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Presence of a small amount of marijuana in a car does not provide probable cause for a vehicle search.

People v. Lee, No. D073740, 2019 WL 4871480, at *3–10 (Cal. Ct. App. Oct. 3, 2019)

Vehicle stop and warrantless search of the vehicle

In 2017 San Diego Police Officers Robles and Cooper stopped a gold-colored Cadillac DeVille with no front license plate and tinted windows in violation of Vehicle Code section 26708. They initiated a traffic stop and Officer Robles asked the driver, defendant Brandon Lee, for his driver’s license. Lee said he did not have his license with him. Robles instructed Lee to step out of the vehicle and performed a pat-down search to confirm he did not have any sort of identification.

The officers then searched Lee’s car without a warrant and discovered 56 grams of cocaine and a firearm. Lee was charged with various drug and weapons offenses. He filed a motion to suppress the evidence obtained from the warrantless vehicle search. The trial court rejected the prosecution’s argument that the search was proper under the automobile exception as supported by probable cause or as an inventory search of a vehicle following an impound.

Trial court grants motion to suppress

The trial court granted Lee’s motion to suppress, concluding that although the initial traffic stop was lawful, the subsequent vehicle search was not an inventory search. It also ruled that it was not a search incident to arrest, and not supported by probable cause. The court found Officer Robles’ search of the vehicle and his repeated questions to Lee about anything illegal inside indicated the primary purpose of the search was to investigate, not to inventory the vehicle’s contents or serve a community caretaking function. The fact that Robles did not fill out the required ARJIS-11 form or assist the officer who ultimately did showed that the search was not to inventory the contents of the vehicle.

The trial court granted Lee’s motion to suppress the evidence and the People appealed

Automobile exception to the warrant requirement

A warrantless search is unlawful under the Fourth Amendment “unless it falls within one of the ‘specifically established and well-delineated exceptions.’ ” (People v. Woods (1999) 21 Cal.4th 668, 674, 88 Cal.Rptr.2d 88, 981 P.2d 1019; see also Arizona v. Gant (2009) 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485.) Warrantless searches of automobiles “have been upheld in circumstances in which a search of a home or office would not.” (South Dakota v. Opperman (1976) 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (Opperman).) The inherent mobility of automobiles and a diminished expectation of privacy given the public nature of automobile travel are the reasons for the exceptions. The two exceptions relevant here include (1) a search of any area of the automobile where there is probable cause to believe evidence of a crime or contraband may be found, generally referred to as the “automobile exception” (People v. Evans (2011) 200 Cal.App.4th 735, 753, 133 Cal.Rptr.3d 323 (Evans)), and (2) an inventory search conducted in the course of impounding an automobile (see e.g., People v. Torres (2010) 188 Cal.App.4th 775, 786, 116 Cal.Rptr.3d 48 (Torres)).

No probable cause to search the car

The Court of Appeal weighed the totality of the circumstances to determine whether officers had probable cause to search Lee’s car. The Court noted that following the legalization of marijuana in 2016, California law now expressly provides that legal cannabis and related products “are not contraband” and their possession and/or use “shall not constitute the basis for detention, search, or arrest.” (Health & Saf. Code, § 11362.1, subd. (c).) With the passage of Proposition 64 by voters in 2016, California law now permits adults 21 years of age and older to legally possess up to 28.5 grams, or about one ounce, of marijuana. (§ 11362.1, subd. (a)(1).) The statute expressly provides that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” (§ 11362.1, subd. (c)

Lee’s possession of a small and legal amount of marijuana does not support an inference that his car contained contraband.

Therefore, the trial court properly concluded that Lee’s possession of a small amount of marijuana was of little relevance in assessing probable cause. Because the other factors relied on by the People were also of minimal significance, the Court concluded that even considering the totality of circumstances known to the officer there did not exist “ ‘ “a fair probability that contraband or evidence of a crime will be found.” ’ ” (Alabama v. White (1990) 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (Alabama).)

The Court of Appeal concluded that the search was not valid as an inventory search. In this case, the search did not serve any community caretaking function. The Court of Appeal concluded that the trial court reasonably found that the primary purpose of the search was not to inventory the contents of Lee’s car, but rather to investigate Lee for possible criminal behavior.

The Court affirmed the order granting Lee’s motion to suppress the evidence obtained from the unlawful search of his car.


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