N.D.Cal.: Smell of raw MJ from passenger compartment wasn’t RS in California

The stop was justified by a lane change violation on Lombard Street in San Francisco, but the continuation of the stop lacked any reasonable suspicion. Defendant was driving a rental car that had been loaned to the passenger whose mother had rented it for him. The driver had standing. California being a recreational marijuana state, the smell of raw marijuana didn’t justify the search of the car even if marijuana was still illegal under federal law. United States v. Jones, 2020 U.S. Dist. LEXIS 23642 (N.D. Cal. Feb. 10, 2020):

The Court agrees with the reasoning and analysis of Judge Gonzalez Rogers in Maffei, and for the same reasons set forth in her order, the Court concludes that even if the officers smelled unburned marijuana emanating from the Ford Fusion, that smell did not provide either reasonable suspicion or probable cause to believe that there was contraband in the Ford Fusion. After Proposition 64, California law now explicitly provides 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 lawful by this section shall constitute the basis for detention, search or arrest.” Cal. Health & Safety Code § 11362.1(c) (emphasis added). Officers Glenn and Roberts are San Francisco Police Department officers charged with enforcing California law, not federal law, and the Court is not persuaded by the government’s arguments that notwithstanding the passage of Proposition 64, the officers could rely on the smell of marijuana alone to search the car because marijuana is illegal under federal law.

Further, the government does not assert — and there is no evidence — that there are any other objective, specific facts that the officers relied upon to believe that the defendants had contraband in the car. For example, the officers did not see any drugs or drug paraphernalia in plain view (California Health & Safety Code § 11362.3(a)(4) prohibits transporting open containers of cannabis or cannabis products while driving). Similarly, the government does not assert that the officers believed that Jones was driving under the influence of marijuana (which would be a crime, see Cal. Health & Safety Code § 11362.3(a)(7)), and indeed the officers did not ask Jones any questions about whether he had used marijuana nor did they conduct a field sobriety test.