Medical Marijuana and Probable Cause Vehicle Searches

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.

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.

Application

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.

Your Car Probably has a Black Box: What Story Does Yours Tell?

On March 18, 2014, Malaysian Airlines flight 370 disappeared en-route from Kuala Lumpier to Beijing sparking a massive search and ongoing mystery. Neither the plane nor any of its passengers has yet been found, though emergency personnel believe they may have located the flight’s data recorder at the bottom of the Indian Ocean. Flight data recorders collect a wealth of information about the condition and operation of airlines and retrieving this “black box” would tell researchers exactly what happened to the airplane and why it went down. While this data may prove critical to understanding what happened to Malaysian flight 370, many people may not realize that most cars in the United States have similar devices. In fact, pending federal legislation may require electronic data recorders in all cars by 2015. Expanding the use of EDRs in automotive applications offers a number of potential benefits such as improved auto and road safety through better accident data, however, the new law has renewed the concern of many consumers and privacy advocates over exactly how such data will be used.

What Is an EDR?

Electronic Data Recorders monitor certain signals from the vehicle and record that information shortly before and during an accident event. This information can later be retrieved and analyzed to help researchers better understand exactly what went wrong during a crash and how to prevent future accidents. With the implementation of mandatory OBD II engine and emission monitoring in the mid 1990s, many manufacturers took the opportunity to begin tracking and recording additional information for use in crash analysis. Today, the NHSTA estimates that more than 90% of all cars on the road are equipped with some form of EDR device; exactly what data the EDR records depends on the manufacturer. Under proposed federal law, 15 data points are required including vehicle speed, driver seat belt status, breaking force, and throttle position; however, most EDR devices likely are capable of collecting a much broader range of information. Of particular concern is the possibility of recording GPS data including specific driving patterns, speed, and precise location. As currently designed, most common EDR systems are integrated into the vehicle’s airbag system and record only a few seconds of data; either on a rolling basis (perhaps the last 30 seconds continuously) or as a result of certain specified trigger events (such as airbag deployment or sudden high G forces).

What Is the Data Used for?

Data collected by automotive EDR devices has a number of applications. Some are laudable such as helping to improve vehicle safety systems, roadway designs, or safety laws. Others are of more concern such as the ability of law enforcement to use the data in criminal prosecutions or of insurance carriers to use the data when setting policy rates. As of the writing of this article, only 13 states have laws specifically addressing exactly how automotive EDR data can be accessed and who owns that data. California’s law, enacted several years ago, states that EDR data belongs to the vehicle owner and can only be accessed with that owners consent, under a court order, or for safety statistical compilations where personal data is not also revealed. Proposed federal legislation would provide similar protection on the national level.

Privacy Concerns Abound

Unfortunately, this does not mean that your data is safe; or rather, that you are safe from your data. Many insurance companies are now including language in their standard policies requiring drivers to consent to data collection and while some states have moved to prevent this practice, the legal protections are patchwork at best. In many states, police authorities are equipped with devices capable of reading many types of black boxes on the scene of an accident. Even where neither your local police nor your insurance company can obtain the data at-will, a court can almost certainly subpoena that data for use in a either a civil or criminal trial.

In fact, this has already been done. While a California court ruled on appeal that law enforcement must have a warrant before taking EDR data for use in a criminal proceeding, such use is clearly an option in the state as it is in many others.

Practical Application

It is not hard to imagine situations in which the use of EDR data becomes very troubling for many drivers; even those who generally have nothing to hide. Insurance companies may use data collected after an accident to shift the blame for the incident or even to reduce or deny coverage based on certain factors. If, for example, your EDR reveals that you were not wearing a seatbelt at the time of the crash, it might be argued that you are partly responsible for your injuries and therefore not eligible for a full settlement amount. Something very similar happened to a Michigan politician who was caught in a lie by data from retrieved from the government car he crashed which contradicted his official story of a recent high-profile crash.


As with most types of data, the numbers themselves don’t have any agenda, but, how those numbers are used, and by whom, leaves a lot of questions unanswered. Furthermore, ensuring the validity and accuracy of the EDR data itself has never been adequately addressed. Exactly what the future holds for automotive EDR data will ultimately be decided by legislators, consumers, and the courts, but everyone should keep an eye on this rapidly developing area of law as the implications for establishing liability in an auto accident are potentially enormous.

Striking a Balance in Rape Prosecutions

Rape and childhood sexual abuse are sensitive subjects no matter the setting. In the criminal justice context where victims and society sometimes seem inherently at odds these conversations can become even more difficult. Set against a backdrop of rape culture and feminism which so often feature in this discourse, it can be challenging to present current issues in a balanced yet sensitive manner. No one worth listening to seriously condones sexual assault of any kind; but to victims, who often face unfair and damaging attacks on their credibility, character, and experiences, any discussion of judicial restraint can seem like a direct insult to their undeniably traumatic circumstances. Yet without a balanced system of justice no one, not even rape victims, is better off in the long term. In order to promote the integrity of the system that protects each of us from the misdeeds of our fellow citizens we must at times engage in sensitive discussions regardless of the risks. Senate Bills 926 and 924, which seek to greatly increase the statute of limitations for both rape prosecutions and civil lawsuits alleging damages from rape, represent just such an occasion. In an effort to present this discussion in as neutral a light as possible, we’ll cover both sides of the debate in separate sections and leave it up to you as readers to form your own opinions of the better outcome. Comments will be disabled on this article to prevent abuse.

Statutes of Limitation

Under the law, many, possibly most, criminal charges must be filed within certain closely defined windows of opportunity. An attempt to file charges too late will usually result in dismissal of the case and legal exoneration for the defendant. There are a number of very good reasons to enforce these kinds of limitations on prosecution. Of primary concern is the quality and availability of evidence, both for and against the defendant. Over time, people pass away, witness memory fades, DNA samples degrade, locations are altered, law enforcement officers are promoted or even retire, and both perpetrators and their victims mature and – to the extent possible – move on with their lives. In civil cases, insurance policies expire or are renegotiated based on past performance, businesses books are settled, staff turns over, new investments made and old risks calculated. These lists could go on ad infinitum, but what should be clear is that trying cases becomes increasingly difficult as the facts supporting the case age.

On a more sinister note, allegiances and personal perspectives can also change over time; often dramatically. Lovers fall out, children grow up, employees are fired, and business deals turn sour. While reliable statistics are hard to compile, it is likely that the majority of sexual assault allegations have merit. Whether, in a particular case, the correct perpetrator has been identified, the extent of the offense properly defined, or the factual circumstances accurately recorded; however, is an open question. Unfortunately, these details can, and sometimes are, affected by the personal relationships at stake in a case; individual perspectives can change over time.

To help guard against degradation of the evidence or the possibility of unfairly changed perspectives, statutes of limitation cap the time in which charges must be brought. These limitations serve to provide some measure of finality to society and to protect against abuse of the legal system.

Time to Recover

On the other side of the equation, victims of sexual assault, particularly children, undeniably need time to heal. Medical research suggests that in many cases individuals have difficulty remember the specifics of a traumatic incident, or even that an incident occurred at all. Psychologists tell us that this memory block is a defense mechanism employed by our brains to help victims move on and heal after an attack. To further complicate matters, many victims are stuck in a nightmare of continuing abuse and totally lack any power to seek justice against their abusers. Young children may suffer at the hands of an abuser for years before ever realizing that they can tell someone about the attacks. Such victims may need many years to recover enough to report the abuse to the legal system and sometimes much longer still to fully appreciate the extent of the physical and emotional damage done to them by the attack(s).

A legal system insensitive to this reality will be unfairly stacked against the very people the system is designed to protect. For this reason, unduly short statutes of limitation cut off the possibility of persecution before victims have had a time to get their bearings after an attack or attacks and give perpetrators of sexualized violence a “get out of jail free” pass by virtue of the very abuse they have committed. Striking the right balance isn’t easy.

Senate Bills 926 and 924

Enter the California Senate. Two bills currently under consideration that would dramatically alter the current system of limitations on prosecution and civil lawsuits against perpetrators of sexual violence. Current law gives victims of childhood sexual abuse until their 28th birthday to report the abuse to authorities and until their 26th birthday or three years after the damage from the abuse is recognized medically to file a civil lawsuit. Introduced by Senator Jim Beall, SB 926 and 924 would raise these caps to 40 years old and five years from the discovery of damage from the abuse respectively. This isn’t the first time the Senator has tried for this change. In the last legislative session a similar package of bills passed both houses of the legislature with wide margins enjoying support from both political parties; it was ultimately vetoed by Governor Brown who took the time to write an uncharacteristically long signing statement describing his reasons for the veto.

“there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits,” given that evidence can be lost, memories can fade and witnesses can become unavailable over time. “This extraordinary extension of the statute of limitations, which legislators chose not to apply to public institutions, is simply too open-ended and unfair.”

There are some distinct differences between the vetoed bill and the current effort including the extent to which the changes would apply to the past and exactly which entities could face the revised guidelines (the new bills are not retroactive and apply equally to both public and private entities) and so it remains unclear exactly how the bills will fare in this session or whether, if passed, they too will face a veto action.