Friday, March 23, 2007
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C.A.: Scent Gave Cause to Search Medical Marijuana User’s Car
By TINA BAY, Staff Writer
The fact that a man had a medical marijuana prescription did not negate an officer’s probable cause to search his car after finding that it smelled of marijuana, the First District Court of Appeal ruled yesterday.
Agreeing with Napa Superior Court Raymond Guadagni, Div. One affirmed the denial of Gabriel Reed Strasburg’s motion to suppress 23 ounces of marijuana and a scale uncovered from a search of his car in October 2005.
Napa County Deputy Sheriff Aaron Mosely detained Strasburg on Oct. 25 after finding him and a companion seated in a parked car at a gas station in Calistoga. As he approached the vehicle, Strasburg opened the driver’s side door and Mosely immediately smelled the odor of marijuana.
Strasburg admitted he had been smoking marijuana just before Mosely’s arrival, but immediately told the deputy he had a “medical marijuana card”—by which he meant a doctor’s prescription for the drug. Under the Compassionate Use Act, Strasburg’s possession of a prescription rendered him a “qualified patient” allowed to possess up to eight ounces of dried marijuana for medical use.
Mosely, however, did not ask to see Strasburg’s “card,” but instead checked his driver’s license and asked him if he had any marijuana on his person or in the car.
Strasburg initially turned over a Ziploc bag that he claimed contained about three-quarters of an ounce of marijuana. When Mosely ordered him out of the car and saw second bag of marijuana in plain sight, Strasburg also gave that bag, containing 2.2 grams of marijuana, to the deputy.
Once outside of the car, Strasburg again said he had a medical marijuana card and asked Mosely to look at it. The deputy, who would not look at the card because he mistakenly believed that such cards were not recognized in Napa County, frisked Strasburg but found nothing on his body.
As he was walking Strasburg toward his patrol car, Mosely asked him if there was any more marijuana in his vehicle. Strasburg said there was, and the deputy’s search of his car recovered 23 ounces of marijuana and a full-size scale.
In court, Guadagni denied Strasburg’s motion to suppress the items seized from his car, reasoning that an officer is entitled to search a car once he smells marijuana coming from it. Strasburg then pled no contest to misdemeanor possession of more than 28.5 grams of marijuana.
The Court of Appeal rejected the defendant’s contention that once he produced a doctor’s prescription for marijuana, the deputy had no basis to detain him, frisk him, or search his car.
Writing for Div. One, Presiding Justice James J. Marchiano agreed with the trial judge that the odor of marijuana, coupled with the fact Strasburg was with another person in a parked car in a public parking area, gave Mosely probable cause to search the vehicle.
“The fact that defendant had a medical marijuana prescription and could lawfully possess an amount of marijuana greater than Deputy Mosely initially found, does not detract from the officer’s probable cause,” Marchiano wrote.
A rule requiring Mosely to stop searching in the face of the marijuana prescription and the circumstances of how the smoking occurred, he said, would give every qualified patient under the Compassionate Use Act freedom “to violate the intent of the medical marijuana program expressed in section 11362.5 and deal marijuana from his car with complete freedom from any reasonable search.”
The justice noted that Strasburg “was not sitting at home nursing an illness with the medicinal effects of marijuana,” but rather smoking in a parked car in a gas station parking lot with another person.
Justices William D. Stein and Douglas E. Swager concurred in the opinion.
The case is People v. Strasburg, 07 S.O.S. 1346.
Copyright 2007, Metropolitan News Company