The Daily Journal - April 28, 2014

BB&K’s G. Ross Trindle and Benjamin Hampton Review Automobile Exception to Warrant Requirement and Medical Marijuana

A recommendation card may provide access to medical marijuana, but it cannot stop law enforcement officers tram asking you to step out of the car if they smell it inside and happen to see a pipe in the center console. And it does not matter if the offense is only punishable as an infraction. As the 1st District Court of Appeal found in People v. Waxler, 2014 DJDAR 4337 (April 3, 2014), these circumstances will support probable cause to search under the automobile exception to the warrant requirement

In Waxler, Del Norte County Sheriff's Deputy Richard Griffin received a call for illegal dumping behind a grocery store. Arriving on the scene, Griffin smelled burnt marijuana coming from the car of Michael Clarence Waxler. Griffin also observed a marijuana pipe with what appeared to be marijuana in the bowl sitting inside the car next to Waxler. Griffin believed that he had probable cause to search the vehicle: “Even if [Waxler] has a valid medical marijuana card I still have to confirm how much he has on him or if there are other issues with it ... I have to determine whether it's legally possessed or not.”

Griffin's search uncovered a small amount of methamphetamine along with a pipe for smoking it. Sometime after the search, Waxler presented Griffin with a marijuana recommendation card. Griffin arrested Waxler on drug charges.

The district attorney charged Waxler with one count of transporting methamphetamine and one count of possession. Waxler moved to suppress the recovered methamphetamine and meth pipe, claiming that the deputy did not have sufficient cause to believe that Waxler had committed any crime at the time that would have authorized a search of the vehicle. The defendant argued that the amount of marijuana present was “well below” the limits allowed by state law, that Griffin's plain view observations could not have supported an arrest for possession up to an ounce since the violation was an infraction, and in any case, Waxler's possession was legal given the marijuana recommendation card.

The district attorney argued in opposition that probable cause to search existed based upon Griffin's detection of the marijuana odor. Further, the Compassionate Use Act does not provide immunity from arrest or criminal prosecution and that possession of a recommendation card is an affirmative defense to crimes of possession and cultivation at trial, but it does not protect against a valid search and arrest.

The trial court denied the motion to suppress, holding that Griffin's observation of the marijuana was sufficient to justify “investigating further” and that possession of the recommendation card was an affirmative defense only — it did not destroy probable cause to search. Accordingly, Waxler was held to answer and ended up pleading guilty to the second count of possession of methamphetamine.

On appeal, Waxler made similar arguments to those presented to the trial court. He argued that the deputy lacked probable cause to search the car because Waxler presented the deputy with a medicinal marijuana card. Additionally, Waxler argued that the amount of marijuana the deputy observed was within the amount allowed under state law, or at least only was a minor offense punishable as an infraction. The Court of Appeal disagreed, holding that the observation of any amount of marijuana establishes probable cause to search a vehicle pursuant to the automobile exception because a law enforcement officer may reasonably suspect that additional (illegal) quantities of marijuana may be found in the vehicle.

Click here to read the entire article published on April 29, 2014 in the Daily Journal. (subscription required).