California Supreme Court Rules on Marijuana in Vehicles: No Probable Cause for Search Based on Debris and Nervous Behavior

By Robert Phillips, Deputy District Attorney (Ret)

• H&S Code § 11362.3(a)(4) and Closed Containers of Marijuana in a Vehicle: 
• Marijuana Debris in a Vehicle and Probable Cause to Search for More: 
• A Vehicle Occupant’s Nervousness and Probable Cause

Rule: H&S Code § 11362.3(a)(4), allowing for the lawful transportation of 28.5 grams or less of marijuana in a vehicle so long as contained in a closed container, does not apply when there is no container at all, closed or not. The apparent nervousness of a vehicle’s driver, even when combined with a plain sight observation of a small amount of marijuana debris and some possible marijuana paraphernalia (e.g., a rolling tray), does not, by itself, establish probable cause to search that vehicle.   

Summary: Officers stopped a vehicle for a simple traffic violation. Defendant was a passenger in the car. Observing a marijuana rolling tray on the back seat and a small amount (0.36 grams) of apparent marijuana debris on the floor behind the passenger’s seat, the officers inquired about the possible presence of marijuana or firearms in the car. The driver denied there was either.  

Upon observing some indications of nervousness on the part of the ....