Marijuana Update Dec 2024z Marijuana
2025 Case Law Update
z Legality Basics
▪Proposition 64 (2016): Recreational use of marijuana for people 21
years of age
▪Up to 28.5g of marijuana or 8g of concentrated cannabis
▪11362.1 HS: (c) Cannabis 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.
z
▪Peo. v. Johnson (2020) 50 Cal. App. 5th 620
▪Probable cause search of vehicle was conducted due to odor of marijuana, and
plain view of small amount in knotted bag. Knotted bag had 2g of marijuana,
and a loaded firearm was also located.
▪“Johnson argued the officer’s entry/search of his vehicle was unlawful because
the officer had insufficient reason to believe the marijuana was possessed
illegally. The court agreed.”
▪People v. Hall (2020) Cal.App.5th
▪On a traffic stop, officer saw “a clear plastic baggie” on the center console
containing suspected marijuana, and loose marijuana on driver’s lap. PC
search was conducted, firearm located in Hall’s backpack.
▪No testimony to amounts, or state of the bag. “For these reasons, the court
ruled that the officer did not have probable cause to believe that the marijuana
in Hall’s car was possessed illegally and, therefore, the search was unlawful.”
z So when is marijuana contraband?
▪Person using/possessing is under 21 years old
▪In excess of legal amounts
▪Not being transported legally
▪Not being use legally
z Case Law Examples
▪Peo. v. Fews (2018): Plain view observation of a half-burned cannabis
“blunt” and the "fresh odor” of recently smoked cannabis. An illegal firearm
was found.
▪U.S. v. Johnson (2019): The odor of” freshly burnt” cannabis coming from
the interior of the vehicle. Probable cause search led to locating a
handgun, hydrocodone, concentrated cannabis and sales paraphernalia.
▪Peo. v. Castro (2022): Odor of freshly burnt marijuana, and all 3
occupants were under 21. PC search was conducted, located a loaded
ghost gun.
https://www.legalupdates.com/legal-publication/california-cannabis-laws-and-vehicle-searches
https://porac.org/article/people-v-castro-californias-only-marijuana-vehicle-search-case-of-
2022/
z Case Law Examples: Open Container
▪Peo v. Randy C. (2024): Officer conducted traffic stop for window tint.
During the stop, observed marijuana blunt on passenger’s lap, and
smelled unburned marijuana. Probable cause search led to finding a
handgun in glove compartment, and an AR-15 in the trunk.
▪Open container is not defined in HS code, so court used “plain commonsense”
meaning.
▪Sellars V. Superior Court (2024): Sellars was a passenger in a vehicle
stopped for a stop sign violation. Officers did not smell marijuana, but
observed loose-leaf marijuana, including “round circular nuggets.” PC
search conducted, and passenger was a prohibited person in
possession of a firearm.
z Vehicle Inventory Searches
▪Fourth Amendment case law specifies that an inventory search will not result in the
admissibility of any evidence “fortuitously” found in the car unless there is a
“caretaking purpose” for the impound.
▪“The fact that an inventory search is authorized by statute is not determinative of the
search’s constitutionality.” (Peo. v. Torres (2010) 188 Cal. App. 4th 775)
▪“To be lawful, the impound must both be authorized by statute and in compliance with the
“community caretaking doctrine.” (Peo. v. Lee (2019) 40 Cal. App. 5th 883)
▪Blakes v. Superior Court (2021): “The Court determined the evidence showed the
impound decision was based on an investigative pretext rather than serving a
community caretaking function.”
▪The purpose of the impound MATTERS
https://www.legalupdates.com/legal-publication/be-mindful-community-caretaking-guidelines-when-conducting-vehicle-
inventory
z Important Take-Aways
When marijuana is possessed or used in a manner not compliant with
the law, it is contraband.
▪During a traffic stop, detectable odor of “recently smoked” cannabis inside
a vehicle
▪11362.3(a)(7) HS: smoke or ingest while driving
▪11362.3(a)(8) HS: smoke/ingest while passenger in vehicle
▪Note: Cannabis-related DUI detention should be considered
▪“Open” package of cannabis or loose cannabis is possessed by a
driver or passenger while a vehicle is being operated
▪23222(b)(1) CVC (exclusively upon “highway or lands”)
▪11362.3(a)(4) HS