No Probable Cause to Search a Car if an Officer Smells Unmoked Marijuana

The San Francisco Superior Court granted a motion to suppress a handgun found in a car that was searched by a Police Officer after he smelled the weaker odor of unburnt marijuana. The car, driven by a husband on a date-night with his wife, was stopped on the Embarcadero for not having current registration tags

The officer said he needed to search the car to determine if the driver had ingested marijuana and therefore was impaired and to determine compliance with the new marijuana laws. But, the officer did not observe any signs of impaired driving and the driver repeatedly denied that there was any marijuana in the car.

The officer searched the car and found three empty dispensary containers. He then continued his search and found a loaded handgun registered to the female passenger, in a closed back by her feet. He cited the passenger and arrested the driver, an ex-felon, for possession of the gun.

At a hearing the driver sought to suppress the evidence because it was seized without a warrant and there was no probable cause to search the car-and a closed backpack in the car-based on the smell of unsmoked marijuana in the car.

The issue is: Is the weaker smell or unburnt marijuana equivalent to the smell of fresh beer and thus provide probable cause to search for an open container of marijuana in a car and of a closed backpack in a car?

Unlike the odor of fresh beer, the weaker smell of unburnt marijuana does not provide probable cause to search a vehicle

The odor of fresh beer emanating from a vehicle implies recent use or consumption and provides probable cause that a crime has been committed. But the faint and weaker odor of unburnt marijuana is not its equivalent because marijuana that has recently been smoked has a distinctive and easily discernible stronger odor. And here the odor was weak and unburnt marijuana.

No marijuana odor implying recent use or signs of impairment

Here the stop was made for non-moving violations and there were no signs of impairment.
The officer searched the car believing that the driver might be under the influence of marijuana. But he did not administer the Field Sobriety Tests until after the handgun had been found in the closed backpack and the driver had been handcuffed and Mirandized. Even in cases that allow for searches of open containers of beer, the odor of fresh beer is necessary. Here, only the weaker odor of unburnt marijuana, which does not imply recent consumption, was detected

Search of the trunk and closed backpack were illegal once the medical cannabis card was presented.

Before starting the search, the officer asked the driver and his wife if either had a medical cannabis card in the car and the wife said she had a card.  The officer searched the trunk of the car and the sealed backpack despite it being legal to possess loose cannabis flower in a trunk or in a closed container if the person possesses a medical cannabis card.

The search here was of a closed backpack not an open container

The officer’s exploratory search should have stopped after finding the three empty dispensary containers, because:

1) these supported and were consistent with the driver’s statements that there was no marijuana in the car, showing no infraction; and,

2) the backpack was a sealed container — and so, police could not open it without a warrant. Both the driver and his wife had been removed from the car prior to the search so there was no concern for officer safety or destruction of evidence. Significantly, at no point did the officer say “I could smell a stronger (or any) — odor of marijuana coming from the backpack.”

So the search is based on the conjecture that when you smell any marijuana, there is probable cause to believe there is an illegal (jailable) amount present, a premise rejected in California case law. (In re D.W. (2017) 13 Cal.App.5th 1249, 1253; People v. Torres (2012) 205 Cal.App.4th 989, 995-996.)

Even if police were to continue searching for open containers, a closed back pack does not qualify

The prosecution failed to establish probable cause to search the car. The weak smell of marijuana alone, unlike the smell of fresh beer, does not provide probable cause to search. Because there was no probable cause to search, a warrant was required; because no exigency existed, the warrantless search of the car and closed backpack was illegal.

The Court granted the motion to suppress evidence excluding his statements, and the gun from evidence. The charges were dismissed against both the driver and his wife.

Know your rights when your car is stopped by the police under the new marijuana laws

David K. Uthman is a former Police Officer and Public Defender who can advise you if a search of your car is conducted based on a suspicion that you may have smoked marijuana or that marijuana is present in your car. He and his experienced legal team can represent you through each stage of the criminal justice process to ensure that all your rights are protected and that you achieve the best outcome for your case.

Call us today at (415) 556-9200 to schedule your FREE initial consultation.


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