Friday, January 30, 2026
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California Supreme Court:
Open Container Offense Requires Handy, Usable Cannabis
Opinion Says Court of Appeal Erred in Finding That ‘Crumbs’ Scattered on Rear Floorboard of Car Carrying Only Front-Seat Occupants Were Sufficient to Establish Violation, Probable Cause to Search Vehicle
By Kimber Cooley, associate editor
The California Supreme Court held yesterday that a law prohibiting the possession of an open container of marijuana while riding in a motor vehicle requires a usable, readily accessible amount of cannabis that is imminently available for consumption, reading the “sensible” requirements into the statute based on the section’s “purpose, context, and case law” suggesting that the enactment was motivated a desire to reduce impaired driving incidents.
At issue is Health and Safety Code §11362.3(a)(4), adopted in 2016 as a limiting principle in the voter-enacted scheme legalizing the possession and transportation of less than one ounce of marijuana. The section makes it an infraction to “[p]ossess an open container…of cannabis…while driving…or riding in…a motor vehicle.”
Writing for the unanimous court, Justice Goodwin H. Liu declared:
“We hold that at a minimum, to constitute a violation of section 11362.3, subdivision (a)(4), marijuana in a vehicle must be of a usable quantity, in imminently usable condition, and readily accessible to an occupant.”
However, the court rejected “the assumption of some Court of Appeal opinions” that the law requires any marijuana being carried in a vehicle to be in a “sealed” container to avoid liability, saying that “[n]o sealing requirement appears in the text of the section.
The question came before the court after Davonyae Sellers challenged a Nov. 5, 2021 search by Sacramento Police Department officers of a vehicle in which he was riding in the front seat. After stopping the vehicle for failing to stop behind a limit line, Officer Conner Mills observed a tray used for rolling joints in the back seat, and Officer Mark Thrall noticed “crumbs” resembling marijuana scattered on the rear floorboard.
Search of Vehicle
Upon being asked to exit the car, Sellers admitted to having a firearm in the car. The “crumbs”—totaling 0.36 grams of suspected marijuana—and an unregistered handgun were recovered during a full search of the vehicle.
Sellers was charged with unlawful possession of a firearm in violation of Penal Code §29820. After a magistrate judge denied his motion to suppress, Sacramento Superior Court Judge Deborah D. Lobre upheld the denial in November 2023.
On Aug. 22, 2024, the Third District Court of Appeal denied Sellers’ petition for a writ of mandate. In an opinion authored by Justice Peter A. Krause and joined in by Presiding Justice Laurie M. Earl, the court concluded that officers had probable cause to search based on the “crumbs,” rejecting the view that §11362.3 requires the presence of a “container” and saying that the law prohibits having cannabis in a moving car that is not held in a “closed package.”
Justice Elana Duarte dissented, noting that the incident was “clearly a targeted traffic stop of a car [carrying] African-American and Hispanic individuals,” and opining that it would be absurd to “criminalize the tiny amount of scattered marijuana…but legalize the closed baggie in the front seat containing 80 times that amount.”
Yesterday’s opinion, joined in by Justice Jon B. Streeter of Div. Four of the First District Court of Appeal, sitting by assignment, reverses the decision and “remand[s] for…determination of the proper remedy.”
Purpose of Provision
Saying that “[w]e partly agree and partly disagree with the Court of Appeal,” Liu opined that “requiring the presence of a container” would interfere with the “universally understood purpose of an open container provision,” which he characterized as a desire to reduce “impaired driving by inhibiting ready access to intoxicating substances.” He wrote:
“[I]n the context of marijuana,…requiring…a container would frustrate that purpose. For example, an open bag of marijuana gummies in the center console would violate the provision, but the same gummies dumped into the console would not…Although we do not lightly depart from the plain meaning of a legislative enactment, we do not think the voters intended this patently illogical result. Reducing impaired driving necessarily focuses on the presence and accessibility of an intoxicating substance, not whether the substance is held in an actual container.”
However, he remarked that, “[a]t the same time, we find that interpreting the statute to apply to any loose marijuana is too broad.” Surveying case law considering what qualifies as a violation of the section, he said:
“[U]ntil recently open container provisions have been relevant primarily in the context of alcohol….Although the ‘open container’ concept as applied to marijuana reflects the same purpose, alcohol and marijuana are materially different….[A]n open container of beer or liquor facilitates imminent consumption. For marijuana, many forms require preparation before ingestion, and the presence of an open container is not always necessary or sufficient to facilitate consumption.”
Practical Differences
Based on those practical differences, he declared:
“To guide courts in applying section 11362.3, subdivision (a)(4), we elucidate sensible concepts immanent in the case law. To start, we agree with the Attorney General that the marijuana must be of a usable quantity….But even when present in a usable quantity, marijuana that is not in an imminently usable condition or is entirely inaccessible…does not implicate the…underlying concerns.”
Commenting that “[w]hether marijuana in a vehicle satisfied these conditions is fact dependent,” he noted that “the state of the marijuana (for example, whether it is fresh, dried, ground, or rolled into a cigarette) and the presence of paraphernalia that could facilitate its consumption…are relevant facts.”
Applying the principles to the search of the car in which Sellers was riding, he concluded:
“The circumstances in this case are not what voters envisioned in penalizing vehicle occupants for possessing an ‘open container’ of marijuana in order to deter impaired driving. Even if the crumbs constituted a usable amount, there is no evidence that they were in imminently usable condition or readily accessible to anyone in the vehicle.”
Pointing out that “the officers did not observe erratic driving, nor did they have any basis for suspecting illicit marijuana in the vehicle,” he reasoned that “the totality of the circumstances did not give rise to probable cause to search the vehicle.”
Implicitly acknowledging that Sellers’ standing to challenge the search might be tenuous based on jurisprudence holding that a passenger may only contest the search of a car if he or she asserts a personal privacy interest in the area subject to inspection, Liu said that “[t]he prosecution did not contest [the defendant’s] standing to challenge the search before the magistrate or in any subsequent proceeding.”
The case is Sellers v. Superior Court (People), 2026 S.O.S. 271.
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