Marijuana legalization in California has created some points of confusion for citizens, especially since cannabis products remain illegal at the federal level.
A majority of the confusion revolves around traffic stops. Fortunately, California law protects citizens at traffic stops, even if they are marijuana users.
In this post, we’ll answer some of the most frequently asked questions we get about police searching vehicles in California if they smell or see marijuana.
No. Most of the time, police officers may not conduct a warrantless search in California merely because they’ve caught the odor of cannabis in your car or on your person.
The main exception is if you are under the age of 21 and the smell is a burnt smell indicating recent use. This is because, in California, adults may possess small amounts of marijuana, but minors may not.
A burnt smell isn’t even enough by itself to support probable cause for driving while intoxicated.
In the 2021 case Blakes v. Superior Court, the Superior Court of California ruled that the detectives were unable to determine if the marijuana was freshly burnt, making it impossible to use the burnt marijuana smell to provide probable cause to believe the driver was under the influence.
In fact, sometimes police can’t search your car even if they see a baggie of marijuana in plain view. The only way they can is if:
1. The marijuana isn’t properly sealed.
2. The marijuana exceeds the legal limit for personal consumption in California.
3. The marijuana appears to be for sale or distribution.
Police may still try to search your vehicle without a warrant if they see or smell marijuana.
Fortunately, if police conduct an unlawful search, your criminal defense lawyer will often be successful in getting any evidence obtained ruled inadmissible, destroying whatever case the police hoped to build around it.
Probable cause to search means there is a fair probability that evidence of a crime will be found in the area police wish to search.
Some issues that could give police probable cause to search your car might include:
1. Marijuana is in the car in an open container.
2. The police smell marijuana on drivers who are under the age of 21.
3. There is more than 1 oz. of marijuana in plain sight.
4. The police smell burnt marijuana, and you are showing signs of impairment that could indicate you are driving under the influence of marijuana.
Remember, while possessing small amounts of marijuana is lawful, driving while under the influence of marijuana is not lawful. If police have sufficient evidence that there is probable cause that a DUI is in progress, they may still search your car.
No. You could hang a marijuana-scented air freshener from your rear-view mirror if you wanted, though to be clear, we don’t suggest that! Smells aren’t illegal.
Smells simply indicate certain illegal activities could be taking place:
• That you’re driving under the influence
• That you’re transporting marijuana in order to sell or distribute it
• That you’re a minor under the age of 21 using and possessing marijuana
The police need probable cause, such as signs of impairment, or another warrant exception to search your vehicle without a warrant.
The Fourth Amendment protects you from unreasonable searches. Unfortunately, it does not always stop searches.
Here are a few things to keep in mind about your Fourth Amendment rights in regard to vehicle searches.
1. You always have the right to refuse to consent to a search of your vehicle. Law enforcement may not impose penalties on you for refusing a search of your vehicle.
2. Law enforcement officers do not need a warrant to search your car if they can satisfy an exception to the warrant requirement. Probable cause is the largest and most commonly used exception.
3. If police have a warrant, they get to search the car regardless of whether or not you consent. A judge has already determined that they have probable cause.
In short, when no warrant is present, the Fourth Amendment gives your lawyer grounds to challenge the admissibility of the evidence later. It is not an airtight wall that keeps officers out of your car the moment you say you don’t consent.
No. Generally not. The mere sight of marijuana does not grant probable cause if it’s a lawful amount that’s properly sealed. Multiple California cases have upheld this basic principle.
To search the car based on probable cause, police will need other evidence or observations related to criminal activity.
Examples could include spotting an open container of marijuana, spotting an illegal quantity of marijuana in plain view, seeing a driver who is showing signs of intoxication, stopping a driver who is under the age of 21, or spotting evidence of some other non-marijuana-related crime.
No. If you are over the age of 21, police will need more facts than the mere smell of marijuana to justify an arrest.
You may not have an open container in your car. Any baggie of marijuana or container of marijuana should be closed and knotted.
An open bag or container offers the police clear-cut probable cause to conduct a warrantless search.
Regardless of whether you are in your car or any other location, the following criteria will tell you if you are in possession of a lawful amount of marijuana:
• Less than 1 oz. or 28.5 grams of loose cannabis flower.
• Less than 8g of concentrated cannabis (wax, gummies, chocolate, or beverages).
• The amount must be intended for personal consumption.
No amount of marijuana is legal if you are under the age of 21. If you are under 21, possession of marijuana for personal use is an infraction.
Personal use or consumption means there is no intent to sell or distribute marijuana. How can police tell what someone intends to do with marijuana? Generally, a person who intends to use marijuana for personal use will keep it all in a single baggie or container. Those who intend to sell it often divide it into multiple sealed bags designed for sale.
If you are 21+ years old and have nothing more than a lawful amount meant for personal consumption in your car, and the bag is properly sealed, nothing should happen. The police do not have grounds to arrest you. If they arrest you anyway, your criminal defense attorney should be able to challenge their actions.
If you’ve violated the law, you could be arrested. Police still have the right to arrest people for the underage use of marijuana, for DUIs, for sale or distribution of marijuana, or for possessing more than the legal limit of marijuana.
The best way to keep police from searching your car is to follow the law:
1. Be above the age of 21.
2. Keep your marijuana in a properly sealed container.
3. Make sure you are only carrying a lawful amount of marijuana for personal use; 1 oz. or 28.5g of loose flower or less than 8g of wax, edibles, gummies, drinks, or other concentrated forms of marijuana.
4. Never drive while you are under the influence of marijuana.
You can also reduce the likelihood of an encounter with the police by following all traffic laws and driving safely at all times.
Relevant Marijuana Cases in California
In The People v. Johnson, police saw 2g of marijuana in a plastic baggie. Though the baggie was in plain view, the baggie was also knotted at the top. The courts ruled the police had no probable cause for a search.
In The People v. McGee, police spotted an unsealed bag of marijuana in the passenger’s cleavage. The courts found the passenger was in violation of open container laws, and the police thus had probable cause for a search.
In The People v. Hall, police saw a sealed plastic baggie in the center console but also saw a green leafy substance in the driver’s lap. As the marijuana was just out and about in the car, Hall was in violation of the sealed container law and thus gave the police probable cause to search the vehicle.
These cases help to demonstrate that very small shifts in the facts can sometimes lead to very different outcomes.
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