Court of Appeal rules that lawful possession of marijuana does not provide probable cause to search a vehicle

People v. Hall (Cal. Ct. App., Nov. 24, 2020, No. A157868) 2020 WL 6882240, at *1–7

Facts:  When Hall was pulled over for a vehicle-equipment violation in 2018, a San Francisco police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Police officers the.  searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall’s motion to suppress the evidence found in this search.

Proposition 64

Proposition 64, passed in 2016,  legalized possession and transportation of small amounts (up to 28.5 grams) of marijuana for persons 21 years of age and older. (Health & Saf. Code,1 § 11362.1, subd. (a)(1).) Courts  have held the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867, 253 Cal.Rptr.3d 512 (Lee); People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6, 259 Cal.Rptr.3d 405 (Shumake); People v. Johnson (2020) 50 Cal.App.5th 620, 634, 264 Cal.Rptr.3d 103 (Johnson); People v. McGee (2020) 53 Cal.App.5th 796, 801–802, 266 Cal.Rptr.3d 650 (McGee).)

Under Proposition 64, a driver is not permitted to “[p]ossess an open container or open package of cannabis or cannabis products” (§ 11362.3, subd. (a)(4)). But here there was no evidence in this case that the plastic baggie observed by the officers was an “open container.” The Court of Appeal reversed the order denying Hall’s motion to suppress.

Factual and procedural background

Hall’s motion to suppress was heard at his preliminary hearing, where the only witness was San Francisco police officer Steve Colgan, who testified that he and his partner initiated a traffic stop, and the car, driven by Hall, pulled over in a parking lot. There  was another occupant in the front passenger seat.

Colgan observed in the center console “a clear plastic baggie, inside of which was a green leafy substance,” which he believed was marijuana. He also saw in the cup holders “an ashtray filled with ashes,” “burnt cigar wrappers, commonly used to wrap marijuana,” and “a green leafy substance, that appeared to be broken up” “in the lap of the driver.”

Colgan did not see any smoke in Hall’s car. Colgan did not mention smelling marijuana (either burnt or unburnt). Colgan did not observe any signs indicating Hall was under the influence and had no information that Hall was armed and dangerous Colgan and his partner decided to search the car based on the presence of marijuana in the car. He testified, “due to the fact that having an open container of marijuana is a violation of the law, [we determined] that we would search the vehicle to possibly find additional evidence of that crime.” On the floor of the rear passenger’s side, Colgan found a backpack with all the compartments “zipped up, or at least most of the way.” He opened the main compartment and found a black pistol.

Argument and Denial of the Motion to Suppress

Defense counsel argued there was no probable cause to search Hall’s car after the traffic stop because officers had no reason to believe Hall was either armed and dangerous or involved in any criminal activity. The prosecutor responded that the search “was not based on the traffic stop, it was based on seeing a plain view of the apparent open containers of marijuana in the car, which then did justify the search, and the officers might find contraband related to that offense.”

Judge Braden C. Woods denied the motion to suppress finding, “[b]ased upon the totality of the circumstances and the evidence in this case, … the officers did act reasonably during each step of the process.” The magistrate reasoned that persons are not permitted to possess open containers of cannabis or cannabis products or to smoke or ingest cannabis or cannabis products while driving. (See § 11362.3, subds. (a)(4) and (7).)

Hall entered a plea of no contest to a single misdemeanor firearm offense (carrying a loaded firearm, Pen. Code, § 25850, subd. (a)), the remaining charges were dismissed, the trial court suspended imposition of sentence, and Hall was placed on probation for three years, with six months to be served in county jail.

The Automobile Exception to the Warrant Requirement

The Fourth Amendment of the United States Constitution protects against “unreasonable searches and seizures” and generally requires a warrant before an officer may conduct a search. Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Katz v. U.S. (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, fn. omitted.)

The automobile exception to the warrant requirement allows an officer to search a vehicle without a warrant so long as the officer has probable cause to believe the vehicle contains contraband or evidence of a crime. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225, 158 Cal.Rptr.3d 261, 302 P.3d 574.) “Probable cause is a more demanding standard than mere reasonable suspicion.” (Lee, supra, 40 Cal.App.5th at p. 862, 253 Cal.Rptr.3d 512.) Probable cause exists when “the known facts and circumstances are sufficient to warrant a [person] of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. U.S. (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911.)

The prosecution bears the burden of establishing an exception applies. (People v. Macabeo (2016) 1 Cal.5th 1206, 1213, 211 Cal.Rptr.3d 34, 384 P.3d 1189.)

Marijuana in the Car Did Not Justify the Search

Officer Colgan testified he saw a clear plastic baggie containing a green leafy substance in the center console of Hall’s car. There was no testimony about the weight of the baggie and no evidence to support a belief that Hall had an unlawful amount of marijuana in his car. Nor did Colgan suspect that Hall was driving under the influence of marijuana. Colgan’s observation of a not-unlawful amount of marijuana in Hall’s car did not establish probable cause to believe contraband or evidence of a crime would be found in the car.

There Was No Substantial Evidence of an “Open Container”

In the hearing on Hall’s motion to dismiss in the trial court, the prosecutor argued, “The People believe that the legislature in designating an open container to be unlawful meant anything other than a sealed container such as one that would be purchased in a marijuana dispensary or what-have-you.” Defense counsel observed, “[T]here are no facts to suggest that it was open or closed.”

On appeal, Hall argued that “open container” for purposes of section 11362.3, subdivision (a)(4), does not  require some type of permanent seal. Hall’s position finds support in Johnson, supra, 50 Cal.App.5th 620, 264 Cal.Rptr.3d 103. There, the Court of Appeal held a “plastic bag [that] was knotted at the top” was not “open” and, thus, there was no violation of section 11362.3, subdivision (a)(4), to support probable cause to search the defendant’s car. (Id. at pp. 624, 634, 264 Cal.Rptr.3d 103.)

There was no evidence about the condition of the plastic baggie. Colgan’s entire testimony on the container of marijuana in Hall’s car was as follows: “I observed a clear plastic baggie, inside of which was green leafy substance. Based on my training and experience, I believed it to be marijuana.” The officer offered no description of the state of the plastic baggie. For all we know, the baggie was purchased from a dispensary and had never been opened, or it may have been vacuum sealed; Colgan, after all, did not smell any marijuana in the car. No evidence was presented that the baggie of marijuana was “in [Hall’s] possession on [his] person” as required for a violation of Vehicle Code section 23222, subdivision (b)(1), and, in fact, the evidence was to the contrary.

Officer Colgan testified there was ash in the cupholders, and “in the lap of the driver I observed a green leafy substance, that appeared to be broken up, I believed to be marijuana.” When the officers searched Hall’s car, they seized the clear plastic baggie and “some remnants of suspected marijuana from the ashtray,” but the substance on Hall’s lap “fell off somewhere at the scene during the course of the investigation.”Nothing in the record indicates the magistrate considered the ash, “remnants,” and/or the substance on Hall’s lap to constitute either an “open container or open package of cannabis or cannabis products” under section 11362.3, subdivision (a)(4) or “loose cannabis flower not in a container” under Vehicle Code section 23222, subdivision (b)(1). (See fn. 6, ante.) During the traffic stop, Colgan did not smell marijuana—either burnt or unburnt, Hall complied with officer commands, and, most significantly, Colgan did not suspect Hall of driving under the influence. Considering the totality of the circumstances known to the officers during the traffic stop, we conclude there was no probable cause to justify the search of Hall’s car.

Disposition

The Court of Appel remanded the case  to the trial court with directions to set aside its order denying the motion to suppress, enter an order granting the motion, allow defendant to move to withdraw his plea, and conduct further proceedings consistent with this opinion.