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Court of Appeal:
Loose Marijuana ‘Crumbs’ May Justify Vehicular Search
Majority Says Absence of Any Packaging Qualifies as ‘Open Container’ of Useable Amount Which May Provide Probable Cause for Inspection of Vehicle, Drawing Dissent
By Kimber Cooley, Associate Editor
The Third District Court of Appeal has held that seeing a small but useable amount of loose marijuana scraps on the floorboard of a car may justify a warrantless search by police if there are other suspicious circumstances providing reasonable grounds to believe the suspect has an illegal amount elsewhere in the car or is otherwise violating applicable regulations.
One such regulation is Health and Safety Code §11362.3(a)(4) which prohibits the possession of an open container of cannabis in any amount while driving or riding in the passenger seat of a vehicle.
The decision provides clarification to case law—following the passage of Proposition 64 in 2016 which legalizes the possession of less than an ounce of marijuana for personal use—holding that lawful possession of marijuana in a vehicle, by itself, does not provide probable cause for a warrantless search on the chance that there might be a greater amount secreted in the car.
The question arose after Davonyae Sellers challenged the Nov. 5, 2021 search by Sacramento Police Department officers of a vehicle in which he was riding. The car had been stopped for a limit-line violation and Officer Conner Mills noticed that both Sellers, the front seat passenger, and the driver were sweating and appeared slightly nervous.
Officer’s Observations
As Mills spoke with the female driver, he observed a tray commonly used for rolling cigarettes in the back seat. Officer Mark Thrall peered through the rear passenger side’s window and observed “crumbs” resembling marijuana scattered across the floorboard.
The officers asked the occupants to exit the vehicle and Sellers admitted to having a firearm on the side of the passenger seat. Marijuana—totaling 0.36 grams—and a black nine-millimeter handgun were recovered during a full search of the vehicle.
Sellers was charged with unlawful possession of a firearm by a person who has been previously been adjudged a ward of the court in violation of Penal Code §29820.
Krause’s View
The defendant filed a petition for a writ of mandate challenging the denial of his motion to suppress by Sacramento Superior Court Judge Deborah D. Lobre. Justice Peter A. Krause wrote the opinion, filed Thursday, denying the petition.
Krause said that the loose crumbs were contraband providing probable cause to search the vehicle because they were not in a closed container.
The jurist continued by saying “even if we were to conclude the loose marijuana was not contraband” the observation of a legal amount of useable marijuana “may support a finding of probable cause if it is coupled with other factors contributing to a reasonable belief that the vehicle contains contraband or evidence of criminal activity.”
Presiding Justice Laurie M. Earl joined in the opinion and Justice Elana Duarte dissented. Duarte wrote:
“The majority rejects a concession by the Attorney General to hold that an open container violation does not require the existence of a container, whether open or closed. It then alternatively and cursorily concludes that the sum of…legal and innocuous events constitutes a ‘totality of the circumstances’ justification for a warrantless vehicle search. I cannot agree with the majority on either of these points.”
Legal Framework
Health and Safety Code §11362(c), enacted following the passage of Proposition 64, provides that “[c]annabis…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.”
Krause noted that the possession of less than an ounce of marijuana is not legal in every circumstance and wrote that “even after the passage of Proposition 64, it is unlawful to possess or transport more than 28.5 grams of cannabis…; to smoke or ingest cannabis while driving or riding in the passenger seat of a vehicle…; to possess an open container or package of cannabis while driving or riding in the passenger seat of a vehicle…; or to drive a vehicle while under the influence of any drug….”
Given this statutory scheme, he reasoned that “[i]t follows that a warrantless vehicle search will be justified where the presence of a lawful amount of marijuana, combined with other suspicious facts or circumstances, gives officers reasonable grounds to believe the suspect has an illegal amount of marijuana or is otherwise violating marijuana regulations.”
Open Container Violation
Sellers argues that there was no “open container” violation because the marijuana observed by the officers was not in any packaging, a point undisputed by the prosecution. Unpersuaded, Krause said that “[a]lthough the words used in a statute are the most useful guide to its intent, the language of a statute should not be given a literal meaning if doing so would frustrate the purposes of the legislation or lead to absurd results.”
He opined:
“To construe the statute as defendant urges would lead to an absurd result and undermine the purpose of the open container law, which is to ensure that marijuana is transported only in sealed containers such that it is inaccessible while driving or riding as a passenger in a vehicle….It would defy logic to conclude that an individual with an unsealed container or open package of marijuana is violating the law, while someone with usable amounts of marijuana scattered loosely on a seat or around the passenger compartment is not.”
The jurist continued:
“Thus, in spite of the People’s…concession, we construe the statute, consistent with its apparent purpose, to prohibit any person from possessing marijuana that is not in a closed package or container while driving….[T]he most logical interpretation of sections 11362.1 and 11362.3 is that these statutes decriminalized only the possession of less than 28.5 grams of marijuana in a closed container or package in a motor vehicle and that the law continues to prohibit the possession of open containers of marijuana or loose marijuana not in a container….[T]hese statutes did not decriminalize the transportation of loose marijuana in a vehicle, even if lawful in amount. Consequently, we conclude that the marijuana at issue in this case was contraband because it was being transported illegally under section 11362.3, subdivision (a)(4).”
Totality of Circumstances
Krause added:
“[E]ven if we were to conclude the loose marijuana was not contraband, we are persuaded that the totality of the circumstances observed by the police officers gave probable cause to search the vehicle. Given the evidence that (1) the driver and defendant seemed nervous, (2) the officers were falsely told that there was no marijuana in the vehicle, (3) officers saw a marijuana rolling tray in the back of the vehicle, and (4) officers observed a ‘usable’ amount of loose marijuana scattered on the floorboard, the officers reasonably believed that they would find contraband or evidence of unlawful marijuana possession in the vehicle.”
The justice cited the 2021 Third District decision in People v. Moore—in which the court found probable cause for the search of a Jeep where an officer observed a suspected drug transaction in a high-crime area and smelled marijuana upon contacting the nervous driver—and distinguished cases pointed to by Sellers in which no evidence was presented that the scraps were in a useable amount.
He declared that “[i]n sum, we conclude the presence of a ‘usable’ amount of unlawfully possessed marijuana, together with the other facts observed or known to the police officers, provided probable cause to search the vehicle.”
Duarte’s View
Duarte said:
“After what was clearly a targeted traffic stop of a car that appears to have contained African-American and Hispanic individuals… a questionably invasive ‘plain view’ observation of an unclear amount of discarded marijuana on the back floorboards of the car, and extensive questioning of the driver, who had a sweaty upper lip…, the police executed a warrantless search of the car in which defendant was riding….A postsearch total of 0.36 grams of marijuana was represented as the amount scraped off the car’s rear floorboards…and, in my view, could easily have contained other materials from the floor of the car.”
The jurist continued:
“[S]cattered marijuana on a car’s floorboards does not constitute an open container of marijuana. I know of no authority, and the majority cites none, that upholds an open container violation in the undisputed absence of a container of any sort.”
Turning to the “totality of circumstances” relied on by the majority to find probable cause, she said:
“The one case cited by the majority is eminently distinguishable, containing far more to provide reasonable grounds for belief of guilt than the instant case.”
The case is Sellers v. Superior Court, 2024 S.O.S. 2938.
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