California Medical Marijuana – Search and Seizure

Q: I have a valid medical California Medical Marijuana recommendation. I was driving in my car, and pulled over for a minor traffic violation.  But the police searched my entire car after claiming they smelled “bud” somewhere in the vehicle!  Can California law enforcement really subject me to a search, even though I had a right to possess the marijuana for my own personal use?

A: The answer is maybe yes, and maybe no.  As far as a California traffic violation, law enforcement always has the ability to stop a moving vehicle when a traffic violation is observed.  The officer may stop a motorist to conduct a brief investigation while giving the driver a ticket.  People v Franklin (1985) 171 Cal.App.3d 627, 633.  It makes no difference if the officer stopped the vehicle with a subjective intent to look for marijuana; as long as a legitimate traffic violation occurs, law enforcement may stop the vehicle even under this “pretextual” stop.  Whren v U.S. (1996) 517 U.S. 806, 809-813.

May the officer search the entire vehicle to determine where the marijuana is located, even for a minor traffic violation?  Even if a later seizure is completely unrelated to the cause for the stop, as long as an officer has reasonable cause to search the vehicle at any given time for contraband, an officer may search any and all containers in the vehicle where such contraband may be found.  U.S. v Johns (1985) 469 U.S. 478, 482-483; U.S. v Ross (1982) 456 U.S. 798, 823.

California law has held this same rule of probable cause applies even where a person may have a medical marijuana defense, when officers have objective cause to believe the person has committed a crime.  People v. Mower (2002) 28 Cal.4th 457.  For example, if a patient detained for a California traffic violation presents a medical marijuana recommendation to an officer, and yet the officer can visually identify over eighty (80) pounds of marijuana within the patient’s vehicle, the officer may very well have reasonable cause to believe that a crime is occurring.  The California Supreme Court in Mower stated:

Even when law enforcement officers believe that a person who “possesses or cultivates marijuana” is a “patient” or “primary caregiver” acting on the “recommendation or approval of a physician,” they may—as in this case—have reason to believe that that person does not possess or cultivate the substance “for the personal medical purposes of the patient” (§ 11362.5(d)).

This does not mean that a recommendation is meaningless to deter law enforcement.  On the contrary, the presence of a medical marijuana recommendation, collective agreement, or other written documentation showing a patient’s compliance with California state law, all present factual circumstances to the court to show that cause supporting search for illegal contraband is not warranted.

Does the same rule apply to those who hold medical marijuana identification cards under the California Medical Marijuana Program?  A patient is probably in a much better position, legally, to claim their Fourth Amendment rights have been violated if law enforcement were to search the patient while in possession of a valid California medical marijuana ID card.  These cards likely present a patient’s best defense against any search and seizure.  California Health and Safety Code §11362.71(e) provides:

No person or designated primary caregiver in possession of a valid identification card shall be subject to arrest for possession, transportation, delivery, or cultivation of medical marijuana in an amount established pursuant to this article, unless there is reasonable cause to believe that the information contained in the card is false or falsified, the card has been obtained by means of fraud, or the person is otherwise in violation of the provisions of this article. (Emphasis added).

Unlike the recommendation at issue in Mower, the California medical marijuana identification card would grant a patient statutory immunity from arrest, assuming they had a valid card, and were not engaged in any other illegal activity.  The teeth of Section 11362.71(e) has yet to be tested at the appellate court level in California, but the logical implications of that provision carry great significance.

Beck Law P.C. is located in Santa Rosa and offers an entire scope of Medical Marijuana related services to clients in Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, Kelseyville and throughout Sonoma, Mendocino and Lake County.

Beck Law P.C. can furnish the experience and knowledge to help guide you through the complexities of California Medical Marijuana law.

Making an appointment to meet with us is an investment in exploring what options may or may not apply to your particular situation. Your visit to the Beck Law Offices is confidential, as is the information discussed. You can contact our office at 707-576-7175 or contact us online.



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