The fact California has legalized recreational marijuana for small amounts does not make the smell of marijuana no longer probable cause. Here, there was a strong odor and defendant admitting he was carrying. An ounce or more would be an offense, and that still permitted the officer to search under the automobile exception. United States v. Martinez, 2018 U.S. Dist. LEXIS 138329 (N.D. Cal. Aug. 14, 2018):
Defendant’s argument is not well-taken. In Collins, United States District Judge Susan Illston of the Northern District of California rejected a similar argument and concluded that the officers in Collins “had probable cause to search [the] defendant’s vehicle under the automobile exception once they saw a plastic bag containing” a less-than-criminal amount of marijuana. 2018 U.S. Dist. LEXIS 3279, 2018 WL 306696, at *5. In doing so, Judge Illston noted that even California courts have upheld searches “under the automobile exception based on the odor and sight of even small amounts of marijuana, irrespective of state medical marijuana laws permitting the possession of up to eight ounces and irrespective of state law making possession of up to 28.5 grams of non-medical marijuana an infraction only.” 2018 U.S. Dist. LEXIS 3279, [WL] at *4 (emphases added) (citing People v. Waxler, 224 Cal. App. 4th 712, 715, 717, 168 Cal. Rptr. 3d 822 (2014), and Strasburg, 148 Cal. App. 4th at 1055-56, 1060). Further, in response to the defendant’s argument that the officers lacked probable cause to search his vehicle because “the marijuana the officers saw was later determined to weigh less than” 28.5 grams, Judge Illston explained that “‘neither the California Supreme Court nor the United States Supreme Court has limited the automobile exception to situations where the defendant possesses a criminal amount of contraband.'” 2018 U.S. Dist. LEXIS 3279, [WL] at *5 (internal quotation marks omitted) (quoting Waxler, 224 Cal. App. 4th at 723).
Similarly here, the fact that Deputy Creager found a less-than-criminal amount of marijuana in the center console of Defendant’s car did not preclude Deputy Creager from having probable cause under the automobile exception to search the passenger compartment and the adjoining center console for additional, potentially unlawful amounts of marijuana. As the government correctly points out, even though possessing an open container of a small amount of marijuana while driving a vehicle may only be an infraction under California law, “California still criminalizes possession of marijuana in excess of” 28.5 grams, and that offense “is punishable by imprisonment in jail for up to six months.” Opp. at 8 (citing Cal. Health & Safety Code § 11357(b)(2)).
This is particularly so because Deputy Creager smelled a “strong odor of marijuana emanating from the passenger compartment of [Defendant’s] vehicle,” Mot. Exh. H at 7 (emphasis added), and because “the odor of marijuana alone is sufficient to provide probable cause for a vehicle search for marijuana.” Collins, 2018 U.S. Dist. LEXIS 3279, 2018 WL 306696 at *5 (citing Barron, 472 F.2d at 1217). In other words, the strong smell of marijuana emanating from the passenger compartment of Defendant’s car, Defendant’s own admission that there was marijuana in the car, and the presence of a small amount of marijuana in the center console raised a fair probability that there was a “criminal” amount—more than 28.5 grams—of marijuana somewhere in the vicinity of the passenger compartment of Defendant’s car. As a result, Deputy Creager had probable cause to continue his search even after finding a less-than-criminal amount of marijuana in the center console of Defendant’s vehicle.
Other courts have also rejected legality-based arguments similar to the one raised here by Defendant. …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)