Does a Police Officer in CA Have Probable Cause to Search for Marijuana?

Although recreational marijuana use has been legal in California since 2016, there is much uncertainty surrounding the margins of legalization. One issue that often arises is whether the possession of a legal amount of marijuana gives a police officer probable cause to search for additional cannabis and other drugs.

Under Alabama v. White, a 1990 Supreme Court case, probable cause requires facts known to the officer that establish “a fair probability that contraband or evidence of a crime will be found.” For example, prior to legalization, the odor of recently smoked marijuana could serve as probable cause for an officer. However, California Health and Safety Code section 11362.1(c) specifically provides that legal marijuana products “are not contraband” and their possession and/or use “shall not constitute the basis for detention, search, or arrest.”

In People v. Lee, the Fourth Appellate District recently upheld a San Diego county trial court’s finding that an officer’s search of a car based on the discovery of a legal amount of marijuana in the passenger’s pocket was unlawful. The appellate court stated that marijuana’s legalization in California means that the court will “attach minimal significance to the presence of a legal amount of the drug” on a person and will also closely examine an officer’s assertion of probable cause on a case-by-case basis. In addressing cases that suggest the discovery of a small amount of marijuana supports a lawful search for more, the court declared that there must be more than the possession of a small amount to support a suspicion that there is more.

Also, while previous cases addressed this issue post-medical marijuana laws being passed in California, and again post-“decriminalization,” Lee is the first case to address the issue of post “legalization.” The takeaway is that when marijuana was legal only in a medical context or, later, simply decriminalized, it was still contraband. It no longer is. Courts examining the facts of a case for probable cause always look at “the totality of circumstances,” and every case will come down to specific facts of the case.

If you have been subjected to a search based on an officer’s discovery of marijuana in your possession, contact The Law Offices of Frances Prizzia by calling (888) 925-2727. Our trial-tested attorney can fully analyze whether your legal rights have been violated.