California Court of Appeal Mar 11, 2015 No. E059403Unpublished
Filed 3/11/15 P. v. Morgan CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059403
v. (Super.Ct.No. SICRF1253273002)
TIMOTHY CLIFFORD MORGAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Inyo County. Brian Lamb and Barry
Hammer, Judges.* Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
* Barry Hammer is a retired judge of the San Luis Obispo Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Timothy Clifford Morgan pleaded no contest to a drug
charge after the lower courts twice denied his motion to suppress evidence under Penal
Code section 1538.5. The appeal raises the single issue that the trial court erred in
by the CUA and the MMP afford a qualified patient an affirmative defense in case of
prosecution for unlawful possession or cultivation of marijuana. However, the court
relied on California Supreme Court precedent that the CUA (and presumably the MMP
legislation) does not provide immunity from arrest or investigation. (People v. Strasburg,
supra, 148 Cal.App.4th 1052, 1058, citing People v. Mower (2002) 28 Cal.4th 457, 468-
469.)
Defendant argues that this case can be “easily distinguished” from Strasburg,
because the driver in that case readily admitted having smoked marijuana in the car just
before the officer arrived, and because the driver produced one baggie of marijuana, the
officer saw a second baggie in plain view in the vehicle, and the driver admitted that
there was even more marijuana inside the car. (People v. Strasburg, supra, 148
Cal.App.4th 1052, 1055-1056.) The officer in Strasburg had both smelled the odor of
marijuana coming from the car, and observed the presence of marijuana in the car. Here,
defendant argues, Officer Gillespie may have smelled some odor of marijuana coming
from the black sedan, but he did not see any marijuana in the passenger compartment, nor
did he have evidence that any marijuana had recently been smoked inside the sedan.
Indeed, Officer Gillespie either did not, or could not, distinguish the odor of burnt
marijuana from unburnt marijuana. Defendant argues that, “[a]bsent the facts described
by Strasburg, namely the suspicious manner in which the vehicle was parked, the
officer’s knowledge that the defendant possessed marijuana in the vehicle, and the fact
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that the defendant admitted to smoking inside of the vehicle, [Officer] Gillespie lacked
probable cause to search [defendant’s] vehicle.”
We are not persuaded. The most prominent factor in Strasburg was the odor of
marijuana emanating from the parked car. “The operative issue is whether [the officer]
had probable cause to search defendant’s car at the moment he smelled the odor of
marijuana, at the outset of his encounter with defendant who was with another person in a
parked car in a public parking area.” (People v. Strasburg, supra, 148 Cal.App.4th 1052,
1058-1059.) The court went on to state that, “[u]nder the facts and circumstances of this
case, [the investigating officer] had probable cause to search defendant’s car for
marijuana after he smelled the odor of marijuana. (People v. Dey (2000) 84 Cal.App.4th
1318, 1320-1322 [101 Cal.Rptr.2d 581]; see People v. Hunter (2005) 133 Cal.App.4th
371, 378-382 [34 Cal.Rptr.3d 818].)” (Id. at p. 1059.)
The Strasburg court flatly rejected the notion that possession of an authorization to
use medical marijuana dispelled probable cause to search a motor vehicle for contraband.
“[I]n light of Mower’s guidance that the Act does not impair reasonable police
investigations and searches[,] [a] physician’s prescription or an identification card under
Article 2.5, . . . does not provide an automatic protective aegis against reasonable
searches.” (People v. Strasburg, supra, 148 Cal.App.4th 1052, 1058.) As in “[People v.]
Mower, supra, 28 Cal.4th 457, the California Supreme Court held that the Act does not
confer a complete immunity from prosecution to a qualified patient. Rather, the Act
confers a limited immunity from prosecution, meaning that the qualified patient can raise
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his status as an affirmative defense at trial or as a ground to set aside an indictment or
information prior to trial on the ground of insufficient evidence. [Citation.] [Fn.
omitted.] But the status of qualified patient does not confer an immunity from arrest.
Law enforcement officers may arrest a qualified patient for marijuana offenses where
they have probable cause, based on all of the surrounding facts including qualified patient
status, when they have reason to believe, for instance, that the arrestee does not possess
marijuana for his personal medical purposes. [Citation.]” (People v. Strasburg, supra,
148 Cal.App.4th 1052, 1058.)
The possession of marijuana is still a crime, and the CUA and the MMP provide
only a limited immunity from criminal penalties. That is, those statutes will provide a
defense to a criminal charge, not immunity from investigation or arrest. The possession
of a medical marijuana card, prescription, or other authorization does not change the
nature of marijuana as contraband. Even qualified patients may not use marijuana in a
motor vehicle that is being operated. Even qualified patients may not possess more than
a specified quantity of marijuana.
The odor of marijuana emanating from a vehicle is evidence that marijuana is
present in or has recently been used in the vehicle. The odor of marijuana indicates the
likely presence of marijuana, but does not specify the quantity present. Neither does it
indicate who possessed the marijuana. The odor of marijuana thus provides probable
cause for further investigation and search: the marijuana present may not have belonged
to a qualified patient; even if possessed by a qualified patient, it may have been
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unlawfully used in an operating motor vehicle; and even if possessed by a qualified
patient, it may exceed the allowable amount. As the Strasburg court pointed out, the
defendant “was not sitting at home nursing an illness with the medicinal effects of
marijuana.” (People v. Strasburg, supra, 148 Cal.App.4th 1052, 1060.) Likewise,
defendant here likely had marijuana in a moving vehicle, not at home.
The probable possession of marijuana in a moving vehicle brings any search
within the automobile exception to the warrant requirement of the Fourth Amendment.
(See United States v. Ross (1982) 456 U.S. 798, 804-809 [2 L.Ed. 2d 572, 102 S.Ct.
2157]; Carroll v. United States (1925) 267 U.S. 132, 153-154 [69 L.Ed. 543, 45 S.Ct.
280]; People v. Chavers (1983) 33 Cal.3d 462, 467-468 [189 Cal.Rptr. 169, 658 P.2d
96].) The scope of such a warrantless search is defined by the nature of the items being
sought: “If 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.” (United States v. Ross, supra, 456 U.S. 798, 824-825.) The search of the black
sedan was supported by probable cause, and justified the search into any containers
capable of holding marijuana.
The court below properly relied on Strasburg as the controlling case, and properly
denied defendant’s motion to suppress evidence.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the odor of marijuana emanating from a vehicle provides probable cause to search the vehicle under the Fourth Amendment, and that possession of a medical marijuana authorization does not provide immunity from such a search.
Issues
Did the trial court err in denying the defendant's motion to suppress evidence obtained during a warrantless search of his vehicle?
Does the possession of a medical marijuana authorization card preclude a finding of probable cause to search a vehicle based on the odor of marijuana?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The odor of marijuana emanating from a vehicle is evidence that marijuana is present in or has recently been used in the vehicle.”
“The possession of a medical marijuana card, prescription, or other authorization does not change the nature of marijuana as contraband.”
“The search of the black sedan was supported by probable cause, and justified the search into any containers capable of holding marijuana.”