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Probable Cause or Reasonable Suspiscion?

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TheMuckster

Junior Member
What is the name of your state (only U.S. law)? California

I was pulled over for speeding and approached by officers, they said my car smelled of marijuana on asked me to get out. I informed them i was a medical marijuana patient and my marijuana was in a medical marijuana container. He tried to verify me but couldn't because it was 3am. He then searched my entire car, in the trunk was some mushrooms, and i was then arrested for felony poss of mushrooms and felony poss of marijuana (wrong charge as i had less than 28g).

My question would be, upon showing them my recommendation and seeing a medical container, would this have lowered their probable cause to search my vehicle to only a reasonable suspiscion that a crime only possibly occurred?
 


njjean

Member
What is the name of your state (only U.S. law)? California

I was pulled over for speeding and approached by officers, they said my car smelled of marijuana on asked me to get out. I informed them i was a medical marijuana patient and my marijuana was in a medical marijuana container. He tried to verify me but couldn't because it was 3am. He then searched my entire car, in the trunk was some mushrooms, and i was then arrested for felony poss of mushrooms and felony poss of marijuana (wrong charge as i had less than 28g).

My question would be, upon showing them my recommendation and seeing a medical container, would this have lowered their probable cause to search my vehicle to only a reasonable suspiscion that a crime only possibly occurred?
I am not a lawyer, but common sense dictates that it is dangerous to drive under the influence, medically necessary or not. I would think since you were speeding and driving under the influence, the cop would be entitled to do the search. Next time you get high, do it at home. Don't put yourself or me or my family at risk. Be humble, be glad you are alive, count your blessings and good luck.
 

CdwJava

Senior Member
I was pulled over for speeding and approached by officers, they said my car smelled of marijuana on asked me to get out. I informed them i was a medical marijuana patient and my marijuana was in a medical marijuana container.
Did you present them with a card issued by the CA DHS through the county where you live? If not, then your recommendation is an affirmative defense and not a free pass from further scrutiny.

He tried to verify me but couldn't because it was 3am.
How did he try to do this? Again, was this a DHS card or a recommendation?

He then searched my entire car, in the trunk was some mushrooms, and i was then arrested for felony poss of mushrooms and felony poss of marijuana (wrong charge as i had less than 28g).
You need to consult with an attorney. Unless he had good cause to search the trunk or to impound the car (which would allow for a search of the trunk), then the discovery of the mushrooms might not be good. However, if you were arrested due to the discovery of what he apparently believed was a felonious amount of marijuana, then the search of the trunk could be good.

Consult local counsel.

My question would be, upon showing them my recommendation and seeing a medical container, would this have lowered their probable cause to search my vehicle to only a reasonable suspiscion that a crime only possibly occurred?
The officer is allowed to consider the totality of the circumstances when developing probable cause. The odor of marijuana is generally sufficient to support a search. Your written recommendation is generally NOT sufficient to prove a medical need pursuant to Prop 215, but it can be used as an affirmative defense. Some counties and individual agencies have developed protocols to deal with these recommendations, others have not. Most do not require officers to simply back off if they find the suspect has a recommendation (something that anyone with a computer could duplicate, by the way).

An attorney can raise the proper suppression motions and you will see if they fly.

Oh, and it is this kind of thing that gives medical marijuana a bad name. Instead of making you look like a true patient, it makes you look like a dope dealer or user hiding under the smokescreen of a medicinal need. Or, were the 'shrooms part of your medication as well?

- Carl
 

TheMuckster

Junior Member
Did you present them with a card issued by the CA DHS through the county where you live? If not, then your recommendation is an affirmative defense and not a free pass from further scrutiny.


How did he try to do this? Again, was this a DHS card or a recommendation?
Nope it was just the reccommendation paper. However, he found numerous cards to dispensaries with my name on them and sometimes picture.


You need to consult with an attorney. Unless he had good cause to search the trunk or to impound the car (which would allow for a search of the trunk), then the discovery of the mushrooms might not be good. However, if you were arrested due to the discovery of what he apparently believed was a felonious amount of marijuana, then the search of the trunk could be good.
Must a felonious amount of Marijuana be found to search in the trunk? It was only 1/8th of an oz and in a medical container. It was NOT felonious!

Oh, and it is this kind of thing that gives medical marijuana a bad name. Instead of making you look like a true patient, it makes you look like a dope dealer or user hiding under the smokescreen of a medicinal need. Or, were the 'shrooms part of your medication as well?

- Carl
Medical Marijuana already has a bad name in California, but it is an ends that justifies a means. The California people voted in a law that was vague enough "or any other illness for which it provides relief". Anything to chip away at the stupid drug war. I am actually now being charged for transport of the mushrooms which says 2, 3, or 4 years in prison for just driving in ur car with any amount... And I was just 18years old when this happened. Prison or College i have my fingers crossed:(

Do you not think Marijuana should be legalized Carl?
 

CdwJava

Senior Member
Nope it was just the reccommendation paper. However, he found numerous cards to dispensaries with my name on them and sometimes picture.
But, the recommendation does not protect you from arrest - a DHS card can.

Must a felonious amount of Marijuana be found to search in the trunk? It was only 1/8th of an oz and in a medical container. It was NOT felonious!
There are other possible theories under which the trunk can be searched. It will depend on what the officer can articulate and under what theory he searched the trunk. If you were under arrest (which felony transportation or possession would permit) then the vehicle is subject to impound and as such, an inventory of all the property in the vehicle would be permitted. Absent an arrest for felony possession or some other offense justifying a custodial arrest, there are few theories under which a search of the trunk would be permitted. But, no knowing what the officer might say, I cannot say with certainty that the search will be excluded.

Medical Marijuana already has a bad name in California, but it is an ends that justifies a means.
Much evil has been perpetuated in the world under that theory. One can argue that if I beat a confession out of a guilty person that the ends justifies the means ... does that make it right?

I am actually now being charged for transport of the mushrooms which says 2, 3, or 4 years in prison for just driving in ur car with any amount... And I was just 18years old when this happened. Prison or College i have my fingers crossed:(
You need to consult with an attorney. However, if you have been charged for possession or transport, and not for sales, then it is pretty certain that the most you will face is drug rehab/counseling and probation unless you have priors.

Do you not think Marijuana should be legalized Carl?
The short answer is, no. But, in CA, it effectively IS legal. You cannot be taken to jail for possession ... it is the ONLY crime int he state of CA that disappears after two years (even a minor possessing cigarettes can remain on a criminal record forever - marijuana possession won't) ... and the penalties for marijuana possession are less than those for many traffic offenses and (arguably) even for a minor in possession of tobacco.

- Carl
 

TheMuckster

Junior Member
There are other possible theories under which the trunk can be searched. It will depend on what the officer can articulate and under what theory he searched the trunk. If you were under arrest (which felony transportation or possession would permit) then the vehicle is subject to impound and as such, an inventory of all the property in the vehicle would be permitted. Absent an arrest for felony possession or some other offense justifying a custodial arrest, there are few theories under which a search of the trunk would be permitted. But, no knowing what the officer might say, I cannot say with certainty that the search will be excluded.
I really appreciate the advice Carl, can u elaborate a little more on this? So if the only circumstances are smelling marijuana inside the vehicle, they can't search the trunk? I didn't know it had a higher threshold than just the inside of the car.


Much evil has been perpetuated in the world under that theory. One can argue that if I beat a confession out of a guilty person that the ends justifies the means ... does that make it right?
Certainly doesn't, and in most circumstances I don't believe the ends justify the means, but in this case I do. My idea of evil in this world is that this country has 5% of the world's population and 25% of the world's prisoners. That 1 out of every 100 people in America is in jail and that 1 out of every 32 people are in some sort of the correctional system. That people are jailed for unjust reasons, that's when the ends justify the means.


You need to consult with an attorney. However, if you have been charged for possession or transport, and not for sales, then it is pretty certain that the most you will face is drug rehab/counseling and probation unless you have priors.
The Code from which I was charged makes no difference from transportation or sales, will a judge?


The short answer is, no. But, in CA, it effectively IS legal. You cannot be taken to jail for possession ... it is the ONLY crime int he state of CA that disappears after two years (even a minor possessing cigarettes can remain on a criminal record forever - marijuana possession won't) ... and the penalties for marijuana possession are less than those for many traffic offenses and (arguably) even for a minor in possession of tobacco.

- Carl
Check out LEAP - Cops Say sometime, it stands for Law Enforcement Against Prohibition.

Really appreciate your advice Carl, Thanks again!
 

CdwJava

Senior Member
I really appreciate the advice Carl, can u elaborate a little more on this? So if the only circumstances are smelling marijuana inside the vehicle, they can't search the trunk? I didn't know it had a higher threshold than just the inside of the car.
In general, the odor of marijuana in the interior of the car is no going to justify a search of the trunk absent some other articulated circumstances to support it. That is not to say it cannot be articulated, just that it would be more difficult. Until you hear the officer's justification, it is hard to say and all I can do is hypothesize ... and I can make a guess in both directions on this one.

Certainly doesn't, and in most circumstances I don't believe the ends justify the means, but in this case I do.
Scary statement since I can probably pull statements of Hitler's cronies that utilized the same expression.

The ends are tainted if achieved by false or misleading means. If achieved by lies, then what has really been won?

My idea of evil in this world is that this country has 5% of the world's population and 25% of the world's prisoners. That 1 out of every 100 people in America is in jail and that 1 out of every 32 people are in some sort of the correctional system. That people are jailed for unjust reasons, that's when the ends justify the means.
This is not the forum to break down the numbers, but when you do you will find that all the people the pro-drug crowd says are in jail for "non-violent" drug crimes are kinda bending things a tad.

Again, this is not the place for this discussion. I will hold my tongue if you hold yours on the topic. This board is for the discussion of what the law IS and not what the law SHOULD be.

The Code from which I was charged makes no difference from transportation or sales, will a judge?
Under what section were you charged?

Check out LEAP - Cops Say sometime, it stands for Law Enforcement Against Prohibition.
I am familiar with this organization, and I think it is safe to say that the overwhelming majority of us in law enforcement disagree with their position.

- Carl
 

Ian_Y

Member
The short answer is, no. But, in CA, it effectively IS legal. You cannot be taken to jail for possession ... it is the ONLY crime int he state of CA that disappears after two years (even a minor possessing cigarettes can remain on a criminal record forever - marijuana possession won't) ... and the penalties for marijuana possession are less than those for many traffic offenses and (arguably) even for a minor in possession of tobacco.

- Carl
Actually Carl, can't you be imprisoned if the marijuana possession is over an ounce, for 6 months? Is that only for repeat offenders? Or is this a very unlikely occurance (Without the intent to sell of course)
 

CdwJava

Senior Member
Actually Carl, can't you be imprisoned if the marijuana possession is over an ounce, for 6 months? Is that only for repeat offenders? Or is this a very unlikely occurance (Without the intent to sell of course)
Yes, you CAN go to county jail for up to 6 months for possession of more than an ounce, but this is rare. Plus, Prop. 36 (PC 1000) generally will apply so rehab would be offered anyway.

- Carl
 

TheMuckster

Junior Member
In general, the odor of marijuana in the interior of the car is no going to justify a search of the trunk absent some other articulated circumstances to support it. That is not to say it cannot be articulated, just that it would be more difficult. Until you hear the officer's justification, it is hard to say and all I can do is hypothesize ... and I can make a guess in both directions on this one.
Well it brings my hope up, and as u were saying previously, after the scent of marijuana and marijuana has been found (as long as its not a felonious amount) its still not generally cause to search the trunk granted other circumstances? (Hopefully presentation of my recommendation would lower these other suspicious circumstances?)

Would you happen to know any court cases offhand that deal with this?

Again, this is not the place for this discussion. I will hold my tongue if you hold yours on the topic. This board is for the discussion of what the law IS and not what the law SHOULD be.
Agreed.

Under what section were you charged?
HS11379(a): Except as otherwise provided in subdivision (b) and in
Article 7 (commencing with Section 4211) of Chapter 9 of Division 2
of the Business and Professions Code, every person who transports,
imports into this state, sells, furnishes, administers, or gives
away, or offers to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this state or
transport any controlled substance which is (1) classified in
Schedule III, IV, or V and which is not a narcotic drug, except
subdivision (g) of Section 11056, (2) specified in subdivision (d) of
Section 11054, except paragraphs (13), (14), (15), (20), (21), (22),
and (23) of subdivision (d), (3) specified in paragraph (11) of
subdivision (c) of Section 11056, (4) specified in paragraph (2) or
(3) of subdivision (f) of Section 11054, or (5) specified in
subdivision (d) or (e), except paragraph (3) of subdivision (e), or
specified in subparagraph (A) of paragraph (1) of subdivision (f), of
Section 11055, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian, licensed to practice in this state,
shall be punished by imprisonment in the state prison for a period of
two, three, or four years

I did not know driving with drugs in you car is the exact same thing as selling them :eek:
 

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