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. …