Legal pot isn’t probable cause for a vehicle search

On Sept. 3, 2018, defendant and appellant Dontaye T. Hall was driving in the San Francisco area when he was pulled over for a nonoperational license plate lamp. Officer Steve Colgan testified at Hall's preliminary hearing that as he approached the vehicle, he observed a clear plastic baggie containing a leafy green substance he believed to be marijuana in the center console. He also observed an ashtray filled with ashes and burnt cigar wrappers commonly used to roll marijuana. Finally, Colgan testified that he saw broken up marijuana in the lap of the driver.

Notably, Colgan did not see smoke in the car. When asked if he smelled the cigar wrappers to determine if they were consistent with marijuana smoke, Colgan admitted he had not. Colgan failed to testify to any other odors emitting from the car, whether indicating burnt or unburnt marijuana. There were likewise no other factors indicating that that Hall was armed and dangerous or otherwise in the commission of a public offense. In short, the only evidence in law enforcement's possession potentially justifying a search was the presence of marijuana itself.

Colgan testified that possession of an "open container" of marijuana is unlawful, and therefore he and his partner searched the vehicle for additional evidence. The search yielded a handgun in a backpack. Hall's motion to suppress was denied as was his motion to set aside the information pursuant to Penal Code Section 995. Given the denial of his motions and having no other realistic defense, Hall pled no contest to a misdemeanor firearms offense and was placed on summary probation. Hall appealed on Fourth Amendment grounds.

In defending the trial court's decisions, the attorney general argued that (1) the presence of marijuana in a vehicle always justifies a search of the entire vehicle to determine whether, in fact, the occupant is in compliance with the legal limits on possession, and (2) that an "open container" of marijuana constitutes probable cause to search a vehicle.

The Division 2 of the 1st District Court of Appeal rejected the first argument, citing Health and Safety Code Section 11362.1(c), enacted as part of California's Proposition 64 marijuana reforms, which 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." People v. Hall, 2020 DJDAR 12603 (Nov. 24, 2020). The court held that the plain language of the statute prevents the presence of marijuana, by itself, from constituting probable cause to search a vehicle. The court noted that its holding was consistent with other Courts of Appeal to have addressed the same issue in other appellate districts.

Going further, the court held that even the smell of burnt marijuana, absent further investigation into the amount of marijuana consumed and the timing of the smoking, would not constitute probable cause. Similar to an alcohol-related DUI stop, the fact that an individual consumed an unspecified amount of marijuana at an unknown time in the past does not establish probable cause that a crime has occurred. As there was no testimony creating an inference that Hall possessed more than 28.5 grams of marijuana in the clear plastic baggie -- the legal limit for adults -- and no evidence that he was driving under the influence of marijuana, Colgan's search was unlawful.

The Court of Appeal next addressed the attorney general's second argument, that the presence of an "open container" provided probable cause to search. Even after the enactment of Proposition 64, several categories of marijuana-related conduct remain unlawful. As relevant here, Health and Safety Code Section 11362.3(a)(4) makes it unlawful to "[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation."

At the motion to dismiss stage, the trial court implied a requirement in the "open container" prohibition that a lawful container include some kind of permanent seal, as with a prescription jar with a cap. The court had quipped that even a child can take apart a plastic baggie. The Court of Appeal found that this distinction was unsupported by precedent. In prior cases, Courts of Appeal have found that a plastic baggie knotted at the top was not "open" for purposes of an "open container" determination.

Finally, the court rejected the argument that the "broken up" marijuana in Hall's lap, i.e. crumbs of marijuana, also qualified as an open container. The court invoked the legal maxim "de minimis non curat lex," -- "the law does not concern itself with trifles" - as set forth in prior decisions concerning miniscule amounts of marijuana for the proposition that since such a small amount of substance could not form the basis of a conviction, it likewise could not support a violation for either an open container, or for marijuana flower not in a container under Vehicle Code Section 23222(b)(1).

The court reiterated the critical facts which supported its reversal of Hall's conviction: (1) Colgan did not smell marijuana, either burnt or unburnt; (2) Hall complied with officer commands and otherwise lacked any indicia of being armed and dangerous; and (3) Colgan did not suspect Hall of driving under the influence, much less articulate any facts to support that inference. Considering the totality of the circumstances known to the officers during the traffic stop, the court concluded there was no probable cause to justify the search of Hall's vehicle.

The Hall case provides much needed guidance on the changes in Fourth Amendment doctrine which must necessarily flow from California's legalization of recreational marijuana possession and use by adults over 21 in Proposition 64. While it is certainly possible, and likely probable, for officers in the future to articulate more carefully factors such as suspected intoxication, strong odor of burnt marijuana, etc. to justify warrantless car searches, Hall stands for the unambiguous proposition that the presence of marijuana, without more, no longer serves as a free pass to search the entirety of a vehicle during a traffic stop in California. 