Driving with Pot

Now that marijuana is essentially decriminalized in California, there is a lot of confusion, both among civilians and the police about the laws surrounding marijuana in automobiles. Smoking marijuana while driving remains illegal [Health and Safety code section 11362.3(7)] as does driving under the influence of marijuana [Vehicle Code section 23152(f)]. But what about possession of pot while driving? Unfortunately, the law there is not so clear.

This post is meant to give you some best practices for getting around with your favorite plant and what to do if you happen not to follow best practices and are stopped by an officer while potentially in violation of the laws governing marijuana in an automobile.

Health and Safety code section 11362.3(4) prohibits driving with an “open container or open package” of marijuana. Similarly, Vehicle Code section 23222(b), prohibits driving with marijuana products in a container that has “been opened or had a seal broken” or loose cannabis flower not in a container. People with a medical recommendation on their person are able to carry marijuana in containers that are simply “closed.”

The good news is, a violation of this prohibition is only an infraction. The bad news is that such a violation can often lead to further investigation from the police that we want to avoid. Essentially, it is a way for an officer to get his or her foot in the door…of your car.

This is exactly what happened to Andre Shumake on September 1, 2017. Mr. Shumake was pulled over for not having a front license plate. The officer noticed the smell of marijuana and asked if there was marijuana in the car. Shumake replied that he had “some bud” in the center console. The officer then ordered him out of the car for a search.

Inside of the center console, as Shumake had indicated, the officer found 1.14 grams of marijuana in a closed tube. The tube opened by applying pressure to the outside. Based on the officer’s belief that marijuana had to be transported in a heat-sealed packaged, she decided to search the remainder of the car. Had she only found marijuana, Shumake would have received a ticket for an infraction at worst and the story would have likely been over. However, the officer located a loaded pistol under Shumake’s seat.

Shumake challenged the search of his car and was rebuffed in the trial court.

On appeal, the court addressed both the legality of the marijuana Shumake possessed as well as its use as a justification for a further search of the vehicle.

Interestingly, the court held that Shumake’s possession of the tube of marijuana was lawful. The court does not go into a lot of analysis, but seems to hold that the requirement that “cannabis” product be in an unopened or sealed container separately from the requirement that loose cannabis flower must simply be in a closed container. I believe this analysis may be incorrect as it requires the interpretation that loose cannabis flower does not qualify as “any cannabis,” which is required to be in a sealed or unopened container. Nevertheless, this is one of the only decisions interpreting the language of the statute, so its holding is useful.

The court went on to conclude from its holding that the marijuana possession was legal that a search predicated on that possession was unlawful. California Health and Safety code section 11362.1 states that any conduct made legal by the sections governing lawful possession may not form the justification for search. The appellate court thus reversed the trial court and suppressed the discovery of the firearm.

So what are the takeaways?

  1. If you are transporting marijuana, it is always best to put it in your trunk.
  2. Never consent to any search. Period.
  3. Never consent to any search.
  4. Did you hear me? Never consent to any search.
  5. Do not make admissions to the police. You are not required to answer tangential questions an officer is asking. Be calm and cooperative. Provide your license and registration. But when an officer begins asking you questions like “is there anything illegal in the car?” it is time to respectfully indicate to the officer that you do not wish to answer such questions without a lawyer present, particularly if there are items in the car that you do not want the officer to find. Will this stop the officer from conducting a search? Maybe, but probably not. What is will do is give you a better chance of getting whatever is found suppressed as the less information the officer has to justify a decision to search, the less likely that search is likely to be lawful. Don’t provide them the information they need.
  6. Lastly, it is not a bad idea to get yourself a medical recommendation card. Such a card increases your protections under the law and, as the police officer you may meet probably still doesn’t understand these laws very well, it may lessen their suspicions.
  7. If you find yourself in trouble anyway, call a criminal defense lawyer immediately to explore your options.