UPDATE ON DRIVING WITH POT

In April, I wrote about People v. Shumake and the developing body of caselaw surrounding vehicle searches and driving with pot. Today, I’m giving you a quick update on another good case that came down in June.

In People v. Johnson, the 3^rd Appellate District ruled that an officer relying simply on the smell of marijuana coming from a vehicle lacks probable cause to search the car without consent.

Like in Shumake, the marijuana was not really the issue; the marijuana was the justification for the search that led to the discovery of a gun. Also, like in Shumake the trial court ruled that the search was lawful.

In the trial court, the prosecutor argued that the odor and presence of marijuana justified a search of the car and that because the marijuana was in a knotted plastic bag that could have been untied, it qualified as an open container of marijuana in a vehicle, which (as discussed more in the April post) is unlawful under Health and Safety code section 11362.3(a)(4). The trial court agreed, relying on a line of cases that have upheld searches based on the smell of marijuana.

Health and Safety Code section 11362.1(c) states that ““[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” On appeal, Johnson argued that the possession of the small amount of marijuana in a tied plastic bag placed its possession within the safeguards for lawful possession provided by Health and Safety code 11362. The government sought to justify the search by arguing that the baggie constituted and open container and that the smell of marijuana justifies a search to determine if there is a violation of the laws governing marijuana possession in vehicles.

The Court of Appeal reversed the trial court and suppressed all the evidence and observations flowing from the unlawful search, making a number of important holdings in doing so.

First, the court held that a line of cases decided pre-Prop. 64 that held that the presence of any marijuana justifies a further search are no longer good law in light of the protections provided by Health and Safety code 11362.1(c). In doing so, the court distinguished People v. Fews, which upheld a search after the passage of Prop. 64 based on the smell of recently burned marijuana (driving a vehicle under the influence of marijuana is still unlawful). Of some concern, the court emphasizes that there was no evidence that Johnson drove with the marijuana (he was parked when contacted by officers) and thus leaves the door open to Fews remaining good law when someone is actually driving with marijuana in the vehicle. Future courts will likely have to clarify this question before we have a definitive answer.

Next, the court held that a knotted plastic baggie does not violate the prohibition on carrying an open container of marijuana in a vehicle. In so doing, the court explicitly rejected the government’s argument that the baggie qualified as an open container because it could have been untied and held that to violate the open container prohibition, the container must actually be open (duh!).

Most importantly, the court explicitly held that earlier cases holding that the odor of marijuana coming from a car allows an officer to infer that the car contains contraband are no longer good law. In short, just because an officer smells marijuana, does not give them reason to believe that marijuana in the car is possessed unlawfully or to conduct a search to determine if that is the case.

As you can see, the law in this area is still developing, so I will repeat the advice I offered in April to close:

• If you are transporting marijuana, it is always best to put it in your trunk.
• Never consent to any search. Period.
• Never consent to any search.
• Did you hear me? Never consent to any search.
• 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.
• 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.
• If you find yourself in trouble anyway, call a criminal defense lawyer immediately to explore your options.