Marijuana Case Brings Clarity on Open Containers in Vehicles and Whether a Warrantless Search is Lawful

• H&S Code § 11362.3(a)(4) and open containers of marijuana 
• Warrantless vehicle searches for marijuana 
• Proposition 64 and marijuana possession by adults 
• H&S Code § 11362.1, lawful possession of marijuana  
• H&S Code § 11357, possession of marijuana by persons under the age of 21 

An officer’s plain-sight observation of marijuana in a vehicle that is not properly enclosed in a sealed container, as required by H&S § 11362.3(a)(4), provides the necessary probable cause to justify a warrantless search of the rest of the vehicle for more marijuana. Other illegal items (e.g., illegal firearms) observed in the process are admissible in court.

On Nov. 10, 2022, at around 11 p.m., 17-year-old defendant Randy C. was driving a borrowed BMW in the city of San Pablo. With him was an unnamed 22-year-old companion. San Pablo Police Officer Dugonjic — an 11-year veteran of the department with training and experience in marijuana identification and consumption, as well as the legality of tinted windows— observed the defendant driving and determined that its windows were in violation of Vehicle Code § 26708(a), illegally tinted windows. Officer Dugonjic conducted a traffic stop. Upon contacting the defendant, it was determined that he did not have a driver’s license and he acknowledged being 17. While discussing this with the defendant, Officer Dugonjic noticed the smell of unburnt marijuana coming from within the vehicle. He also observed that the defendant’s passenger had an unburnt and unsmoked “marijuana blunt” on his lap, in plain view, with “a little bit of green at [its] tip.” Officer Dugonjic determined that the marijuana was a usable amount and not in a closed container, a violation of H&S Code § 11362.3(a)(4).  

The officer knew from his training and experience that marijuana is often smoked in paper wrappers taken from tobacco products. In constructing a marijuana blunt, the tobacco is removed from its wrapper and replaced with marijuana. According to Officer Dugonjic, if there is enough marijuana to be manipulated in such a manner, it is a useable ....