Warrant Exception Won't Bow to Medical Marijuana Card

by Best Best & Krieger LLP

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).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Best Best & Krieger LLP | Attorney Advertising

Written by:

Best Best & Krieger LLP

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.