It’s well known that law enforcement officers generally need a warrant before they can search a suspect’s person or possessions and, subsequently, use whatever they find at a later trial. However, there are a number of exceptions to this general rule, so many in fact that some commentators have argued that there are more holes than coverage in the warrant requirement. One well known exception is the rule that allows officers to search a suspect’s vehicle with probable cause; this is known as the vehicle exception. This article isn’t long enough to discuss all the important details of the automobile exception, there’s a lot of nuance to the rule, but one aspect that has become increasingly important of late is the question of exactly what kinds of facts lead to probable cause for a search in the context of the legal possession of medical marijuana. As ever more states legalize some form of marijuana possession or use, figuring out just when the possession of marijuana triggers probable cause for a search is becoming increasingly difficult.
Sticking with generalities, an officer has probable cause for a search where the facts and circumstances would lead a reasonable person to believe that there was a likelihood that the object to be searched contained contraband or evidence of a crime. In other words, there is probable cause for a search when officers can reasonably expect to find something illegal. So, in the case of a prospective automobile search, officers won’t need a warrant if, in the specific situation in question, there exists good reason to believe something illegal is in the car. Before marijuana was selectively legal in some states, it was an easy trigger for a probable cause search. Possession of marijuana or its implements was illegal and if an officer saw, or smelled, evidence of marijuana use or possession, a search was likely reasonable. The introduction of legal medical marijuana has muddied these waters.
Under most medical marijuana statutes, only a small quantity of the substance is actually legal; carry too much, and your medical card won’t prevent prosecution. Under these circumstances, if an officer detects evidence of the use or possession of marijuana, does this still trigger probable cause for a search? Like any good legal question, the answer is; it depends. One court recently thought it did, but let’s take a close look at the facts to see if we can understand why. In People v. Waxler, a California court of appeals ruled that presentation to an officer of a valid medical marijuana card did not destroy probable cause for an in-progress search of a suspect’s vehicle. In Waxler, the suspect was sitting in his vehicle in a parking lot when he was approached by officer Griffin. Officer Griffin smelled burnt marijuana and saw a used marijuana pipe on the seat next to the suspect. On this, the officer conducted a search of the vehicle and discovered stronger illegal drugs. At some point during the encounter, but apparently after the search had begun, Waxler presented officer Griffin with a valid medical marijuana card. The officer acknowledged the card but proceeded with the investigation and arrest. At trial, Waxler challenged the search, which is what turned up the other illegal drugs, by claiming that because he had a valid medical marijuana card the officer had no grounds for the vehicle search in the first place.
Unfortunately for Waxler, the Court of Appeals disagreed; reasoning that even though Waxler’s medical marijuana card entitled him to possession of some marijuana, the officer still had grounds to conduct a search in order to determine if Waxler was in possession of more marijuana than his card allowed. The court based part of its decision on the fact that under the applicable law, possession of a valid medical marijuana card was not a bar to search or arrest, but merely a valid defense at trial. In other words, apparently the court felt that officer Griffin was well within his authority to arrest Waxler despite the medical marijuana card and that Waxler could have used the card as a defense at trial but not as a bar against search or arrest.
Two things stick out about this case. The first is that Waxler apparently first presented the card to officer Griffin after the search had already begun. In other words, officer Griffin probably had clear probable cause to start the search because possession of marijuana is generally illegal in California; absent a medical marijuana card. It’s unclear if the court would have ruled the same way if Waxler had been thoughtful enough to present his card to officer Griffin right at the beginning of the encounter rather than halfway through the search. The second point of interest in this case is the fact that only validly prescribed marijuana, in limited quantities, is currently legal in California. Were marijuana legal for recreational use by the general public, it’s uncertain whether officer Griffin would still have had probable cause to search for the meth that he ultimately turned up. Prosecutors might still argue that use of marijuana suggests the possibility of other drug use or possession, and they might be right, but at some point this line of reasoning must break down. For example, does use or possession of vodka suggest use or possession of other, less legal, drugs? Who knows? Ultimately, under the vehicle exception to the warrant requirement, the totality of the facts must be considered.
As ever more states move to legalize some form of marijuana use or possession, it seems likely that the use or possession of, at least small amounts, of marijuana will become increasingly commonplace. At least to the point where such use or possession will no longer provide officers with probable cause to conduct a larger search absent some other factors.