Can Police search your car if you’re carrying a legal amount of weed? People v. Lee, 10/3/19

Posted by on October 8, 2019 in #DUIdata, Blog | 0 comments

Can Police search your car if you’re carrying a legal amount of weed? People v. Lee, 10/3/19

But I was carrying a legal amount of marijuana!

That starts the facts of this case People v. Lee, decided 10/3/19*. Here, Police pull Lee over for driving with out a front license plate and tinted windows. Lee tells Police his license is suspended and doesn’t have a license.

Police get Lee out of the car, search him, and find a legal amount of marijuana on Lee. Legal, per the passage of California Proposition 64 in 2016 means a person 21 years and older can legally possess up to 28.5 grams (1 ounce) of marijuana legally.

Police did not smell any odor of recent marijuana use nor did Police find any open marijuana containers in Lee’s car.

Lee did tell Police he delivers medical marijuana and Police found $100 – $200 of wadded cash in Lee’s pocket. Police cuff Lee, and Lee tenses (something the People argued as evidence of a crime).

Police then tell Lee they’re going to impound his car and search it. Before searching the car, Police ask Lee several times if they’re going to find anything “illegal” in his car. Police find illegal drugs and guns.

So there’s two things going on here:

  1. Was this a lawful search based on the marijuana found?
  2. Was this a lawful search of Lee’s car per an inventory search for impounding Lee’s car?

Can you be detained for having a legal amount of weed?

The answer is no, you cannot be legally detained for this. Health and Safety Code Section 11362.1(c) specifically says so: “[c]annabis 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.”

The law about searching your car incident to a lawful arrest is “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” Which was not the case here.

Here, the Court found Lee had a legal amount of marijuana. The fact that he delivered medical marijuana alone didn’t show any evidence of a crime. But he tensed when cuffed? The Court says “that Lee ‘tensed up’ as he was handcuffed hardly seems an unusual reaction for someone being detained and escorted to the back of a police car.”

“The recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug on Lee’s person, and the remaining facts cited by the People do not provide any reasonable basis to believe contraband would be found in the car.”

What about the Police being able to impound the car because Lee was an unlicensed driver?

This one is a little more sticky. California Vehicle Code Section 14602.6(a)(1) permits an officer to impound a car when a person is found to be driving with a suspended license.

However, two big points: “[T]he fact that an inventory search is authorized is not determinative of the search’s constitutionality.” And “statutory authorization does not, in and of itself, determine the constitutional reasonableness of the seizure.”

“Officers may not use an inventory search as ‘a ruse for a general rummaging in order to discover incriminating evidence.'” “Unlike the probable cause determination, which rests solely on an objective standard, the inventory search exception evaluates both the objective reasonableness of the impound decision and the subjective intent of the impounding officer to determine whether the decision to impound was ‘motivated by an improper investigatory purpose.'”

Here, the Court focused that Police kept asking if there was anything “illegal” in Lee’s car. And the parts of the car they searched (under and behind the back seat, in between seats, in the glove box) meant to the Court that the Police were searching for criminal evidence–not just doing an inventory of the car.

There is also a “community caretaking function” in the law here: “The decision to impound the vehicle must be justified by a community caretaking function ‘other than suspicion of evidence of criminal activity’ because inventory searches are ‘conducted in the absence of probable cause’ [citation].” “For example, impounding serves a community caretaking function when a vehicle is parked illegally, blocks traffic or passage, or stands at risk of theft or vandalism.”

But none of those things were present here. In fact, Lee asked if someone could come pick up his car to drive it away. Also, “[t]he car was parked in or alongside an apartment complex. It was not blocking a roadway, the sidewalk, or a driveway.”

In the end here, the Trial Court held this was an unlawful search. And this Court of Appeal upheld the Trial Court.

*cited as 2019 WL 4871480; Court of Appeal, Fourth District, Division 1, California

 

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    Eric Ganci

    Eric Ganci practices in DUI defense, with a focus on science and trial work. He was awarded the “Lawyer-Scientist” designation by the American Chemical Society, Chemistry and the Law Section. Eric teaches with the Trial Lawyers College and is a founding member of the DUI Defense Lawyers Association.

    He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
    Eric Ganci