CA9: In California, the smell of marijuana alone coming from a car no longer provides PC

In California, the smell of marijuana alone coming from a car no longer provides probable cause for search of the car. United States v. Martinez, 2020 U.S. App. LEXIS 12536 (9th Cir. Apr. 20, 2020):

In denying Martinez’s motion to suppress evidence found during the search of his car, the district court erred by relying on pre-Proposition 64 cases that held that the odor of marijuana alone provides probable cause to search for violations of state marijuana laws. See, e.g., United States v. Solomon, 528 F.2d 88, 91 (9th Cir. 1975); United States v. Barron, 472 F.2d 1215, 1217 (9th Cir. 1973); United States v. Newman, 563 F. App’x 539, 541 (9th Cir. 2014). These cases were decided at a time when possession of any quantity of marijuana was unlawful under state law. But that is no longer true in California after the passage of Proposition 64, which legalized the possession of 28.5 grams or less of marijuana, Cal. Health & Safety Code § 11362.1(a). Accordingly, these cases do not control whether Deputy Creager had probable cause to search for violations of California law.

We therefore vacate the denial of the motion to suppress and remand for further consideration of the search of Martinez’s car. On remand, the district court should first address the factual question of whether Martinez consented to the search of his car. If the district court must reach the probable cause issue, it should determine whether the facts known to Deputy Creager supported probable cause to believe that Martinez’s car contained evidence of a crime for which the Fourth Amendment permitted Deputy Creager to search. Such crimes might include violations of California’s remaining laws that restrict the possession and use of marijuana. See, e.g., Cal. Health & Safety Code § 11362.3(a)(4) (prohibiting the possession of an open container of marijuana while operating a motor vehicle). …