Probable Cause and Medical Marijuana Use: A Legal Conundrum for Vehicle Searches

Lakeland, FL (Law Firm Newswire) August 27, 2014 – There are exceptions to police warrant requirements. In some cases, officers can search a person or his or her personal property without a warrant.

“The most common exception allows a vehicle search with probable cause. The main question here is, what kind of facts may lead to probable cause for a search for legal possession of medical cannabis?” said Thomas C. Grajek, a Lakeland criminal defense attorney. “States that have legalized some forms of marijuana possession and/or use are trying to determine when the possession of cannabis triggers probable cause for a search, and the question is becoming more difficult.”

“Probable cause” is a set of circumstances and facts that exist where there is a significant chance that an object or person to be searched is concealing evidence of a crime or other goods prohibited by law. Put another way, probable cause comes into place when law enforcement reasonably expects to find something illegal. For an automobile, the police do not require a warrant if there is good reason to believe there is something illegal in it.

Before some states legalized the use/possession of medical marijuana, if an officer smelled or saw evidence pointing to the use/possession of marijuana, a search was reasonable. Now that medical marijuana is permissible in some states, determinations are far more complex. “However, most medical marijuana statutes only allow users to carry a small quantity. If a person has too much, a medical card would not prevent prosecution,” added Grajek.

Does any evidence of marijuana still trigger probable cause? It might. And according to a California court, a valid card does not erase probable cause for a search already underway.

In People v. Waxler, police approached the defendant’s car. An officer smelled marijuana and saw a cannabis pipe on the front seat. On searching, other drugs were discovered. The defendant then produced his card. At trial, it was suggested the search was questionable because the card was produced, nullifying grounds for a search. While the man’s card did entitle him to carry a small amount of marijuana, there were still grounds to search to find out if the defendant had more drug in his possession than allowed by law as defined by his card. “In other words, the medical marijuana card could be used as a defense at trial, but it could not be used as a bar against search/arrest,” explained Grajek.

Will the increasingly commonplace use of marijuana for medical and recreational purposes in states where it is legal cease to offer probable cause to search, absent other mitigating factors?