Smell of Marijuana and Marijuana in Car Not Probable Cause To Search Car

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Is the smell of marijuana and a driver telling the police officer that he has marijuana in the car enough to justify the search of the car?

Officer Jones was on “specialized DUI patrol.”  She testified at the hearing to suppress the evidence that she saw Mr. Shumake driving with no front license plate on his Hyundai, which is a violation of Vehicle Code section 5200. Other than having no front license plate, Officer Jones testified that Mr. Shumake’s driving was normal.

When Officer Jones approached the driver’s side door, she claimed she noticed a strong smell of marijuana. She asked Mr. Shumake if he had any marijuana. He said he had “some bud” in the center console.

Because Officer Jones believed that any marijuana in a car must be in a closed, heat-sealed package, and therefore, she should not be able to smell it, Officer Jones searched the car.

She found 1.14 grams of marijuana bud, later described as “dried flower” in the center console in a plastic tube. Officer Jones also found a loaded pistol under the driver’s seat. She did not find any more marijuana or paraphernalia. She then had Mr. Shuamke do some field sobriety tests and determined Mr. Shumake was not under the influence.

The trial court denied Mr. Shumake’s motion to suppress the evidence.

The Appellate Division of the Superior Court of Alameda County noted that Vehicle Code section 23222,  makes it an infraction to possess, “while driving a motor vehicle … a receptacle containing cannabis … which has been opened or has a seal broken, or loose cannabis flower not in a container … .”

The Appellate Division stated that “A plain reading of the statute mandates the conclusion that the possession of the cannabis flower, in this case, was lawful. Mr. Shumake possessed 1.14 grams of loose cannabis flower in a closed container.”  The Appellate Division said Officer Jones was wrong in her belief that any cannabis being transported in a vehicle must be in a heat-sealed container.

In reversing the trial court, the Appellate Division then ruled that it was illegal for Officer Jones to continue the search after she found the marijuana in the center console. The Court relied on Health and Safety Code section 11362.1 which says that “no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”

What is important to take away from this case are the facts of this case:

  1. no violation of the open container law;
  2. no partially smoked cannabis in plain view;
  3. Officer Jones testified that the smell of marijuana can linger for a week or more;
  4. the only traffic violation was a missing front license plate;
  5. Mr. Shumake quickly and appropriately pulled to the curb and was cooperative throughout the stop; and
  6. Mr. Shumake successfully completed the field sobriety test.

The citation for this opinion is People v. Shumake (2019) 45 Cal. App. 5th Supp. 1.


If you have been arrested or charged with a marijuana DUI, contact the Law Office of Richard Wagner for a FREE CONSULTATION – (714) 403-6317.

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