By Anton Vialtsin, Esq. and Anton Vialtsin. Discovered by Player FM and our community — copyright is owned by the publisher, not Player FM, and audio is streamed directly from their servers. Hit the Subscribe button to track updates in Player FM, or paste the feed URL into other podcast apps.

People love us!

User reviews

"Love the offline function"
"This is "the" way to handle your podcast subscriptions. It's also a great way to discover new podcasts."

Does mere presence of LAWFUL amount of marijuana on passenger justify probable cause to search car?

8:35
 
Share
 

Manage episode 353438420 series 3389815
By Anton Vialtsin, Esq. and Anton Vialtsin. Discovered by Player FM and our community — copyright is owned by the publisher, not Player FM, and audio is streamed directly from their servers. Hit the Subscribe button to track updates in Player FM, or paste the feed URL into other podcast apps.

In People v. Lee (2019) 40 Cal.App.5th 853 [253 Cal.Rptr.3d 512], the court held a defendant's possession of a small amount of marijuana could not justify a probable cause search. (Id. at p. 856.) After initiating a traffic stop, officers discovered a small amount of marijuana on the defendant during a patsearch. (Id. at p. 857.) Officers then searched the vehicle and uncovered cocaine and a firearm. (Id. at pp. 858-859.) Finding the lawful amount of marijuana seized 803*803 from defendant's person could not establish probable cause to search the vehicle, the trial court granted the defendant's motion to suppress. (Id. at p. 860.) Reasoning "[t]he recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug," the appellate court affirmed the trial court's granting of the motion to suppress. (Id. at p. 861.) The presence of a legal amount of marijuana, however, "does not foreclose the possibility that defendant possesses a larger (illegal) amount." (Id. at p. 862.) Therefore, pursuant to Lee, there must be additional evidence, beyond mere possession of a legal amount of marijuana, to support a reasonable belief the defendant has an illegal amount or is violating some other statutory provision. (Ibid.)
The relevant question is whether there was probable cause to search the passenger's purse pursuant to the automobile exception. We conclude there was.
Defendant argues pursuant to Vehicle Code section 23222, subdivision (b), a passenger's possession of a lawful amount of marijuana while in a car is not unlawful. In making this argument, defendant fails to acknowledge the passenger's violation of section 11362.3, subdivision (a)(4), which states that while the possession of up to 28.5 grams of marijuana is now lawful pursuant to section 11362.1, it remains unlawful to "[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle." (Italics added.) As such, defendant's reliance on Vehicle Code section 23222, subdivision (b) is unavailing.
Full case here: THE PEOPLE v. TYRONE BRENDON McGEE. 53 Cal.App.5th 796 (2020), https://scholar.google.com/scholar_case?case=1798599621763946534&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
(619) 357-6677
Do you want to buy our Lawstache merchandise? Maybe a t-shirt?
https://lawstache.com/merch/
Want to mail me something (usually mustache related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101
Want to learn about our recent victories?
https://lawstache.com/results-notable-cases/
If you'd like to support this channel, please consider purchasing some of the following products. We get a little kickback, and it does NOT cost you anything extra:
*Calvin Klein Men's Dress Shirt Slim Fit Non-iron, https://amzn.to/3zm6mkf
*Calvin Klein Men's Slim Fit Dress Pant, https://amzn.to/3G8jLQG
*Johnson and Murphy Shoes, https://amzn.to/3KmfX0Y
*Harley-Davidson Men's Eagle Piston Long Sleeve Crew Shirt, https://amzn.to/43gFtMC
*Amazon Basics Tank Style Highlighters, https://amzn.to/3zwOEKZ
*Pilot Varsity Disposable Fountain Pens, https://amzn.to/40EjSfm
*Apple 2023 Mac Mini Desktop Computer, https://amzn.to/3Km2aGC
*ClearSpace Plastic Storage Bins, https://amzn.to/3Kzle5q
Are you are a Russian speaker? Вы говорите по-русски?
https://russiansandiegoattorney.com
Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts
The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are e...

  continue reading

50 episodes

Share
 
Manage episode 353438420 series 3389815
By Anton Vialtsin, Esq. and Anton Vialtsin. Discovered by Player FM and our community — copyright is owned by the publisher, not Player FM, and audio is streamed directly from their servers. Hit the Subscribe button to track updates in Player FM, or paste the feed URL into other podcast apps.

In People v. Lee (2019) 40 Cal.App.5th 853 [253 Cal.Rptr.3d 512], the court held a defendant's possession of a small amount of marijuana could not justify a probable cause search. (Id. at p. 856.) After initiating a traffic stop, officers discovered a small amount of marijuana on the defendant during a patsearch. (Id. at p. 857.) Officers then searched the vehicle and uncovered cocaine and a firearm. (Id. at pp. 858-859.) Finding the lawful amount of marijuana seized 803*803 from defendant's person could not establish probable cause to search the vehicle, the trial court granted the defendant's motion to suppress. (Id. at p. 860.) Reasoning "[t]he recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug," the appellate court affirmed the trial court's granting of the motion to suppress. (Id. at p. 861.) The presence of a legal amount of marijuana, however, "does not foreclose the possibility that defendant possesses a larger (illegal) amount." (Id. at p. 862.) Therefore, pursuant to Lee, there must be additional evidence, beyond mere possession of a legal amount of marijuana, to support a reasonable belief the defendant has an illegal amount or is violating some other statutory provision. (Ibid.)
The relevant question is whether there was probable cause to search the passenger's purse pursuant to the automobile exception. We conclude there was.
Defendant argues pursuant to Vehicle Code section 23222, subdivision (b), a passenger's possession of a lawful amount of marijuana while in a car is not unlawful. In making this argument, defendant fails to acknowledge the passenger's violation of section 11362.3, subdivision (a)(4), which states that while the possession of up to 28.5 grams of marijuana is now lawful pursuant to section 11362.1, it remains unlawful to "[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle." (Italics added.) As such, defendant's reliance on Vehicle Code section 23222, subdivision (b) is unavailing.
Full case here: THE PEOPLE v. TYRONE BRENDON McGEE. 53 Cal.App.5th 796 (2020), https://scholar.google.com/scholar_case?case=1798599621763946534&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Anton Vialtsin, Esq.
LAWSTACHE™ LAW FIRM | Criminal Defense and Business Law
https://lawstache.com
(619) 357-6677
Do you want to buy our Lawstache merchandise? Maybe a t-shirt?
https://lawstache.com/merch/
Want to mail me something (usually mustache related)? Send it to 185 West F Street, Suite 100-D, San Diego, CA 92101
Want to learn about our recent victories?
https://lawstache.com/results-notable-cases/
If you'd like to support this channel, please consider purchasing some of the following products. We get a little kickback, and it does NOT cost you anything extra:
*Calvin Klein Men's Dress Shirt Slim Fit Non-iron, https://amzn.to/3zm6mkf
*Calvin Klein Men's Slim Fit Dress Pant, https://amzn.to/3G8jLQG
*Johnson and Murphy Shoes, https://amzn.to/3KmfX0Y
*Harley-Davidson Men's Eagle Piston Long Sleeve Crew Shirt, https://amzn.to/43gFtMC
*Amazon Basics Tank Style Highlighters, https://amzn.to/3zwOEKZ
*Pilot Varsity Disposable Fountain Pens, https://amzn.to/40EjSfm
*Apple 2023 Mac Mini Desktop Computer, https://amzn.to/3Km2aGC
*ClearSpace Plastic Storage Bins, https://amzn.to/3Kzle5q
Are you are a Russian speaker? Вы говорите по-русски?
https://russiansandiegoattorney.com
Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts
The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are e...

  continue reading

50 episodes

All episodes

×
 
Loading …

Welcome to Player FM!

Player FM is scanning the web for high-quality podcasts for you to enjoy right now. It's the best podcast app and works on Android, iPhone, and the web. Signup to sync subscriptions across devices.

 

Player FM - Podcast App
Go offline with the Player FM app!

Quick Reference Guide

Copyright 2023 | Sitemap | Privacy Policy | Terms of Service