Metropolitan News-Enterprise


Thursday, March 13, 2014


Page 1


Odor, Sight of Marijuana Enough to Justify Car Search—C.A.




A peace officer who smelled the odor of burnt marijuana and saw the drug in the bowl of a pipe inside a vehicle had probable cause to search the car and its occupants, the First District Court of Appeal has ruled.

Marijuana—unless used for medical purposes within the strictures of Proposition 215—the court held, remains “contraband” under California law, and thus subject to seizure, the court held. This is true, Presiding Justice Barbara J.R. Jones wrote for the court, even when the amount possessed is small enough to make possession an infraction.

The court affirmed Michael Clarence Waxler’s misdemeanor conviction for possession of methamphetamine. Del Norte Superior Court Judge William H. Follett reduced the charge from a felony and placed Waxler on probation following his guilty plea.

Waxler entered the plea after the judge denied his motion to suppress. He argued on appeal that the motion should have been granted, because the deputy sheriff who searched his car had no reason to believe that the amount of marijuana in his possession exceeded the 28.5-gram threshold at which the offense becomes a crime rather than an infraction.

Methamphetamine Found

The deputy testified that he came across Waxler and his vehicle while investigating a report of illegal trash dumping behind a shopping center. In searching the vehicle, he said, he found a small quantity of methamphetamine, which he asked Waxler about.

Waxler, the deputy testified, gave shifting explanations as to where he got the methamphetamine, eventually saying he accepted as payment from a hitchhiker. After the methamphetamine was discovered, Waxler produced a medical marijuana card from Washington state.

The deputy said he would have searched the vehicle, even if the card had been produced before he found the methamphetamine, because without doing so, he could not determine whether the amount involved exceeded that which would support a conclusion that the drug was being used legally for medical purposes.

Jones agreed with prosecutors and the trial judge that the search was legal under the automobile exception to the warrant requirement.

A number of California cases support the prosecution’s position, Jones noted, saying changes in the marijuana laws do not alter the result.

The defense, she wrote, “seems…to misunderstand the automobile exception to the warrant requirement.” The cases, she explained, hold that police may search a car without a warrant as long as they have probable cause to believe the care contains evidence or contraband.

Still Contraband

Marijuana is still contraband, she went on to say, because the use, cultivation, and furnishing of the drug is generally prohibited by state and federal law. Eliminating the criminal penalties attached to possession of small amounts, she said, does not make such possession “legal.”

She wrote:

“Here, Deputy Griffin had probable cause to believe appellant’s truck contained contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in the truck, irrespective of whether possession of up to an ounce of marijuana is an infraction and not an arrestable offense….Other courts have reached similar conclusions.”

Nor does the defendant’s possession of a medical marijuana card affect the ruling, Jones wrote.

“That California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception,” she said.

The case is People v. Waxler, 14 S.O.S. 1215.


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