Does mere presence of LAWFUL amount of marijuana on passenger justify probable cause to search car?

In People v. Lee (2019) 40 Cal.App.5th 853 [253 Cal.Rptr.3d 512], the court held a defendant’s possession of a small amount of marijuana could not justify a probable cause search. (Id. at p. 856.) After initiating a traffic stop, officers discovered a small amount of marijuana on the defendant during a patsearch. (Id. at p. 857.) Officers then searched the vehicle and uncovered cocaine and a firearm. (Id. at pp. 858-859.) Finding the lawful amount of marijuana seized 803*803 from defendant’s person could not establish probable cause to search the vehicle, the trial court granted the defendant’s motion to suppress. (Id. at p. 860.) Reasoning “[t]he recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug,” the appellate court affirmed the trial court’s granting of the motion to suppress. (Id. at p. 861.) The presence of a legal amount of marijuana, however, “does not foreclose the possibility that defendant possesses a larger (illegal) amount.” (Id. at p. 862.) Therefore, pursuant to Lee, there must be additional evidence, beyond mere possession of a legal amount of marijuana, to support a reasonable belief the defendant has an illegal amount or is violating some other statutory provision. (Ibid.)

The relevant question is whether there was probable cause to search the passenger’s purse pursuant to the automobile exception. We conclude there was.

Defendant argues pursuant to Vehicle Code section 23222, subdivision (b), a passenger’s possession of a lawful amount of marijuana while in a car is not unlawful. In making this argument, defendant fails to acknowledge the passenger’s violation of section 11362.3, subdivision (a)(4), which states that while the possession of up to 28.5 grams of marijuana is now lawful pursuant to section 11362.1, it remains unlawful to “[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” (Italics added.) As such, defendant’s reliance on Vehicle Code section 23222, subdivision (b) is unavailing.

Full case here: THE PEOPLE v. TYRONE BRENDON McGEE. 53 Cal.App.5th 796 (2020),

Anton Vialtsin, Esq.
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