Traffic Stop; Marijuana; Reasonable Suspicion; Probable Cause
Subject was stopped for an equipment violation and LE smelled both fresh and burnt marijuana. The court concluded that, given the legality of personal use of marijuana in the State of California, there was not a fair probability that LE would find evidence of a crime in defendant’s vehicle. Anyone 21 years and older can now lawfully smoke marijuana in California, and as LE testified, the smell can linger for more than a week. Given the language of Veh. Code section 23222(b)(1) (regarding closed but not sealed container), upon subject telling LE he had some marijuana bud in the center console, LE could have conducted a further inquiry, including asking subject about the amount of marijuana, whether it was in a container, where it was located, when he last smoked, etc. Marijuana and alcohol now receive similar treatment under the law. LE may have had justification to administer field sobriety tests to ascertain subject’s sobriety, but that justification was not tantamount to probable cause to search the remainder of subject’s car.
Note: this was a fairly new officer and she was relying on what she had been told about the smell of burnt marijuana. The court took it at face value that it could last a week, when in reality the smell of stale, burnt marijuana is different than freshly burnt marijuana. This may have been of some assistance. However, if there had been no smell other than fresh and the only thing found was a legal amount carried in a legal manner, no probable cause would exist.
