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LU Ref# CAI00004
December 30, 2020
Author Ref. No: Vol. 25 No. 14
LU Ref# CAI00004
December 30, 2020
Author Ref. No:   Vol. 25 No. 14

Robert C Phillips
Deputy District Attorney, Retired

“Not in jail; not in a mental hospital; not in a grave. I’d say so far I’m having a very good day.” (Unknown)
Searches of Vehicles for Marijuana
COURT CASE REFERENCE: People v. Hall (Nov. 24, 2020) __ Cal.App.5th __ [2020 Cal.App.LEXIS 1118]

The lawful possession of an ounce or less of marijuana in a vehicle does not, by itself, provide the necessary probable cause to search the vehicle.  A baggie of marijuana found in a vehicle need not be sealed to be lawful, so long as it is not actually open when observed.
At about 11:00 p.m. on September 3, 2018, San Francisco P.D. Patrol Officer Steve Colgan and his partner observed defendant Dontaye T. Hall driving a vehicle with a license plate light out.  Initiating a traffic stop and contacting defendant, Officer Colgan observed in plain sight in the center console “a clear plastic baggie, inside of which was a green leafy substance” which appeared to be . . . (are you ready for this?) . . . MARIJUANA!  He also saw in the cup holders “an ashtray filled with ashes,” “burnt cigar wrappers, commonly used to wrap marijuana,” and “a green leafy substance, that appeared to be broken up” in defendant’s lap.  Later, in his testimony, Officer Colgan admitted that he did not attempt to smell the cigar wrappers.  There was also no testimony about any smoke being observed or odors that might have been emanating from the vehicle or from defendant himself, or that there was any odor of marijuana at all; burnt or unburnt.  It was also admitted by Officer Coglan that defendant did not appear to be under the influence of anything.  The officer further admitted in testimony that he had no prior knowledge that defendant might be armed and/or dangerous.  It was also apparently assumed (there being no evidence presented on this issue) that the observed marijuana was less than an ounce.  It was therefore based solely upon the observed baggie of marijuana that the officers decided to search defendant’s vehicle for any additional evidence of the crime of “an open container of marijuana.”  In searching defendant’s car, a pistol was discovered in a backpack on the floor on the rear passenger’s side.  Charged in state court with carrying a loaded firearm in a public place (P.C. § 25850(a)), carrying a concealed firearm in a vehicle, (P.C. § 25400(a)(1)), and the infraction offense of having no license plate lamp (V.C. § 24601), defendant’s motion to suppress the firearm as the product of an illegal search was denied by both the preliminary hearing magistrate and (in a P.C. § 995 motion to dismiss) the trial court judge.  Defendant therefore pled no contest in a negotiated plea to a single misdemeanor firearm offense (carrying a loaded firearm) with the remaining charges dismissed.  Sentenced to three years of probation and six months in county jail, defendant appealed.