Search of car based on lawfully possessed marijuana illegal

In People v. Shumake (2019) 45 Cal.App.5th Supp. 1, the Alameda County Superior Court Appellate Division considered an appeal of a suppression motion denial regarding the search of a car after a traffic stop. The driver had told the officer that he had “some bud” in the center console. The officer located the cannabis, which was in a closed, but unsealed, plastic tube. The officer, believing that the law required cannabis in a car to be “heat-sealed,” continued to search the car for more marijuana. A loaded pistol was then found under the driver’s seat.

The appellate division found that the cannabis was lawfully possessed, and that the officer’s mistaken belief about the legal requirements (i.e., “heat-sealing”) was unreasonable given the plain language of the statute. As the court noted, Proposition 64 only requires “loose cannabis flower” to be in a closed (not sealed) container. The court next determined whether the “inevitable discovery” doctrine would apply. That doctrine applies where the government can show that irrespective of the search conducted, the evidence would have been discovered later by lawful means. See Nix v. Williams (1984) 467 U.S. 431. Given that there was lawful possession of marijuana, no bad driving, no indications of recent marijuana use or of DUI, the Shumake court found that the doctrine did not apply to the discovery of the loaded pistol. The court further held that there was no probable cause to continue to search the vehicle. The appellate division reversed the lower court’s denial of the motion to suppress evidence.

About the Author

Lara J. Gressley

Lara Gressley

Lara Gressley has been an attorney for over two decades. She focuses her practice on criminal defense, DUI defense, and writs and appeals in state and federal court, and has worked on cases before the United States Supreme Court. Lara also lectures lawyers across California on various criminal defense topics.

contact us to start building your defense

We understand that being accused of a crime is one of the most challenging times of your life. Rely on us to advocate for your rights and to give you the defense you deserve.