Odor and unsealed bag of marijuana in car provide probable cause to search the passenger’s purse.

People v. McGee, 2020 WL 4783643 (Cal.App. 3 Dist.); filed 7/28/20; published 8/18/20

Facts and Procedural Background

 On July 28, 2018, Stockton Police Officers initiated a traffic stop of McGee’s car after noticing its registration had expired. The officers noted the scent of unburned marijuana. McGee denied having any marijuana in the car. But an officer saw an unsealed bag of marijuana in the passenger’s cleavage. The officers  informed McGee they were going to search the car. McGee did not consent to a search. The bag of marijuana was seized from the passenger. A zipped purse on the passenger floorboard was searched for  “anything illegal, any contraband that could be in the vehicle.” A loaded handgun was seized from the purse.

At the preliminary examination, McGee moved to suppress evidence of all statements made by him and any evidence seized in the search. McGee argued that because marijuana is now legal,  the scent of unburned marijuana does not indicate defendant or the passenger were breaking the law and cannot provide probable cause to search.

The prosecution argues that although it is now legal to possess small amounts of marijuana, “probable cause to search for marijuana can exist if there’s probable cause to believe the marijuana was in violation of additional Health and Safety Code sections that would criminalize such possession.  Here, the marijuana was not in a sealed or closed container, which would have been a violation of Health and Safety Code section 11362.3, which still prohibits such an act. Moreover, Vehicle Code section 23222 makes possession of  cannabis or cannabis products with a broken seal, or loose marijuana on a highway illegal. The prosecution also argued the presence of a lawful amount of marijuana supports probable cause to search for unlawful amounts.

The magistrate agreed with the prosecution and likened the presence of an unsealed bag of marijuana to an open container of alcohol which establishes probable cause to search for additional open containers. The magistrate denied the motion to suppress on these grounds. The court denied defendant’s renewed suppression motion following the prosecution’s filing of an information and McGee pled no contest to being a felon in possession of a firearm and admitted having served a prior prison term. The court struck the allegation of a prior prison term and sentenced defendant to the low term of 16 months.

Issue: Was the search of the passenger’s purse  justified by probable cause and  valid under the automobile exception?

Appellate court review of motion to suppress  

The appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, and measuring the facts as found by the trier against the constitutional standard of reasonableness. (People v. Thompson (1990) 221 Cal.App.3d 923, 940, 270 Cal.Rptr. 863.) The Court defers  to the magistrate’s factual findings and, exercises its  independent judgment, and  determines whether, “on the facts so found, the search or seizure was reasonable under the Fourth Amendment.” (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

The Fourth Amendment and the automobile exception

The Fourth Amendment guarantees freedom from unreasonable searches and seizures. (U.S. Const., 4th Amend.) is “subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507)

The automobile exception provides that “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (People v. Evans (2011) 200 Cal.App.4th 735, 753, 133 Cal.Rptr.3d 323) Once an officer has probable cause to search the vehicle under the automobile exception, they “may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.” (United States v. Ross (1982) 456 U.S. 798, 800, 102 S.Ct. 2157, 2160, 72 L.Ed.2d 572, 578.) Probable cause to search exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States (1996) 517 U.S. 690, 696, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911, 918.)

Proposition 64 and the automobile exception

McGee argued that the automobile exception does not apply because the enactment of Proposition 64 legalized possession of small amounts of marijuana for personal use and a  legal amount of marijuana can no longer be considered contraband or provide the basis for a probable cause search of an entire car.

Development of marijuana law and automobile searches

In People v. Lee (2019) 40 Cal.App.5th 853, 253 Cal.Rptr.3d 512, the court held a defendant’s possession of a small amount of marijuana could not justify a probable cause search. Reasoning  that “[t]he recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug,” the appellate court affirmed the trial court’s granting of the motion to suppress. (Id. at p. 861, 253 Cal.Rptr.3d 512.) The presence of a legal amount of marijuana, however, “does not foreclose the possibility that defendant possesses a larger (illegal) amount.” (Id. at p. 862, 253 Cal.Rptr.3d 512.) Under Lee, there must be additional evidence, beyond mere possession of a legal amount of marijuana, to support a reasonable belief the defendant has an illegal amount or is violating some other statutory provision.

Unsealed bag of marijuana in the passenger provided probable cause to search the passenger’s purse

Here, the officer observed  the passenger in possession of an unsealed container of marijuana in violation of section 11362.3, subdivision (a)(4). The presence of this contraband provided probable cause to believe the passenger possessed other open containers. (See People v. Souza, supra, 15 Cal.App.4th at p. 1653, 19 Cal.Rptr.2d 731 [“an open container within plain view provides probable cause to believe that other open containers may be found in the vehicle”].) the officer had probable cause to search the passenger and her purse for further evidence of contraband. (People v. Lee, supra, 40 Cal.App.5th at p. 866, 253 Cal.Rptr.3d 512; see also People v. Fews, supra, 27 Cal.App.5th at p. 563, 238 Cal.Rptr.3d 337.)


The order of the trial court denying defendant’s motion to suppress is affirmed

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