A small amount of marijuana in a sealed container in a car is legal and does not justify a search

People v. Shumake (Cal. App. Dep’t Super. Ct., Dec. 16, 2019, No. 6093) 2019 WL 8128736

Stop by Specialized Dui Patrol Officer: Admission that driver had marijuana in the car

While on specialized DUI patrol Berkeley Police Officer Megan Jones stopped a Hyundai with no front license plate, a violation of Vehicle Code Section 5200. Officer Jones testified that she stops cars for traffic violations, to see if the driver might be impaired. She testified that Shumake’s driving was normal, and that he immediately and safely pulled to the curb when she activated her lights and siren, and that he was cooperative. Officer Jones testified that she has conducted about 800 DUI investigations, with about 500 involving marijuana.

When Officer Jones approached the driver’s door, she noticed a strong smell of marijuana, both fresh and “freshly burnt.” Jones testified that the smell of smoked marijuana may linger on clothes or car upholstery for a week or more.  Jones asked Shumake if he had any marijuana and answered that he had “some bud” in the center console.

Search based on belief that marijuana must be in a heat-sealed package that allows no odor to escape

Jones testified that she believed that any marijuana transported within a car must be in a closed, heat-sealed package and that no odor can escape that packaging. Believing that Shumake might be in violation of the laws regulating marijuana possession, Jones decided to search the car.

Marijuana found in plastic tube in center console

Jones found a closed plastic tube containing 1.14 grams of marijuana bud, later described as “dried flower.” Officer Jones testified that when she located the marijuana in the center console it, “gave me more probable cause to believe that there was more marijuana inside the vehicle.”  During her search, Officer Jones found a loaded pistol under the driver’s seat but she did not find any more marijuana, or paraphernalia.

After conducting field sobriety tests to determine if Shumake was under the influence,  Jones concluded that he was not.

Standard of review of trial court motion on field sobriety test

A reviewing court defers to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether the search was reasonable for purposes of the Fourth Amendment to the United States Constitution, the reviewing court exercises its independent judgment. Whether a search or seizure is reasonable under an objective standard is based on the facts and circumstances known to the officer but without regard to the officer’s subjective state of mind. See People v. Flores (2019) 38 Cal.App.5th 617, 626

Laws impacting cars and marijuana

A person cannot lawfully drive under the influence of any drug, including marijuana (Vehicle Code Section 23152(f).) A driver or passenger cannot smoke marijuana while a car is driven a car. (Health and Safety Code Section 11362.3(a)(7) and (8).) It is illegal to possess an open container of cannabis while driving. (Health and Safety Code Section 11362.3(a)(4).) A person over 21 years old can possess and transport cannabis in an amount of not more than 28.5 grams. (Health and Safety Code Section 11362.1(a)(1).)

Vehicle Code Section 23222 makes it is an infraction to possess, “while driving a motor vehicle upon a highway,…any receptacle containing any cannabis … which has been opened or has a seal broken, or loose cannabis flower not in a container ….” (Vehicle Code Section 23222(b)(1).)

Legality of the marijuana possessed in the center console

Shumake did not argue that the cannabis was in a sealed condition. Shumake argued that it is “loose cannabis flower … in a container.” The People did not directly address the legality of the transportation of the 1.14 grams of cannabis flower in a closed plastic tube.

A plain reading of the statute mandates the conclusion that the possession of the cannabis flower in this case was lawful.

Shumake possessed 1.14 grams of loose cannabis flower in a closed container. Officer Jones’s belief that any cannabis being transported in a vehicle must be in a heat-sealed container is not supported by the plain language of Section 23222(b)(1).

Legality of Officer Jones’s search of the remainder of the car

Officer Jones testified that when she discovered the plastic tube of cannabis flower in the center console it gave her “more probable cause to believe there was more marijuana in the vehicle.” However, Health and Safety Code Section 11362.1 states that “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Shumake’s container with 1.14 grams of loose cannabis flower is far below the 28.5 grams permitted by law. Shumake was lawfully transporting the marijuana that marijuana could not then serve as the basis for the search of his car.

Even if the court excludes the discovery of the tube of marijuana flower in Shumake’s center console as a basis for Officer Jones’ further search, the court may still consider whether the loaded gun under the driver’s seat of the car would have been found pursuant to the “inevitable discovery” rule.

Inevitable discovery doctrine, an exception to the exclusionary rule, does not apply here

The inevitable discovery doctrine acts as an exception to the exclusionary rule, and permits the admission of otherwise excluded evidence “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police.” (Nix v. Williams (1984) 467 U.S. 431, (Nix).) The purpose of the exception is “to prevent the setting aside of convictions that would have been obtained without police misconduct.”

The prosecution’s burden is to “establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” (Nix, at p. 444 [104 S.Ct. 2501]; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 62 [17 Cal.Rptr.3d 710, 96 P.3d 30].)

Without the cannabis from the center console, what remains is the strong smell of fresh and recently burnt marijuana, and Shumake’s statement that he possessed a small amount of marijuana, which turned out to be within the lawful limit.

In this case there was no violation of the open container law and no partially smoked cannabis in plain view.  Officer Jones testified that the smell of marijuana can linger for a week or more. Shumake’s only traffic violation was a missing front license plate, and Appellant quickly and appropriately pulled to the curb and was cooperative throughout the stop. These factors, combined with the Shumake’s successful completion of the field sobriety test conducted by Officer Jones, do not support applying the inevitable discovery rule in this case.

Because of the legality of personal use of marijuana in the State of California, there was not a fair probability that Officer Jones would find evidence of a crime in the Hyundai. Anyone 21 years and older can now lawfully smoke marijuana in California, and the smell can linger for more than a week. The law permits possession and transportation of up to 28.5 grams of cannabis in a car. Marijuana and alcohol now receive similar treatment under the law. Officer Jones may have had justification at that point to administer field sobriety tests but that justification is not to probable cause to search the remainder of Appellant’s car.

The order denying the Motion to Suppress was reversed.