The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ….” U.S. Const. amend. IV. Searches and seizures conducted without a warrant are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Due to the diminished expectation of privacy in one’s vehicle as compared to on one’s person, the “automobile exception” allows an officer to search a vehicle without a warrant if the officer has probable cause to believe the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
Lastly, as a general rule, “[e]vidence seized in violation of the Fourth Amendment, including any ‘fruit of the poisonous tree,’ may not be used in a criminal proceeding against the victim of the illegal search and seizure.” United States v. Cervantes, 703 F.3d 1135, 1143 (9th Cir. 2012) (quoting Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
A. Marijuana in Vehicles Following Proposition 64
Proposition 64, passed in November 2016, decriminalized the possession of 28.5 grams of marijuana or less by persons age 21 and over in the state of California. See Cal. Health & Safety Code § 11357(b). Furthermore, Proposition 64 provided that “[c]annibis and cannabis products … deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Id. § 11362.1(c) (emphasis added).
In the context of operating a motor vehicle, ….the statute in question in this case is Vehicle Code § 23222, which states that, “while driving a motor vehicle,” it is an infraction to possess “any receptacle containing any cannabis … which has been opened or has a seal broken, or loose cannabis flower not in a container ….” Vehicle Code § 23222(b)(1).
The legality of transporting marijuana in this exact type of container—that is, a plastic “tube” which “could be opened by squeezing the sides of the tube, which flexed the top open.” *836 People v. Shumake, 259 Cal. Rptr. 3d 405, 407 (Cal. App. Dep’t Super. Ct. 2019).
Federal law cannot provide an alternate basis for probable cause. To hold otherwise would allow officers to disregard entirely the California legislature’s directive that “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” Id. § 11362.1(c). Indeed, it would lead to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce. See Printz v. United States, 521 U.S. 898, 918-19, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Moreover, practically speaking, to permit this end-run around California’s legalization scheme would grant state law enforcement officers carte blanche to disregard the Fourth Amendment rights of large numbers of California residents engaging in activity the state has deemed lawful. Without appellate authority compelling such a result, the undersigned will not sign off on this potentially sweeping erosion of constitutional rights.
See full case here: https://casetext.com/case/united-states-v-talley-50 , United States v. Talley, 467 F. Supp. 3d 832, 837 (N.D. Cal. 2020)
Anton Vialtsin, Esq.
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