Tuesday, May 27, 2014

Medical Marijuana and Probable Cause Vehicle Searches

Criminal Defense Marijuana

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.

Understanding Probable Cause Searches (in brief)

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.

Legal Possession?

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.

Verifying Legal Possession

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.

Distinguishing Waxler

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.

Wednesday, May 14, 2014

Respondeat Superior: When Employers Are Liable for their Employees

We’ve written many times in this blog about some of the different ways to both establish liability on the part of a third-party for injuries you sustain and about how best to go about collecting on that liability. Frequently, these discussions center around insurance of one type or another and the most common application of insurance issues in everyday life is the automobile accident; a discussion that works well for this post as it just so happens that the insurance applicable to car accidents, and the larger issue of general coverage for injuries sustained in a car accident, makes a great intro to the question of respondeat superior.

Translated into plain English, Respondeat Superior means ‘let the master answer for his servant’; or ‘make the employer responsible for their employee’. Determining exactly when this applies requires a court opinion and a full explanation of the details considered by most California courts, making it outside the scope of this article; however, in the following paragraphs we’ll attempt to cover some of the basics with an eye towards giving non-lawyers an overview of how respondeat superior works in practice and why the rule exists.

A Brief Explanation

Established by English courts sometime in the 17th century, the doctrine of respondeat superior serves two principal purposes. The first is to ensure as great a likelihood of recovery for injured parties as possible and the second is to more equitably distribute liability for injuries resulting from an incident. By way of explanation, let’s stick with the auto accident scenario. While an individual driver in California is required to carry some car insurance, the amounts of most personal auto policies are usually capped at a number well below the actual damage caused in a severe accident. Where appropriate, sound public policy seeks additional coverage for those injuries.

Additionally, when someone is driving on behalf of an employer, it is the employer that usually gains the ultimate benefit from that trip. When accidents happen en route, it seems only fair to hold responsible the party gaining the benefit of the trip. Take for example the typical semi-truck accident. Most semi-trucks are driven by individuals on behalf of a logistics business of some sort. While the individual driver is most likely paid for their work, the more substantial profits flow to the company that organized the trip and hired the driver. If that semi-truck causes an accident that maims a family, the entity making the profit from the trip should bear the responsibility for the accident as a cost of doing business.

Unfortunately, under old English law, liability was limited to people who breached some general duty; such as not running into other cars with their semi-trucks. An employer (known as a principle back then) couldn’t be liable to the injured party because they technically didn’t do anything wrong; assuming, of course, that the principle wasn’t in some way directly responsible, such as by forcing the driver to make the run with too little sleep or by negligently providing a truck without breaks. Dissatisfied with this limitation, English courts devised the rule of respondeat superior to hold the principle vicariously liable for the actions of an agent which were undertaken at the principal's direction and for their benefit.


Sounds good right, but when exactly does the rule apply? If the semi-truck driver from our example above is directly on route and causes an accident, their employer is probably liable because the driver was acting within the scope of employment. But what if the driver made an unscheduled 20 minute stop at a friend’s house half a mile off the regular route? Or perhaps the driver took the company truck and drove four hours out of the way to place a bet at a casino in Vegas? What if the driver ran into that other car on purpose after the car cut off the semi-truck at an intersection?

What these questions demonstrate is that application of the doctrine of respondeat superior isn’t always easy or straight forward. While a complete examination of the law wouldn’t fit in any reasonable blog post, the following elements are generally taken into consideration by a court charged with making the requisite determination of liability.

  • Was the employee’s conduct similar to their job duties at the time of the accident?
  • Was the employee “on the clock”?
  • Was the conduct foreseeable in light of the nature of the employee’s job duties?
  • Was the employee’s conduct in furtherance of the employer’s business objectives?
  • How much freedom of decision did the employee have with regard to the conduct in question?
  • Intent of the employee.
  • Amount of time the employee’s conduct required.

Other Scenarios

While auto accidents make some of the best examples of the legal rule we’re discussing, the doctrine can also apply to a wide range of other incidents. Employees who make false or misleading claims about a product, abuse or molest someone, lose customer funds, negligently release personal or private information, damage customer or client property, or engage in many other similar harmful activities may create liability on the part of their employers. Any lawyer worth their salt, or the bar certification hanging on their office wall, will check thoroughly for the possibility of liability on the part of any applicable employer or principal whenever they take on a new personal injury case.

Some Limitations

As great a tool for restoring injured parties as the doctrine of respondeat superior has proved to be, there are some important limitations to application of the rule. Of particular importance is the intentional tort restriction. Intentional torts are harms done on purpose as opposed to merely by accident. Road rage, criminal attacks, and purposeful theft might all be considered intentional thus cutting off employer liability in many cases. This limitation was developed because of the fairness of the situation. Courts did not feel comfortable holding employers liable for the intentional attacks of wayward employees. However, there are some cases where even intentional torts trigger respondeat superior. The typical law school example is that of the bouncer who injures a patron while forcefully ejecting the victim from a bar. Here, the bouncer’s actions are directly within the scope of their employment and, even where they go slightly overboard, their actions are in furtherance of their employer’s interests.

Direct Employer Liability

While it’s really outside the scope of this article, there are other ways in which employers might find themselves liable for the actions of an employee; directly liable. The doctrine of respondeat superior implicates a sort of vicarious liability, but sometimes employers act on their own to create injury. For example, a school that hires, without a background check, a person convicted of child molestation might be directly liable for harm done to a student by this employee. However, this liability is not predicated on the actions of the offender per se, but rather on the actions of the school in negligently hiring someone unfit for the job. This distinction might seem arcane, but it can be important in some cases. On occasion, both types of liability might apply. A further explanation of the ways in which employers might find themselves directly liable to tort victims will have to wait for another article, but it’s important to bear in mind whenever considering the issues discussed in the whole of this article. In the meantime, please don’t hesitate to contact us with any questions you might have about how either of these legal rules might apply to your specific situation.