occupant was a known drug dealer and another occupant a CYA parolee. (Id., at p. 379.) This is important to note, as you will see later in this article that developing additional reasonable suspicion or even probable cause will be critical to justify a vehicle search.
See also People v. Waxler (2014) 224 Cal.App.4th 712, 722-724 which authorized the warrantless search of subject’s vehicle based upon the odor of burnt marijuana and observation of a marijuana pipe, rejecting the argument that absent evidence of more than a lawful of medical marijuana, LE could not search the entire car. The odor of unburned marijuana or the observation of fresh marijuana may furnish probable cause to search a vehicle under the automobile exception to the warrant requirement and the fact that possession of less than an ounce of marijuana is an infraction, or that defendant had a marijuana recommendation is irrelevant. People v. Gale (1973) 9 Cal.3d 788, 794, superseded by statute on another ground in People v. Johnson (1984) 162 Cal.App.3d 100, 1008 [“strong odor of fresh marijuana” gave LE “‘probable cause to believe … that contraband may be present’”]; People v. Cook (1975) 13 Cal.3d 663, 667-669 (overruled on other grounds) [scent of marijuana emanating from a car’s trunk provided probable cause to a search under the automobile exception to the warrant requirement]; People v. Strasburg (2007) 148 Cal.App.4th 1052, 1060 and People v. Dey (2000) 84 Cal.App,4th 1318, 1320 [observation of a “useable quantity of marijuana … in the passenger compartment” of the defendant’s car “provided probable cause for the search of the vehicle’s trunk”]; People v. Hunter (2005) 133 Cal.App.4th 371, 37 [officer saw a “sandwich bag containing a green residue that his training and experience told him … was marijuana”]; Robey v. Superior Court (2013) 56 Cal.4th 1218, 1254 (conc. opn. of Liu, J.) [noting the “settled proposition that the smell of marijuana can establish probable cause to search and, in the context of an automobile search … , can provide a sufficient basis to proceed without a warrant”]. Finally, see People v. Fews (2018) 27 Cal.App.5th 553. Where the odor of marijuana is detected coming from a vehicle, the court held that, “(d)ue to the odor of marijuana emanating from the vehicle and occupant, as well as occupant’s admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the SUV might yield additional contraband or evidence.” The search of defendant’s vehicle, therefore, was held to be lawful. Fews, supra, at pp. 561-562.
The federal government agrees with this stance. In United States v. Johnson (9th Cir. 2019) 913 F.3d 793, the court held that the search of subject’s vehicle was upheld when based upon probable cause to believe subject was illegally transporting marijuana, the necessary probable cause being supplied by a trained and experienced officer’s recognition of the odor of fresh and burnt marijuana coming from his vehicle. Johnson, supra, at 801-802.
And then along came “legalization” in California on November 8, 2016 and that, along with a smattering of cases from other states that have been critical of LE utilizing the smell or the sight of a small “legal” amount of marijuana as probable cause for vehicle searches, has impacted whether the sight or smell of marijuana can constitute probable cause.
In California, anyone 21 years of age or older to possess and consume up to an ounce of marijuana with no medical recommendation. (H&S § 11362.1(a)(1) & (3)). But there are limitations. On the limited issue of the use or possession of marijuana in vehicles, the following statutory restrictions are important: H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1)), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4)), while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)). It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an open container or open package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft. (Subd. (a)(4)) (See also Veh. Code §§ 23220, 23221, and 23222, relative to cannabis in vehicles.)
Given the legal landscape today, you may be wondering what LE may do upon legally stopping a vehicle and seeing and/or smelling a “legal” amount of marijuana. In the past, that has been enough probable cause for LE to search the entire vehicle. See People v. Fews, supra and United States v. Johnson, supra. Now, after “legalization,” can LE still conduct a probable cause search of the vehicle? The necessary probable cause to search the vehicle is typically developed through LE’s observation of even a minimal amount of marijuana (see, for example, People v. Waxler (2014) 224 Cal.App.4th 712, 718-725; People v. Steele (2016) 246 Cal.App.4th 1110, 1115-1120.), or simply by smelling the odor of burnt or bulk marijuana (United States v. Johns (1985) 469 U.S. 478; United States v. Snyder (10th Cir. 2015) 793 F.3rd 1241; United States v. Smith (8th Cir. 2015) 789 F.3rd 923; People v. Lovejoy (1970) 12 Cal.App.3rd 883, 887; People v. Gale (1973) 9 Cal.3rd 788, 793, fn. 4. However, if LE conducts a vehicle search based upon no more than observing less than an ounce of marijuana in a car, when it is not being smoked, not in an open container, or otherwise not in violation of any of the section H&S 11362.3 restrictions, it appears that a possibly viable defense argument is that LE did not have probable cause based solely on the observation of a personal amount of marijuana. First, H&S § 11362.1(c) (enacted November 8, 2016) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” Also, People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998, held that a warrantless search upon the speculative belief that more marijuana than lawfully allowed may be found is illegal. However, Torres is a residential search case. With a vehicle, having a lower expectation of privacy as compared to a residence (see People v. Valencia (2011) 201 Cal.App.4th 922, 938-939.) LE also has a strong argument that evidence of the presence of some marijuana, despite no observable or admitted section 11362.3(a) violations, supplies the required “fair probability” to believe that a search of the entire vehicle will uncover more marijuana and a violation. Fair probability, of course, is the standard to establish probable cause. See Illinois v. Gates (1983) 462 U.S. 213. Four cases in California support this argument: See above discussions of People v. Strasburg (2007) 148 Cal.App.4th 1052; People v. Waxler (2014) 224 Cal.App.4th 712, 722-724; People v. Dey (2000) 84 Cal.App.4th 1318 and People v. Hunter (2005) 133 Cal.App.4th 371, 379.
People v. Fews (2018) 27 Cal.App.5th 553, a post-legalization case, also supports the notion that a smell and/or observation of marijuana gives LE probable cause to search the vehicle. LE saw a vehicle in a high crime, high drug use area and performed a traffic stop. Both occupants were squirrely, and LE smelled recently burnt marijuana as well as a half smoked blunt in the possession of one occupant. LE got both out, noted baggy clothing and pat-searched defendant, finding a gun. LE then searched the vehicle. Defendant complained that the Terry frisk was a pretext to finding probable cause to search the vehicle and that a pat-search was not authorized because the marijuana was legally possessed. The court addressed first the pat-search (Terry frisk). The court held “[b]ecause marijuana possession and use is still highly circumscribed by law even after the passage of Proposition 64, the odor and presence of marijuana in a vehicle being driven in a high-crime area, combined with the evasive and unusual conduct displayed by (occupants) as discussed above, were still reasonably suggestive of unlawful drug possession and transport to support the Terry frisk.”
The court then turned to the search of the vehicle. Relying on Strasburg, supra, and Waxler, supra, as well as the language in Health and Safety Code section 11362.1, the court held that LE had probable cause to search the vehicle even without finding the gun. “Here, the evidence of the smell of “recently burned” marijuana and the half-burnt cigar containing marijuana supported a reasonable inference that (subject) was illegally driving under the influence of marijuana, or, at the very least, driving while in possession of an open container of marijuana. Because this was not conduct “deemed lawful” by (H&S) section 11362.1, defendant cannot validly rely upon the “not contraband” designation of section 11362.1, subdivision (c), in order to avoid the holding in Waxler.” Fews, at 563. The court, after an analysis of Strasburg and Waxler; held: “Defendant provides no compelling reason to depart from Strasburg and Waxler after the passage of Proposition 64, particularly in light of the facts of the instant case. The continuing regulation of marijuana leads us to believe that Strasburg and Waxler still permit law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence of a crime.” Fews, supra. See Strasburg, 148 Cal.App.4th at 1060; Waxler, 224 Cal.App.4th at pp. 721, 723-724; see also People v. Zuniga (2016) 2016 CO 52 [holding that despite Colorado’s legalization of marijuana, “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.”]; Robinson v. State (Md.Ct.App.2017) 451 Md. 94.) Due to the odor of marijuana emanating from the (vehicle) and (subject), as well as (subject)’s admission that there was marijuana in his half-burnt cigar, there was a fair probability that a search of the (vehicle) might yield additional contraband or evidence.”
However, under a different fact pattern, the 4th Appellate District in California ruled for the defense in People v. Lee (2019) 40 Cal.App.5th 853. (While this is a 4th Appellate District case and therefore only binding in the 4th District’s jurisdiction, other appellate districts will rely heavily on it and it is an indication of how the other districts may rule. Lee and Fews have thus created a conflict in the appellate courts for California.) In Lee, the court held that a driver of a motor vehicle having on his person a small, legal amount of marijuana (i.e., with no odor emanating from the vehicle) is of “fairly minimal significance” in determining whether there is probable cause to believe the vehicle contains an illegal amount. “(T)here must be . . . additional evidence beyond the mere possession of a legal amount” for there to be probable cause to believe there is more marijuana in a suspect’s vehicle. Lee, supra, at 861-867.
In addition, Alameda County came out with a new case out in California on this issue. (Since this is an Alameda Superior Court case, it is not precedent in any jurisdiction except Alameda County. However, you should expect defendants will be citing it in your cases). In People v. Shumake (2019) 45 Cal.App.5th Supp. 1, LE smelled fresh and burnt marijuana (LE testified that burnt marijuana can linger on clothes for up to a week, which isn’t exactly correct. It appears this LE did not have personal experience but was relying on information gained from others. Most LE know that there is a distinction between the smell of freshly burned marijuana v. the smell of stale burned marijuana. Had this LE been able to make this distinction, it may have been of use because recently smoked marijuana would indicate subject had just smoked marijuana while driving, which is illegal). Driver admitted to having a small amount of bud. LE found a closed container of marijuana. Erroneously believing this was an “open container”, LE searched the car pursuant to probable cause and found a gun. The court held this was an illegal search, as H&S 11362.1 clearly states that a legal amount of marijuana cannot be considered contraband or subject to seizure.
Of note, also, is Colorado’s McKnight case (People v. McKnight (2019) 2019 CO 36). According to the Colorado Supreme Court, in the context of marijuana, the alert of a PSD is only part of determining probable cause. The Colorado Supreme Court has departed from United States Supreme Court precedent in holding that law enforcement officers must have reasonable suspicion to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. Colorado goes on to hold that even if a marijuana trained PSD dog alerts, the alert is only a factor in determining probable cause. This is in direct conflict with the United States Supreme Court. Colorado justified the departure by stating that since a marijuana trained PSD could be detecting “legal” activity (personal possession of marijuana) this transforms the “sniff” into a search which needs probable cause to justify it.
So where does this leave LE? In a case in which you are solely relying on a marijuana trained PSD or in a case in which you are solely relying on the smell of burnt marijuana (without being able to articulate that it is a smell of recently burned marijuana and that you have the training and experience to determine that) or fresh marijuana, you are probably going to need additional facts for the court to find probable cause. The more you can document additional probable cause, the better your case will be in court.