People v. Waxler

Filed 3/11/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A137796

v. (Del Norte County

Super. Ct. No. CRF129128)

MICHAEL CLARENCE WAXLER,

Defendant and Appellant.

_____________________________________/

The question in this case is whether the odor of burnt marijuana emanating from a

vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable

cause to search that vehicle pursuant to the automobile exception to the warrant

requirement. The answer is yes, notwithstanding the fact that possession of not more

than 28.5 grams (an ounce) “of marijuana, other than concentrated cannabis, is . . . an

infraction” punishable by a fine. (Health & Saf. Code, § 11357, subd. (b).)1 Under the

1

Unless otherwise noted, all further statutory references are to the Health and

Safety Code. Effective 2011, a person who possesses “not more than 28.5 grams of

marijuana . . . is guilty of an infraction punishable by a fine of not more than $100.”

(§ 11357, subd. (b), as amended by Stats. 2010, ch. 708, § 1.) “California has chosen to

treat the offense of possession of less than 28.5 grams of marijuana as a minor offense

that is nonjailable even for repeat offenders.” (People v. Hua (2008) 158 Cal.App.4th

1027, 1037 (Hua).) An infraction, however, is still a “crime” under Penal Code section

16.

1

automobile exception to the warrant requirement, a law enforcement officer may search a

vehicle when he or she has probable cause to believe it contains contraband or evidence

of a crime. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225 (Robey).) Under the

current state of California law, nonmedical marijuana — even in amounts within the

statutory limit set forth in section 11357, subdivision (b) — is “contraband” and may

provide probable cause to search a vehicle under the automobile exception. Moreover,

possession of a “215 card” does not vitiate probable cause to search pursuant to the

automobile exception. (People v. Strasburg (2007) 148 Cal.App.4th 1052 (Strasburg).)2

We affirm the trial court’s denial of appellant Michael Waxler’s motion to

suppress.

FACTUAL AND PROCEDURAL BACKGROUND

We have taken the facts from the preliminary hearing transcript.

The Incident

In February 2012, Del Norte County Sheriff’s Deputy Richard Griffin learned a

person was illegally dumping trash in a parking lot behind a Crescent City Safeway.

Deputy Griffin drove to the Safeway and stopped next to appellant’s truck. Appellant

was sitting in the driver’s seat. As Deputy Griffin “got close” to appellant’s truck, he

smelled “the odor of burnt marijuana” and “saw a marijuana pipe with . . . what appeared

to be burnt marijuana in the bowl.” The pipe was “on the bench seat right next to”

appellant. Deputy Griffin searched the truck and found a methamphetamine pipe and a

small bindle containing suspected methamphetamine with a street value of about $50.

Deputy Griffin’s partner detained appellant and “Mirandized”3 him. Appellant

initially said he knew the methamphetamine and methamphetamine pipe were in his

vehicle. He claimed the methamphetamine “was not his” and had been left in the truck

2

A “215 card” refers to the government card issued under the Compassionate Use

Act of 1996 (CUA), also known as Proposition 215. (§ 11362.5, subd. (a).) The Medical

Marijuana Program Act (MMPA) enacted in 2003 created a voluntary medical marijuana

identification card program. (See Strasburg, supra, 148 Cal.App.4th at p. 1057

[describing CUA and MMPA].)

3

Miranda v. Arizona (1966) 384 U.S. 436.

2

by some friends, who were hitchhikers. Then he “changed his story a couple of times.”

Later, appellant said the methamphetamine “had been in his truck for a few days because

he’d picked up the hitchhiker . . . upstate” and “later he changed his story again to say

he’d received this meth from the hitchhiker in payment for the ride.”

At some point during the conversation, appellant told Deputy Griffin he “had a

215 card” and showed it to him. Deputy Griffin was not sure exactly when he became

aware of the 215 card, but he learned about it after he searched appellant’s truck. He

remembers he looked at the card after arresting appellant “for the methamphetamine

issue.” As Deputy Griffin explained, “Even if he has a valid medical marijuana card I

still have to confirm how much he has on him or if there are other issues with it. [H]e

can have a valid card and have half a gram present in a pipe. I’ve seen many times

people hide a quarter ounce or more . . . . So I still have to confirm how much marijuana

is inside the vehicle. From my training and experience it’s still an arrestable offense. [ ] I

have to determine whether it’s legally possessed or not.”

The Charges, Motion to Suppress, and Plea

The People charged appellant with transportation of methamphetamine (§ 11379

(Count 1)) and with possession of methamphetamine (§ 11377 (Count 2)). Appellant

moved to suppress, claiming Deputy Griffin “did not have any reason to believe”

appellant was “under the influence of marijuana or any other drug, . . . attempting to

operate a vehicle while under the influence of marijuana, or . . . committing any crime at

the time that would warrant a search of the vehicle.”

According to appellant, the amount of “completely un-smoked marijuana . . . in

the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are

allowed by law.” Appellant claimed Deputy Griffin’s observation of marijuana in the

truck “could not have supported an arrest” because possession of up to 28.5 grams of

marijuana is an infraction under section 11357. Finally, appellant argued the possession

of “personal use medical marijuana” was legal with a doctor’s recommendation. The

suppression motion attached a valid physician’s statement recommending the use of

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marijuana for medical conditions (§ 11362.5) and a valid Washington State medical

marijuana card.

In opposition, the People argued Deputy Griffin had probable cause to search

appellant’s truck after observing “an odor of marijuana.” They also contended the CUA

“does not provide immunity from arrest or criminal prosecution” and that possession of a

215 card is “an affirmative defense to the crimes of possession and cultivation of

marijuana at trial” and does “not protect one from a valid search nor arrest.” The parties

stipulated appellant had a valid 215 card on the day of the incident.

At the conclusion of the preliminary hearing, the court denied appellant’s motion

to suppress and held him to answer the charges. The court explained, “I think the

possession of the 215 card is an affirmative defense. The observation of marijuana is

sufficient to justify the officer’s investigating further. It’s up to the defendant at that

point to say, . . . I’ve got a 215 card. And once that’s brought to [the law enforcement

officer’s] attention I think [the officer] has no further justification. But in the absence of

an affirmative defense being asserted at that time I think he has a right to proceed as he

did.”

Appellant pled guilty to possession of methamphetamine (§ 11377 (Count 2)).

The court dismissed the methamphetamine transportation charge (§ 11379 (Count 1)) and

reduced the methamphetamine possession conviction to a misdemeanor (Pen. Code, § 17,

subd. (b)). The court suspended imposition of sentence and placed appellant on

probation.

DISCUSSION

I.

Standard of Review

“The denial of the suppression motion may be challenged by an appeal from the

judgment entered after defendant’s guilty or no contest plea. [Citations.] ‘ “The standard

of appellate review of a trial court’s ruling on a motion to suppress is well established.

We defer to the trial court’s factual findings, express or implied, where supported by

substantial evidence. In determining whether, on the facts so found, the search or seizure

4

was reasonable under the Fourth Amendment, we exercise our independent judgment.

[Citations.]” [Citations.]’ ” (People v. Leath (2013) 217 Cal.App.4th 344, 350.)

II.

The Automobile Exception to the Warrant Requirement

“[T]he Fourth Amendment to the United States Constitution permits the

warrantless search of an automobile with probable cause.” (Strasburg, supra, 148

Cal.App.4th at p. 1059.) Under the automobile exception to the warrant requirement,

“[w]hen the police have probable cause to believe an automobile contains contraband or

evidence they may search the automobile and the containers within it without a warrant.

[Citation.]” (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100

(Nasmeh); Ornelas v. United States (1996) 517 U.S. 690, 696 [probable cause to search

exists “where the known facts and circumstances are sufficient to warrant a [person] of

reasonable prudence in the belief that contraband or evidence of a crime will be found”].)

“The ‘ “specifically established and well-delineated” ’ [citation] automobile

exception to the Fourth Amendment’s warrant requirement is rooted in the historical

distinctions between the search of an automobile or other conveyance and the search of a

dwelling. [Citation.]” (Nasmeh, supra, 151 Cal.App.4th at p. 100.) The automobile

exception is also “rooted in the reduced expectation of privacy in a vehicle [and] the fact

a vehicle is inherently mobile.” (People v. Evans (2011) 200 Cal.App.4th 735, 753;

California v. Carney (1985) 471 U.S. 386, 394 (Carney) [vehicle’s inherent mobility];

Arizona v. Gant (2009) 556 U.S. 332, 345 [reduced expectation of privacy in an

automobile].) Under the automobile exception, “ ‘ “[i]f probable cause justifies the

search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and

its contents that may conceal the object of the search.” ’ [Citation.]” (Nasmeh, supra,

151 Cal.App.4th at pp. 100-101; People v. Diaz (2013) 213 Cal.App.4th 743, 754.)

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III.

The Odor of Marijuana and the Observation of Burnt Marijuana Inside a Vehicle

Provide Probable Cause to Search Pursuant to the Automobile Exception

California courts have concluded the odor of unburned marijuana or the

observation of fresh marijuana may furnish probable cause to search a vehicle under the

automobile exception to the warrant requirement. (People v. Gale (1973) 9 Cal.3d 788,

794, superseded by statute on another ground in People v. Johnson (1984) 162

Cal.App.3d 1003, 1008 [“strong odor of fresh marijuana” gave the officer “ ‘probable

cause to believe . . . that contraband may be present’ ”]; People v. Cook (1975) 13 Cal.3d

663, 667-669, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421

[scent of marijuana emanating from a car’s trunk provided probable cause to a search

under the automobile exception to the warrant requirement]; Strasburg, supra, 148

Cal.App.4th at p. 1060; People v. Dey (2000) 84 Cal.App.4th 1318, 1320 (Dey)

[observation of a “useable quantity of marijuana . . . in the passenger compartment” of

the defendant’s car “provided probable cause for the search of the vehicle’s trunk”];

People v. Hunter (2005) 133 Cal.App.4th 371, 375 (Hunter) [officer saw a “sandwich

bag containing a green residue that his training and experience told him . . . was

marijuana”]; Robey, supra, 56 Cal.4th 1218, 1254 (conc. opn. of Liu, J.) [noting the

“settled proposition that the smell of marijuana can establish probable cause to search

and, in the context of an automobile search . . . , can provide a sufficient basis to proceed

without a warrant”]; see also People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826-827

[probable cause to arrest the defendant who smelled of burned marijuana during a traffic

stop].)

Appellant concedes the odor of marijuana justifies the warrantless search of an

automobile under Strasburg. In that case, a division of this court concluded a police

officer had probable cause to search the defendant’s car when the officer smelled

marijuana immediately after the defendant opened the driver’s side door. (Strasburg,

supra, 148 Cal.App.4th at pp. 1058-1059.) As the Strasburg court explained, the officer

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“had probable cause to search defendant’s car for marijuana after he smelled the odor of

marijuana. [Citations.] Defendant admitted smoking marijuana, and the deputy sheriff

saw another bag of marijuana in the car after the defendant handed him one. Armed with

the knowledge that there was marijuana in the car, ‘a person of ordinary caution would

conscientiously entertain a strong suspicion that even if defendant makes only personal

use of the marijuana found in [the passenger area], he might stash additional quantities

for future use in other parts of the vehicle . . . .’ [Citation.]” (Id. at p. 1059.)

The Strasburg court rejected the defendant’s claim that the officer could not

“detain him, frisk him, or search his car” because “he immediately produced a doctor’s

prescription for marijuana, thus identifying himself as a qualified patient under the

[CUA].” (Strasburg, supra, 148 Cal.App.4th at p. 1058.) As the court explained, “[t]he

fact that defendant had a medical marijuana prescription, and could lawfully possess an

amount of marijuana greater than that [the officer] initially found, does not detract from

the officer’s probable cause. . . . [T]he [CUA] provides a limited immunity — not a

shield from reasonable investigation. An officer with probable cause to search is not

prevented from doing so by someone presenting a medical marijuana card or a marijuana

prescription. Given the probable cause here, the officer is entitled to continue to search

and investigate, and determine whether the subject of the investigation is in fact

possessing the marijuana for personal medical needs, and is adhering to the eight-ounce

limit on possession. Unlawful possession of marijuana remains a criminal offense under

. . . section 11350, subject to seriously ill persons using marijuana for medical purposes

recommended by a physician . . . not being subject to criminal liability . . . .” (Id. at

pp. 1059, 1060.)

Appellant claims Strasburg is inapposite. According to appellant, when Strasburg

was decided in 2007, marijuana possession was a misdemeanor and now, possession of

less than an ounce of marijuana is a nonjailable offense. Appellant is correct that

possession of up to an ounce of marijuana is an infraction, punishable by a fine.

(§ 11357, subd. (b).) He seems, however, to misunderstand the automobile exception to

the warrant requirement. A “warrantless search of an automobile is permissible so long

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as the police have probable cause to believe the car contains evidence or contraband.”

(Robey, supra, 56 Cal.4th at p. 1225, italics added, citing Chambers v. Maroney (1970)

399 U.S. 42, 48; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained

Evidence, § 266, p. 1083.)

“Both federal and California laws generally prohibit the use, possession

cultivation, transportation and furnishing of marijuana.”4 (City of Riverside, supra, 56

Cal.4th at p. 737.) Section 11357, subdivision (b) has reduced the penalty associated

with possession of up to an ounce of marijuana, but “[t]echnically speaking, marijuana

usage is not ‘legal’ in the State of California.” (In re Drake M. (2012) 211 Cal.App.4th

754, 769, fn. 10.) Other than certain quantities of medical marijuana, possession of any

amount of marijuana — even an amount within the limit of section 11357, subdivision

(b) — is illegal in California and is therefore “contraband.” (Black’s Law Dict. (9th ed.

2009) p. 365 [defining contraband as “[g]oods that are unlawful to import, export,

produce, or possess”]; 3 Oxford English Dict. (2d ed. 1989) p. 833 [contraband is

“anything prohibited to be imported or exported; goods imported or exported contrary to

law or proclamation” or something “[f]orbidden, illegitimate, unauthorized”].) Thus, a

law enforcement officer may conduct a warrantless search of a vehicle pursuant to the

automobile exception when the officer has probable cause to believe the vehicle contains

marijuana, which is contraband.

Here, Deputy Griffin had probable cause to believe appellant’s truck contained

contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in

the truck, irrespective of whether possession of up to an ounce of marijuana is an

infraction and not an arrestable offense (§ 11357, subd. (b)). Other courts have reached

4

The “CUA and the MMP ‘decriminalize,’ for state purposes, specified activities

pertaining to medical marijuana” (City of Riverside v. Inland Empire Patients Health &

Wellness Center, Inc. (2013) 56 Cal.4th 729, 754 (City of Riverside)) but the CUA does

not “decriminalize marijuana on a wholesale basis.” (People v. Urziceanu (2005) 132

Cal.App.4th 747, 773; see also People v. Wayman (2010) 189 Cal.App.4th 215, 223

[“[t]he medical marijuana laws were never intended to be ‘a sort of “open Sesame”

regarding the possession, transportation and sale of marijuana in this state’ ”].)

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similar conclusions. (See State v. Smalley (Or.App. 2010) 225 P.3d 844, 848 (Smalley)

[police officer had probable cause to search the defendant’s truck pursuant to the

automobile exception after smelling marijuana because marijuana is contraband

“regardless of its quantity”]; see also State v. Tovar (Or.App. 2013) 299 P.3d 580

[following Smalley]; State v. McGrath (Minn.App. 2005) 706 N.W.2d 532, 544 [rejecting

the argument “that small, noncriminal amounts of marijuana cannot establish a fair

probability that evidence of a crime or contraband will be found in a particular place”].)5

Relying on Commonwealth v. Cruz (Mass. 2011) 945 N.E.2d 899 (Cruz), appellant

urges us to adopt a rule precluding a law enforcement officer from searching a vehicle

without a warrant unless: (1) the odor of marijuana suggests the defendant possesses

more than 28.5 grams; or (2) the officer observes more than 28.5 grams of marijuana in

the vehicle. In Cruz, police officers saw two men sitting inside a car parked in front of a

fire hydrant. (Id. at pp. 902-903.) One officer saw the driver light a type of cigar known

to mask the smell of marijuana smoke. Another officer smelled “a ‘faint odor’ of burnt

marijuana” from the driver’s side of the car; the officer “had previously seen the

defendant” — the passenger — “smoking a marijuana ‘blunt.’ ” (Id. at p. 903.) Based on

the “ ‘odor of marijuana’ ” and the nervous way the men were acting, the police officers

ordered the men out of the car and searched it. They discovered crack cocaine on the

5

The District Court of Maine reached a similar result in United States v. Pugh

(D.Me. 2002) 223 F.Supp.2d 325, 330 (Pugh). There, the defendant argued the police

officer lacked probable cause to search pursuant to the automobile exception “because

possession of small amounts of marijuana and the presence of open containers of alcohol

. . . are only civil violations under Maine law.” (Id. at p. 330.) The Pugh court rejected

this argument, explaining, “Even in amounts within the Maine statutory limit for a civil

violation, marijuana is an unlawful drug. Under Maine law, marijuana, even in an

amount that would only give rise to a civil violation, can be the legitimate object of a

search warrant and may be seized and confiscated if found. [Citation.] Accordingly, the

only question here is whether the marijuana seed and two marijuana roaches — or the

cups containing alcohol — provided sufficient cause to justify the search of the trunk.”

The court concluded there “was probable cause to search the trunk of the defendant’s car

. . . based on the presence of the marijuana and the surrounding circumstances.” (Id. at

pp. 330, 331.)

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defendant. (Id. at pp. 903-904.) The trial court granted the defendant’s motion to

suppress. (Id. at p. 902.)

The Massachusetts Supreme Court affirmed the suppression of the cocaine. It

explained, “Although we have held in the past that the odor of marijuana alone provides

probable cause to believe criminal activity is underway,[ ] we now reconsider our

jurisprudence in light of” the changed “status of the possession of one ounce or less of

marijuana from a criminal to a civil offense.” (Cruz, supra, 945 N.E.2d at pp. 904-905.)

Despite acknowledging that “possession of marijuana, in any amount, remains illegal”

and that “any amount of marijuana is considered contraband,” the Cruz court held that to

search a vehicle pursuant to the motor vehicle exception, the police must have “probable

cause to believe that a criminal amount of contraband is present in the car,” not merely

some lesser amount. (Id. at pp. 911-913.) The court also held that “without at least some

other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor

of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to

justify an exit order.” (Id. at p. 910; see also Commonwealth v. Daniel (Mass. 2013) 985

N.E.2d 843 [following Cruz].)

Cruz does not apply here for at least two reasons. First, in contrast to

Massachusetts, possession of up to an ounce of nonmedical marijuana in California is a

“crime.” (Pen. Code, § 16.) Second, neither the California Supreme Court nor the

United States Supreme Court has limited the automobile exception to situations where the

defendant possesses a “criminal amount of contraband.” As our high court recently

stated, the automobile exception applies when “the police have probable cause to believe

the car contains evidence or contraband.” (Robey, supra, 56 Cal.4th at p. 1225; see also

Maryland v. Dyson (1999) 527 U.S. 465, citing Carney, supra, 471 U.S. 386.) We are

bound by the rulings of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455), not out-of-state authority (Amerigraphics, Inc. v. Mercury

Casualty Co. (2010) 182 Cal.App.4th 1538, 1553).

That appellant possessed a valid 215 card does not vitiate Deputy Griffin’s

probable cause to search the truck pursuant to the automobile exception. First, appellant

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did not tell Deputy Griffin about the 215 card until after Deputy Griffin searched the

truck. Second, the Strasburg court considered — and rejected — an identical argument

and appellant has not established Strasburg was wrongly decided. (Strasburg, supra, 148

Cal.App.4th at p. 1060.) Under Strasburg, the CUA is “not a shield from reasonable

investigation. An officer with probable cause to search is not prevented from doing so by

someone presenting a medical marijuana card or a marijuana prescription. Given the

probable cause here, the officer is entitled to continue to search and investigate, and

determine whether the subject of the investigation is in fact possessing the marijuana for

personal medical needs, and is adhering to the eight-ounce limit on possession.” (Ibid.)

That California has decriminalized medicinal marijuana in some situations and has

reduced the punishment associated with possession of up to an ounce of marijuana does

not bar a law enforcement officer from conducting a search pursuant to the automobile

exception. Here, Deputy Griffin was entitled to investigate to determine whether

appellant possessed marijuana for personal medical needs and to determine whether he

adhered to the CUA’s limits on possession. “Otherwise, every qualified patient would be

free to violate the intent of the medical marijuana program expressed in section 11362.5

and deal marijuana from his car with complete freedom from any reasonable search.”

(Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the

preliminary hearing that people often possess more marijuana than allowed under the

CUA and “hide” additional quantities of marijuana in their vehicles. It is well settled that

even if a defendant makes only personal use of marijuana found in the passenger

compartment of a car, a police officer may reasonably suspect additional quantities of

marijuana might be found in the car. (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter,

supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of

defendant’s car” did not foreclose possibility of additional “drugs being found in the

trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].)

Appellant relies on two cases, Hua, supra, 158 Cal.App.4th 1027 and People v.

Torres (2012) 205 Cal.App.4th 989 (Torres) to support his argument that “the odor of

burnt marijuana and the sight of burnt marijuana in a bowl” cannot support a warrantless

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search of an automobile. In Hua, police officers approached a noisy apartment and

noticed the “ ‘distinct odor’ of burnt marijuana.” They knocked on the door and, while

waiting for a response, peered through the open window blinds. They saw several people

inside, one of whom inhaled from what appeared to be a marijuana cigarette, confirming

the officers’ suspicion that criminal activity was likely under way. The officers entered

the apartment without the defendant’s consent and found “growing marijuana plants and

a cane sword.” (Hua, supra, 158 Cal.App.4th at pp. 1030-1031.) The trial court denied

the defendant’s suppression motion, concluding there were “exigent circumstances.” (Id.

at p. 1033.)

This court reversed, holding the exigent circumstances doctrine did not justify the

officers’ warrantless entry into the apartment. (Hua, supra, 158 Cal.App.4th at p. 1033.)

As we explained, “an entry into a home to preserve evidence from imminent destruction

is limited to evidence of crimes that are not minor” and “California has chosen to treat the

offense of possession of less than 28.5 grams of marijuana as a minor offense that is

nonjailable even for repeat offenders . . . . [O]ne consequence of that decision is to

preclude officers who see this offense being committed from entering a home without a

warrant or consent to seize the offender or the contraband, in order to prevent the

imminent destruction of evidence of the offense.” (Id. at pp. 1034, 1037.)

Torres reached a similar result. In that case, officers noticed a “strong smell” of

marijuana near a hotel room door and entered the room without a warrant. (Torres,

supra, 205 Cal.App.4th at p. 992.) Relying on Hua, the Torres court concluded the

officers lacked probable cause to believe destruction of evidence of a jailable offense was

imminent. As the court explained, “police only smelled the odor of burning marijuana.

They had no other information about marijuana possession or any other marijuana-related

crime occurring in the hotel room. No evidence indicated the officers had reason to fear

the imminent destruction of evidence of a jailable offense. . . . [A] belief that evidence of

a nonjailable offense will be imminently destroyed is not sufficient to justify a

warrantless entry based on exigent circumstances.” (Id. at p. 995.)

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Neither Hua nor Torres assists appellant because those cases concerned

warrantless entry into a dwelling and the application of the exigent circumstances

doctrine to minor, nonjailable offenses. “The automobile exception to the warrant

requirement does not require a showing of exigent circumstances. ‘If a car is readily

mobile and probable cause exists to believe it contains contraband, the Fourth

Amendment thus permits the police to search the vehicle without more.’ [Citation.]”

(4 Witkin & Epstein, Cal. Criminal Law, supra, § 266, p. 1083 [“[w]arrantless

examinations of automobiles may be proper in circumstances in which a search of a home

or office would not be” and explaining different rationales for the two types of searches].)

“It is axiomatic that the ‘physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.’ [Citation.] And a principal

protection against unnecessary intrusions into private dwellings is the warrant

requirement imposed by the Fourth Amendment on agents of the government who seek to

enter the home for purposes of search or arrest. [Citation.]” (Welsh v. Wisconsin (1984)

466 U.S. 740, 748.) The concerns at issue in Hua and Torres do not exist here, where

Deputy Griffin searched a vehicle, not a home. As our high court recently explained,

“[t]he case law on automobile searches . . . reveals that the rationale for allowing a

vehicle to be searched without a warrant is rooted in practical concerns unique to

automobiles.” (Robey, supra, 56 Cal.4th at p. 1232.) Here, Deputy Griffin searched

appellant’s truck, not his home. As a result, neither Hua nor Torres applies here.

We hold a law enforcement officer may search a vehicle pursuant to the

automobile exception to the warrant requirement where the officer smells burnt

marijuana and sees burnt marijuana in the defendant’s car. The automobile exception is

not limited to situations where the officer smells or sees more than 28.5 grams of

marijuana in the vehicle (§ 11357, subd. (b)); the observation of any amount of marijuana

— which is currently illegal to possess except as authorized by the CUA — establishes

probable cause to search pursuant to the automobile exception. Consistent with

Strasburg, supra, 148 Cal.App.4th at page 1060, we also conclude the possession of a

13

215 card does not preclude a warrantless automobile search where there is probable cause

to believe the vehicle contains contraband or evidence of a crime.

14

DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

_________________________

Needham, J.

_________________________

Bruiniers, J.

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Superior Court of Del Norte County, No. A137796, William H. Follett, Judge.

Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,

Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising

Deputy Attorney General, and Bruce Ortega, Deputy Attorney General, for Plaintiff and

Respondent.

1