Cannabis smell in a vehicle by itself not a reason to conduct vehicle search, Alameda court rules

On March 4, 2020, Bob Egelko of the San Francisco Chronicle published an article about this local appellate division case.  The appellate division is a division of local courts that handle appeals of misdemeanors.  Felony appeals are handled by the Courts of Appeal.

Anyhow, the appellant in this case was stopped for driving without a front license plate by a police officer on “specialized DUI patrol.”  The officer didn’t smell alcohol, but he did smell marijuana.  The driver was cooperative and told the officer he had “some bud” in the center console.  A search of the console revealed he had a little over a gram, well within the legal limits proscribed by Proposition 64  “Believing there might be more marijuana in the car, the officers searched further and found no drugs, but discovered a loaded pistol under the driver’s seat” writes Egelko. 

The trial court ruled the search was legal, but the appellate division reversed.  “The possession of the cannabis flower in this case was lawful,” Presiding Judge Noel Wise said in the 3-0 ruling. She said it was properly enclosed in a container and was only a fraction of the one-ounce maximum allowed by Prop. 64

Prosecutors argued that police still had grounds to search the car and would have found the gun. But Wise said the only evidence officers had was the strong smell of fresh and recently burnt marijuana and Shumake’s statement that he possessed a small amount of the drug, not enough to justify a search of a driver who was cooperating and showed no signs of impairment.

“Anyone 21 years and older can now lawfully smoke marijuana in California and, as (the officer) testified, the smell can linger for more than a week,” Wise said. “Given the legality of personal use of marijuana in the state of California, there was not a fair probability that (the officer) would find evidence of a crime” in a legal search.

The appellant was represented on appeal by the well-respected Charles Denton of the Alameda County Public Defender’s office.

The full text of Mr. Egelko’s article can be found here: https://www.sfchronicle.com/bayarea/article/Cannabis-smell-in-vehicle-by-itself-not-reason-to-15106018.php