DOES A POLICE OFFICER IN CA HAVE PROBABLE CAUSE TO SEARCH FOR MARIJUANA?

By: Frances Prizzia | Drug Crimes

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 (714) 362-0157. Our trial-tested attorney can fully analyze whether your legal rights have been violated.

Search Our Site
Our Newport Beach
Location
5000 Birch Street, Suite 3000
Newport Beach, CA 92660

Phone: (714) 362-0157

Why Choose
Frances Prizzia Criminal Defense Lawyers

1

Client Centered Approach

Our clients are our priority, we listen & have your best interests in mind. Our philosophy is that crime is simply a symptom of a bigger issue that should be addressed.
2

Reputation by Excellence

"Top 100 Trial Lawyers" by the National Trial Lawyers and Clients' Choice by Avvo.
3

Experience

Over 17+ Years of Criminal Defense Experience on your side.
4

Innovative & Determined

We think outside the box and never leave a stone unturned.
5

You're Not Just Another Client

You're in a difficult situation that requires attention. Our boutique legal team walks you through the legal process so you don't feel lost.
6

AVAILABLE FOR YOU NOW

We are available 24/7 for emergencies & offer free confidential consultations.
fill out the form
Request Your Free
Confidential Consultation

"*" indicates required fields

Full Name*
Required Fields *
This field is for validation purposes and should be left unchanged.
chevron-downarrow-leftarrow-right