Legalization of recreational marijuana in California makes possession of small quantities legal, despite federal criminal law leaving marijuana in schedule I, and thus denies law enforcement the ability to search for it. United States v. Talley, 2020 U.S. Dist. LEXIS 106004 (N.D. Cal. June 16, 2020):
Moreover, at least one court in this District that confronted the question concluded that federal marijuana law could not provide an alternative basis for probable cause. In United States v. Jones, the government argued that “although California has decriminalized the possession of small amounts of marijuana, possession of marijuana is still illegal under federal law, and thus the officers could rely on the smell of marijuana to believe that the vehicle contained contraband.” No. 19-cr-00013, 2020 WL 619922, at *10 (N.D. Cal. Feb. 10, 2020). The court rejected this argument and instead held that, after the passage of Proposition 64, the smell of marijuana does not itself provide probable cause or reasonable suspicion to believe a vehicle contains contraband and search it. The court therefore granted defendant’s motion to suppress, remarking that the officers involved were “San Francisco Police Department officers charged with enforcing California law, not federal law” and that the government did not produce “objective, specific facts” that any California marijuana-related offense had been committed.” Jones, 2020 WL 619922, at *11; see also Commonwealth v. Craan, 13 N.E.3d 569, 578 (Mass. 2014) (“Federal law does not supply an alternative basis for investigating possession of one ounce or less of marijuana”).
Here, federal law cannot provide an alternate basis for probable cause. To hold otherwise would allow officers to disregard entirely the California legislature’s directive that “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Id. § 11362.1(c). Indeed, it would lead to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce. See Printz v. United States, 521 U.S. 898, 918-19 (1997). Moreover, practically speaking, to permit this end-run around California’s legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of California residents engaging in activity the state has deemed lawful. Without appellate authority compelling such a result, the undersigned will not sign off on this potentially sweeping erosion of constitutional rights.