In the recent case of People v. Waxler , District: 1 DCA , Division: 5 , Case #: A137796
Opinion Date: 3/11/2014, the odor and observation of a small amount of burnt marijuana inside a
vehicle creates probable cause for a search under the automobile exception to the warrant requirement. The driver in Waxler pleaded guilty to possession of methamphetamine after the trial court denied his motion to suppress evidence found during a search of his truck.
An officer investigating a report of illegal trash dumping conducted the search after he smelled the
odor of burnt marijuana emanating from the truck and saw a pipe with what appeared to be burnt marijuana in the bowl on the seat next to the driver.
The officer then discovered a bindle of methamphetamine in the truck. After the search, the driver said he had a "215 card," permitting him to use medical marijuana. On appeal, he contended that the sight and odor of his marijuana did not justify the search because possession of less than an ounce of
marijuana is an infraction punishable by a fine (H&S sec. 11357(b), and because he had a valid medical marijuana recommendation.
On appeal, the court held that the Fourth Amendment permits a warrantless search of an
automobile if the police have probable cause to believe the automobile contains contraband. Under California law, even though possession of less than an ounce of marijuana is an infraction, possession of marijuana is illegal and the marijuana constitutes contraband. Appellant's valid 215
card did not bar the search because a medical marijuana recommendation is not a shield from a reasonable investigation to ascertain if the marijuana is for personal medical needs and meets the amount allowed. (see People v.Strasburg (2007) 148 Cal.App.4th 1052.)
Here, having smelled and seen burnt marijuana, the officer had probable cause to search the vehicle.
Bottom line: if you're going to smoke, do it outside the car.