Search for Marijuana

By Charles Gillingham

To the dismay of some, the California voters passed Prop 64, marijuana legalization initiative. As a result, search incident to arrest of the possession of marijuana is no longer legally valid under the Fourth Amendment because officers cannot take suspects into custody. So, under what circumstances may officers search for marijuana now that it is legal?

There are seven situations set forth in the Health and Safety Code that allow for probable cause searches for marijuana. In these instances, the possession of marijuana is illegal.

Possession of more than an ounce of marijuana. Possession of more than an ounce remains an infraction, thus a probable cause search is permitted. How do you prove that? Good luck. You will probably have to see the marijuana or get a statement from a percipient witness about the amount.

Minor in possession. A minor cannot possess marijuana. At all. Probable cause to believe an individual is a minor would provide the ability to conduct a search.

Open container in car. An open container of marijuana is illegal. Like alcohol, an open container would provide probable cause to search and seize the container contained in the car. It might also provide reasonable suspicion to believe other evidence of the crime might be found in the car.

Using in a car. MJ may not be consumed in a car and would provide PC to search.

DUI-MJ. If officers have PC to believe driver was under influence of MJ a probable cause search of car would be permitted.

Marijuana in school. MJ cannot be ingested on school grounds. A PC search follows if someone is ingesting on campus.

Marijuana in public. Ingesting MJ in public is prohibited. A search for MJ is legal if someone is ingesting in public.

Please see Health and Safety Code sections 11362-11362.5

As always, good luck, be safe. The trend is against law enforcement in the State of California-next month we have some additional bad news to discuss regarding Miranda and Juveniles, specifically, the general prohibition against taking Miranda waivers from "children" under 16.