CINDY DE SILVA
Deputy District Attorney
San Joaquin County

In the waning days of 2022, it appeared that California’s appellate courts would finish an entire year without publishing an opinion on marijuana-inspired “automobile exception” searches. Such was not to be, however. In mid-December, the Second District certified for publication its November-released opinion in People v. Castro, 2022 WL 17662954. The decision was a win for law enforcement, and 2022 ended on an upswing in this realm, going one-for-one on the year.

Castro clarifies a “minor” point: that those under 21, by edict of Proposition 64, the “Adult Use of Marijuana Act,” may not legally possess the small amount of marijuana that Prop 64 allows non-medically for those 21 and over. Therefore, searches based on the smell of marijuana coming from a car containing only people under 21 are allowed, unlike the more complicated analysis required when dealing with full-fledged adults. 

Castro comes courtesy of the Los Angeles Police Department’s Foothill Gang Enforcement Detail. Officers Miguel Zendejas and Jose Organista were in a marked unit and saw two males (later, they discovered a third lying on the backseat) sitting in a parked car with expired registration on a public street. The car’s open windows revealed a “strong odor” of “burnt marijuana.” A traffic stop ensued. 

Defendant–driver Phillip Castro admitted to being only 20, and Officer Zendejas recognized the reclined person and his front-passenger compatriot from prior contacts and knew they were gang members under 21. Zendejas articulated his understanding that “the three males were ‘not allowed to possess or smoke marijuana under the age of 21,’” and because he “‘had reason to believe there was still marijuana in the car based on the current smell of marijuana coming from inside the car,’” he decided to search it even though Castro said he had smoked marijuana two hours before. A loaded gun was found. 

Upon the motion to suppress, the magistrate granted Castro’s motion, relying mistakenly on the In re D.W. case, which was a search incident to arrest case involving marijuana and a juvenile rather than an automobile exception case. To the Los Angeles District Attorney’s Office’s credit, they filed a motion for reconsideration in Castro, which the second judge granted. Castro eventually appealed.

The Second District succinctly stated, “We conclude Officer Zendejas had probable cause to search Castro’s car because … his belief that contraband or evidence of a crime (e.g., marijuana) would be found in the car was reasonable,” given that Zendejas had testified that Castro admitted to smoking marijuana and the smell of marijuana still in the car led him to believe marijuana, contraband for someone under 21, would be present. 

“It was unlawful for Castro and his minor passengers to possess any amount of recreational marijuana due to their age,” wrote the court. Therefore, the post–Prop 64 cases pertaining to the smell of marijuana needing additional evidence to support an automobile exigency search are inapplicable to juveniles. 

To date, the courts have published nine cases relating to the automobile exception and marijuana post–Prop 64. Those cases can be separated into three main types and briefly summarized as follows (some of the cases fall under multiple categories, but the main gists are captured below).

The “Smell of Marijuana” Cases

People v. Fews (2018) 27 Cal.App.5th 553: The smell of “recently burned” marijuana and the sight of a half-burned marijuana cigar provides probable cause to search for driving-under-the-influence fruits or an open container. 

People v. Moore (2021) 64 Cal.App.5th 291: A high-crime area, defendant leaning into an open window of a parked car (viewed by the sergeant as a possible drug transaction), defendant walking away when the sergeant pulls up, the experienced sergeant smelling a “strong” odor of “fresh” marijuana, and the non-defendant driver seeming nervous and admitting he recently had marijuana in the car but non-credibly claiming he smoked it all and showing residue in a jar to unconvincingly explain the odor, all combine to make the automobile search of the defendant’s backpack in the car valid.

Blakes v. Superior Court (2021) 72 Cal.App.5th 904: (a) No probable cause exists for an automobile exception search when the smell of burnt rather than recently burnt marijuana is detected; (b) an inventory search looks pretextual if no community caretaking function is being served and the deputy suspects evidence will be found, and pretextual inventory searches are illegal.

People v. Castro (2022) 2022 WL 17662954: An automobile search may be done on a car containing only those under 21 when the officer testifies he smelled the strong odor of burnt marijuana and believes evidence of more will be found in the car, as minors may not recreationally possess marijuana, so the proscriptions of Prop 64’s Health and Safety Code section 11362.1(c) (stating that marijuana products connected with “conduct deemed lawful by [Prop 64] are not contraband nor subject to seizure”) do not apply to minors reasonably suspected of possessing recreational marijuana in any useable amount. 

The “Visible Legal Amount” Cases

People v. Lee (2019) 40 Cal.App.5th 853: Simply having a legal amount of fresh marijuana is not enough to reasonably suspect and search for an illegal amount in the car. The so-called “Plus One” rule emanates from this case: that is, officers should have “additional evidence beyond the mere presence of the legal” amount before searching when based on seeing a small amount of marijuana.

People v. Hall (2020) 57 Cal.App.5th 946: Loose marijuana on the driver’s lap when no testimony comes in to show it was a useable amount, plus a baggie of marijuana when no testimony existed regarding whether it contained more than an ounce or whether it was open or closed, results in a finding of no probable cause to search.

The “Open Container” Cases

People v. McGee (2020) 53 Cal.App.5th 796: (a) Commission of an infraction is good enough for a search, if probable cause exists to believe more contraband or evidence would be found; (b) a visible open baggie in a passenger’s cleavage yields probable cause to search the passenger’s containers (here, her purse).

People v. Johnson (2020) 50 Cal.App.5th 620: (a) A knotted baggie is not an “open” container per Health and Safety Code Section 11362.3 (Vehicle Code section 23222 was not at issue in this case); (b) the parked car with an odor of marijuana and a legal amount visible in a knotted but not legally “open” baggie did not give probable cause to search, as law enforcement didn’t have odor “plus one”; (c) the Health and Safety Code open container statute, Section 11362.3(a)(4), means open when found; and (d) the Vehicle Code version, Section 23222(b), means “previously opened — thus unsealed — even if the receptacles are closed when driven.” 

People v. Shumake* (*published but not binding; only persuasive authority at best) (2019) 45 Cal.App.5th Supp. 1: (a) “Loose cannabis flower” without a container is an open container per Vehicle Code Section 23222(b), but if it’s in a container, it’s not in violation of Section 23222(b); (b) a currently closed container is not an open container per Health and Safety Code Section 11362.3(a)(4); (c) a container does not need to be heat-sealed to be considered closed; and (d) the strong odor of fresh and burned marijuana, plus defendant admitting to having “some bud” in a currently closed tube but in a lawful amount, does not yield probable cause to search, because no violation of the open container/smoking laws was shown. 

Conclusion

With nine cases now under our belts, the marijuana-vehicle search laws are becoming a bit clearer as the various scenarios are being hammered out by the courts. Certainly, some confusion still remains, particularly as to the “open container” cases; but Castro clarifies a simple point in law enforcement’s favor as the sole case of the year on the topic. Happy new year to you all, and may the cases of 2023 bring us similarly good news. 

About the Author

San Joaquin County Deputy District Attorney Cindy De Silva has been a prosecutor for 22 years. She is the 2022 California Narcotics Officers’ Association Prosecutor of the Year, the 2016 California District Attorneys Association Instructor of the Year and the 2009 Stockton Crimestopper of the Year.