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Does Evidence of Pot in Car Allow Warrantless Search?
It is reassuring to us to read certain appellate court decisions that affirm the Fourth Amendment’s protection against unreasonable search and seizure. In the following case, the old adage, “the ends justify the means” was given a thumbs down and we applaud this.
In a Nutshell: Probable cause to search a parked car does not exist when police in 2018 (after Prop 64 legalizing adult use of marijuana was passed in 2016) observed a closed baggie with two or three grams of marijuana in the car.
In 2018, Stockton Police Officers Aaron Clark and William Hall were on patrol when they saw Defendant Dammar Darrell Johnson sitting in a parked car on the side of the road. The police decided to check on the car’s registration and saw it was missing.
Police then activated their emergency lights and pulled in behind Johnson’s car. Officer Clark got out of the car to speak with Johnson. Johnson could see the police behind him, so he got out of the car and when police told him to get back in the car, he refused. Johnson was yelling at the officer, asking him why he had to get back in the car.
Clark then grabbed Johnson’s wrist and, according to the officer, Johnson tensed up and the two officers then handcuffed Johnson.
The officers then approached the car to perform what they called a “tow inventory” search because the car’s registration had expired. As Clark looked in the car, he later testified, he could smell marijuana and saw a small plastic baggie tied up closed in the center console in plain view.
He estimated it was two or three grams, which was entirely legal in 2018 (Prop 64 was passed in 2016).
The officer then searched the rear cargo area of the car and, behind a plastic panel, found a loaded firearm.
Court of Appeal Third Appellate District SacramentoJohnson was later charged in San Joaquin County Superior Court with being a felon in possession of a firearm, possession of ammunition by a prohibited person, resisting, delaying or obstructing arrest and was issued a citation for the marijuana (the police claimed the closed container was an open container in a vehicle) and expired registration.
Johnson moved to suppress the evidence of the gun, ammunition and the firearm. He argued that the odor of marijuana and the observation of about two grams of marijuana in a closed plastic baggie did not give the police probable cause to search the entire car.
In opposition, the prosecutor argued that the odor of marijuana and presence of marijuana provided probable cause for the search. The prosecutor argued that although the baggie was closed, the fact that it could have been opened easily at some point meant it was an open container within the meaning of Health and Safety Code § 11362.3(a)(4), which prohibits having an open container of marijuana while driving.
In the district attorney’s view, this violation of the open container law gave the officer probable cause to search the rest of the vehicle, including by opening panels in the trunk where the firearm and ammunition was found.
The judge found the search was not valid as an inventory search, but denied Johnson’s motion to suppress as either a search incident to an arrest for resisting an officer or a probable cause search.
Johnson then entered a plea to being a felon in possession of a firearm, possession of ammunition by a prohibited person and resisting, delaying and obstructing a police officer.
Johnson then appealed the motion to suppress ruling to the Third Appellate District. The appellate court was critical of the prosecution’s claim that a closed container of marijuana, which could be easily opened, provided probable cause to search the entire car because the officers conceded they did not see Johnson driving and they also confirmed that the container was closed, not open. The totality of the circumstances did not amount to a fair probability that evidence of a crime or contraband would be found in defendant’s car. Therefore, the search violated Johnson’s Fourth Amendment rights and the evidence should have been suppressed.
While we applaud this ruling, we remind the reader that Johnson most likely would still face charges of evading, obstructing and resisting a police officer, but as a misdemeanor. The felony charges for being a felon in possession of a firearm and being an unauthorized person in possession of ammunition would be dismissed for insufficient evidence with the suppression motion granted.
The citation for the Third Appellate District Court ruling discussed above is People v. Dammar Darrell Johnson (3d App. Dist., 2020) 50 Cal. App. 5th 620, 264 Cal. Rptr. 3d 103.
For more information about warrantless searches of a car, please click on the following articles:
