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.