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Date: November 15, 2016 Date: August 30, 2017

On November 8, 2016, California voters passed Proposition 64 – The “Control, Regulate and Tax

Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act’).” Although we appreciate the fact

that the title of the Act actually suggests a nickname for itself and is sometimes referred to as

AUMA, throughout this IPG, the Act will be referred to by another alias: “Prop 64.”

On June 27, 2017, the legislature passed a bill (SB 94) modifying Prop 64. Among other changes,

the bill more closely integrated regulation of both medical and nonmedical marijuana. It also

replaced the term “marijuana” in all the statutes impacted by Prop 64 with the term “cannabis.”

However, throughout this IPG, we will generally continue to use the term “marijuana” unless

quoting from a statute that has been modified by SB 94.

Prop 64 changed many of the laws surrounding the use, possession, transfer, and distribution of

marijuana. This IPG will not cover all the changes and procedures enacted by Prop 64 and SB 94.

In particular, it will not cover the new laws governing the distribution, regulation, and taxation of

marijuana that will not go into effect until next year. Nor will it focus on the portions of Prop 64

governing resentencing. Both of those areas are covered extensively in two overviews of Prop 64

put together by Santa Clara County DDA Kathy Storton (“Marijuana Penalties and Charging Post-

Prop 64” and “Proposition 64 Legalization of Nonmedical/ Recreational Marijuana”). Both

documents are accessible to prosecutors at the CDAA website by clicking on the “issues” tab on the

home page of the website. This IPG memo is like a mushroom on the mycelium of Kathy’s hard

work in putting those two documents together.

2017-IPG-33 (Q&A ON PROP 64 –THE ADULT USE OF MARIJUANA ACT & SB 94)

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Another very extensive and helpful document on Prop 64, that is geared toward assisting the

judiciary in addressing issues raised by that proposition (but not covered in this IPG) is authored by

retired Judge J. Richard Couzens and Justice Tricia A. Bigelow. It is entitled: “Proposition 64:

Adult Use of Marijuana Act Resentencing Procedures and Other Selected Provisions” and may be

accessed by clicking on http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf

This IPG will focus on attempting to provide answers to the questions most likely to arise in the

investigation, charging, and prosecution of marijuana-related crimes in the wake of Prop 64:

● Is all possession of marijuana now legal? And, if not, what is the impact of Prop 64 on the

laws previously governing possession, possession for sale, cultivation, and sale of marijuana?

● When will the odor of marijuana or possession of a small amount of marijuana allow for

detentions of persons, or searches of vehicles, persons, or homes?

● What is the impact of Prop 64 on whether an alert by a drug-sniffing dog provides probable

cause to search?

● What is the impact of Prop 64 on marijuana-related prosecutions pending at the time of its

passage?

The sections involving the impact of Prop 64 on law enforcement’s ability to search for marijuana has

significantly benefitted from the input of Alameda County Senior Deputy District Attorney Mark Hutchins

and Retired San Diego Deputy District Attorney Bob Phillips. And the entire memo benefitted from a

review by Santa Clara County post-bar law clerk Susan McClay.

This IPG memo is accompanied by a podcast featuring an interview with Santa Clara

County Supervising DDA Patrick Vanier (head of the narcotics unit). The podcast will

provide 105 minutes of general MCLE credit. Click immediately below to listen to the

podcast: http://sccdaipg.podbean.com/

NOTE: The IPG podcast is now fully downloadable to mobile devices for convenient self-study credit while jogging (learn, earn, and burn) or driving to work. Clicking on the link will send you to the IPG podcast page where you can listen to the podcast, download it, and share it through social media sites. Listeners should be able to download the IPG app for their mobile devices for free via the Apple store (IOS) or Google Play (Android). Listeners may also subscribe to our channel and receive alerts once a new episode is uploaded.

*IPG is a publication of the Santa Clara County District Attorney’s Office©. Reproduction of this material for purposes of training and use by law enforcement and prosecutors may be done without consent. Reproduction for all other purposes may be done only with consent of the author.

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TABLE OF CONTENTS THE 64 MOST PRESSING QUESTIONS (AND SUB-QUESTIONS) ABOUT THE ENFORCEMENT OF MARIJUANA LAWS FOLLOWING THE PASSAGE OF PROP 64 9 1. Is simple possession of marijuana now lawful in California for persons over 21? Yes, in some circumstances. (The impact of Prop 64 on H&S Code section 11357) 9 A. Can a person lawfully possess over 28.5 grams of marijuana or over 8 grams of concentrated cannabis if the marijuana was produced by six living plants grown by the person? 10 B. How is a “private residence” defined for purposes of Health and Safety Code section 11362.2? 11 C. If two or more people live in the same private residence, can each possess six

marijuana plants and the produce from those plants? 12 D. Is it unlawful to possess under an ounce of marijuana or less than 8 ounces of concentrated cannabis (and/or marijuana produced by less than six plants) under certain circumstances? 12 i. Possession may remain unlawful if the marijuana is produced from plants that

are not grown in accordance with local ordinances 12 ii. Possession of any marijuana remains unlawful if possessed at a school, daycare

center or youth center while children are present 13 iii. Possession of any marijuana while driving or riding in a vehicle remains

unlawful if possessed in an open container or package 13 E. What is the punishment for persons over 21 who unlawfully possess marijuana? 15

i. Punishment for possession of over 28.5 grams of marijuana or 8 grams of concentrated cannabis by persons 21 years or older? 15

a. Punishment for possession of less than 28.5 grams of marijuana or 8 grams of concentrated cannabis on school grounds 15 b. Punishment for possession of less than 28.5 grams of marijuana or 8 grams of concentrated cannabis in an open container in vehicles 16 ii. Punishment for possession of over 28.5 grams of marijuana or 8 grams of

concentrated cannabis by persons 18 years or older 16

2. Is simple possession of marijuana now lawful in California for persons under 21? No, but it is usually just an infraction. 17 A. What is the punishment for persons under 21 who unlawfully possess nonmedical marijuana? 17

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i. Punishment for possession of under 28.5 grams of marijuana or 4 grams of concentrated cannabis by persons under 18, or under 21, years of age 17 ii. Punishment for possession of over 28.5 grams of marijuana or 4 grams of concentrated cannabis by persons under 18 years of age 18 iii. Punishment for possession of under 28.5 grams or 4 grams of concentrated cannabis on school grounds by persons under 21 18 3. Is the planting, cultivation, harvesting, drying, or processing of nonmedical marijuana now lawful for persons over 21? Yes, under limited circumstances. (The impact of Prop 64 on H&S Code section 11358) 19 A. Can a local ordinance simply prohibit the growing of marijuana within the city or county? 20 B. If two or more people live in the same private residence, can each grow six marijuana plants and keep the produce from those plants? 21 C. Does Prop 64 allow the cultivation of virtually unlimited amounts of marijuana once the state licenses the person to cultivate marijuana? 21 D. What is the punishment for persons over 21 who cultivate marijuana? 22 i. Punishment for cultivation of six or less living marijuana plants by persons 21 years or older in compliance with Health & Safety Code section 11362.2(a) 22

ii. Punishment for cultivation of six or of six or less living marijuana plants by persons 21 years or older in noncompliance with Health & Safety Code section 11362.2(a) 22

iii. Punishment for cultivation of more than six living marijuana plants by persons 21 years (or even 18 years) or older 22 a. Is a person eligible for felony punishment for cultivation if the defendant has two or more prior convictions for cultivation that occurred before the passage of Prop 64? 25 E. Is unlawful cultivation of marijuana by persons over 21 in violation of section 11358 a wobbler? 26 F. Is the planting, cultivation, harvesting, drying, or processing of nonmedical marijuana now lawful for persons under 21? No, but it is usually just an infraction if the person is under 18. 27 i. Punishment for cultivation of nonmedical marijuana by persons under the age of 18 27 ii. Punishment for cultivation of nonmedical marijuana in violation of the restrictions identified in section 11362.1 by persons under the age of 18 28

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iii. Punishment for cultivation of nonmedical marijuana by persons over the age of 18 but under the age of 21 29 4. Is possession for sale of marijuana now lawful for persons over 21? No, but it is now usually a misdemeanor. 29 A. What is the punishment for the unlicensed possession of nonmedical marijuana for sale by a person over 18? 29 B. If the defendant possesses marijuana for sale but the marijuana is less than 28 grams or the marijuana was the product of the personal cultivation of less than six plants, may the defendant still be punished pursuant to section 11359? 29 C. Is the crime of possessing marijuana for sale by someone over 18 a wobbler? 31 D. If a defendant has two prior convictions for selling marijuana based on offenses that occurred before the passage of Prop 64, does that permit felony punishment for the post-Prop 64 crime of possessing marijuana for sale? 33 E. What is the punishment for the possession for sale of marijuana by persons under 18? 35 5. Is the sale, furnishing, transportation, giving away, or importing of marijuana now lawful for persons over 21? No, but it is now usually a misdemeanor. 35 A. What is the punishment for the unlicensed sale of, or offer to sell, nonmedical marijuana by a person over 18? 36 B. If a defendant over 18 sells, or offers to sell, marijuana to someone over 18, but the marijuana is less than 28.5 grams or 8 grams of concentrated cannabis, may the defendant still be punished pursuant to section 11360? 37 C. Is the crime of selling, or offering to sell, marijuana by someone over 18 a wobbler? 37 D. If a defendant has two prior convictions for transporting, importing, selling, furnishing, administering, or giving away (or offering to transport, sell, furnish, administer, or give away) marijuana or attempting to import or transport marijuana that occurred before the passage of Prop 64, does that permit felony punishment for the post-Prop 64 crime of selling or offering to sell marijuana? 39 E. What is the punishment for selling or offering to sell marijuana by persons under 18? 40 F. Does the punishment for transporting, offering to transport, giving away, or offering to give away nonmedical marijuana differ in any way from the punishment for selling or offering to sell marijuana? 41 i. In general 41 ii. When the amount of marijuana involved is not more than 28.5 grams: section 11360(a) versus sections 11360(b) and 11362.1 41

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iii. When the amount of marijuana involved is not more than 28.5 grams or more than 8 grams of concentrated cannabis and the defendant is under 18 or 21 43 iv. When the person over 21 offers to give away or gives away marijuana to someone under 18 44 G. Does the punishment for furnishing or administering marijuana or offering to furnish or administer marijuana differ in any way from the punishment for selling or offering to sell marijuana? 45 i. Furnishing 45 ii. Administering 46 H. Does the punishment for importing, offering to import, or attempting to import marijuana into this state differ in any way from the punishment for selling or offering to sell marijuana? 46 6. Does Prop 64 legalize or lessen the punishment for: (i) hiring, employing or using a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle cannabis; (ii) selling or offering to sell cannabis to a minor; (iii) furnishing, administering, giving, or offering to furnish, administer, or give any cannabis to a minor under 14 years of age; or (iv) inducing a minor to use cannabis? (The impact of Prop 64 on H&S Code section 11361) 47 A. Is the punishment designated in section 11361 precluded by any statute enacted or amended by Prop 64? (Handling general versus specific rule attacks) 48 i. Does Health and Safety Code section 11360 preclude the use of section 11361? 48 ii. Does Health and Safety Code section 11359 preclude the use of section 11361? 52 7. Is the drug education or counseling authorized by some of the statutes enacted or amended by Prop 64 always mandatory? (H&S Code section 11361.1) 53 8. Is the manufacture of concentrated cannabis now lawful for persons over 21? Generally, no. (The impact of Prop 64 on H&S Code section 11379.6) 54 9. What is the punishment for other miscellaneous marijuana-related offenses? (The impact of Prop 64 on crimes prohibiting driving under the influence of marijuana, driving with open containers of marijuana, driving while smoking or ingesting marijuana, and marijuana smoking in certain places?) 55 A. Does Prop 64 allow driving under the influence of marijuana? 55 B. Does Prop 64 allow driving around with open containers of marijuana? 56 C. Does Prop 64 allow driving around while smoking or ingesting marijuana? 56 D. Does Prop 64 allow smoking marijuana in any location? 57

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10. What is the impact of Proposition 64 on the offense of maintaining or opening a place for sale, giving away, or use of a controlled substance (Health and Safety Code section 11366) when the substance involved is marijuana? 59 11. Is the unlicensed conduct proscribed in Health and Safety Code sections 11357, 11358, 11359, and 11360 lawful until the system of licensing, regulation, and taxation is set up? 61 12. Do either Prop 64 or SB 94 have any immediate impact on the enforcement of laws allowing possession of medical marijuana under the Compassionate Use Act of 1996 (CUA), the Medical Marijuana Program Act (MMP), or the Medical Cannabis Regulation and Safety Act (MCRSA)? 63 13. Did Prop 64 or SB 94 change the definition of “marijuana?” 66 14. Did Prop 64 impact whether an officer can search a vehicle based on smelling the odor of marijuana (fresh or burnt) coming from the vehicle or on seeing less than an ounce of marijuana or 8 grams of concentrated cannabis inside the vehicle? 68 A. Can an argument be made that a search of a vehicle based on the odor of marijuana or on seeing under an ounce of marijuana is justified because possession of even small amounts of marijuana remains a federal crime? 77 B. Will it make a difference whether the odor is of unburnt, as opposed to burnt, marijuana? And, if so, will it make a difference whether the odor of unburnt marijuana is strong? 82 C. Can a vehicle be searched based on the odor of marijuana or seeing uncontained marijuana in any amount in a vehicle under the rationale there is evidence of the crime of possessing an open container of marijuana? 85 D. If a court finds the smell of either burnt or raw marijuana is not sufficient by itself to provide probable cause to search a vehicle, what other arguments should prosecutors consider making? 87 E. Can a vehicle be searched for evidence of the crime of driving under the influence of marijuana? 89 F. Can a vehicle be searched based on a post-Prop 64 narcotics dog alert indicating the presence of contraband in a vehicle? 90 G. Will it make a difference if the odor of marijuana comes from a vehicle being driven or occupied by persons under 21? 93 15. Did Prop 64 impact whether an officer can arrest someone based on seeing the person in possession of less than an ounce of marijuana (or 8 grams of concentrated cannabis) or based on smelling the odor of marijuana (fresh or burnt) coming from their person? 93

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16. Did Prop 64 impact whether an officer can detain a person over 21 based on smelling the odor of marijuana (burnt or unburnt) coming from their person or based on seeing the person in possession of under an ounce of marijuana or less than 8 grams of concentrated cannabis? 96 A. What can a prosecutor do if the court does not accept the argument that a detention of someone over 21 may be based solely on the smell of marijuana or seeing someone in possession of under an ounce of marijuana (or 8 grams of concentrated cannabis)? 100 B. Can an argument be made that a detention is justified because possession of even small amounts of marijuana remains a federal crime? 102 C. Can a person be detained based on a post-Prop 64 narcotics dog alert indicating the presence of contraband on the person? 102 17. Did Prop 64 impact whether an officer can search someone based on seeing the person in possession of less than an ounce of marijuana (or 8 grams of concentrated cannabis) or based on smelling the odor of marijuana (fresh or burnt) coming from their person? 103 A. What can a prosecutor do if the court does not accept the argument that a search of a person over 21 may be based solely on the smell of marijuana or seeing someone in possession of under an ounce of marijuana (or 8 grams of concentrated cannabis)? 106 B. Can an argument be made that a search of a person based on the odor of marijuana or based on seeing the person in possession of a lawful amount of marijuana or concentrated cannabis is justified because possession of even small amounts of marijuana remains a federal crime? 107 18. Did Prop 64 impact whether a search warrant can issue to investigate marijuana-related offenses? 107 19. Did Prop 64 impact whether an officer can make a warrantless entry into a home, or obtain a search warrant for a home, based on the odor of marijuana coming from the home or based on seeing or having information that the persons inside the home are in possession of a lawful amount of marijuana or concentrated cannabis? 109 A. Can warrantless entry into the home to seize marijuana be made based on the odor of marijuana or seeing a small amount of marijuana? 109 B. Can a search warrant issue based solely on the odor of marijuana or seeing small amounts of marijuana in a home? 110 20. What is the impact of Prop 64 on marijuana prosecutions that were pending, or marijuana convictions not yet final, at the time of its passage? 111 A. Must pending felony prosecutions be reduced to misdemeanors? 111 B. Must pending felony prosecutions be dismissed? 112 C. Does Prop 64 automatically reduce felony convictions for marijuana-related offenses that were not final at the time of Prop 64’s passage? 114

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Prop 64 did not legalize the possession of any amount of marijuana under all circumstances.

However, it did make possession of marijuana completely lawful under state law for persons

over 21 under certain circumstances.

Health and Safety Code section 11357, which makes simple possession of marijuana unlawful and

describes the punishment to be imposed for possession, remains on the books. However, Prop

64 enacted Health and Safety Code section 11362.1, which made possession of marijuana

completely lawful under state law in certain circumstances.

Section 11362.1 takes precedence over section 11357 because it lays out the law governing

possession of marijuana “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but

notwithstanding any other provision of law . . .” (Health & Saf. Code, § 11362.1(a),

emphasis added by IPG.) (Section 11357 is another “provision of law.”)

Under section 11362.1, “it shall be lawful under state and local law, and shall not be a violation

of state or local law, for persons 21 years of age or older to: (1) Possess . . . not more

than 28.5 grams of cannabis not in the form of concentrated cannabis; (2) Possess .

. . not more than eight grams of cannabis in the form of concentrated cannabis,

including as contained in marijuana products; (3) Possess . . . not more than six living cannabis

plants and possess the cannabis produced by the plants; . . .” (Health & Saf. Code, §

11362.1(a), emphasis added by IPG.)

In addition, possession of marijuana as necessary to engage in “commercial cannabis activity” is

lawful if the person is licensed by the state to engage in such activity. (See Bus. & Prof. Code, §§

26001(k) [defining “commercial cannabis activity” as including the “possession . . . of cannabis

and cannabis products as provided for in this division”]; 26037 [making it lawful under state law

1. Is simple possession of marijuana now lawful in California for persons over 21? Yes, in some circumstances. (The impact of Prop 64 on H&S Code section 11357)

THE 64 MOST PRESSING QUESTIONS (AND SUB-QUESTIONS) ABOUT THE ENFORCEMENT OF

MARIJUANA LAWS FOLLOWING THE PASSAGE OF PROP 64

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to engage in actions, such as possession of marijuana, when “(1) permitted under a license issued

under this division and any applicable local ordinances and (2) conducted in accordance with the

requirements of this division and regulations adopted pursuant to this division”].) Licenses,

however, are not yet being issued by the Bureau of Medical Cannabis Regulation. (See

http://bmcr.ca.gov/.)

Based on the language of the Health and Safety Code section 11362.1 allowing persons 21 years of

age or older to possess “not more than six living cannabis plants and possess the cannabis

produced by the plants,” it appears a person may lawfully possess a significantly greater amount

of nonmedical marijuana than 28.5 grams or 8 grams of concentrated cannabis. (Health & Saf.

Code, § 11362.1(a)(3).) A review of several marijuana-growing webzines indicates that, under the

proper indoor conditions, one marijuana plant can yield more than a pound of marijuana and be

harvested multiple times in a year. Thus, if a person grows their own marijuana, they can

lawfully possess considerably more nonmedical marijuana than 28.5 grams – but only “subject

to” the restrictions on growing marijuana identified in Health and Safety Code section 11362.2.

(Health & Saf. Code, § 11362.1(a).)

Health and Safety Code section 11362.2 makes “[p]ersonal cultivation of cannabis under

paragraph (3) of subdivision (a) of Section 11362.1” (i.e., the possession of six living marijuana

plants and the marijuana produced by those plants) subject to various restrictions. (Health &

Saf. Code, § 11362.1(a).) One of those restrictions is that “[t]he living plants and any

cannabis produced by the plants in excess of 28.5 grams are kept within the person's

private residence, or upon the grounds of that private residence (e.g., in an outdoor garden area),

are in a locked space, and are not visible by normal unaided vision from a public place.” (Health

& Saf. Code, § 11362.1(a)(2), emphasis added by IPG.)

A. Can a person lawfully possess over 28.5 grams of marijuana or over

8 grams of concentrated cannabis if the marijuana was produced by

six living plants grown by the person?

*Editor’s note: Prop 64 makes no significant changes impacting the legality of possession, cultivation, and

transportation of medical marijuana other than requiring future compliance with the section of the Business

and Professions Code governing the issuance of “physician recommendations” for medical marijuana. (See this

IPG memo, question 12 at p. 63-65 for a more in-depth discussion of this issue.)

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This means persons cannot lawfully possess over 28.5 grams of nonmedical marijuana other

than inside, or on the grounds of, their private residence. (Health & Saf. Code, § 11362.1(a)(2).)

In other words, a person cannot be walking or driving around with more than 28.5 grams of

nonmedical marijuana even if the marijuana was produced from their six living plants. (See

Ballot Pamp., Primary Elec. (Nov. 8, 2016) Analysis by the Legislative Analyst at p. 92, Figure 2

[“Activities Allowed Under the Measure ‘Growing up to six marijuana plants and keeping the

marijuana produced by the plants within a private home.’”], emphasis added by IPG.)

It also means that it is unlawful for a person to possess the six living plants or marijuana

produced by those plants even on the grounds of the person’s private residence unless the

grounds where the plants are grown and their produce is kept in a “locked space” and is not

“visible by normal unaided vision from a public place.” (Health & Saf. Code, § 11362.1(a)(2).)

Health and Safety Code section 11362.2(b)(5) states: “For purposes of this section,

‘private residence’ means a house, an apartment unit, a mobile home, or other similar dwelling.”

Under this definition, unless prohibited by a local ordinance, there could be hundreds of

marijuana plants being grown and product stored in a single apartment building that has

managed to attract a swarm of marijuana-growing aficionados – so long as no more than six

living plants were being grown in any single apartment unit or on the grounds of the unit.

*Editor’s note: A strict reading of section 11362.1(a)(2) would preclude a person from possessing six

marijuana plants or their produce - even inside a private residence unless the residence was locked or the

plants and produce were kept in a locked space inside the private residence and could not be easily viewed

through a window in the house. It is likely that the limitation placed on growing marijuana in a locked space

was intended to ensure that persons growing marijuana on the grounds of a private residence do so in a locked

space that is not visible to the public. (See Health & Saf. Code, § 11362.2((b)(2) [noting “no city, county, or city

and county may completely prohibit persons engaging in the actions and conduct under paragraph (3) of

subdivision (a) of Section 11362.1 inside a private residence, or inside an accessory structure to a private

residence located upon the grounds of a private residence that is fully enclosed and secure.”], emphasis added

by IPG.) However, the way section 11362.1 is written arguably imposes those limitations on possession inside a

residence as well.

B. How is a “private residence” defined for purposes of Health and

Safety Code section 11362.2?

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Health and Safety Code section 11362.2(a)(3) provides: “Not more than six living plants may be

planted, cultivated, harvested, dried, or processed within a single private residence, or upon the

grounds of that private residence, at one time.” (Health & Saf. Code, § 11362.2(a)(3).) Thus, if

two or more people are living together, they cannot simultaneously cultivate more than six

plants. Although each could constructively possess six plants (i.e., if some are possessed off-site)

and they could still collectively grow six living plants while simultaneously possessing the

product of a prior lawful harvest along with 8 grams of concentrated cannabis apiece.

Possession of any amount of marijuana (whether it is less than 28.5 grams or the produce of six

living plants lawfully grown) is also prohibited at certain locations or under certain conditions.

There are additional restrictions on how the plants must be grown that can potentially be

imposed by local ordinances. (See Health & Saf. Code, § 11362.1(a)(1) & (b).) If local ordinances

impose additional limitations on growing marijuana, then a person must cultivate the six

marijuana plants in compliance with local ordinances in order to lawfully cultivate, and

presumably possess the plants and plants’ product.* (See Health & Saf. Code, § 11362.1(a)(3).)

Those restrictions are discussed more fully in the portion of this IPG dealing with lawful

cultivation of marijuana. (See this IPG, question 3 at pp. 19-29].)

C. If two or more people live in the same private residence, can each

possess six marijuana plants and the produce from those plants?

*Editor’s note: As birds of feather tend to flock together, prosecutors should anticipate attempts by apartment

dwelling pot lovers to collectively grow more than six marijuana plants in a designated indoor or outdoor area of

the apartment complex under the theory that the designated area constitutes “the grounds of that private

residence (e.g., in an outdoor garden area)”. (See Health & Saf. Code, § 11362.2(a)(2).) This was probably not

the intent behind Prop 64 and is likely prohibited by the provision of Prop 64 preventing “more than six living

plants” from being “planted, cultivated, harvested, dried, or processed within a single private residence, or upon

the grounds of that private residence, at one time.” (Health & Saf. Code, § 11362.2(a)(3), emphasis added.)

D. Is it unlawful to possess under an ounce of marijuana or less than 8

ounces of concentrated cannabis (and/or marijuana produced by

less than six plants) under certain circumstances?

i. Possession may remain unlawful if the marijuana is produced from plants not grown in accordance with local ordinances

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Arguably, even though section 11362.2 relates to cultivation, if a person over 18 possesses under

28.5 grams of marijuana or 8 grams of concentrated cannabis that are the product of six living

plants cultivated by the person, but the plants were grown in violation of the restrictions

described in Health and Safety Code section 11362.2(a) for cultivation of marijuana, the

possession of those plants may be an infraction subject to a $250 fine. (See Health & Saf. Code,

§ 11362.2(e) [“Any person who violates the restrictions in subdivision (a) of section 11362.2 is

guilty of an infraction punishable by no more than a $250 fine”].)

It remains unlawful to “[p]ossess . . . cannabis or cannabis products in or upon the grounds of a

school, day care center*, or youth center while children are present.” (Health & Saf. Code, §

11362.3(a)(5).)

Health & Safety Code section 11362.3(a)(4) in conjunction with section 11362.4(b) makes it

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, boat,

vessel, aircraft, or other vehicle used for transportation.” (§§ 11362.3(a)(4)/11362.4(b).)

Vehicle Code section 23222(b)(1) (as recently amended by SB 94) also provides: “Except as

authorized by law, every person who has in his or her possession on his or her person, while

driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section

*Editor’s note: Technically, the requirement that the cultivation of marijuana be done in accordance with

restrictions imposed by local ordinances does not apply to “possession” of those plants or their product. (See

Health & Saf. Code, § 11362.2(a)(1) [“A person shall plant, cultivate, harvest, dry, or process plants in

accordance with local ordinances, if any, adopted in accordance with subdivision (b).”].) And it seems

unreasonable to permit a defendant to possess marijuana that has been harvested from marijuana plants that

were not lawfully cultivated because they were not cultivated in compliance with a valid local ordinance.

ii. Possession of any marijuana remains unlawful if possessed at a school, daycare center or youth center while children are present

*Editor’s note: A “day care center” for purposes of section 11362.3, “has the same meaning as in Section

1596.76.” (Health & Saf. Code, § 11362.3(b).) Health and Safety Code section 1596.76 provides: “Day care

center” means any child day care facility other than a family day care home, and includes infant centers,

preschools, extended day care facilities, and school age child care centers.” (Health & Saf. Code, § 1596.76.)

iii. Possession of any marijuana while driving or riding in a vehicle remains unlawful if possessed in an open container or package

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23220, any receptacle containing any cannabis or cannabis products, as defined by Section

11018.1 of the Health and Safety Code, which has been opened or has a seal broken, or loose

cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than

one hundred dollars ($100).” (Veh. Code, § 23222(b)(1).) However, if the receptacle or loose

cannabis flower is in the trunk of the vehicle, there is no violation. (Veh. Code, § 23222(b)(2).)

Moreover, subdivision (b)(1) “does not apply to a qualified patient or person with an

identification card, as defined in Section 11362.7 of the Health and Safety Code, if both of the

following apply: (1) The person is carrying a current identification card or a physician's

recommendation. (2) The cannabis or cannabis product is contained in a container or receptacle

that is either sealed, resealed, or closed.” (Veh. Code, § 23222(c).)

*Editor’s note: The language of section 23222(b) enacted by SB 94 tracks the language of section 23222(a) dealing

with containers of alcohol. The latter section assumes that the alcohol was originally purchased in a closed container.

The same assumption is likely to apply with less frequency when it comes to marijuana. People may keep their

marijuana in a closed container which they have opened and closed before placing it in their vehicle. However, since

subdivision (c) of section 23222 exempts the carrying of containers that are sealed or resealed or closed if a person

has a current identification or physician’s recommendation, this suggests that subdivision (b), which prohibits

driving around with cannabis in “any receptacle . . . which has been opened or has a seal broken,” would penalize

persons for having cannabis in a container that is closed at the time of the driver is pulled over but has been opened or

unsealed at any time. Another potential issue may arise if the receptacle cannot either directly or circumstantially be

shown to have been on the person. Vehicle Code section 23222(b)(1) (as recently amended by SB 94) only applies to a

“person who has in his or her possession on his or her person” an opened or unsealed receptacle. If the intent was

to track how open containers of alcohol are treated, the drafters need to have added provisions governing possession

of open receptacles of marijuana that were comparable to Vehicle Code sections 23225(a)(1) (which makes it unlawful

for registered owners of vehicles to keep a bottle, can, or other receptacle containing any alcoholic beverage that has

been opened, or a seal broken, or the contents of which have been partially removed in any portion of the vehicle

other than the trunk unless the container is kept in the trunk of the vehicle) and 23226 (which makes it unlawful for a

driver or passenger “to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any

highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing

any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed”).

No such amendments were made.

Thus, for now, if officers see an open receptacle of marijuana in a vehicle that is not on the person of the driver, and

the officer wants to cite such person for a violation of section 23222, there will need to be some circumstantial

evidence that, at some point, while driving, the open container was on the person of the driver. (Cf., People v.

McCloskey (1990) 226 Cal.App.3d Supp. 5, 8, 10 [section 23222 “is not violated unless the evidence establishes that

the open container of alcoholic beverage was literally connected to the person of the defendant” albeit the fact the

driver had an open beer on his person was established circumstantially since a half-filled can of beer with

condensation on the can was on the truck console].) Because of these issues, it is better to cite the driver or passenger

for a violation of Health and Safety Code section 11362.3(a)(4) than a violation of section 23222. (See this IPG

memo, question 1-E-(i)-(b), p. 16.

15

There is no punishment for persons who are over 21 who possess less than 28.5 grams of

marijuana and 8 grams of concentrated cannabis unless the person possesses the marijuana or

concentrated cannabis on school grounds or has it in an open container.

a. Punishment for possession of less than 28.5 grams of marijuana or 8 grams of concentrated cannabis on school grounds. If a person over 21 possesses less than 28.5 grams of marijuana or 8 grams of concentrated

cannabis “in or upon the grounds of a school, day care center, or youth center while children are

present[,]” then the person is “subject to the same punishment as provided under subdivision (c)

or (d) of Section 11357.” (Health & Saf. Code, §§ 11362.3(a)(5) and 11362.4(c).)

The punishment described in subdivision (c) of Health and Safety Code 11357 provides: “Except

as authorized by law, every person 18 years of age or over who possesses not more than 28.5

grams of cannabis, or not more than four grams of concentrated cannabis, upon the grounds of,

or within, any school providing instruction in kindergarten or any of grades 1 through 12 during

hours the school is open for classes or school-related programs is guilty of a misdemeanor and

shall be punished as follows: (1) A fine of not more than two hundred fifty dollars ($250), upon a

finding that a first offense has been committed. (2) A fine of not more than five hundred dollars

($500), or by imprisonment in a county jail for a period of not more than 10 days, or both, upon

a finding that a second or subsequent offense has been committed.” (Health & Saf. Code, §

11357(c).)

A person over 18 who possesses more than 4 grams but less than 8 grams of concentrated

cannabis on the grounds of a school, day care center or youth center while children are present

should be subject to the misdemeanor punishment of Health & Safety Code section 11357(b)(2),

which imposes a misdemeanor punishment of up to six months for a person over 18 who

possesses more than 4 grams of concentrated cannabis. Section 11362.1 generally allows persons

over 21 to possess up to 8 grams of concentrated cannabis; but it is subject to section

11362.3(a)(5), which provides that section 11362.1 does not permit “any person . . . to possess . . .

E. What is the punishment for persons over 21 who unlawfully possess

marijuana?

i. Punishment for possession of 28.5 grams of marijuana or less by persons 21 years or older

16

cannabis or cannabis products in or upon the grounds of school, day care center, or youth center

while children are present.” Thus, the punishment prescribed in section 11357(b)(2) governs.

b. Punishment for possession of less than 28.5 grams of marijuana or 8 grams of concentrated cannabis in an open container in vehicles Pursuant to Health and Safety Code sections 11362.3(a)(4) and 11362.4(b), if a person over 21

possesses any amount of marijuana or concentrated cannabis (i.e., even less than 28.5 grams of

marijuana or 8 ounces of concentrated cannabis) in an “open container or open package of

marijuana or marijuana products while driving, operating, or riding in the passenger seat or

compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for

transportation[,]” then the person is “guilty of an infraction punishable by no more than a two-

hundred-fifty-dollar ($250) fine, unless such activity is otherwise permitted by state and local

law[.]” (Health & Saf. Code, §§ 11362.3(a)(4) and 11362.4(b).)

Some of the same conduct is punishable by a lesser fine under Vehicle Code section 23222(b),

which provides that, subject to some exceptions (see this IPG, question 1-D-iii at pp. 13-14)

“every person who has in his or her possession on his or her person, while driving a motor

vehicle upon a highway or on lands, as described in subdivision (b) of Section 23222, any

receptacle containing any cannabis or cannabis products, as defined by Section 11018.1 of the

Health and Safety Code, which has been opened or has a seal broken, or loose cannabis flower

not in a container, is guilty of an infraction punishable by a fine of not more than one hundred

dollars ($100).” (Veh. Code, § 23220(b)(1).)

Since section 11362.3(a)(4) applies to anyone driving or riding in a vehicle, and applies to

possession of an open container anywhere in the passenger compartment, and carries a stiffer

fine than a violation of Vehicle Code section 23220(b), it will always make sense to cite for a

violation of the former rather than the latter section.

It remains unlawful for persons in California to possess over 28.5 grams of nonmedical

marijuana (unless the marijuana is the product of the person’s six living marijuana plants and is

kept secured in the person’s residence) or over 8 grams of concentrated cannabis. Health and

Safety Code section 11357(b) provides: “Except as authorized by law, possession of more than

28.5 grams of cannabis, or more than four grams of concentrated cannabis, shall be punished as

ii. Punishment for possession of over 28.5 grams of marijuana or 8 grams of concentrated cannabis by persons 18 years or older

17

follows: . . . (2) Persons 18 years of age or over who possess more than 28.5 grams of cannabis,

or more than four grams of concentrated cannabis, or both, shall be punished by imprisonment

in a county jail for a period of not more than six months or by a fine of not more than five

hundred dollars ($500), or by both that fine and imprisonment.” (Health & Saf. Code, §

11357(b).)

Health and Safety Code section 11362.1 (see this IPG memo, question 1 at p. 9) did not legalize

possession of nonmedical marijuana for persons under 21 years of age. It remains unlawful for

persons under 21 to possess nonmedical marijuana. However, generally, the punishment for

possession of such marijuana is just an infraction if the amount possessed is less than 28.5

grams of marijuana or 4 grams of concentrated cannabis and just a misdemeanor if the amount

is more than 28.5 grams of marijuana or 4 grams of concentrated cannabis. (Health & Saf. Code,

§ 11357.)

Generally, it is an infraction for persons under 21 to possess less than 28.5 grams of marijuana or

4 grams of concentrated cannabis, but the infraction can be elevated to a misdemeanor if it is

possessed on school grounds when children are present.

Health and Safety Code section 11357(a) states: “Except as authorized by law, possession of not more than 28.5 grams of cannabis, or not more

than four grams of concentrated cannabis, or both, shall be punished or adjudicated as follows:

(1) Persons under the age of 18 shall be guilty of an infraction and shall be required to: (A) Upon a finding that a first offense has been committed, complete four hours of drug

2. Is simple possession of marijuana now lawful in California for persons under 21? No, but it is usually just an infraction.

i. Punishment for possession of under 28.5 grams of marijuana or 4 grams of concentrated cannabis by persons under 18, or under 21, years of age

A. What is the punishment for persons under 21 who unlawfully

possess nonmedical marijuana?

Editor’s note: Persons under 21 or under 18 years of age may lawfully possess medical marijuana.

Unlike Prop 64, neither the CUA nor the MMP (see this IPG memo, question 12 at pp. 63-65) draw any

distinction between adults and children when it comes to possession of medical marijuana.

18

education or counseling and up to 10 hours of community service over a period not to exceed 60

days.

(B) Upon a finding that a second offense or subsequent offense has been committed,

complete six hours of drug education or counseling and up to 20 hours of community service

over a period not to exceed 90 days.

(2) Persons at least 18 years of age but less than 21 years of age shall be guilty of an

infraction and punishable by a fine of not more than one hundred dollars ($100).”

Health and Safety Code section 11357(b) states: “Except as authorized by law, possession

of more than 28.5 grams of cannabis, or more than four grams of concentrated cannabis, shall

be punished as follows: (1) Persons under the age of 18 who possess more than 28.5 grams of

marijuana or more than four grams of concentrated cannabis, or both, shall be guilty of an

infraction and shall be required to: ¶ (A) Upon a finding that a first offense has been committed,

complete eight hours of drug education or counseling and up to 40 hours of community service

over a period not to exceed 90 days. ¶ (B) Upon a finding that a second or subsequent offense

has been committed, complete 10 hours of drug education or counseling and up to 60 hours of

community service over a period not to exceed 120 days.” (Emphasis added.)

The punishment for possession of less than 28.5 grams or 4 grams of concentrated cannabis on

school grounds changes depending on whether the person is under 21 or under 18.

Health and Safety Code section 11357(c) makes it a misdemeanor subject to the following

punishment for any person over 18 (so it would include persons over 18 but under 21) “who

possesses not more than 28.5 grams of cannabis, or not more than four grams of concentrated

cannabis, upon the grounds of, or within, any school providing instruction in

kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-

related programs . . . : (1) A fine of not more than two hundred fifty dollars ($250), upon a

finding that a first offense has been committed. ¶ (2) A fine of not more than five hundred

dollars ($500), or by imprisonment in a county jail for a period of not more than 10 days, or

ii. Punishment for possession of over 28.5 grams of marijuana or 4 grams of concentrated cannabis by persons under 18 years of age

iii. Punishment for possession of less than 28.5 grams or 4 grams of concentrated cannabis on school grounds by persons under 21

19

both, upon a finding that a second or subsequent offense has been committed.” (Emphasis

added by IPG.)

Health and Safety Code section 11357(d) makes it an infraction for someone under 18

years to possess “not more than 28.5 grams of marijuana, or not more than four grams of

concentrated cannabis, upon the grounds of, or within, any school providing instruction in

kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-

related programs . . .”. (Health & Saf. Code, § 11357(d).) However, the punishment is the same

punishment imposed for someone under 18 to possess more than 28.5 grams of marijuana or 4

grams of concentrated cannabis in general, i.e., the punishment is that “provided in paragraph

(1) of subdivision (b)” of section 11357. (Health & Saf. Code, § 11357(d).)

The punishment defined in “paragraph (1) of subdivision (b) of section 11357” is: “(A) Upon a

finding that a first offense has been committed, complete eight hours of drug education or

counseling and up to 40 hours of community service over a period not to exceed 90 days. ¶ (B)

Upon a finding that a second or subsequent offense has been committed, complete 10 hours of

drug education or counseling and up to 60 hours of community service over a period not to

exceed 120 days.” (Health & Saf. Code, § 11357(b)(1).)

Prop 64 did not legalize the planting, cultivating, harvesting, drying and processing of any

amount of nonmedical marijuana under any and all circumstances. However, it did make such

conduct* completely lawful under state law for persons over 21 under certain circumstances.

Health and Safety Code section 11358, which authorizes the punishment of a person who

“plants, cultivates, harvests, dries, or processes” marijuana remains on the books. However,

Prop 64 enacted Health and Safety Code section 11362.1, which made cultivation of marijuana

completely lawful under state law in certain circumstances.

3. Is the planting, cultivation, harvesting, drying, or processing of nonmedical marijuana now lawful for persons over 21? Yes, under limited circumstances. (The impact of Prop 64 on H&S Code section 11358)

*Editor’s note: For purposes of this IPG, we will use the term “cultivate” or “cultivation” to refer to all the

conduct described in Health and Safety Code section 11358. (See immediately below.)

20

Section 11362.1 (see this IPG, question 1 at p. 9) takes precedence over section 11358 because

while it states the law governing cultivation of marijuana is “[s]ubject to Sections 11362.2,

11362.3, 11362.4, and 11362.45,” it also states “but notwithstanding any other provision

of law . . .” (Health & Saf. Code, § 11362.1(a), emphasis added by IPG.) Section 11358 is

another “provision of law.”

Under section 11362.1, “it shall be lawful under state and local law, and shall not be a violation of

state or local law, for persons 21 years of age or older to: (1) . . . process . . . not more

than 28.5 grams of cannabis not in the form of concentrated cannabis; (2) . . .

process . . . not more than eight grams of cannabis in the form of concentrated

cannabis, including as contained in cannabis products; (3) . . . plant, cultivate, harvest,

dry, or process not more than six living cannabis plants and possess the cannabis produced by

the plants . . .”. (Health & Saf. Code, § 11362.1(a), emphasis added by IPG.)

Health and Safety Code section 11362.2 places limits, however, on how those six plants may be

cultivated in order for the cultivation to be lawful. It states: “(a) Personal cultivation of cannabis

under paragraph (3) of subdivision (a) of Section 11362.1 is subject to the following restrictions:

(1) A person shall plant, cultivate, harvest, dry, or process plants in accordance with local

ordinances, if any, adopted in accordance with subdivision (b).

(2) The living plants and any cannabis produced by the plants in excess of 28.5 grams are kept

within the person’s private residence, or upon the grounds of that private residence (e.g., in an

outdoor garden area), are in a locked space, and are not visible by normal unaided vision from a

public place.

(3) Not more than six living plants may be planted, cultivated, harvested, dried, or processed

within a single private residence, or upon the grounds of that private residence, at one time.”

(Health & Saf. Code, § 11362.2(a).)

Prop 64 recognizes that a local jurisdiction may place regulations on the cultivation of the six

living marijuana plants: “A city, county, or city and county may enact and enforce reasonable

regulations to reasonably regulate the actions and conduct in paragraph (3) of subdivision (a) of

Section 11362.1.” (Health & Saf. Code, § 11362.2(b)(1).)

A. Can a local ordinance simply prohibit the growing of marijuana

within the city or county?

21

Prop 64 also recognizes that a location jurisdiction may prohibit the cultivation of six living

marijuana plants if the plants are being grown outdoors: “a city, county, or city and county may

completely prohibit persons from engaging in actions and conduct under paragraph (3) of

subdivision (a) of Section 11362.1 outdoors upon the grounds of a private residence.” (Health &

Saf. Code, § 11362.2(b)(3).)

However, Prop 64 does prevent a local jurisdiction from completely prohibiting the cultivation of

six living marijuana plants indoors. Health and Safety Code section 11362.2(b)(2) provides:

“Notwithstanding paragraph (1), no city, county, or city and county may completely prohibit

persons engaging in the actions and conduct under paragraph (3) of subdivision (a) of Section

11362.1 inside a private residence, or inside an accessory structure to a private residence* located

upon the grounds of a private residence that is fully enclosed and secure.”

Health and Safety Code section 11362.2(a)(3) provides: “Not more than six living plants may be

planted, cultivated, harvested, dried, or processed within a single private residence, or upon the

grounds of that private residence, at one time.” (Health & Saf. Code, § 11362.2(a)(3).) Thus, if

two or more people are living together, they cannot simultaneously grow more than six plants.

Prop 64 set up a comprehensive system to license, regulate, and tax the distribution of

marijuana. Engaging in “commercial marijuana activity,” which includes the cultivation and

processing marijuana and marijuana products, is lawful if a person is licensed to do so and the

activity is done in accordance with the requirements and regulations governing licensed

commercial marijuana activity. However, Business and Professions Code section 26067(b)

prohibits the cultivation of marijuana absent a license: “A person or entity shall not cultivate

cannabis without first obtaining a state license issued by the department pursuant to this

section.” (Bus. & Prof. Code, § 26067(b), emphasis added by IPG.) And Business and

Professions Code section 26038(c) expressly provides: “Notwithstanding subdivision (a),

*Editor’s note: “For purposes of [section 11362.2], ‘private residence’ means a house, an apartment

unit, a mobile home, or other similar dwelling.” (Health & Saf. Code, § 11362.2(b)(5); see also this IPG

memo, I-B at p. 11.)

C. Does Prop 64 allow the cultivation of virtually unlimited amounts of

marijuana once the state licenses the person to cultivate marijuana?

B. If two or more people live in the same private residence can each

grow six marijuana plants and keep the produce from those plants?

22

criminal penalties shall continue to apply to an unlicensed person engaging in commercial

cannabis activity in violation of this division.” (Bus. & Prof. Code, § 26038(c).) Moreover, such

regulation and licensing is not available yet and won’t be until at least 2018. Thus, for now, even

cultivation and processing of nonmedical marijuana as necessary to engage in commercial

marijuana activity remains unlawful. (See this IPG, question 11 at pp. 61-62 [discussing the

regulation and taxation scheme in more detail].)

There is no punishment for persons who are over 21 who cultivate six or less living marijuana

plants unless the person does not cultivate the plants in accordance with local ordinances, does

not keep the plants and their produce “within the person’s private residence, or upon the

grounds of that private residence (e.g., in an outdoor garden area),” does not keep the plants in a

locked space that is “not visible by normal unaided vision from a public place,” and does not

grow more than six living plants in “a single private residence, or upon the grounds of that

private residence, at one time.” (Health & Saf. Code, §§ 11362.1(a)(3) and 11362.2(a)(1)-(3).)

Health and Safety Code section 11362.4(e) states that “[a] person who violates the restrictions in

subdivision (a) of Section 11362.2 is guilty of an infraction punishable by no more than a two-

hundred-fifty-dollar ($250) fine.” (Health & Saf. Code, § 11362.4(e).)

Generally, the punishment for a person “18 years of age or over who plants, cultivates, harvests,

dries, or processes more than six living cannabis plants” is “imprisonment in a county jail for a

period of not more than six months or by a fine of not more than five hundred dollars ($500), or

by both such fine and imprisonment.” (Health & Saf. Code, § 11358(c).)

D. What is the punishment for persons over 21 who cultivate marijuana?

i. Punishment for cultivation of six or less living marijuana plants by persons 21 years or older in compliance with Health & Safety Code section 11362.2(a)

ii. Punishment for cultivation of six or less living marijuana plants by persons 21 years or older in noncompliance with Health & Safety Code section 11362.2(a)

iii. Punishment for cultivation of more than six living marijuana plants by persons 21 years (or even 18 years) or older

23

However, subdivision(d) of section 11358 provides: “Notwithstanding subdivision (c), a person

18 years of age or over who plants, cultivates, harvests, dries, or processes more than six living

cannabis plants, or any part thereof, except as otherwise provided by law, may be punished by

imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code if:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667* of the Penal Code or for an

offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(2) The person has two or more prior convictions under subdivision (c); or

(3) The offense resulted in any of the following:

(A) Violation of Section 1052 of the Water Code relating to illegal diversion of water;

(B) Violation of Section 13260, 13264, 13272, or 13387 of the Water Code relating to discharge of

water;

(C) Violation of Fish and Game Code Section 5650 or Section 5652 of the Fish and Game Code

relating to waters of the state;

(D) Violation of Section 1602 of the Fish and Game Code relating to rivers, streams and lakes;

(E) Violation of Section 374.8 of the Penal Code relating to hazardous substances or Section

25189.5, 25189.6, or 25189.7 of the Health and Safety Code relating to hazardous waste;

*Editor’s note: Penal Code section 667(e)(2)(C)(iv) provides: “The defendant suffered a prior serious

and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following

felonies: (I) A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and

Institutions Code. (II) Oral copulation with a child who is under 14 years of age, and who is more than 10

years younger than he or she as defined by Section 288a, sodomy with another person who is under 14

years of age and more than 10 years younger than he or she as defined by Section 286, or sexual

penetration with another person who is under 14 years of age, and who is more than 10 years younger than

he or she, as defined by Section 289. (III) A lewd or lascivious act involving a child under 14 years of age, in

violation of Section 288. (IV) Any homicide offense, including any attempted homicide offense, defined in

Sections 187 to 191.5, inclusive. (V) Solicitation to commit murder as defined in Section 653f. (VI) Assault

with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of

Section 245. (VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision

(a) of Section 11418. (VIII) Any serious and/or violent felony offense punishable in California by life

imprisonment or death.”

24

(F) Violation of Section 2080 of the Fish and Game Code relating to endangered and threatened

species or Section 3513 of the Fish and Game Code relating to the Migratory Bird Treaty Act; or

Section 2000 of the Fish and Game Code relating to the unlawful taking of fish and wildlife*; or

(G) Intentionally or with gross negligence* causing substantial environmental harm* to public

lands or other public resources.” (Health & Saf. Code, § 11358(d).)

*Editor’s note: Proposition 64 does not define either “gross negligence” or “substantial environmental harm”

as those terms are used in section 11358(d)(3)(G). “Gross negligence” is a term used in many different contexts,

including when describing the mental state necessary to be found criminally liable for certain offenses. In the

abstract, “gross negligence” has been “‘defined as the exercise of so slight a degree of care as to raise a

presumption of conscious indifference to the consequences.’ (People v. Watson (1981) 30 Cal.3d 290, 296

[alternate citation omitted].) ‘The state of mind of a person who acts with conscious indifferences to the

consequences is simply, “I don’t care what happens.”’ (People v. Bennett (1991) 54 Cal.3d 1032, 1036

[alternate citation omitted].) ‘A finding of gross negligence is made by applying an objective test: if a reasonable

person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have

had such an awareness.’ (Watson, at p. 296 [alternate citation omitted]).” (People v. Cady (2016) 7

Cal.App.5th 134, 147-148.) This is a good starting place. The CALCRIM instruction on involuntary

manslaughter defines gross negligence as follows: “Gross negligence involves more than ordinary carelessness,

inattention, or mistake in judgment. A person acts with gross negligence when: ¶ 1. He or she acts in a reckless

way that creates a high risk of death or great bodily injury. ¶ AND 2. A reasonable person would have known

that acting in that way would create such a risk. In other words, a person acts with gross negligence when the

way he or she acts is so different from the way an ordinarily careful person would act in the same situation that

his or her act amounts to disregard for human life or indifference to the consequences of that act.” (CALCRIM

582 [involuntary manslaughter]; see also CALCRIM 970 [same definition for discharge of firearm].) However,

this language defines gross negligence in the context of a crime requiring a risk of harm or actual harm to

human life. When it comes to defining gross negligence for purposes of section 11358(c)(3)(G), there is no

requirement of harm to humans at all - just environmental harm to public lands or other public resources.

Thus, only portions of the language used in the CALCRIM instructions on “gross negligence” will be relevant.

The term “substantial environmental harm” is also not defined nor is it used in any other statute. Thus,

prosecutors are in uncharted territory. “Substantial” is defined in Black’s Law Dictionary as, inter alia, “1. Of,

relating to, or involving substance; material <substantial change in circumstances>. 2. Real and not imaginary;

having actual, not fictitious, existence <a substantial case on the merits>. 3. Important, essential, and material;

of real worth and importance <a substantial right>. ¶¶ 6. Considerable in amount or value; large in volume or

number <substantial support and care>.” (Black's Law Dictionary (10th ed. 2014).) Some guidance may be

provided by looking at how cases interpret the term “significant effect on the environment” as defined in the

Public Resource Code, which defines “[s]ignificant effect on the environment” as meaning “a substantial, or

potentially substantial, adverse change in the environment.” (Pub. Res. Code, § 21068.)

* Editor’s note: SB 94 added Section 2000 of the Fish and Game Code relating to the unlawful taking of fish

and wildlife to the list of offenses to subparagraph (F).

25

a. Is a person eligible for felony punishment for cultivation if the defendant has two or more prior convictions for cultivation that occurred before the passage of Prop 64?

Pursuant to paragraph (2) of subdivision (d) of section 11358, a defendant over 18 who cultivates

marijuana “may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the

Penal Code for a period of two, three or four years if: . . . The person has two or more prior

convictions under paragraph (2) . . .” (Health & Saf. Code, § 11358(d)(2), emphasis added by

IPG.) Does this mean the person is eligible for enhanced punishment if the defendant had

convictions for cultivation in violation of section 11358 that pre-date the passage of Prop 64?

On its face, section 11358(d)(2) only allows felony punishment if the person has “two or more

prior convictions under subdivision (c).” (Emphasis added by IPG.) Before the passage of

Prop 64, section 11360 did not have a subdivision (c). Equitable and logical arguments can be

made that, regardless of when the prior convictions occurred, someone who has two prior

convictions for cultivation should be eligible for felony punishment if they are subsequently

convicted of unlawfully cultivating marijuana in the post-Prop 64 world. However, the

arguments for requiring that the “two or more prior convictions under subdivision (c)” be shown

to have occurred after the passage of Prop 64 are more likely to prevail under the plain language

of the statute requiring prior convictions under subdivision (c). On the other hand, if a

defendant utilizes Prop 64’s mechanism for resentencing on a conviction for section 11358 (see

Health & Saf. Code, § 11361.8(a)&(e)), and the court reduces the conviction to a violation of

section 11358(c), a subsequent offense could be treated as a felony since the defendant would

then have “two or more prior convictions under subdivision (c)” (see Health & Saf. Code, §

11358(d)(2)).

As a practical matter, even assuming that pre-Prop 64 prior convictions could potentially qualify

as elevating convictions without any resentencing occurring, it would be necessary to show the

prior convictions involved cultivation of at least six plants – something that might be difficult to

do because of limitations on what can be used in proving the nature of the prior convictions.

Before the passage of Prop 64, there would be no call, for example, to have the defendant admit

the amount of plants being cultivated.

26

In all likelihood, section 11358 will be viewed as a wobbler. Section 11358(c) generally provides a misdemeanor punishment for persons over 21 who

cultivate more than six living marijuana plants. (See Pen. Code, § 17(a) [defining what crimes

constitute misdemeanors].)

Section 11358(d) however, states: “Notwithstanding subdivision (c), a person 18 years of age or

over who plants, cultivates, harvests, dries, or processes more than six living marijuana plants. . .

except as otherwise provided by law, may be punished by imprisonment pursuant to

subdivision (h) of Section 1170 of the Penal Code if [certain conditions are found to be

present – see this IPG, section 3-D-iii at pp. 22-25].” (Emphasis added by IPG.)

Penal Code section 1170(h) does provide for felony punishment, albeit service of the sentence is

in local jails unless the defendant has suffered certain prior felony convictions. (See Pen. Code §

1170(h)(1) [“Except as provided in paragraph (3), a felony punishable pursuant to this

subdivision where the term is not specified in the underlying offense shall be punishable by a

term of imprisonment in a county jail for 16 months, or two or three years.”]; 1170(h)(3)

[allowing for service in state prison if a person has certain designated prior convictions or is

required to register as sex offender].)

Section 11358(d), however, does not say punishment as a felony “shall” be imposed if the

conditions designated in that subdivision are present. Rather, it simply says a court “may”

impose punishment pursuant to section 1170(h). Granted, “judicial authorities have construed

‘may’ as both discretionary and mandatory.” (People v. Ledesma (1997) 16 Cal.4th 90, 95.)

But “[t]he ordinary import of ‘may’ is a grant of discretion.” (In re Richard E. (1978) 21 Cal.3d

349, 354. And, in any event, when it cannot be determined if it is being used in the mandatory or

discretionary sense, courts will focus “more broadly on the language, context, and history of the

statute.” (People v. Ledesma (1997) 16 Cal.4th 90, 95.)

Here, while subdivision (d) provides that the defendant “may” be punished by imprisonment

pursuant to 1170(h), the other subdivisions (a)-(c) use the term “shall” when describing what

punishment must be imposed when a defendant violates section 11358 under the circumstances

described in those subdivisions. This strongly suggests that the use of the term “may” was

E. Is unlawful cultivation of marijuana by persons over 21 in violation

of section 11358 a wobbler?

27

intentional and that it was used to differentiate between the mandatory nature of the

punishment under subdivisions (a) through (c) and the discretionary nature of the punishment

under subdivision (d). (See People v. Jones (1988) 46 Cal.3d 585, 596 [“when different words

are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is

compelling that a difference in meaning was intended”].) Accordingly, a court will likely have

the option of punishing a defendant whose cultivation was done under the circumstances

identified in subdivision (d) as either a felony or a misdemeanor pursuant to subdivision (c).

Health and Safety Code section 11362.1 (see this IPG memo, question 1 at p. 9) did not legalize

cultivation of nonmedical marijuana for persons under 21 years of age. It remains unlawful for

persons under 21 to cultivate nonmedical marijuana. However, generally the punishment for

cultivation of nonmedical marijuana is just an infraction if the cultivation is done by someone

under 18; and is also an infraction if the person is over 18, but under 21, and no more than six

plants are cultivated. (Health and Safe. Code, § 11358.)

Subdivision (a) of section 11358 provides: “Every person under the age of 18 who plants,

cultivates, harvests, dries, or processes any marijuana plants shall be punished in the same

manner provided in paragraph (1) of subdivision (b) of Section 11357.” (Health & Saf. Code, §

11358(a), emphasis added.)

The punishment defined in section 11357(b)(1) is an infraction and requires the following: “(A)

Upon a finding that a first offense has been committed, complete eight hours of drug education

or counseling and up to 40 hours of community service over a period not to exceed 90 days. (B)

Upon a finding that a second or subsequent offense has been committed, complete 10 hours of

drug education or counseling and up to 60 hours of community service over a period not to

exceed 120 days.” (Health & Saf. Code, § 11357(b)(1).)

It appears to be an infraction for persons under 18 to cultivate marijuana regardless of the

number of plants being cultivated – unless it can be shown they were possessed for sale.

i. Punishment for cultivation of nonmedical marijuana by persons under the age of 18

F. Is the planting, cultivation, harvesting, drying, or processing of

nonmedical marijuana now lawful for persons under 21? No, but it

is usually just an infraction if the person is under 18.

28

Although it requires leaping from statute to statute to figure it out, persons under the age of 18

who plant, cultivate, harvest, dry, or process no more than six nonmedical marijuana plants

without complying with the limitations imposed by Health and Safety Code section 11362.2(a) on

such activity (as is necessary for the conduct to be deemed lawful) are also subject to the

punishment designated in Health and Safety Code section 11357(b)(1).

In order for a defendant cultivating marijuana to take advantage of the safe harbor provided by

Health and Safety Code section 11362.2, no more than six living plants can be cultivated at one

time, the growing of the plants must be done in accordance with any local ordinances, and the

plants must be kept within the person’s private residence, or upon the grounds of that private

residence in a locked space, and be invisible to view by normal unaided vision from a public

place. (Health & Saf. Code, § 11362.2(a)(1)-(3).)

Pursuant to subdivision (f) of Health and Safety Code section 11362.4, “a person under the age of

18 who violates the restrictions in subdivision (a) of Section 11362.2 shall be punished under

subdivision (a) of Section 11358.” (Health & Saf. Code, § 11362.4(f).)

Subdivision (a) of section 11358 states: “Every person under the age of 18 who plants, cultivates,

harvests, dries, or processes any cannabis plants shall be punished in the same manner provided

in paragraph (1) of subdivision (b) of Section 11357.” (Health & Saf. Code, § 11358(a).)

Section 11357(b)(1) provides: “Except as authorized by law, possession of more than 28.5 grams

of cannabis, or more than four grams of concentrated cannabis, shall be punished as follows: (1)

Persons under the age of 18 who possess more than 28.5 grams of cannabis or more than four

grams of concentrated cannabis, or both, shall be guilty of an infraction and shall be required to:

(A) Upon a finding that a first offense has been committed, complete eight hours of drug

education or counseling and up to 40 hours of community service over a period not to exceed 90

days.

(B) Upon a finding that a second or subsequent offense has been committed, complete 10 hours

of drug education or counseling and up to 60 hours of community service over a period not to

exceed 120 days.” (Health & Saf. Code, § 11357(b)(1)(A)&(B).)

ii. Punishment for cultivation of nonmedical marijuana in violation of the restrictions identified in section 11362.1 by persons under the age of 18

29

Health and Safety Code section 11358(b) provides: “Every person at least 18 years of age but less

than 21 years of age who plants, cultivates, harvests, dries, or processes not more than six living

marijuana plants shall be guilty of an infraction and a fine of not more than one hundred dollars

($100).” (Emphasis added by IPG.)

However, if the person is over 18 years of age (and regardless of whether they over or under 21

years of age), the punishment for cultivation of more than six living marijuana plants is the same

as for someone over 21: either a misdemeanor or felony. (See Health & Saf. Code, §

11358(c)&(d).) This IPG lays out the actual statutory language of subdivisions (c) and (d) at

section 3-D-iii, pp. 22-24.)

Prop 64 did not legalize the unlicensed possession for sale of nonmedical marijuana. However, it

did reduce the punishment for possession of marijuana for sale in certain circumstances and it

set up a comprehensive system to license, regulate, and tax commercial marijuana activity

(which will ultimately permit licensed possession of marijuana for sale).

Unless certain conditions are met which convert the punishment into a felony, Health and Safety

Code section 11359 generally makes it a misdemeanor for a person over 18 to possess marijuana

for sale when the person does not have a license authorizing the person to engage in commercial

marijuana activity.

Specifically, section 11359 states: “Every person who possesses for sale any cannabis, except as

otherwise provided by law, shall be punished as follows: . . .

(b) Every person 18 years of age or over who possesses cannabis for sale shall be punished by

imprisonment in a county jail for a period of not more than six months or by a fine of not

iii. Punishment for cultivation of nonmedical marijuana by persons over the age of 18 but under the age of 21

4. Is possession for sale of marijuana now lawful for persons over 21? No, but it is now usually a misdemeanor. (The impact of Prop 64 on H&S Code section 11359)

A. What is the punishment for the unlicensed possession of

nonmedical marijuana for sale by a person over 18?

30

more than five hundred dollars ($500), or by both such fine and imprisonment.”

(Health & Saf. Code, § 11359(b).)

(c) Notwithstanding subdivision (b), a person 18 years of age or over who possesses cannabis for

sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal

Code if:

(1) The person has one or more prior convictions for an offense specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667*of the Penal Code or for an

offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(2) The person has two or more prior convictions under subdivision (b); or (3) The offense occurred in connection with the knowing sale or attempted sale of

marijuana to a person under the age of 18 years.

(d) Notwithstanding subdivision (b), a person 21 years of age or over who possesses marijuana

for sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the

Penal Code if the offense involves knowingly hiring, employing, or using a person 20 years of age

or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving away,

preparing for sale, or peddling any cannabis.”

As noted in this IPG, question 1 at p. 9, Health and Safety Code section 11362.1, states “it shall be

lawful under state and local law, and shall not be a violation of state or local law, for persons 21

years of age or older to: (1) Possess . . . not more than 28.5 grams of cannabis not in the form of

*Editor’s note: Unlike Health and Safety Code section 11357, section 11359 generally does not lay out

separate punishment for persons over 18 but under 21 that is distinct from the punishment imposed for

persons over 21. (But see Health & Saf. Code, § 11359(d).)

*Editor’s note: For the crimes covered by Penal Code section 667(e)(2)(C)(iv), see this IPG, section 3-D-iii

at p. 23.

*Editor’s note: Pursuant to Penal Code section 17(a), a violation of section 11359(b) is a misdemeanor

absent the circumstances described in section 11359(c).

B. If the defendant possesses marijuana for sale but the marijuana is

less than 28 grams, or the marijuana was the product of the personal

cultivation of less than six plants, may the defendant still be

punished pursuant to section 11359?

31

concentrated cannabis; (2) Possess . . . not more than eight grams of cannabis in the form of

concentrated cannabis, including as contained in marijuana products; (3) Possess . . . not more

than six living cannabis plants and possess the cannabis produced by the plants; . . .” (Health &

Saf. Code, § 11362.1(a), emphasis added by IPG.)

Based on this language, expect defendants to argue that if the amount of marijuana possessed

falls within these guidelines, they cannot be prosecuted for possessing that amount for sale,

especially since section 11362.1 permits persons to possess marijuana under those guidelines

“[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any

other provision of law . . .” (Health & Saf. Code, § 11362.1(a), emphasis added by IPG.)

However, for several reasons this argument (while not completely frivolous) is flawed.

First, the language of section 11362.1(a) provides: “ . . . it shall be lawful under state and local

law, and shall not be a violation of state or local law, for persons 21 years of age or older to:(1)

Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older

without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of

concentrated cannabis; ¶ (2) Possess, process, transport, purchase, obtain, or give away to

persons 21 years of age or older without any compensation whatsoever, not more than eight

grams of marijuana in the form of concentrated cannabis, including as contained in marijuana

products; ¶ (3) Possess, plant, cultivate, harvest, dry, or process not more than six living

cannabis plants and possess the cannabis produced by the plants; ¶ (4) Smoke or ingest cannabis

or cannabis products; and ¶(5) Possess, transport, purchase, obtain, use, manufacture, or give

away cannabis accessories to persons 21 years of age or older without any compensation

whatsoever.” (Health & Saf. Code, § 11362.1(a).) Nowhere in the language authorizing

possession does it use the term “possess for sale.”

Second, the language of section 11362.1 allows for a variety of conduct, including transportation,

purchasing, and giving away marijuana in addition to possession. But, conspicuously and

significantly, it does not authorize the conduct of selling marijuana. The absence of any

reference to the sale of marijuana, coupled with the fact that Health and Safety Code section

11360 continues to make it unlawful to sell marijuana in any amount, renders it illogical to

interpret the term “possess” in section 11362.1 to include possess for sale. Why would the

unlicensed sale of less than an ounce of marijuana (or the product of six plants grown) remain

unlawful but the unlicensed possession for sale be lawful?

32

Third, cases have always drawn a distinction between possession and possession for sale. If the

argument is correct then it would have been impermissible to prosecute someone under the

marijuana laws for possessing under an ounce of marijuana for a felony even before the passage

of Prop 64. This is because since the beginning of 2011, possession of less than an ounce of

marijuana has been an infraction (see former Health & Saf. Code, § 11357(b)) and before that it

was only a misdemeanor (see former Health & Saf. Code, § 11357(b)). Yet no court ever held

that a defendant could not be prosecuted as a felon, either before or after 2o11, if the defendant

possessed less than an ounce of marijuana. To the contrary, courts have presumed or held the

opposite. (See People v. Walker (2015) 237 Cal.App.4th 111, 119 [finding defendant charged

with felony possession for sale based on possession less than an ounce of marijuana was entitled

to lesser included offense of infraction under section 11357(b) but remanding for retrial on

felony charge]; People v. Berry (unreported) 2002 WL 1788548, at *5 [“the crime of

possession of marijuana for sale can be established by possession of less than 28.5 grams of

marijuana”].)

In all likelihood, section 11359 will be viewed as a wobbler.

Section 11359(b) generally provides a misdemeanor punishment for possessing marijuana for

sale. (See Pen. Code, § 17(a) [defining what crimes constitute misdemeanors].) Section 11359(c)

however, states: “Notwithstanding subdivision (b), a person 18 years of age or over who

possesses cannabis for sale may be punished by imprisonment pursuant to subdivision (h)

of Section 1170 of the Penal Code if [certain conditions are found to be present – see this

IPG, section 4-A at pp. 29-30].” (Emphasis added by IPG.)

Section 11359(d) similarly states: “Notwithstanding subdivision (b), a person 21 years of age or

over who possesses cannabis for sale may be punished by imprisonment pursuant to

subdivision (h) of Section 1170 of the Penal Code if the offense involves knowingly

hiring, employing, or using a person 20 years of age or younger in unlawfully cultivating,

transporting, carrying, selling, offering to sell, giving away, preparing for sale, or peddling any

marijuana.” (Emphasis added by IPG.)

Penal Code section 1170(h) does provide for felony punishment, albeit service of the sentence is

in local jails unless the defendant has suffered certain prior felony convictions. (See Pen. Code §

C. Is the crime of possessing marijuana for sale by someone over 18 a

wobbler?

33

1170(h)(1) [“Except as provided in paragraph (3), a felony punishable pursuant to this

subdivision where the term is not specified in the underlying offense shall be punishable by a

term of imprisonment in a county jail for 16 months, or two or three years.”]; (h)(3) [allowing for

service in state prison if a person has certain designated prior convictions or is required to

register as sex offender].)

Neither subdivision (c) or (d) of section 11359 say punishment as a felony “shall” be imposed if

the conditions designated in that subdivision are present. Rather, both simply say a court

“may” impose punishment pursuant to section 1170(h). Granted, “judicial authorities have

construed ‘may’ as both discretionary and mandatory.” (People v. Ledesma (1997) 16 Cal.4th

90, 95.) But “[t]he ordinary import of ‘may’ is a grant of discretion.” (In re Richard E. (1978)

21 Cal.3d 349, 354. And, in any event, when it cannot be determined if the term “may” is being

used in the mandatory or discretionary sense, courts will focus “more broadly on the language,

context, and history of the statute.” (People v. Ledesma (1997) 16 Cal.4th 90, 95.)

Here, while subdivisions (c) and (d) provide that the defendant “may” be punished by

imprisonment pursuant to 1170(h), the other subdivisions (a)-(b) use the term “shall” when

describing what punishment must be imposed when a defendant violates section 11359 under the

circumstances described in those subdivisions. This strongly suggests that the use of the term

“may” was intentional and that it was used to differentiate between the mandatory nature of the

punishment under subdivisions (a) and (b) and the discretionary nature of the punishment

under subdivisions (c) and (d). (See People v. Jones (1988) 46 Cal.3d 585, 596 [“when

different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the

inference is compelling that a difference in meaning was intended”].) Accordingly, a court will

likely have the option of punishing a defendant whose cultivation was done under the

circumstances identified in subdivisions (c) or (d) as either a felony or as a misdemeanor with

the punishment described in subdivision (b).

Pursuant to subdivision (c) of section 11359, a defendant over 18 who “possesses marijuana for

sale may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal

D. If a defendant has two prior convictions for selling marijuana based

on offenses that occurred before the passage of Prop 64, does that

permit felony punishment for the post-Prop 64 crime of possessing

marijuana for sale?

34

Code if . . . (2) The person has two or more prior convictions under subdivision (b) . . .” (Health

& Saf. Code, § 11359(c)(2).)

Equitable and logical arguments can be made that regardless of when the prior convictions

occurred, someone who has two prior convictions of possessing marijuana for sale should be

eligible for felony punishment if they are subsequently convicted of possessing marijuana for sale

in the post-Prop 64 world. However, the arguments for requiring that the “two or more prior

convictions under subdivision (b)” be shown to have occurred after the passage of Prop 64 are

somewhat more compelling.

First, on its face, subdivision (c) only allows felony punishment if the person has “two or more

prior convictions under subdivision (b).” (Health & Saf. Code, § 11359(c)(2), emphasis

added by IPG.) Before the passage of Prop 64, section 11359 did not have a (b) section. Thus,

pre-Prop 64 convictions could not be convictions under subdivision (b).

Second, while it is illogical to allow someone who has multiple prior felony convictions for

possessing marijuana for sale that occurred before the passage of Prop 64 to be subject to no

more than misdemeanor punishment (especially considering that someone who racks up

multiple misdemeanor convictions for possessing marijuana for sale after the passage of Prop 64

may be subject to felony punishment), it is equally illogical to allow someone who actually has

multiple convictions for selling marijuana in violation of section 11360 to be convicted only of a

misdemeanor when they are subsequently convicted of possessing marijuana for sale in

violation of section 11359. Yet it cannot be disputed that Prop 64 permits such an outcome –

even when the marijuana sales convictions all occurred after the passage of Prop 64. (And vice-

versa: a defendant twice convicted of possessing marijuana for sale is not eligible for felony

punishment for a subsequent conviction of selling marijuana.) For that matter, someone who

has multiple convictions for selling or possessing for sale any other controlled substance than

marijuana is also clearly ineligible for felony punishment when convicted of possessing

marijuana for sale. Unfortunately, no matter how ridiculous the outcome of the language of

subdivision (c)(2), the outcome is likely dictated by the plain language of the statute.

*Editor’s note: On the other hand, if a defendant utilizes Prop 64’s mechanism for resentencing on a

conviction for violating section 11359 (see Health & Saf. Code, § 11361.8(a)&(e)), and the court reduces the

conviction to a violation of section 11359(b), a subsequent offense could be treated as a felony since the

defendant would then have “two or more prior convictions under subdivision (b)” (see Health & Saf. Code, §

11359(c)(2)).

35

Health and Safety Code section 11359(a) states: “Every person who possesses for sale any

cannabis, except as otherwise provided by law, shall be punished as follows: (a) Every person

under the age of 18 who possesses cannabis for sale shall be punished in the same manner

provided in paragraph (1) of subdivision (b) of Section 11357.” (Emphasis added by IPG.)

The punishment provided in Health and Safety Code section 11357(b)(1) is an infraction and

requires the person to: “(A) Upon a finding that a first offense has been committed, complete

eight hours of drug education or counseling and up to 40 hours of community service over a

period not to exceed 90 days. (B) Upon a finding that a second or subsequent offense has been

committed, complete 10 hours of drug education or counseling and up to 60 hours of community

service over a period not to exceed 120 days.” (Health & Saf. Code, § 11357(b)(1).)

Thus, the punishment for persons under the age of 18 for possessing any amount of marijuana

for sale is just an infraction.

Prop 64 did not legalize the unlicensed sale, transportation, giving way, or importing of

nonmedical marijuana. However, it did reduce the punishment for that conduct in certain

circumstances and it set up a comprehensive system to license, regulate, and tax commercial

marijuana activity (which will eventually permit the licensed and regulated sale and

transportation of marijuana).

Health and Safety Code section 11360 now generally makes it a misdemeanor for a person over

18 to transport, import into this state, sell, furnish, administer, or give away nonmedical

marijuana (or offer to do any of those things). However, depending on how much marijuana is

involved, the specific conduct (e.g., sale, giving away, transporting, etc.), and the presence of

other factors, a violation of section 11360 can be punished as an infraction or a felony.

5. Is the sale, furnishing, transportation, giving away, or importing of marijuana now lawful for persons over 21? No, but it is now usually a misdemeanor. (The impact of Prop 64 on H&S Code section 11360)

E. What is the punishment for the unlicensed possession for sale of

marijuana by persons under 18?

36

Health and Safety Code section 11360 (a) provides: “Except as otherwise provided by this section

or as authorized by law, 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 cannabis shall be punished as

follows: . . .

(2) Persons 18 years of age or over shall be punished by imprisonment in a county jail for

a period of not more than six months or by a fine of not more than five hundred dollars ($500),

or by both such fine and imprisonment.

(3) Notwithstanding paragraph (2), a person 18 years of age or over may be punished by

imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two,

three or four years if:

(A) The person has one or more prior convictions for an offense specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an

offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code;

(B) The person has two or more prior convictions under paragraph (2);

(C) The offense involved the knowing sale, attempted sale, or the knowing offer to sell,

furnish, administer or give away cannabis to a person under the age of 18 years; or

(D) The offense involved the import, offer to import, or attempted import into this state,

or the transport for sale, offer to transport for sale, or attempted transport for sale out of this

state, of more than 28.5 grams of cannabis or more than four grams of concentrated cannabis.”

A. What is the punishment for the unlicensed sale of, or offer to sell,

nonmedical marijuana by a person over 18?

*Editor’s note: Pursuant to Penal Code section 17(a), a violation of section 11360(a)(2) based on the sale of,

or offer to sell, marijuana is a misdemeanor absent the circumstances described in section 11360(a)(3).

*Editor’s note: For the crimes covered by Penal Code section 667(e)(2)(C)(iv), see this IPG, questions 3-D-

iii at p. 23.

*Editor’s note: For a discussion of whether a defendant over 18 can be punished even more severely

pursuant to Health and Safety Code section 11361, see this IPG, question 6-A at pp. 48-53.

37

Although some of the conduct described in section 11360 (e.g., giving away, offering to give away,

or transporting marijuana) is lawful (or just an infraction) if the amount of nonmedical

marijuana involved is not more than 28.5 grams of marijuana (see Health & Saf. Code, §

11362.2(a)(1)&(2) [legalizing the giving away, offering to give away, or transporting of no more

than 28.5 grams of marijuana or 8 grams of concentrated cannabis]; Health & Saf. Code, §

11360(b) [making it an infraction to give away, offer to give away, transport not more than 28.5

grams of marijuana other than concentrated cannabis]), no section authorizes the unlicensed

selling of, or offering to sell, nonmedical marijuana. Thus, a defendant over 18 who sells or

offers to sell less than 28.5 grams of nonmedical marijuana or less than 8 grams of concentrated

cannabis to someone over 18 is still subject to the punishment described in Health and

Safety Code section 11360(a)(2) or (3). (See this IPG, question 5-A at p. 36.)

In all likelihood, section 11360 will be viewed as a wobbler.

Section 11360(a)(2) generally provides a misdemeanor punishment for possessing marijuana for

sale. (See Pen. Code, § 17(a) [defining what crimes constitute misdemeanors].)

Section 11360(a)(3) however, states: “Notwithstanding paragraph (2), a person 18 years of age or

over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the

Penal Code for a period of two, three or four years if: [certain conditions are found to be

present – see this IPG, 5-A at p. 36].” (Emphasis added by IPG.)

Penal Code section 1170(h) does provide for felony punishment, albeit service of the sentence is

in local jails unless the defendant has suffered certain prior felony convictions. (See Pen. Code §

1170(h)(1) [“Except as provided in paragraph (3), a felony punishable pursuant to this

B. If a defendant over 18 sells, or offers to sell, marijuana to someone

over 18, but the marijuana is less than 28.5 grams or 8 grams of

concentrated cannabis, may the defendant still be punished

pursuant to section 11360?

C. Is the crime of selling, or offering to sell, marijuana by someone

over 18 a wobbler?

*Editor’s note: For a discussion of whether transporting or offering to transport marijuana (conduct

which is only subject to punishment under section 11360 if done for sale) is subject to the same

punishment as selling or offering to sell marijuana, see this IPG memo, question 5-F at pp. 41-43.)

38

subdivision where the term is not specified in the underlying offense shall be punishable by a

term of imprisonment in a county jail for 16 months, or two or three years.”]; (h)(3) [allowing for

service in state prison if a person has certain designated prior convictions or is required to

register as sex offender].)

Section 11360(a)(3) does not say punishment as a felony “shall” be imposed if the conditions

designated in that subdivision are present. Rather, it states a court “may” impose punishment

pursuant to section 1170(h). Granted, “judicial authorities have construed ‘may’ as both

discretionary and mandatory.” (People v. Ledesma (1997) 16 Cal.4th 90, 95.) But “[t]he

ordinary import of ‘may’ is a grant of discretion.” (In re Richard E. (1978) 21 Cal.3d 349, 354.

And, in any event, when it cannot be determined if the term “may” is being used in the

mandatory or discretionary sense, courts will focus “more broadly on the language, context, and

history of the statute.” (People v. Ledesma (1997) 16 Cal.4th 90, 95.)

Here, while paragraph (3) of subdivision (a) of section 11360 provides that the defendant “may”

be punished by imprisonment pursuant to 1170(h), the other paragraphs ((1) and (2)) of

subdivision (a) of section 11360 use the term “shall” when describing what punishment must be

imposed when a defendant violates section 11360 under the circumstances described in those

subdivisions. This strongly suggests that the use of the term “may” was intentional and that it

was used to differentiate between the mandatory nature of the punishment under paragraphs (1)

and (2) of subdivision (a) and the discretionary nature of the punishment under paragraph (3) of

subdivision (a). (See People v. Jones (1988) 46 Cal.3d 585, 596 [“when different words are

used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is

compelling that a difference in meaning was intended”].) Accordingly, a court will likely have

the option of punishing a defendant over 18 for selling or offering to sell marijuana when it is

done under the circumstances identified in paragraph (3) of subdivision (a) as either a felony or

as a misdemeanor.

39

Pursuant to subparagraph (B) of paragraph (3) of subdivision (a) of section 11360, a defendant

over 18 who sells or offers to sell marijuana “may be punished by imprisonment pursuant to

subdivision (h) of Section 1170 of the Penal Code for a period of two, three or four years if: . . .

(B) The person has two or more prior convictions under paragraph (2) . . .” (Health &

Saf. Code, § 11360(a)(3)(B), emphasis added by IPG.)

Equitable and logical arguments can be made that regardless of when the prior convictions

occurred, someone who has two prior convictions for selling, offering to sell, etc., should be

eligible for felony punishment if they are subsequently convicted of selling or offering to sell

marijuana in the post-Prop 64 world. However, the arguments for requiring that the “two or

more prior convictions under paragraph (2)” be shown to have occurred after the passage of

Prop 64 are somewhat more compelling.

First, on its face, section 11360(a)(3)(B) only allows felony punishment if the person has “two or

more prior convictions under paragraph (2).” (Health & Saf. Code, § 11360(a)(3)(B),

emphasis added by IPG.) Before the passage of Prop 64, section 11360 did not have paragraph

(2) under subdivision (a). Thus, pre-Prop 64 convictions could not be convictions under

paragraph (2) of subdivision (a).

Second, while it is illogical to allow someone who has multiple prior felony convictions for selling

or offering to sell marijuana that occurred before the passage of Prop 64 to be subject to no more

than misdemeanor punishment (especially considering that someone who racks up multiple

misdemeanor convictions for selling or offering to sell marijuana after the passage of Prop 64

may be subject to felony punishment), it is equally illogical to allow someone who actually has

multiple convictions for possessing marijuana for sale in violation of section 11359 to be

convicted only of a misdemeanor when they are subsequently convicted of selling or offering to

sell marijuana in violation of section 11360. Yet it cannot be disputed that Prop 64 permits such

an outcome – even when the marijuana sales convictions all occurred after the passage of Prop

D. If a defendant has two prior convictions for transporting, importing,

selling, furnishing, administering, or giving away (or offering to

transport, sell, furnish, administer, or give away) marijuana or

attempting to import or transport marijuana that occurred before

the passage of Prop 64, does that permit felony punishment for the

post-Prop 64 crime of selling or offering to sell marijuana?

40

64. (And vice-versa: a defendant twice convicted of selling or offering to sell marijuana is not

eligible for felony punishment for a subsequent conviction of possessing marijuana for sale.) For

that matter, someone who has multiple convictions for selling or possessing for sale any other

controlled substance than marijuana is also clearly ineligible for felony punishment when

convicted of selling or offering to sell marijuana. Unfortunately, no matter how ridiculous the

outcome, the outcome is dictated by the plain language of the statute.

Health and Safety Code section 11360(a) states: “Except as otherwise provided by this section or

as authorized by law, 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 cannabis shall be

punished as follows: (1) Persons under the age of 18 years shall be punished in the same manner

as provided in paragraph (1) of subdivision (b) of Section 11357.” (Emphasis added by IPG.)

The punishment provided in Health and Safety Code section 11357(b)(1) is an infraction and

requires the person to: “(A) Upon a finding that a first offense has been committed, complete

eight hours of drug education or counseling and up to 40 hours of community service over a

period not to exceed 90 days. (B) Upon a finding that a second or subsequent offense has been

committed, complete 10 hours of drug education or counseling and up to 60 hours of community

service over a period not to exceed 120 days.” (Health & Saf. Code, § 11357(b)(1).)

Thus, the punishment for persons under the age of 18 who sell or offer to sell marijuana is just an

infraction. Whether this fact will be used by persons over 18 as a recruitment tool to enlist

minors to help them sell marijuana remains to be seen.

E. What is the punishment for selling or offering to sell marijuana by

persons under 18?

*Editor’s note: On the other hand, if a defendant utilizes Prop 64’s mechanism for resentencing on a

conviction for violating section 11360 (see Health & Saf. Code, § 11361.8(a)&(e)), and the court reduces the

conviction to a violation of section 11360(a)(2), a subsequent offense could be treated as a felony since the

defendant would then have “two or more prior convictions under paragraph (2)” (see Health & Saf. Code, §

11360(a)(3)(B)).

41

The crimes of transporting or offering to transport marijuana and the crimes of giving away or

offering to give away marijuana are, in general, subject to the same punishment as selling or

offering to sell marijuana by a person over 18. (See Health & Saf. Code, § 11360(a); this IPG,

question 5-A at p. 36.)

However, Health and Safety Code section 11362.1(a) makes it lawful to “. . .transport, . . . or

give away to persons 21 years of age or older without any compensation whatsoever, not more

than 28.5 grams of cannabis not in the form of concentrated cannabis” and section 11362.1(b)

provides the same protection if “not more than eight grams of cannabis in the form of

concentrated cannabis, including as contained in marijuana products” is transported or given

away. (Health & Saf. Code, § 11362.1(a)&(b), emphasis added by IPG.)

If the amount of marijuana involved in the transportation or giving away (or offer to do either) is

not more than 28.5 grams of marijuana, section 11360(b) makes the conduct an infraction.

Specifically, subdivision (b) of section 11357 provides: “Except as authorized by law, every person

who gives away, offers to give away, transports, offers to transport, or attempts to transport not

more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction

and shall be punished by a fine of not more than one hundred dollars ($100).” (Health & Saf.

Code, § 11360(b).)

Nevertheless, since section 11360(b) provides “Except as authorized by law . . .” and section

11362.1 provides “(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but

notwithstanding any other provision of law,” when the amount of marijuana is less than 28.5

grams or the amount of concentrated cannabis is less than 8 grams, giving away that amount

of marijuana will likely not be subject to any punishment – at least when the person giving away

the marijuana is over 21 and the person receiving it is over 21.

F. Does the punishment for transporting, offering to transport, giving

away, or offering to give away nonmedical marijuana differ in any

way from the punishment for selling or offering to sell marijuana?

i. In general

ii. When the amount of marijuana involved is not more than 28.5 grams: section 11360(a) versus sections 11360(b) and 11362.1

42

The same analysis would hold true if the defendant is merely transporting marijuana in that

amount without any intent to receive compensation.

However, it is probably a different story if the defendant transports less than 28.5 grams of

marijuana for the purposes of sale.

Defendants will have a difficult time arguing that section 11362.1(a) makes transportation for

sale lawful as the inclusion of language in section 11362.1(a)(1) and (2) stating the transportation

must be done “without any compensation whatsoever” likely precludes a defendant from

arguing transportation of the described amount of marijuana or concentrated cannabis for

purposes of selling is protected by those sections.

Expect defendants to argue, however, that “transporting” marijuana for sale is only an infraction

because subdivision (b) of section 11357 provides: “Except as authorized by law, every person

who gives away, offers to give away, transports, offers to transport, or attempts to transport not

more than 28.5 grams of cannabis, other than concentrated cannabis, is guilty of an infraction

and shall be punished by a fine of not more than one hundred dollars ($100).” The defense will

claim that “transports” under subdivision (b) includes transportation for sale because

“transport” is defined in section 11360(c) as meaning “to transport for sale” and the definition

applies for purposes of “this section” – section 11360. A strict interpretation of the language

supports this argument, even though it is inconsistent with the intent behind the addition of

subdivision (c) to require that application of section 11360’s punishment only be imposed when

marijuana is possessed for sale and even though the interpretation was likely not intended by the

authors of Prop 64. However, assuming this interpretation is adopted, a defendant will not be

able to avoid punishment for unlicensed transportation of marijuana for sale if prosecutors also

Editor’s note: Even assuming that section 11362.1(a) governs the transportation of not more than 28.5 grams

of marijuana or 8 grams of concentrated cannabis, because section 11362.1 is subject to section 11362.3 and

11362.4, the act of transporting those amounts in an open container would still be an infraction, carrying a

fine of up to $250.00 for persons over 21. This is because section 11362.3(a), in relevant part, states “Nothing

in Section 11362.1 shall be construed to permit any person to: . . . (4) Possess 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, boat, vessel, aircraft, or other vehicle used for transportation.” And section

11362.4(b) states: “A person who engages in the conduct described in paragraphs (2) through (4) of

subdivision (a) of Section 11362.3 shall be guilty of an infraction punishable by no more than a two-hundred-

fifty-dollar ($250) fine, unless such activity is otherwise permitted by state and local law . . .” (Emphasis added

by IPG.)

43

charge possession for sale – which generally can be proved by the same evidence that would

prove transportation for sale.

Note also that subdivision (b) of section 11360 would not prevent either misdemeanor or felony

punishment for transporting or giving away concentrated cannabis - no matter what the amount

of concentrated cannabis since subdivision (b) only applies to marijuana “other than

concentrated cannabis.” (Health & Saf. Code, § 11360(b), emphasis added by IPG.)

The punishment for transporting or giving away marijuana in any amount for any violation of

Health and Safety Code section 11360 (whether it is the sale, transportation, giving away, etc., of

marijuana) for persons under the age of 18 is the punishment dictated in Health and Safety Code

section 11357(b)(1) – regardless of the amount of marijuana. (See Health & Saf. Code, §

11360(a)(1); this IPG, question 5-E at p. 40.)

Health and Safety Code section 11362.1, which makes transportation or giving away of marijuana

lawful for persons over 21 under certain circumstances, does not apply to persons under 21.

(See Health & Saf. Code, § § 11362.1; 11362.45(a) [“Nothing in Section 11362.1 shall be construed

or interpreted to amend, repeal, affect, restrict, or preempt: . . . (c) Laws prohibiting a person

younger than 21 years of age from engaging in any of the actions or conduct otherwise permitted

under Section 11362.1.”].) However, if a person under 18 effectively “transports” marijuana by

possessing 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, boat, vessel,

aircraft, or other vehicle used for transportation” as described in Health and Safety Code section

11362.3(a)(4), the punishment is an infraction which requires the person to “complete four

hours of drug education or counseling, and up to 20 hours of community service, over a period

not to exceed 90 days once the drug education program or counseling and community service

opportunity are made available to the person.” (Health & Saf. Code, § 11362.4(b).)

iii. When the amount of marijuana involved is not more than 28.5 grams or more than 8 grams of concentrated cannabis and the defendant is under 18 or 21

*Editor’s note: Defendants cannot argue that the definition of “transport” for purposes of section

11362.1 includes “transport for sale” because transportation is not defined in that manner for purposes of

section 11362.1. And the definition of “transport” as meaning “transport for sale” is limited in section

11360 to that section. (Health & Saf., § 11360(c).)

44

Giving away or offering to give away marijuana to someone under 18 is, in general, subject to

the same punishment as selling or offering to sell marijuana by a person over 18. (See Health

& Saf. Code, § 11360(a).) When the conduct prohibited by section 11360(a) involves “the

knowing sale, attempted sale, or the knowing offer to sell, furnish, administer or give away

marijuana to a person under the age of 18 years . . . imprisonment pursuant to subdivision (h) of

Section 1170 of the Penal Code for a period of two, three or four years” is permitted. (Health &

Saf. Code, § 11360(a)(3)(C), emphasis added by IPG.) Indeed, Health and Safety Code section

11361 may permit even greater punishment if the defendant gives cannabis to a minor. (See

this IPG, question 6 at p. 47.)

Subdivision (b) of section 11360 states: “Except as authorized by law, every person who gives

away, offers to give away, transports, offers to transport, or attempts to transport not

more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an

infraction and shall be punished by a fine of not more than one hundred dollars ($100).”

(Health & Saf. Code, § 11360(b), emphasis added by IPG.) Subdivision (b) authorizes this

punishment without regard to the age of the person to whom the offer is made or to whom the

marijuana is given. But whether it will be viewed as mandating punishment as an infraction for

giving away less than 28.5 grams to a minor is doubtful.

Subdivision (b) does not apply to giving away concentrated cannabis in any amount. Thus, the

punishment for giving away concentrated cannabis is that described in Health and Safety Code

section 11360(a). (See this IPG, question 5-A at p. 36.)

Health and Safety Code section 11362.1 does not make it lawful for someone over 21 to give away

either nonmedical marijuana or concentrated cannabis in any amount to someone under 18.

(See Health & Saf. Code, § 11362.45 [“Nothing in Section 11362.1 shall be construed or

interpreted to amend, repeal, affect, restrict, or preempt: . . . (b) Laws prohibiting the sale,

administering, furnishing, or giving away of cannabis, cannabis products, or cannabis

accessories, or the offering to sell, administer, furnish, or give away cannabis, cannabis products,

or cannabis accessories to a person younger than 21 years of age.”].)

iv. When the person over 21 offers to give away or gives away marijuana to someone under 18

45

Health and Safety Code section 11360(a) makes it unlawful to furnish or administer marijuana

as well as to offer to furnish or administer marijuana. (See Health & Saf. Code, § 11360(a); this

IPG, question 5-A at p. 36.) Is the punishment for furnishing or administering (or offering to

furnish or administer) marijuana any different than the punishment provided in section

11360(a)?

Technically, neither subdivision (b) of section 11360 (which makes giving away or offering to give

away no more than 28.5 grams of marijuana an infraction) nor subdivision (a) of section 11362.1

(which makes giving away no more than 28.5 grams of marijuana or 8 grams of concentrated

cannabis by persons over 21 to persons over 21 lawful) applies to either “furnishing” or

“administering” marijuana or concentrated cannabis. But will courts draw a distinction between

furnishing and giving away marijuana or between administering and giving away marijuana?

Both sections 11360 and 11362.1 are nestled within Division 10 of the Health and Safety Code:

“The Uniform Controlled Substances Act.” For purposes of Division 10, the term “‘Furnish’ has

the same meaning as provided in Section 4048.5 of the Business and Professions Code.” (Health

& Saf. Code, § 11016.) Section 4048.5 has since been repealed, but it defined “furnish” as

meaning to supply by any means, by sale or otherwise.” (Bus. & Prof. Code, § 4048.5; see also

Fiorini v. City Brewing Company, LLC (2014) 231 Cal.App.4th 306, 320 [noting Black’s

Law Dictionary (4th rev. ed. 1968 at p 804 defined “furnish” as “To deliver, whether gratuitously

or otherwise. [Citations.] As used in liquor laws, ‘furnish’ means to provide in any way, and

includes giving as well as selling.”].)

It is likely that if the marijuana was “furnished” without anything being received in exchange, it

will be viewed as no different than having been “given away” without recompense. If it is

“furnished” in exchange for compensation, it is likely that it will be viewed as no different than as

if it had been sold.

G. Does the punishment for furnishing or administering marijuana or

offering to furnish or administer marijuana differ in any way from

the punishment for selling or offering to sell marijuana?

i. Furnishing

46

For purposes of Division 10, the term “Administer” has been defined as meaning “the direct

application of a controlled substance, whether by injection, inhalation, ingestion, or any other

means, to the body of a patient for his immediate needs or to the body of a research subject by

any of the following: ¶ (a) A practitioner or, in his presence, by his authorized agent. ¶ (b) The

patient or research subject at the direction and in the presence of the practitioner.” (Health &

Saf. Code, § 11002.)

As a practical matter, it is unlikely that there will be very many prosecutions under section 11360

for “administering marijuana.” It appears geared towards prohibiting the administration of

controlled substances by physicians or pharmacists. And if the marijuana being administered is

medical marijuana, the conduct is likely to be protected under Health and Safety Code section

11362.765, which prevents criminal liability being imposed upon a primary caregiver solely for

administering medical marijuana to a qualified patient.

However, administering is a distinct and different type of conduct than giving away or

transporting marijuana (under section 11360(b)) or possessing, processing, transporting,

purchasing, obtaining, or giving away marijuana (under section 11362.1(a)). And if the conduct

is not otherwise exempt from criminal liability under section 11362.765, it is likely that

administering marijuana will be subject to the punishment described in subdivision (a) of section

11360 regardless of the quantity administered. (See this IPG, question 5-A at p. 36.)

Health and Safety Code section 11360(a) subjects “every person who . . . imports into this state, .

. . or offers to . . . import into this state, . . . or attempts to import into this state . . . any

cannabis” to the same punishment as would be imposed on a person who sells or offers to sell

marijuana. (Health & Saf. Code, § 11360(a), emphasis added by IPG.)

It does not appear that importing, offering to import, or attempting to import marijuana into

California will be treated any differently than selling or offering to sell marijuana for purposes of

deciding punishment with one exception. (See this IPG, question 5-A p. 36.)

H. Does the punishment for importing, offering to import, or

attempting to import marijuana into this state differ in any way

from the punishment for selling or offering to sell marijuana?

ii. Administering

47

Unlike when it comes to the selling or offer to sell marijuana, conduct which generally does not

allow for felony punishment, if “[t]he offense involved the import, offer to import, or attempted

import into this state, . . . of more than 28.5 grams of marijuana or more than four grams of

concentrated cannabis” and the defendant is over 18, the defendant is potentially subject to

“imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for a period of two,

three or four years[.]” (Health & Saf. Code, § 11360(a)(3)(D).)

Health and Safety Code section 11361 states: “(a) A person 18 years of age or over who hires, employs, or uses a minor in unlawfully

transporting, carrying, selling, giving away, preparing for sale, or peddling any cannabis, who

unlawfully sells, or offers to sell, any cannabis to a minor, or who furnishes,

administers, or gives, or offers to furnish, administer, or give any cannabis to a minor under

14 years of age, or who induces a minor to use cannabis in violation of law shall be

punished by imprisonment in the state prison for a period of three, five, or seven years.

(b) A person 18 years of age or over who furnishes, administers, or gives, or offers to furnish,

administer, or give, any cannabis to a minor 14 years of age or older in violation of law shall

be punished by imprisonment in the state prison for a period of three, four, or five years.”

(Emphasis added by IPG.)

Prop 64 did not modify section 11361. SB 94 did not substantively change section 11361 either: it

simply replaced the term “marijuana” with “cannabis.”

However, potential issues may arise in deciding what the punishment should be for

an adult who sells, furnishes, administers, or gives away marijuana (or offers to do

so) to a minor?

6. Does Prop 64 legalize or lessen the punishment for: (i) hiring, employing or using a minor to unlawfully transport, carry, sell, give away, prepare for sale, or peddle cannabis; (ii) selling or offering to sell cannabis to a minor; (iii) furnishing, administering, giving, or offering to furnish, administer, or give any cannabis to a minor under 14 years of age; or (iv) inducing a minor to use cannabis?

(The impact of Prop 64 on H&S Code section 11361)

48

Expect the defense to argue that the punishment designated in section 11360 is the punishment

that must be imposed for selling, furnishing, administering or giving away marijuana to minors.

The defense will point to language in subdivision (a) section 11360 stating, “Except as otherwise

provided by this section or as authorized by law, every person who . . . sells, furnishes,

administers, or gives away, or offers to . . . sell, furnish, administer, or give away, . . . any

cannabis shall be punished as follows: . . . (3) Notwithstanding paragraph (2), a person 18 years

of age or over may be punished by imprisonment pursuant to subdivision (h) of Section 1170 of

the Penal Code for a period of two, three or four years if: . . . (C) The offense involved the

knowing sale, attempted sale, or the knowing offer to sell, furnish, administer or give away

cannabis to a person under the age of 18 years; . . .” (Health & Safe. Code, § 11361(a)(3)(C).)

The defense may argue that section 11360 precludes imposition of a sentence under section 11361

because the sentence provided for in section 11361 is not provided for in section 11360 and the

term “authorized by law” should be read as referring to laws that permit the conduct otherwise

prohibited by section 11360. The fatal flaw with this argument is that “authorized by law”

generally refers to other laws that permit different punishment. (See e.g., Health & Saf. Code, §

11370.2 [“Any person convicted of a violation of, or of a conspiracy to violate, Section 11351,

11351.5, or 11352 shall receive, in addition to any other punishment authorized by law”]; Gov.

Code, § 68608 (b) [“Judges shall have all the powers to impose sanctions authorized by law. .

.”].) Moreover, the language “authorized by law” predates the amendment to section 11360 and

that language was never held to preclude punishment pursuant to section 11361 when the

defendant sold or gave away marijuana to a minor.

The defense may then claim that even if the language of section 11360 does not preclude

punishment for selling or giving away marijuana (either more or less than an ounce),

prosecution under section 11361 is still precluded by the “general versus special” rule.* The

defense will claim that section 11360(a)(1) reflects the state’s determination as to the appropriate

punishment for giving away marijuana (to minors or others) and section 11360(a)(3) reflects the

state’s determination as to the appropriate punishment for selling marijuana to minors.

A. Is the punishment designated in section 11361 precluded by any

statute enacted or amended by Prop 64? (Handling general versus

specific rule attacks)

i. Does Health and Safety Code section 11360 preclude the use of section 11361?

49

Before we explain why the “general versus special rule” should not preclude prosecution under

section 11361 for either giving away or selling marijuana in any amount to a minor, here is a brief

primer on the rule:

Usually, it is no big deal for a criminal act to violate more than one statute and if the two statutes

are not inconsistent, a defendant may be prosecuted under both or either, subject to the

protections against double jeopardy and double punishment. (See People v. Moulton (1931)

116 Cal.App. 552, 555 [“It is no defense under one statute that the defendant might have been

prosecuted under another.”].) However, sometimes the Legislature will enact one statute

covering the same conduct as another statute, intending that only one of the statutes apply to

certain conduct. (See People v. Jones (2003) 108 Cal.App.4th 455, 463.) To help ascertain

the Legislature’s intent when the question of whether one statute is meant to preclude

prosecution under a different statute, courts have developed several rules of construction. One

of these rules of construction is the “general versus special rule.” (See People v. Brown

(2016) 6 Cal.App.5th 1074, 1080.)

“The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial

interpretation when two statutes conflict.” (People v. Walker (2002) 29 Cal.4th 577, 586,

emphasis added by IPG.) The idea is that “where the general statute standing alone would

include the same matter as the special act, and thus conflict with it, the special act will be

considered as exception to the general statute whether it was passed before or after such general

enactment.” (In re Williamson (1954) 43 Cal.2d 651, 654.) The rule has been refined by the

California Supreme Court since Williamson and it is now clear that the rule will only apply in

two circumstances. As discussed in People v. Walker (2002) 29 Cal.4th 577, “[t]he ‘special

over the general’ rule ... does not apply ... unless ‘each element of the “general” statute

corresponds to an element on the face of the “specific” ... statute’ or ‘it appears from the entire

context that a violation of the “special” statute will necessarily or commonly result in a violation

of the “general” statute.’” (Id. at p. 585.) And even when these prerequisites for the rule are met,

“[w]here it is evident the Legislature did not intend to preclude application of the general statute,

the rule does not apply.” (People v. Glenos (1992) 7 Cal.App.4th 1201, 1209.)

*Editor’s note: The “general versus special” rule goes by many names, including the “Williamson rule” after

the seminal case in the area: In re Williamson (1954) 43 Cal.2d 651, 654.) It has also been referred to as the

“doctrine of preclusion” or the “preemption doctrine” (see People v. Brown (2016) 6 Cal.App.5th 1074, 1080,

fn. 1.). We will refer to the rule as the “general versus special rule” throughout this IPG.

50

The defense may claim that Prop 64 was meant to legalize the sale and giving away of marijuana

in general and reduce the penalties for unlicensed sale or giving away of marijuana (especially in

small quantities) even when the recipient of the marijuana is a minor. The defense will point to

the fact that properly licensed sale to minors of marijuana is even completely lawful if the minor

has a government issued identification allowing for use of medical marijuana. (See Bus. & Prof.

Code, § 26140(c).)

Moreover, the defense may claim that section 11360, insofar as it identifies the punishment to be

imposed for giving away marijuana to anyone (including minors) as a misdemeanor (Health and

Saf. Code, § 11360(a)(2)) and for selling marijuana to minors as a wobbler (Health and Saf. Code,

§ 11360(a)(3)(C)), is the more specific statute than 11361 because (i) each element of section

11360(a)(2) and 11360(a)(3)(C) either corresponds to an element on the face of section 11361 or a

violation of section 11360(a)(2) or 11360(a)(3)(C) will necessarily or commonly result in a

violation of section 11361.

The easiest response to the defense argument is that the qualifying language of section 11360

itself eliminates any conflict with other statutes. Specifically, by saying “Except as otherwise

provided by this section or as authorized by law, . . .” (Health and Saf. Code, § 11360(a),

emphasis added), any conflict with other statutes authorizing punishment for the same conduct,

such as section 11361, is eliminated. This language expressly reflects the legislative intent not to

bar other punishment. (See People v. Glenos (1992) 7 Cal.App.4th 1201, 1209 [“Where it is

evident the Legislature did not intend to preclude application of the general statute, the rule does

not apply.”].

Moreover, there is plenty of evidence that the state did not want to prevent the application of

section 11361 to persons over 18 who give away, furnish, administer, or sell to minors. Neither

the voters, pursuant to Prop 64 nor the legislature, pursuant to SB 94, saw fit to tinker with the

substance of section 11361. Throughout Prop 64, there are strong indications that the exposure

to, or distribution of, marijuana to minors by persons over 18 should not be tolerated. (See

Health & Saf. Code, § 11362.45(b) [clarifying that section 11362.1, which legalized the possession

and giving away of less than an ounce of marijuana, “does not amend, repeal, affect, restrict, or

preempt” any laws “prohibiting the sale, administering, furnishing, or giving away of cannabis,

cannabis products, or cannabis accessories, or the offering to sell, administer, furnish, or give

away cannabis, cannabis products, or cannabis accessories to a person younger than 21 years of

age.”]; Health & Saf. Code, § 11362.3(a)(3) [clarifying that section 11362.1 does not even “permit

51

any person to: (3) Smoke cannabis or cannabis products within 1,000 feet of a school, day care

center, or youth center while children are present at the school, day care center, or youth center,

except in or upon the grounds of a private residence or in accordance with Section 26200 of the

Business and Professions Code and only if such smoking is not detectable by others on the

grounds of the school, day care center, or youth center while children are present.”]; Health &

Saf. Code, § 11362.3(a)(5) [clarifying that section 11362.1 does not even “permit any person to: . .

. Possess, smoke, or ingest cannabis or cannabis products in or upon the grounds of a school, day

care center, or youth center while children are present.”]; Proposition 64, SEC. 2 (A) [“The

Control, Regulate and Tax Adult Use of Marijuana Act will . . . protect children . . .”]; Proposition

64, SEC. 2(d) [“Currently, children under of age of 18 can just as easily purchase marijuana on

the black market as adults can. By legalizing marijuana, the Adult Use of Marijuana Act will

incapacitate the black market, and move marijuana purchases into a legal structure with strict

safeguards against children accessing it. The Adult Use of Marijuana Act prohibits the sale of

nonmedical marijuana to those under 21 . . .”]; Proposition 64, SEC. 3 (a) [noting the intent of

the Act to “Take nonmedical marijuana production and sales out of the hands of the illegal

market and bring them under a regulatory structure that prevents access by minors . . .”];

Proposition 64 (Ballot Argument in Favor of Proposition 64) [“Drug dealers don’t ask for proof

of age and today can sell marijuana laced with dangerous drugs and chemicals. 64 includes

toughest-in-nation protections for children . . .”].)

Prosecutors should also be sure to winnow down what specific conduct prohibited by section

11360 the defense is claiming is also potentially covered by section 11361. The only conduct

prohibited by section 11360 that potentially corresponds to conduct prohibited by section 11361

is covered by subdivision (b), which makes it a crime for someone over 18 to “furnish[],

administer[], or give[], or offer[] to furnish, administer, or give, any cannabis to a minor 14

years of age or older in violation of law” and the portion of subdivision (a), which makes it a

crime to “unlawfully sell[], or offer[] to sell, any cannabis to a minor.” (Health and Saf. Code, §

11361(a)&(b), emphasis added by IPG.)

Prosecutors should put a quick stop to any claim that other type of conduct involving furnishing,

administering or giving away marijuana to minors punished by section 11361(a) is subject to the

general versus specific rule because punishment under subdivision (a) only applies when the

minor is under 14. Thus, the conduct being punished under this aspect of section 11361(a) is a

more egregious version of the conduct that is subject to punishment pursuant to section 11360.

In this circumstance, the general versus specific rule is inapplicable. (See People v. Murphy

52

(2011) 52 Cal.4th 81, 87 [“if the more general statute contains an element that is not contained in

the special statute and that element would not commonly occur in the context of a violation of

the special statute, we do not assume that the Legislature intended to preclude prosecution

under the general statute. In such situations, because the general statute contemplates more

culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct

more severely”].)

Nor should there be any issue if the prosecution proceeds on a theory that the defendant

“induce[d] a minor to use cannabis” in violation of section 11361 – since this also is not conduct

referenced by any statute enacted or amended by Prop 64.

The defense may also seek to use the “general versus special rule” in an attempt to preclude

prosecution under section 11361 based on theory that section 11359(d) is the more specific

statute when the prosecution, pursuant to section 11361, is based on a claim defendant “hire[d],

employ[ed], or use[d] a minor in unlawfully transporting, carrying, selling, giving away,

preparing for sale, or peddling any cannabis.” (Health & Saf. Code, § 11361.)

Health and Safety Code section 11359(d) allows for enhanced punishment of “a person 21 years

of age or over who possesses cannabis for sale” under subdivision (h) of Section 1170 of the

Penal Code if the possession for sale “involves knowingly hiring, employing, or using a person 20

years of age or younger in unlawfully cultivating, transporting, carrying, selling, offering to sell,

giving away, preparing for sale, or peddling any cannabis.” (Emphasis added by IPG.)

The prosecution’s response can be that section 11359 qualifies when punishment can be imposed

by stating: Every person who possesses for sale any cannabis, except as otherwise provided

by law, shall be punished as follows: . . .” (Health & Saf. Code, § 11359, emphasis added by

IPG.) This language eliminates the conflict. Moreover, the same evidence of voter intent that

undermines the idea that the state wanted to prevent the application of section 11361 to persons

over 18 who give away, furnish, administer, or sell to minors (see this IPG, question 6-A-i at pp.

50-51) helps show there was no voter intent to reduce punishment for persons who hire, employ,

or use minors in unlawfully cultivating, transporting, carrying, selling, offering to sell, giving

away, preparing for sale, or peddling any cannabis.

ii. Does Health and Safety Code section 11359 preclude the use of section 11361?

53

The prosecution can also point out that section 11359(d) only enhances the punishment for

possessing cannabis for sale. Prop 64 did not sanction or reduce punishment for the actual

conduct of hiring, employing, or using minors to cultivate, transport, carry, sell, offer to sell, give

away, prepare for sale, or peddle any cannabis. None of this conduct requires the defendant to

possess cannabis for sale and thus the elements of section 11361 are distinct from the crime of

possessing cannabis for sale under section 11359(d). In addition, the crime described in section

11361 requires the minor be under 18. The enhanced punishment described in section 11359(d)

only requires the minor be under 21. Thus, section 11361 punishes conduct more egregious than

the conduct covered by section 11359(d). (See People v. Murphy (2011) 52 Cal.4th 81, 87

[“because the general statute contemplates more culpable conduct, it is reasonable to infer that

the Legislature intended to punish such conduct more severely”].)

Some of the statutes enacted or amended by Prop 64 require persons convicted of various

marijuana offenses to complete drug education or counseling. (See Health & Saf. Code, §

11357(a)(1)(A) [persons under 18 in possession of not more than 28.5 grams of cannabis, or not

more than four grams of concentrated cannabis “are guilty of an infraction and shall be required

to:(A) Upon a finding that a first offense has been committed, complete four hours of drug

education or counseling . . . (B) Upon a finding that a second offense or subsequent offense has

been committed, complete six hours of drug education or counseling . . .”]; 11357(b)(1)(A)

[“Persons under the age of 18 who possess more than 28.5 grams of cannabis or more than four

grams of concentrated cannabis, . . . are guilty of an infraction and shall be required to: (A) Upon

a finding that a first offense has been committed, complete eight hours of drug education or

counseling . . . (B) Upon a finding that a second or subsequent offense has been committed,

complete 10 hours of drug education or counseling . . .”]; 11358(a) [“Each person under the age

of 18 who plants, cultivates, harvests, dries, or processes any cannabis plants shall be punished

in the same manner provided in paragraph (1) of subdivision (b) of Section 11357.”]; 11359(a)

“Every person under the age of 18 who possesses cannabis for sale shall be punished in the same

manner provided in paragraph (1) of subdivision (b) of Section 11357.”]’; 11360(a)(1) [“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 cannabis shall be punished as follows: (1) Persons under

7. Is the drug education or counseling authorized by some of the statutes enacted or amended by Prop 64 always mandatory? (Health and Safety Code section 11361.1)

54

the age of 18 years shall be punished in the same manner as provided in paragraph (1) of

subdivision (b) of Section 11357.”], emphasis added by IPG.)

Although the language in these sections seems mandatory, Health and Safety Code section

11361.1 provides: “(a) The drug education and counseling requirements under Sections 11357,

11358, 11359, and 11360 shall be: (1) Mandatory, unless the court finds that such drug education

or counseling is unnecessary for the person, or that a drug education or counseling program is

unavailable; ¶ (2) Free to participants, and shall consist of at least four hours of group

discussion or instruction based on science and evidence-based principles and practices specific to

the use and abuse of cannabis and other controlled substances.” (Emphasis added by IPG.)

Moreover, subdivision (b) of section 11361.1 provides: “For good cause, the court may grant an

extension of time not to exceed 30 days for a person to complete the drug education and

counseling required under Sections 11357, 11358, 11359, and 11360.”

Health and Safety Code section 11379.6(a) provides: “Except as otherwise provided by law, every

person who manufactures, compounds, converts, produces, derives, processes, or prepares,

either directly or indirectly by chemical extraction or independently by means of chemical

synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058

shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code

for three, five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000).”

The manufacture of concentrated cannabis by chemical extraction violates section 11379.6,

subdivision (a). (People v. Bergen (2008) 166 Cal.App.4th 161, 168–169.) And Prop 64 did

not make any amendments to section 11379.6.

Health and Safety Code section 11362.1 allows persons to process, not more than 28.5 grams of

cannabis not in the form of concentrated cannabis, not more than eight grams of cannabis

in the form of concentrated cannabis, and not more than six living cannabis plants.

(Health & Saf. Code, § 11362.1(a)(1),(2), & (3), emphasis added by IPG.) However, section

11362.3(a)(6) provides: “Section 11362.1 does not permit any person to . . . Manufacture

concentrated cannabis using a volatile solvent, unless done in accordance with a license under

8. Is the manufacture of concentrated cannabis now lawful for persons over 21? Generally, no. (The impact of Prop 64 on H&S Code section 11379.6)

55

Division 10 (commencing with Section 26000) of the Business and Professions Code.” (Health &

Saf. Code, § 11362.3(a)(6), emphasis added by IPG.)

And section 11362.4(d) states: “A person who engages in the conduct described in paragraph (6)

of subdivision (a) of Section 11362.3 shall be subject to punishment under Section 11379.6.”

(Health & Saf. Code, § 11362.4(d).)

The definition of “Volatile solvent” for purposes of section 11362.3 “means a solvent that is or

produces a flammable gas or vapor that, when present in the air in sufficient quantities, will

create explosive or ignitable mixtures.” (Health & Saf. Code, § 11362.3(b)(3).)

The type of solvent (butane) used to extract marijuana resin in producing concentrated cannabis

fits the definition of a “volatile solvent” under 11362.3. (See People v. Bergen (2008) 166

Cal.App.4th 161, 173, fn. 8; https://en.wikipedia.org/wiki/Butane [“Butanes are highly

flammable, colorless, easily liquefied gases”].)

Vehicle Code section 23152 (f) makes it “unlawful for a person who is under the influence of any

drug to drive a vehicle.” Marijuana fits the definition of a drug as used in the Vehicle Code.

(See Veh. Code, § 312 [The term “drug” means any substance or combination of substances,

other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to

impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily

prudent and cautious man, in full possession of his faculties, using reasonable care, would drive

a similar vehicle under like conditions.”].)

Prop 64 did not amend the driving under the influence laws. Health and Safety Code section

11362.1(a)(4) made it lawful to “[s]moke or ingest cannabis or cannabis products.” However,

Health and Safety Code section 11362.45 makes it clear that “[s]ection 11362.1 does not amend,

9. What is the punishment for other miscellaneous marijuana- related offenses? (The impact of Prop 64 on crimes prohibiting driving under the influence of marijuana, driving with open containers of marijuana, driving while smoking or ingesting marijuana, and marijuana smoking in certain places?)

A. Does Prop 64 allow driving under the influence of marijuana?

56

repeal, affect, restrict, or preempt: (a) Laws making it unlawful to drive or operate a vehicle,

boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis products,

including, but not limited to, subdivision (e) of Section 23152 of the Vehicle Code, or the

penalties prescribed for violating those laws.” (Health & Saf. Code, § 11362.45(a).)

For a discussion of the impact of Prop 64 on the laws governing driving around with open

containers of marijuana, see this IPG memo, question 1-D-iii at pp. 13-14.

Subject to certain restrictions, Health and Safety Code section 11362.1(a)(4) makes it lawful to

“[s]moke or ingest cannabis or cannabis products.”

Section 11362.3 provides, however, that section 11362.1 does not permit any person to “[s]moke

or ingest cannabis or cannabis products while driving, operating a motor vehicle, boat, vessel,

aircraft, or other vehicle used for transportation.” (Health & Saf. Code, § 11362.3(a)(7).)

Section 11362.3 also provides that section 11362.1 does not permit any person to “[s]moke or

ingest cannabis or cannabis products while riding in the passenger seat or compartment of a

motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation except as permitted

on a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation that is operated

in accordance with Section 26200 of the Business and Professions Code and while no persons

under 21 years of age are present.” (Health & Saf. Code, § 11362.3(a)(7).)

B. Does Prop 64 allow driving around with open containers of

marijuana?

C. Does Prop 64 allow driving around while smoking or ingesting

marijuana?

*Editor’s note: Section 11362.45 needs to be modified to reflect that the subdivision of section 23152 relating

to driving under the influence of drugs is subdivision (f). However, because the scope of section 11362.45(a) is

not limited to subdivision (e), the erroneous reference will have no practical impact.

*Editor’s note: Subdivision (b) of section 11362.3 states: “For purposes of this section, the following

definitions apply: . . . (2) “Smoke” means to inhale, exhale, burn, or carry any lighted or heated device or pipe,

or any other lighted or heated cannabis or cannabis product intended for inhalation, whether natural or

synthetic, in any manner or in any form. “Smoke” includes the use of an electronic smoking device that creates

an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of

circumventing the prohibition of smoking in a place.” (Health & Saf. Code, § 11362.3(b)(2).)

57

In addition, Health and Safety Code section 11362.45 makes it clear that “[s]ection 11362.1 does

not amend, repeal, affect, restrict, or preempt: (a) Laws making it unlawful to drive or operate a

vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or

cannabis products, including, but not limited to, subdivision (e) of Section 23152 of the Vehicle

Code, or the penalties prescribed for violating those laws.” (Health & Saf. Code, § 11362.45(a),

emphasis added by IPG.)

Nevertheless, Prop 64 does not define the crime or any punishment for smoking or ingesting

marijuana while driving or define the crime or any punishment for smoking or ingesting

marijuana while a passenger in a vehicle.

However, there is a currently a bill in the legislature (enrolled but not yet signed by the governor)

that would amend Vehicle Code sections 23220 and 23221 to make smoking or ingesting

marijuana or any marijuana product while driving, or while riding as a passenger in, a motor

vehicle being driven upon a highway or upon specified lands punishable as an infraction. (See

SB 65.)

Because no fine is specified in those sections, Vehicle Code section 42001(a) would apply to

define the amount of the fine for the violation. It states: “Except as provided in this code, a

person convicted of an infraction for a violation of this code or of a local ordinance adopted

pursuant to this code shall be punished as follows: ¶ (1) By a fine not exceeding one hundred

dollars ($100). ¶ (2) For a second infraction occurring within one year of a prior infraction that

resulted in a conviction, a fine not exceeding two hundred dollars ($200). ¶ (3) For a third or

subsequent infraction occurring within one year of two or more prior infractions that resulted in

convictions, a fine not exceeding two hundred fifty dollars ($250).”

Health and Safety Code section 11362.1(a)(4) generally makes it lawful to “[s]moke or ingest

cannabis or cannabis products.” However, section 11362.3 places certain restrictions on doing so

and section 11362.4 lays out the penalties for each type of smoking violation.

Section 11362.3(a) states that section 11362.1 “does not permit any person to: (1) Smoke or

ingest cannabis or cannabis products in a public place, except in accordance with Section 26200

of the Business and Professions Code.” Section 11362.4(a)(4) provides: “A person who engages

in the conduct described in paragraph (1) of subdivision (a) of Section 11362.3 is guilty of an

D. Does Prop 64 allow smoking marijuana in any location?

58

infraction punishable by no more than a one-hundred-dollar ($100) fine; provided, however,

that persons under the age of 18 shall instead be required to complete four hours of a drug

education program or counseling, and up to 10 hours of community service, over a period not to

exceed 60 days once the drug education program or counseling and community service

opportunity are made available to the person.”

Section 11362.3(a) states that section 11362.1 “does not permit any person to . . . (2) Smoke

cannabis or cannabis products in a location where smoking tobacco is prohibited.”

Section 11362.4(b) provides any “person who engages in the conduct described in paragraph[]

(2) . . . subdivision (a) of Section 11362.3 is guilty of an infraction punishable by no more than a

two-hundred-fifty-dollar ($250) fine, unless such activity is otherwise permitted by state and

local law; provided, however, that persons under the age of 18 shall instead be required to

complete four hours of drug education or counseling, and up to 20 hours of community service,

over a period not to exceed 90 days once the drug education program or counseling and

community service opportunity are made available to the person.”

Section 11362.3(a) states that section 11362.1 “does not permit any person to . . . (3) Smoke

cannabis or cannabis products within 1,000 feet of a school, day care center, or youth center

while children are present at the school, day care center, or youth center, except in or upon the

grounds of a private residence or in accordance with Section 26200 of the Business and

Professions Code and only if such smoking is not detectable by others on the grounds of the

school, day care center, or youth center while children are present.”

Section 11362.4(b) provides any “person who engages in the conduct described in paragraph[]

(2) . . . subdivision (a) of Section 11362.3 is guilty of an infraction punishable by no more than a

two-hundred-fifty-dollar ($250) fine, unless such activity is otherwise permitted by state and

local law; provided, however, that persons under the age of 18 shall instead be required to

complete four hours of drug education or counseling, and up to 20 hours of community service,

*Editor’s note: Business and Professions Code section 26200(g) states: “Notwithstanding paragraph (1) of

subdivision (a) of Section 11362.3 of the Health and Safety Code, a local jurisdiction may allow for the smoking,

vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness

licensed under this division if all of the following are met: ¶ (1) Access to the area where cannabis consumption

is allowed is restricted to persons 21 years of age and older. ¶ (2) Cannabis consumption is not visible from any

public place or nonage-restricted area. ¶ (3) Sale or consumption of alcohol or tobacco is not allowed on the

premises.

59

over a period not to exceed 90 days once the drug education program or counseling and

community service opportunity are made available to the person.”

Section 11362.3(a) states that section 11362.1 “does not permit any person to . . . (5) Possess,

smoke, or ingest cannabis or cannabis products in or upon the grounds of a school, day care

center, or youth center while children are present.”

Section 11362.4(c) provides any: “A person who engages in the conduct described in paragraph

(5) of subdivision (a) of Section 11362.3 shall be subject to the same punishment as provided

under subdivision (c) or (d) of Section 11357.” (Emphasis added.)

Health and Safety Code section 11357(c) provides the following misdemeanor punishment:

“(1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense

has been committed. ¶ (2) A fine of not more than five hundred dollars ($500), or by

imprisonment in a county jail for a period of not more than 10 days, or both, upon a finding that

a second or subsequent offense has been committed.”

Health and Safety Code section 11357(d) states the infraction punishment is that “provided

in paragraph (1) of subdivision (b)” of section 11357. (Health & Saf. Code, § 11357(d).) And

paragraph (1) of subdivision (b) of section 11357 provides for punishment as an infraction that

requires: “(A) Upon a finding that a first offense has been committed, complete eight hours of

drug education or counseling and up to 40 hours of community service over a period not to

exceed 90 days. ¶(B) Upon a finding that a second or subsequent offense has been committed,

complete 10 hours of drug education or counseling and up to 60 hours of community service

over a period not to exceed 120 days.”

Some defense attorneys have argued that the “general versus special” rule (see this IPG,

question 6-A, at pp. 48-50) bars prosecution for a felony violation of Health and Safety Code

section 11366 (based on opening or maintaining a place for the purpose of unlawfully selling,

giving away, or using marijuana) as a matter of law under the theory that all the conduct

proscribed in 11366 is either lawful, an infraction, or a misdemeanor when the controlled

10. What is the impact of Proposition 64 on the offense of maintaining or opening a place for sale, giving away, or use of a controlled substance (Health and Safety Code section 11366) when the substance involved is marijuana?

60

substance at issue is marijuana. We do not go into great depth in explaining why this argument

is erroneous, but a comprehensive brief responding to the argument is available

from IPG upon request.

In a nutshell, the argument is flawed because the “general versus special” rule does not apply

unless each element of the “general” statute corresponds to an element on the face of the

“special” or it appears from the entire context that a violation of the “special” statute will

necessarily or commonly result in a violation of the “general” statute.’” (People v. Walker

(2002) 29 Cal.4th 577, 585.) Even assuming that a statute, such as section 11366, which

prohibits conduct involving any number of controlled substances (either collectively or

separately) can be viewed as a “general” statute insofar as a single controlled substance is

concerned, and that an initiative enacting or modifying numerous statutes (both prohibiting and

allowing a vast array of different types of conduct) can be viewed as a “specific” statute, neither

of the circumstances necessary for application of the “general versus special” rule apply to

prohibit prosecutions under Health and Safety Code sections 11357, 11358, 11359, or 11360.

To prove a violation of Health and Safety Code section 11366, it is not enough to show a

defendant simply sold, gave away, or used marijuana or any other controlled substance. It must

be shown that the defendant “opened his or her home to others for the purpose of selling or

giving away to them, or for the use by them of such substances.” (People v. Franco (2009)

180 Cal.App.4th 713, 724–725, emphasis added.) Moreover, it must be shown the defendant had

a “purpose of continuously or repeatedly using a place for selling, giving away, or using a

controlled substance.” (People v. Hawkins (2004) 124 Cal.App.4th 675, 681, emphasis

added.) None of the statutes amended or enacted by Proposition 64, either individually or

collectively, correspond to the elements of Health and Safety Code section 11366. Nor will a

violation of any of those statutes necessarily or commonly result in a violation of section

11366. Finally, “[w]here it is evident the Legislature did not intend to preclude application of

the general statute, the rule does not apply.” (People v. Glenos (1992) 7 Cal.App.4th 1201,

1209.) Permitting unlicensed persons to set up locations for the sale and distribution of

marijuana (which would occur if section 11366 could not be enforced pursuant to the “general

versus special rule”) is inconsistent with the protections to public health and safety promised by

Proposition 64. And allowing persons to maintain unregulated places for the sale, giving away,

and use of marijuana is inconsistent with the intent behind Proposition 64 to set up a

comprehensive system of taxation and regulation of the sale and distribution of marijuana.

61

Prop 64 set up a comprehensive system to license, regulate, and tax the distribution of

nonmedical marijuana. (See former Bus. & Prof. Code, § 26000 [“The purpose and intent of this

division is to establish a comprehensive system to control and regulate the cultivation,

distribution, transport, storage, manufacturing, processing, and sale of nonmedical marijuana

and marijuana products for adults 21 years of age and over”].) SB 94 modified the system set up

by Prop 64 to allow the system to jointly regulate the cultivation, distribution, transport, storage,

manufacturing, processing, and sale of “Medicinal cannabis and medicinal cannabis products for

patients with valid physician's recommendations.” (Bus. & Prof. Code, § 26000(b).)

Prop 64, as modified by SB 94, created a Bureau of Cannabis Control as part of the Department

of Consumer Affairs. (Bus. & Prof. Code, § 26010.) This “bureau has the power, duty, purpose,

responsibility, and jurisdiction to regulate commercial cannabis activity as provided in this

division.” (Bus. & Prof. Code, § 26010.5(d).) “‘Commercial cannabis activity’ includes the

cultivation, possession, manufacture, distribution, processing, storing, laboratory testing,

labeling, transportation, distribution, delivery or sale of cannabis and cannabis products as

provided for in this division.” (Bus. & Prof. Code, §§ 26001(k).)

If a person is licensed to engage in commercial cannabis activity and does so in accordance with

the requirements and regulations governing licensed commercial marijuana activity, the activity

is lawful under California law. (See Bus. & Prof. Code, § 26037 [preventing the arrest,

prosecution, imposition of any sanction or fine, or forfeiture of assets for “actions of a licensee,

its employees, and its agents that are (1) permitted under a license issued under this division and

any applicable local ordinances and (2) conducted in accordance with the requirements of this

division and regulations adopted pursuant to this division”].)

It does not appear that the license will allow persons to import or export marijuana to other

states. (See SB 94, SEC. 1(e).) And it is an open question whether the license will allow persons

to give away or “administer” marijuana. But since the definition provided in section 26001(k)

only states what commercial cannabis activity includes, without saying what it excludes, it is

possible that giving away marijuana for commercial purposes (i.e., promotional purposes) or

administering it will be authorized.

11. Is the unlicensed conduct proscribed in Health and Safety Code sections 11357, 11358, 11359, and 11360 lawful until the system of licensing, regulation, and taxation is set up?

62

However, such regulation and licensing is not available yet and likely won’t be at least until 2018.

(See SB 94 SEC 1 (c) [‘beginning on January 1, 2018, AUMA makes it legal to sell and distribute

cannabis through a regulated business.”]; [“Proposition 64, SEC. 2 (J) [“The . . . Act ensures the

nonmedical marijuana industry in California will be built around small and medium sized

businesses by prohibiting large scale cultivation licenses for the first five years.” . . .

¶ (I) [“The Bureau of Marijuana Control . . . will oversee the whole system and ensure a smooth

transition to the legal market, with licenses issued beginning in 2018.”]; Bus. &

Prof. Code, § 26012(d) [“Licensing authorities shall begin issuing licenses under this division by

January 1, 2018.”]; Bus. & Prof. Code, § 26070.5 [The Bureau of Cannabis Control within the

Department of Consumer Affairs “shall, by January 1, 2020, investigate the feasibility of

creating one or more classifications of nonprofit licenses under this section.”]; Bus. & Prof. Code,

§ 26191(a) [“Commencing January 1, 2019, and by January 1 of each year thereafter, the

California State Auditor's Office shall conduct a performance audit of the” Bureau of Cannabis

Control within the Department of Consumer Affairs’ activities]; Labor Code, § 147.6(a)&(b) [“(a)

By March 1, 2018, the Division of Occupational Safety and Health shall convene an advisory

committee to evaluate whether there is a need to develop industry-specific regulations related to

the activities of licensees . . .” ¶ (b) “By October 1, 2018, the advisory committee shall present

to the board its findings and recommendations for consideration by the board.”]; Rev. & T. Code,

§ 34011(a) [“Effective January 1, 2018, a cannabis excise tax shall be imposed upon

purchasers of marijuana or marijuana products sold . . .”]; and Rev. & T. Code, § 34012(a)

[“Effective January 1, 2018, there is hereby imposed a cultivation tax on all harvested

cannabis that enters the commercial market upon all persons required to be licensed to cultivate

marijuana . . .”], emphasis added by IPG.)

Unlicensed commercial cannabis activity remains unlawful regardless of whether the system of

licensing or regulation has been instituted. As expressly stated in subdivision (c) of Business and

Professions Code section 26038: “Notwithstanding subdivision (a), criminal penalties shall

continue to apply to an unlicensed person engaging in commercial cannabis activity in

violation of this division.” (Bus. & Prof. Code, § 26038(c), emphasis added.)

Civil penalties may also be imposed. Subdivision (a) of section 26038 states: “A person engaging

in commercial cannabis activity without a license required by this division shall be subject to civil

penalties of up to three times the amount of the license fee for each violation, and the court may

order the destruction of cannabis associated with that violation in accordance with Section 11479

of the Health and Safety Code. Each day of operation shall constitute a separate violation of this

63

section. All civil penalties imposed and collected pursuant to this section by a licensing authority

shall be deposited into the General Fund except as provided in subdivision (b).” (Bus. & Prof.

Code, § 26038(a).) A district attorney or county counsel may bring an action for those civil

penalties and the penalty collected must first be used to reimburse the district attorney or county

counsel for the cost of bringing the action. (Bus. & Prof. Code, § 26038(b).)

The Compassionate Use Act of 1996 (CUA) provided protections from prosecution for possession

of limited amounts of “medical” marijuana. (See Health & Saf. Code, § 11362.5(d) [“Section

11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of

marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or

cultivates marijuana for the personal medical purposes of the patient upon the written or oral

recommendation or approval of a physician.”].) The CUA does not confer immunity from arrest;

rather, it provides a defense in court. Police may arrest a qualified patient for marijuana offenses

when they have probable cause, based on all of the surrounding facts (including whether

defendant had qualified patient status), to believe a defendant does not possess marijuana for his

personal medical purposes. (People v. Strasburg (2007) 148 Cal.App.4th 1052, 1058.)

The Medical Marijuana Program Act of 2003 enacted a series of laws governing medical

marijuana (Health and Safety Code sections 11326.7 et seq.) that expanded the protections

provided under the CUA. (See Health & Saf. Code, §§ 11362.765 [“Subject to the requirements

of this article, the individuals specified in subdivision (b) (i.e., patients and primary caregivers)

shall not be subject, on that sole basis, to criminal liability under Section 11357, 11358, 11359,

11360, 11366, 11366.5, or 11570.”]; 11362.775 [“Qualified patients, persons with valid

identification cards, and the designated primary caregivers of qualified patients and persons with

identification cards, who associate within the State of California in order collectively or

cooperatively to cultivate marijuana for medical purposes, shall not solely on the basis of that

fact be subject to state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366,

11366.5, or 11570.”]; and 11362.77(a) [“A qualified patient or primary caregiver may possess no

more than eight ounces of dried marijuana per qualified patient. In addition, a qualified patient

12. Do either Prop 64 or SB 94 have any immediate impact on the enforcement of laws allowing possession of medical marijuana under the Compassionate Use Act of 1996 (Prop 215), the Medical Marijuana Program Act (MMP), or the Medical Cannabis Regulation and Safety Act (MCRSA)?

64

or primary caregiver may also maintain no more than six mature or 12 immature marijuana

plants per qualified patient.”].)*

The Medical Marijuana program provided limited immunity from arrest to persons in possession

of a state-issued medical marijuana card. Specifically, Health and Safety Code section

11362.71(e) states: “No person or designated primary caregiver in possession of a valid

identification card shall be subject to arrest for possession, transportation, delivery, or

cultivation of medical marijuana in an amount established pursuant to this article, unless there

is reasonable cause to believe that the information contained in the card is false or falsified, the

card has been obtained by means of fraud, or the person is otherwise in violation of the

provisions of this article.” (Health & Saf. Code, § 11362.71(e).) Moreover, section 11362.78

prohibits law enforcement agencies from refusing to accept valid identification cards. (People

v. Strasburg (2007) 148 Cal.App.4th 1052, at p. 1060, fn. 6.)

In 2015, California enacted three bills (AB 243, AB 266, and SB 643 “that collectively established

a comprehensive state regulatory framework for the licensing and enforcement of cultivation,

manufacturing, retail sale, transportation, storage, delivery, and testing of medicinal cannabis in

California. This regulatory scheme is known as the Medical Cannabis Regulation and Safety Act

(MCRSA).” (SB 94, SEC 1(b).) MCRSA enacted Business and Professions Code sections 19300-

19348 to effectuate this regulatory framework.

Proposition 64 enacted a series of new statutes imposing new protocols on when and under what

circumstances identification cards authorizing possession of medical marijuana may issue in the

future (see Health & Saf. Code, § 11362.712-11362.85), it did not change the laws that provide

protection from prosecution for possession of medical marijuana under the Compassionate Use

Act. (See e.g., § [11362.45(i) [“Nothing in Section 11362.1 shall be construed or interpreted to

*Editor’s note: In People v. Kelly (2010) 47 Cal.4th 1008, the California Supreme Court held that “to the

extent section 11362.77’s quantity limitation for marijuana possession and cultivation burdened a criminal

defense available under the CUA (to possess or cultivate any amount of medical marijuana reasonably necessary

for a patient’s current medical condition based on the express recommendation of a physician), the section

impermissibly amended the CUA in violation of the state Constitution.” (County of Tulare v. Nunes (2013)

215 Cal.App.4th 1188, 1203 citing to Kelly at pp. 1043–1049.) In all other respects, however, section 11362.77

continued to “have legal significance” such as a “safe harbor” against prosecution. (Nunes at p. 1203 citing to

Kelly at pp. p. 1048 and 1015, fn. 5; see also Browne v. County of Tehama (2013) 213 Cal.App.4th 704,

713, fn. 3.)

65

amend, repeal, affect, restrict, or preempt: . . . Laws pertaining to the Compassionate Use Act of

1996.”]; 11362.712(a) [“Commencing on January 1, 2018, a qualified patient must possess a

physician's recommendation that complies with Article 25 (commencing with Section 2525) of

Chapter 5 of Division 2 of the Business and Professions Code. Failure to comply with this

requirement shall not, however, affect any of the protections provided to patients or their

primary caregivers by Section 11362.5.”].) Nor did it change the laws enacted by the MMP that

expanded the protections provided by the CUA.

SB 94 eliminated the separate regulatory scheme for medical marijuana, and the sections of the

Business and Professions Code (19300-19348) relating to that separate scheme. SB 94 amended

the scheme put into effect by Prop 64 by placing both cannabis and medicinal cannabis under the

same general commercial regulatory scheme (now entitled the “Medicinal and Adult–Use

Cannabis Regulation and Safety Act” or MAUCRSA). SB 94 preserved the special protections

given to possession, cultivation, and distribution of medicinal marijuana. (See Health & Saf.

Code, § 11362.765.)

However, SB 94 added a new section to the Business and Professions Code that describes when

activities by qualified patients and primary caregivers would outside the definition of

“commercial cannabis activity.” Specifically, Business and Professions Code section 26033

states: “(a) A qualified patient, as defined in Section 11362.7 of the Health and Safety Code, who

cultivates, possesses, stores, manufactures, or transports cannabis exclusively for his or her

personal medical use but who does not provide, donate, sell, or distribute cannabis to any other

person is not thereby engaged in commercial cannabis activity and is therefore exempt from the

licensure requirements of this division. ¶ (b) A primary caregiver who cultivates, possesses,

stores, manufactures, transports, donates, or provides cannabis exclusively for the personal

medical purposes of no more than five specified qualified patients for whom he or she is the

primary caregiver within the meaning of Section 11362.7 of the Health and Safety Code, but who

does not receive remuneration for these activities except for compensation in full compliance

with subdivision (c) of Section 11362.765 of the Health and Safety Code, is exempt from the

licensure requirements of this division.”].) (Bus. & Prof. Code, § 26033, emphasis added.)

Thus, for now, persons (including persons under 18) who could lawfully possess, cultivate, or

transport marijuana under the Compassionate Use Act of 1996 (embodied in Health and Safety

Code section 11362.5) or the Medical Marijuana Program Act (embodied in Health and Safety

Code sections 11326.7 et seq.) may continue to lawfully do so.

66

The definition of marijuana for purposes of the criminal statutes relating to marijuana is found

in Health and Safety Code section 11018. Up until recently, the section stated:

““Marijuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds

of that plant; the resin extracted from any part of the plant; and every compound, manufacture,

salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include

industrial hemp, as defined in Section 11018.5, except where the plant is cultivated or processed

for purposes not expressly allowed for by Division 24 (commencing with Section 81000) of the

Food and Agricultural Code.” (Former Health & Saf. Code, § 11018.)

Proposition 64 amended section 11018 to read: “Marijuana” means all parts of the plant

Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part

of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the

plant, its seeds or resin. It does not include: (a) Industrial hemp, as defined in Section 11018.5; or

(b) The weight of any other ingredient combined with marijuana to prepare topical or oral

administrations, food, drink, or other product.” (Former Health & Saf. Code, § 11018, emphasis

added to highlight change.)

SB 94 amended section 11018 so that the term “cannabis” replaced the term marijuana

throughout the definition. Otherwise, it did not amend section 11018.

However, SB 94 also provided a different definition of cannabis for purposes of the division of

the Business and Professions Code governing the regulation and distribution of marijuana

(Business and Professions Code sections 26000 through 26231.2). Specifically, Business and

Professions Code section 26001 states:

“For purposes of this division, the following definitions shall apply: . . . (f) “Cannabis” means all

parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether

growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of

the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the

plant, its seeds, or resin. “Cannabis” also means the separated resin, whether crude or purified,

obtained from cannabis. “Cannabis” does not include the mature stalks of the plant, fiber

produced from the stalks, oil or cake made from the seeds of the plant, any other compound,

manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin

13. Did Prop 64 or SB 94 change the definition of “marijuana?”

67

extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of

germination. For the purpose of this division, “cannabis” does not mean “industrial hemp” as

defined by Section 11018.5 of the Health and Safety Code.”

Also note that the Medical Marijuana Program statutory scheme modified the definition of

“marijuana” (now “cannabis”) but only for purposes of raising the “safe harbor” defense

provided in Health and Safety Code section 11362.77. Subdivision (d) of section 11362.77 states:

“Only the dried mature processed flowers of female cannabis plant or the plant conversion shall

be considered when determining allowable quantities of cannabis under this section.” (See

also People v. Orlosky (2015) 233 Cal.App.4th 257, 278 [noting that this definition does not

even apply when a defendant raises the general CUA defense (or in applying any section other

than 11362.77) – in that circumstance the general definition of marijuana (now “cannabis”)

found in Health and Safety Code section 11018 governs].)

To the extent there are any significant differences (and there may not be any significant

differences) between the differing definitions of “cannabis” in section 11018 versus section

26001(f), potential issues may arise in deciding whether persons claiming to be engaged in

lawful conduct under the CUA and MMP are subject to the licensure requirements of the

regulatory system set up by Proposition 64 and SB 94.

For example, Business and Professions Code section 26033(a) states: “A qualified patient, as

defined in Section 11362.7 of the Health and Safety Code, who cultivates, possesses,

stores, manufactures, or transports cannabis exclusively for his or her personal medical use but

who does not provide, donate, sell, or distribute cannabis to any other person is not thereby

engaged in commercial cannabis activity and is therefore exempt from the licensure

requirements of this division.” (Emphasis added by IPG.) But it is not clear whether the term

“cannabis” as used in Business and Professions Code section 26033(a) is tied to the definition of

cannabis in section 11018 or the definition used in section 26001(f). This is because the

definition of a qualified patient under section 11362.7 refers to someone possessing or cultivating

“cannabis” for personal medical purposes, and the term “cannabis” for purposes of section

11362.7 is defined in section 11018. However, the term “cannabis” as defined in section 26033(a)

is more generally governed by the definition of cannabis used in section 26001(f).

68

Before the passage of Prop 64, it was well-established in California that the odor of marijuana

emanating from a vehicle provided probable cause to conduct a search of the vehicle. (See

People v. Cook (1975) 13 Cal.3d 663, 667–669; People v. Gale (1973) 9 Cal.3d 788, 794;

Robey v. Superior Court (2013) 56 Cal.4th 1218, 1253 (conc. opn. of Liu, J.) [noting it is a

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

the context of an automobile search or exigent circumstances, can provide a sufficient basis to

proceed without a warrant”]; People v. Waxler (2014) 224 Cal.App.4th 712, 719; People v.

Strasburg (2007) 148 Cal.App.4th 1052, 1059.) “[T]he search of an auto on probable cause

proceeds on a theory wholly different from that justifying the search incident to an arrest: ‘The

right to search and the validity of the seizure are not dependent on the right to arrest. They are

dependent on the reasonable cause the seizing officer has for belief that the contents of the

automobile offend against the law.’” (People v. Superior Court (Overland) (1988) 203

Cal.App.3d 1114, 1120 [citing to Chambers v. Maroney (1970) 399 U.S. 42, 49 and

Carroll v. United States (1925) 267 U.S. 132, 158–159.) Thus, it was no surprise that the

general rule allowing for a search of vehicle based on the odor of marijuana was held to apply

regardless of whether possession of less than an ounce of marijuana carried only a $100 fine and

regardless of whether such possession was treated either as a misdemeanor (from 1975-2010) or

an infraction (after 2011). (See People v. Steele (2016) 246 Cal.App.4th 1110, 1120; People v.

Waxler (2014) 224 Cal.App.4th 712, 720-721, 725; People v. Strasburg (2007) 148

Cal.App.4th 1052, 1059; People v. Leyva (unreported) 2017 WL 1505924, at *7.) Moreover,

this remained true, notwithstanding the passage of the medical marijuana laws that rendered

possession of limited amounts of marijuana lawful under certain circumstances as illustrated in

the case of People v. Waxler (2014) 224 Cal.App.4th 712, 720-721, 725 and People v.

Strasburg (2007) 148 Cal.App.4th 1052, 1059; see also People v. Leyva (unreported) 2017

WL 1505924, *7; People v. Ryan (unreported) 2016 WL 5928669, at pp. *2-*4.)

In People v. Strasburg (2007) 148 Cal.App.4th 1052, a deputy sheriff approached a defendant

and another person sitting in a car in a parking lot. As the deputy approached, the defendant

opened the driver’s side door. The deputy immediately smelled the odor of marijuana. The

14. Did Prop 64 impact whether an officer can search a vehicle based on smelling the odor of marijuana (fresh or burnt) coming from the vehicle or seeing less than an ounce of marijuana or 8 grams of concentrated cannabis inside the vehicle?

69

defendant told the deputy he had been smoking marijuana shortly before the deputy arrived but

claimed he had a “medical marijuana” card. The deputy did not ask to see the card. (Id. at p.

1055.) The deputy asked the defendant if he had marijuana on his person or in the car. The

defendant replied that he did, and retrieved a bag which defendant claimed contained about

three-quarters of an ounce of marijuana. The deputy then asked the defendant to get out of the

car. At that point, the deputy saw another bag of marijuana inside the car. The defendant gave

the deputy this bag, which contained about 2.2 grams of marijuana. (Id. at p. 1055.) When the

defendant got out of the car he again told the deputy he had a medical marijuana card and asked

the deputy to look at it but the deputy again refused. The deputy conducted a patsearch of the

defendant and then placed the defendant in the back of his patrol car. The deputy asked the

defendant if there was more marijuana in his car. Defendant replied there was and that it was

more than an ounce. The deputy then searched the defendant’s car and found 23 ounces of

marijuana and a scale able to weigh the entire amount. (Id. at p. 1056.)

In the appellate court, the defendant claimed that once he produced a doctor’s “prescription” for

marijuana, the deputy had no basis to detain or frisk him or search his car because Health and

Safety Code section 11362.5 (enacted by the Compassionate Use Act of 1996) provided a defense

to charges of possession marijuana when the marijuana is possessed for personal medical

purposes pursuant to a written or oral recommendation or approval of a physician, and Health

and Safety Code sections 11362.77 (enacted as part of the “Medical Marijuana Program”) allowed

such persons to possess up to 8 ounces of dried marijuana. (Id. at pp. 1057-1058.)

The Strasburg appellate court, however, believed that as soon as the deputy smelled the odor

of marijuana in defendant’s car, he had probable cause to search the defendant’s car for

marijuana. (Id. at p. 1059.) The court recognized that the defendant had a medical marijuana

prescription, and could lawfully possess an amount of marijuana greater than that initially

found. Moreover, the court recognized that if defendant only possessed 8 ounces of marijuana

he presumably could have invoked the medical marijuana defense at trial. (Id. at p. 1060.)

Nevertheless, the court held these facts did “not detract from the officer’s probable cause.” (Id.

at pp. 1059-1060.) And held neither the Compassionate Use Act nor the Medical Marijuana

Program prevented the deputy from conducting a search of the vehicle. (Id. at p. 1060.) The

appellate court reasoned the deputy could “entertain a strong suspicion that even if defendant

*Editor’s note: The Compassionate Use Act and the Medical Marijuana Program are discussed in this IPG

memo, question 12 at pp. 62-65.

70

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, including the trunk.” (Id. at p.

1059.) The appellate court held that if the deputy was prevented from searching in these

circumstances, “every qualified patient would be free to violate the intent of the medical

marijuana program and deal marijuana from his car with complete freedom from any reasonable

search.” (Id. at p. 1060.)

In People v. Waxler (2014) 224 Cal.App.4th 712, a deputy sheriff drove into the parking lot in

response to reports of illegal trash dumping taking place in the lot. The deputy spotted the

defendant sitting in a truck, approached the truck, and smelled the odor of burnt marijuana

coming from the truck. He also saw a marijuana pipe with what appeared to be burnt marijuana

in the bench seat next to the defendant. The deputy then searched the truck and found a

methamphetamine pipe and about $50 worth of methamphetamine. During a conversation

between the deputy and the defendant, the defendant showed the deputy a medical marijuana

card although it was not entirely clear whether that information was disclosed before the search

of the truck. (Id. at pp. 716-717.)

On appeal, the defendant claimed the deputy had no right to search his vehicle under the

automobile exception because possession of less than an ounce of marijuana was just an

infraction with no jail time and because possession of medical marijuana was lawful. (Id. at p.

717.) Like the Strasburg court, the Waxler court held the police were entitled to search the

defendant’s car under the automobile exception to the warrant requirement: “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.” (Id. at p. 725.) Moreover, “the

possession of a 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.” (Ibid; see

also People v. Guzman (unpublished) 2016 WL 3884925, at *8 [officer had probable cause to

search vehicle based on strong odor of unburnt marijuana coming from within the vehicle

(notwithstanding presentation of medical marijuana card the court assumed would provide

protection from arrest under the MMP) to determine whether the defendant was in fact

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

71

on possession]; United States v. Liu (E.D. Cal. 2015) [unpublished] 2015 WL 163006, at *5

[“Even assuming [the officer] saw [the defendant’s] medical marijuana card. . ., the strong odor

of marijuana gave [the officer] probable cause to search the car's trunk to determine whether

[the defendant] in fact possessed the marijuana for personal medical needs”].)

Similarly, under pre-Prop 64 law, seeing a small amount of marijuana in a vehicle permitted the

search of the vehicle for additional marijuana even though possession of less than an ounce of

marijuana was a misdemeanor punishable only by a $100 fine (as of 1975) and an infraction

punishable only by a $100 fine (as of 2011). And a search was authorized even though a person

in possession of that amount was generally exempt from arrest or booking. (See People v. Dey

(2001) 84 Cal.App.4th 1318, 1320 [holding presence of a single marijuana bud among

defendant’s effects in the passenger compartment of the vehicle he was driving provided

probable cause for the search of the vehicle, including the trunk]*; People v. Hunter (2005)

133 Cal.App.4th 371, 377 [citing to People v. Coleman (1991) 229 Cal.App.3d 321, 325–328

and People v. Brocks (1981) 124 Cal.App.3d 959, 964–965 as cases holding “that possessing

less than an ounce of marijuana, while exempt from arrest or booking where one furnishes

satisfactory identity and promises to appear, nevertheless may support a search for further

contraband”].) Moreover, a search based on seeing less than an ounce of marijuana in a vehicle

was held to be justified even after the passage of the medical marijuana laws that rendered

possession of marijuana lawful under certain circumstances - and even when the amount of

marijuana initially seen by the police in the vehicle could be, pursuant to the medical marijuana

laws, lawfully possessed by the occupant of the vehicle. (See People v. Strasburg (2007) 148

Cal.App.4th 1052, 1059–60 [discussed in this IPG memo, question 14 at pp. 68-69].)

*Editor’s note: Earlier cases (People v. Gregg (1974) 43 Cal.App.3d 137 and Wimberly v. Superior

Court (1976) 16 Cal.3d 557) also held that the presence of a small amount of marijuana in a vehicle would allow

a search of a vehicle’s passenger compartment, albeit not a search of the trunk. However, both Gregg and

Wimberly pre-dated the United States Supreme Court decision in United States v. Ross (1982) 456 U.S.

798, which held that “[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.” (People v. Dey (2001) 84

Cal.App.4th 1318, 1321-1322 citing to Ross at pp. 800, 825, emphasis added.) The Dey court concluded, the

distinction drawn between the passenger compartment and the trunk by Gregg and Wimberly no longer

applied because it was obligated to apply Ross pursuant to article I, section 28, subdivision (d) of the California

Constitution. Accordingly, the Dey court held that even assuming the defendant would only have made

personal use of the marijuana initially spotted by the officer, “he might stash additional quantities for future use

in other parts of the vehicle, including the trunk” and that “[s]uch a suspicion is sufficient for a search of the

trunk.” (Id. at pp. 1321–1322; accord People v. Hunter (2005) 133 Cal.App.4th 371, 381.)

72

It is an open question whether the passage of Prop 64 has changed the law

regarding whether an officer has probable cause to search a vehicle based on

smelling the odor of marijuana coming from a vehicle and/or based on seeing a

“lawful” amount of marijuana inside the vehicle. (See People v. Leyva (unreported)

2017 WL 1505924, at *8, fn. 5 [upholding search of vehicle based on odor of marijuana but

noting that the stop occurred two years before the passage of Proposition 64 and that it was not

addressing “the impact (if any) of the new laws on the reasonableness of a search arising from

burnt or unburnt marijuana odor in a vehicle.”].)

Here’s what prosecutors can expect defense counsel to argue: First, defense counsel may point out that, pursuant to Health and Safety Code section 11362.1(a),

it is no longer unlawful in California for a person over 21 to be in possession of less than an

ounce of marijuana unless it is possessed “upon the grounds of a school, day care center, or

youth center while children are present” (Health & Saf. Code, § 11362.3(a)(5)) or it is possessed

in an open container or package while the person is driving, operating, or riding in the passenger

seat or compartment of a . . . vehicle used for transportation” (Health & Saf. Code, §

11362.3(a)(4)).

Moreover, counsel will highlight section 11362.1(c), which states: “Marijuana and marijuana

products involved in any way with conduct deemed lawful by this section are not contraband

nor subject to seizure, and no conduct deemed lawful by this section shall constitute

the basis for detention, search, or arrest.” (Health & Saf. Code, § 11362.1(c), emphasis added

by IPG.) In light of this language, defense counsel may argue that since possession of less than

an ounce of marijuana is lawful and the odor of marijuana may arise from possession of less than

an ounce of marijuana, subdivision (c) bars any search of a vehicle where the defendant is only

seen in possession of less than an ounce of marijuana and the odor of marijuana cannot be

determined to arise from more than a lawful amount of marijuana.

Second, defense counsel may claim that, even absent subdivision (c), possession of under an

ounce of marijuana by a person over 21 or the smell of marijuana cannot provide the necessary

probable cause (at least by itself) to search the vehicle of a defendant over the age of 21 now that

such possession is generally lawful. The cases likely to be cited in support of this position are:

People v. Hua (2008) 158 Cal.App.4th 1027; People v. Torres (2012) 205 Cal.App.4th 989;

and In re D.W. (2017) 13 Cal.App.5th 1249 [2017 WL 2875860].

73

In People v. Hua (2008) 158 Cal.App.4th 1027, the court held that the smell of burnt

marijuana coming from an apartment, coupled with seeing someone smoking marijuana inside

an apartment, did not justify a police entry under the exigent circumstances exception to prevent

the destruction of evidence because that exception does not apply when the evidence at risk of

destruction relates to a crime that is not a jailable offense. (Id. at p. 1037.) The prosecution

argued that entry was justified, even though possession of under an ounce of marijuana was an

infraction, because the facts gave rise to probable cause to believe there was additional

marijuana inside the house, i.e., there was probable cause to believe there was sufficient

marijuana present to make possession of it a jailable offense. (Id. at p. 1036.) However, the

Hua court rejected the prosecution’s argument such probable cause existed because while there

was a “reasonable possibility that there was more marijuana in the apartment than the two

blunts observed by the officers, it [was] mere conjecture to conclude that there was enough to

constitute a jailable offense.” (Ibid.)

In People v. Torres (2012) 205 Cal.App.4th 989, the court held the odor of burning marijuana

coming from a hotel room did not support probable cause to believe a jailable offense was being

committed (i.e., that more than 28.5 grams of marijuana would be found in the room) even

assuming there were more than two people inside the room. The court applied the same

reasoning adopted in Hua to conclude the search could not be justified under the exigent

circumstances exception. (Id. at pp. 993-996.)

In re D.W. (2017) 13 Cal.App.5th 1249 [2017 WL 2875860], officers approached several

persons, most of whom had gang associations, standing in the area of a rival gang. D.W. was in

the group and had a smell of marijuana on his clothes and breath. D.W. admitted he had just

smoked some. The officers searched D.W. for more marijuana and located a revolver. (Id. at p.

*1.) The court held the search violated the Fourth Amendment because the officer did not have

probable cause to make a custodial arrest nor to believe defendant possessed more than an ounce

of marijuana. The court cited to Hua and Torres for the proposition that “even if the officers

could reasonably conclude that the smell of marijuana and [the minor’s] admission that he just

smoked some meant he had more, it would have been mere conjecture to conclude that he

possessed enough to constitute a jailable offense.” (Id. at p. *2.)

Third, defense counsel may argue that pre-Prop 64 cases allowing vehicles searches based on

seeing a small amount of marijuana or the odor of marijuana are no longer valid because those

cases relied on the fact that possessing under an ounce of marijuana generally remained a

74

criminal offense and was “contraband.” Defense counsel may note that in People v. Waxler

(2014) 224 Cal.App.4th 712, the defendant had relied on a decision from the Massachusetts

Supreme Court (Commonwealth v. Cruz (2001) 459 Mass. 459, 469-472) which held the

odor of burned marijuana alone did not justify a warrantless vehicle search because the state had

changed the possession of one ounce or less of marijuana from a criminal to a civil violation.

(Waxler at p. 723.) And then counsel may argue that the reasons the Waxler court refused

to follow Cruz no longer exist. Specifically, Waxler gave “at least two reasons” for declining to

follow Cruz. “First, in contrast to Massachusetts, possession of up to an ounce of nonmedical

marijuana in California is a ‘crime.’ (Pen. Code, § 16.)” (Waxler at p. 723; see also People v.

Strasburg (2007) 148 Cal.App.4th 1052, 1060 [noting “Unlawful possession of marijuana

remains a criminal offense . . ., subject to seriously ill persons using marijuana for medical

purposes recommended by a physician . . . not being subject to criminal liability”, emphasis

added by IPG].) “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.’” (Waxler at p. 723, emphasis in original.) Whereas, in

California “[o]ther 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.’” (Waxler at p. 721, emphasis added by IPG; see

also State v. Brito (Conn. App. Ct. 2017) 154 A.3d 535, 563, fn. 23 [distinguishing Cruz on

similar ground].) Defense counsel may point out that now, possession of less than an ounce of

marijuana by persons over 21 is legal and, per section 11362.1(c), “[m]arijuana and marijuana

products involved in any way with conduct deemed lawful by this section are not contraband

. . .” (Health & Saf. Code, § 11362.1(c).)

Here’s how prosecutors can respond to those defense arguments: First, prosecutors should point out section 11362.1 does not say marijuana is no longer

contraband nor does it say possession of marijuana under an ounce cannot be the basis for a

search. What it says is: “Marijuana and marijuana products involved in any way with

conduct deemed lawful by this section are not contraband nor subject to seizure, and no

conduct deemed lawful by this section shall constitute the basis for detention, search, or

arrest.” (Health & Saf. Code, § 11362.1(c), emphasis added by IPG.)

Even after the passage of Prop 64, marijuana remains a schedule I controlled substance. (See

Health & Saf. Code, § 11054(d)(13).) And while marijuana possessed lawfully is not contraband,

75

unlicensed possession of more than an ounce of marijuana is not possessed lawfully and remains

contraband. (Cf., People v. Cannergeiter (V.I. Super. 2016) 2016 WL 5468374, at *6

[finding decriminalization of small amounts of marijuana did not prohibit officers from stopping

a vehicle based on the detection of a smell of marijuana since “the Legislature did not alter

marijuana’s status as a Schedule I controlled substance under 19 V.I.C. § 595” and “[a]s such,

marijuana is contraband and is still illegal to possess in the Virgin Islands.”].)

Second, it should be noted that when an officer searches a vehicle based on seeing a small

amount of marijuana or smelling the odor of marijuana, the officer is not searching based on

lawful conduct but on the reasonable inference that the person may be in unlawful possession of

greater than an ounce of marijuana. (Cf., United States v. Sokolow (1989) 490 U.S. 1, 9–10

[quoting Reid v. Georgia (1980) 448 U.S. 438, 441 for the proposition that “there could, of

course, be circumstances in which wholly lawful conduct might justify the suspicion that

criminal activity was afoot” and Illinois v. Gates (1983) 462 U.S. 213, 243-244 for the

propositions that “innocent behavior will frequently provide the basis for a showing of probable

cause” and that when determining if probable cause or reasonable suspicion exists, “the relevant

inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that

attaches to particular types of noncriminal acts.”]; People v. Souza (1994) 9 Cal.4th 224, 233

[“The possibility of an innocent explanation does not deprive the officer of the capacity to

entertain a reasonable suspicion of criminal conduct.”].)

Third, prosecutors can explain the decisions in Strasburg and Waxler (both of which allowed

vehicle searches based on the inference that a vehicle containing a small amount of marijuana or

smelling of marijuana also contains greater amounts of marijuana - notwithstanding the

presence of evidence that the driver of the vehicle was entitled to legally possess medical

marijuana) hinged, in part, upon the fact that possession of more than the recommended

amount of medical marijuana remained unlawful. While acknowledging that possession of

marijuana is now legal in more circumstances than when Strasburg and Waxler were

decided, prosecutors should assert the basic principle established in those pre-Prop 64 cases (i.e.,

that possession of some lawful marijuana can lead to an inference that additional unlawful

possession of marijuana might be occurring) still applies. (Cf., People v. Zuniga (Colo. 2016)

372 P.3d 1052, 1059 [upholding search of vehicle based, in part on odor of marijuana, even

though Colorado has legalized possession of one ounce or less of marijuana, since “a substantial

number of other marijuana-related activities remain unlawful under Colorado law” and “[g]iven

that state of affairs, the odor of marijuana is still suggestive of criminal activity”].)*

76

Fourth, prosecutors can attempt to distinguish the cases of People v. Hua (2008) 158

Cal.App.4th 1027 and People v. Torres (2012) 205 Cal.App.4th 989 on the ground that both

involved searches of homes under the exigent circumstances exception. As pointed out by

People v. Waxler (2014) 224 Cal.App.4th 712 in support of its holding a search of a vehicle

could be based on the smell of marijuana and seeing a small amount of marijuana, both Hua

and Torres “concerned warrantless entry into a dwelling and the application of the exigent

circumstances doctrine to minor, nonjailable offenses” whereas “[t]he automobile exception to

the warrant requirement does not require a showing of exigent circumstances” and

“[w]arrantless examinations of automobiles may be proper in circumstances in which a search of

a home or office would not be”. (Id. at p. 724.) The Waxler court drew a sharp distinction

between searches involving “physical entry of the home” which “is the chief evil against which

the wording of the Fourth Amendment is directed” and automobile searches which are allowed

without a warrant because of “practical concerns unique to automobiles.” (Ibid.) The focus in

both Hua and Torres was on whether the observations justified the entry into the home. In

that circumstance, courts are naturally more reluctant to allow such entry based on the inference

that a minor crime provides probable cause to believe a more serious crime was occurring. But

these same considerations do not apply to searches of vehicles which are allowed based, in part,

upon the lesser expectation of privacy in one’s vehicle than in one’s home. (See California v.

Carney (1985) 471 U.S. 386, 391.)

The case of In re D.W. (2017) 13 Cal.App.5th 1249 [2017 WL 2875860] cannot be distinguished

on the same grounds as Hua and Torres because it involved a search of a person rather than a

house. Moreover, expect the defense to argue that the significance of the language from Hua

that was relied upon by the court in D.W. is not tied to the nature of the search but to the nature

of the inference. That is, Hua, Torres, and D.W. all stand for the proposition that whatever

inference may be drawn that a person is in possession of unlawful quantities of marijuana based

on the odor of marijuana or seeing someone in possession of under an ounce of marijuana, it is

not a sufficiently strong inference that by itself, can provide probable cause to search for

unlawful quantities of marijuana.

*Editor’s note: Do not be surprised if defense counsel argues against placing much stock in the holding of

Zuniga even though Colorado, like California, has generally legalized possession of less than an ounce of

marijuana. Defense counsel will likely point out that there is no provision in Colorado’s law regarding

marijuana comparable to section 11362.1(c)’s prohibition on detentions or searches based on “conduct deemed

lawful” under Prop 64.

77

However, prosecutors can contend that even if the focus in D.W. is on the nature of the

inference, as opposed to the nature of the search, the strength of the inference is tied to the

nature of the search. And it is simply more likely that additional marijuana in quantities over an

ounce would be found in a vehicle than on a person. Indeed, since D.W. was deciding whether a

search incident to arrest could be based on the smell of marijuana in a pre-Prop 64 context (i.e.,

when marijuana under an ounce was still unlawful), the only way it can be reconciled with

Waxler and Strasburg is to assume the D.W. court believed there was a difference between

the inference to be drawn based on smelling marijuana emanating from a vehicle or driver of a

vehicle and smelling marijuana emanating from a pedestrian. If the D.W. court believed there

was no difference, it would have had to address the directly contrary holdings in Waxler and

Strasburg - which the D.W. court did not. Accordingly, the holding in D.W. implicitly

assumes the strength of the inference that a vehicle will contain unlawful amounts of marijuana

based on the odor of marijuana emanating from a vehicle is greater than the strength of that

inference when the smell of marijuana emanates from a pedestrian. (See People v. Brukner

(N.Y. City Ct. 2015) 25 N.Y.S.3d 559, 570-571 [treating searches of vehicles based on odor of

marijuana as distinct from searches of pedestrians based on odor of marijuana and allowing the

former but not the latter in state where possession of less than 25 grams of marihuana is a non-

criminal violation carrying a maximum penalty of $100.00].)

Even assuming a court buys the defense argument that since Prop 64 has made possession of

marijuana under an ounce generally lawful in California, the mere odor of marijuana (which

cannot be pegged to a specific quantity) no longer provides the probable cause necessary to

justify searches of vehicles under the automobile exception, can prosecutors still claim the search

is justified because there is probable cause to believe evidence of a federal crime will be found in

the vehicle?

Possession of marijuana by anyone in any amount remains a crime under federal law. (See

People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445, fn. 11; People v. Bianco (2001) 93

Cal.App.4th 748, 753; People v. McKnight (Colo. App.) 2017 WL 2981808, at p.*3; 21

U.S.C.A. § 844(a).) In People v. Barajas (1978) 81 Cal.App.3d 999, the court stated “[t]he

statutory law of the United States is part of the law of each state just as if it were written into

A. Can an argument be made that a search of a vehicle based on the

odor of marijuana or seeing under an ounce of marijuana is justified

because possession of even small amounts of marijuana remains a

federal crime?

78

state statutory law.” (Id. at p. 1006.) However, the statement was made in the context of

deciding whether local police had the power to arrest for violations of federal immigration laws

and there is language in the federal immigration statutes that specifically authorizes local law

enforcement officials to arrest for violation of the federal immigration law. (Id. at p. 1005; see

also 8 U.S.C. § 1324(c).)

Hence, it is not crystal clear whether, in California, peace officers have the discretion to detain,

arrest, or search persons based solely on suspicion the persons have violated federal, but not

state, law. Or, if they do, whether Prop 64 eliminated this discretion when it comes to

enforcement of marijuana laws that are inconsistent with Prop 64.

There is some California case law indicating that Congress does not have the authority to compel

the states to direct their law enforcement personnel to enforce federal laws. (See County of

San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 827–828 [citing to Printz v.

United States (1997) 521 U.S. 898, which held the 10th Amendment deprived Congress of the

authority to compel local law enforcement officials to conduct background checks on prospective

handgun purchasers]; accord Qualified Patients Ass'n v. City of Anaheim (2010) 187

Cal.App.4th 734, 761 [same].) Moreover, there are some cases indicating that judicial

enforcement of federal law is precluded when it is inconsistent with state law. (See City of

Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 380 [allowing return of seized

“medical” marijuana and noting “judicial enforcement of federal drug policy is precluded in this

case because the act in question—possession of medical marijuana—does not constitute an

offense against the laws of both the state and the federal government.”], emphasis added by

IPG.)

But whether Congress can compel state law enforcement personnel to enforce federal law and

whether judicial enforcement of federal drug policy is precluded by state law are different

questions than whether state law enforcement officers are precluded from voluntarily enforcing

federal laws, including federal drug laws and/or whether they may conduct searches of vehicles

based on probable cause to believe evidence of a federal offense or contraband under federal law

will be found in a vehicle. (See City of Garden Grove v. Superior Court (2007) 157

Cal.App.4th 355, 379-380 [drawing a distinction between the question of “whether state police

officers have the authority to arrest individuals for certain violations of federal law” and the

question of whether state courts may invoke federal law to punish conduct that is legally

permissible under state law]; Com. v. Craan (Mass. 2014) 13 N.E.3d 569, 578-579 [discussed

79

below at pp. 79-80]; and compare People v. Bianco (2001) 93 Cal.App.4th 748, 753 [state

courts may impose probation requiring defendant to comport with federal marijuana laws] with

People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1446 [defendant may assert section 11362.5

as a defense to revocation of probation and “the People may not evade section 11362.5 on the

ground defendant violated a probation condition that he obey the federal criminal marijuana

law” because it “is only as an offense against state laws that a federal criminal law may be given

effect.”].)

Moreover, even assuming officers do not have authority to conduct the search under state law,

this does not necessarily mean that evidence seized as a result of a search for evidence of a

federal crime must be suppressed. (Cf., People v. Macabeo (2016) 1 Cal.5th 1206, 1218-1219

[evidence seized pursuant search incident to custodial arrest in violation of state law does not

require suppression if search does not violate the Fourth Amendment, but evidence seized

pursuant to search incident to noncustodial citation must be suppressed].)

Until these questions are settled, prosecutors may raise the argument that officers can search a

vehicle based on probable cause to believe evidence of a federal crime is present. Nonetheless,

before choosing to rely on the argument, prosecutors should be aware of how the issue has been

handled in the few out-of-state decisions that have more directly confronted the question.

In the case of Com. v. Craan (Mass. 2014) 13 N.E.3d 569, the State attempted to justify a

search of a vehicle based on the smell of marijuana under the theory “the search conformed to

the requirements of the automobile exception because the trooper had probable cause to believe

that evidence of a Federal crime, namely, possession of marijuana, would be found inside the

defendant's vehicle despite the absence of any Federal involvement in the stop at issue.” (Id. at

p. 574, emphasis added by IPG.)

*Editor’s note: In Crann, the state did not attempt to justify the search on grounds there was probable cause

to search the vehicle for a violation of state law based on the odor of marijuana because Massachusetts courts

(in contrast to pre-Prop 64 California courts) have held that “since the enactment of the 2008 initiative

decriminalizing the possession of one ounce or less of marijuana, . . . the odor of burnt marijuana alone cannot

support probable cause to search a vehicle without a warrant” and “neither can such probable cause rest solely

on the odor of unburnt marijuana.” (See Commonwealth v. Craan (Mass. 2014) 13 N.E.3d 569, 574 citing,

respectively, Commonwealth v. Cruz (2001) 459 Mass. 459, 475-476 and Commonwealth v. Overmyer

(Mass. 2014) 11 N.E.3d 1054, 1060.)

80

The Craan court rejected the State’s argument because allowing the search would “circumvent

the ‘clear intent’ of the voters who enacted the 2008 initiative” which was a “valid exercise of

legislative authority, limit[ing] the scope of permissible police conduct with regard to marijuana

offenses by reclassifying possession of one ounce or less as a civil violation.” (Id. at p. 577.) The

Craan court recognized that “local police are not precluded from enforcing federal statutes” and

that a State law “may authorize local and State police to enforce Federal criminal statutes[.]”

(Ibid.) However, the Craan court held any such authority derives from State law and

concluded the enactment of the initiative “must be read as curtailing police authority to enforce

the Federal prohibition of possession of small amounts of marijuana.” (Id. at pp. 577-578.)*

The Craan court also rejected the People’s argument that regardless of whether “State and local

police lack authority to make arrests under Federal law for possessing small amounts of

marijuana, . . . police may simply investigate possible violations of Federal statutes and turn over

any evidence obtained to Federal authorities.” (Id. at p. 578.) The Craan court held that while

possession of a small amount of marijuana was technically subject to a Federal prohibition, it did

not “provide an independent justification for a warrantless search” “[e]ven assuming that the

power to investigate crimes and make arrests may be decoupled” in the way suggested by the

State because: (i) state law expressly decriminalized possession of under an ounce of marijuana;

(ii) there was no evidence the state officers were engaged in a joint investigation with federal

authorities; and (iii) the Federal government had indicated, by way of a Department of Justice

memo issued in 2009 and again in 2013, that it was deprioritizing enforcement of marijuana-

related offenses and deferring to state law enforcement if the crimes did not involve violence, the

use of firearms, or diversion of revenues to criminal enterprises. (Id. at pp. 578-579.)

*Editor’s note: The Craan court cited to several United States Supreme Court decisions for the proposition

that any authority local police have to enforce federal law must derive from State law: Miller v. United

States (1958) 357 U.S. 301, 305 [where State police officers make arrest for violation of Federal law,

“lawfulness of the arrest without warrant is to be determined by reference to state law”]; Johnson v. United

States (1948) 333 U.S. 10, 15 n. 5 [same]); Dallemagne v. Moisan (1905) 197 U.S. 169, 174 [“It has long

been held that power may be conferred upon a state officer, as such, to execute a duty imposed under an act of

Congress, and the officer may execute the same, unless its execution is prohibited by the constitution or

legislation of the state”]). However, none of these cases are directly on point.

*Editor’s note: The last ground may no longer serve as a basis for finding local police cannot search vehicles for

evidence of the federal offense of marijuana possession since the United States Department of Justice is reviewing the

policy of limited enforcement of federal marijuana laws in states that have legalized or decriminalized marijuana.

(See https://www.bostonglobe.com/metro/2017/08/07/experts-see-federal-crackdown-marijuana-

unlikely/IIKpOY7YdfvpLGONtSh6hN/story.html.)

81

In the recent Colorado case of People v. McKnight (Colo. App. 2017) 2017 WL 2981808, the

concurring justice cited to the case of Craan in support of the conclusion that the Colorado

statute legalizing possession of up to one ounce of marijuana for personal use by persons twenty-

one years of age or older, “curtail [ed] police authority to enforce the Federal prohibition of

possession of [up to one ounce] of marijuana.” (Id. at p. *5.)

If a California court accepts the argument that the mere odor of burnt or unburnt marijuana

cannot, post-Prop 64, justify a search of a vehicle under state law, expect the defense to assert

that the search cannot be justified under the alternative theory that the search can be justified

because the smell provides probable cause to believe evidence of a federal violation of the law

will be present. The defense will likely proceed under a similar rationale to that adopted in the

Craan decision. Namely, that whatever authority state law enforcement in California may have

to enforce violations of federal law, Prop 64 has deprived law enforcement of the authority to

enforce federal marijuana laws – to the extent those laws are inconsistent with Prop 64.

Prosecutors may wish to argue that if Prop 64 prevents searches by state law enforcement for

contraband and evidence of crimes under federal law, then Prop 64 creates a “positive conflict”

with the federal Controlled Substances Act (CSA) “so that the two cannot consistently stand

together” and thus the CSA invalidates and preempts application of Prop 64 in this regard. (See

21 U.S.C.A. § 903 [describing conditions when state law will be preempted by the federal CSA].)

The defense, however, will likely respond that California courts have generally held that laws

which permit possession of marijuana do not create a positive conflict with federal laws

prohibiting possession of marijuana unless the state law requires acts forbidden by the CSA.

(See e.g., City of Palm Springs v. Luna Crest Inc. (2016) 245 Cal.App.4th 879, 885 [since

federal CSA does not direct local governments to exercise their regulatory, licensing, zoning, or

other power in any particular way, the exercise of those powers with respect to the operation of

medical marijuana dispensaries is not preempted by federal law]; Kirby v. County of Fresno

(2015) 242 Cal.App.4th 940, 962–963 [since the federal CSA does not require local law

enforcement officers to arrest persons who possess or cultivate marijuana, aspects of MMP

preventing state officers from arresting persons with valid identification cards do not create a

positive conflict between the MMP and federal law]; Qualified Patients Ass'n v. City of

Anaheim (2010) 187 Cal.App.4th 734, 759-760 [city’s compliance with state law in the exercise

of its regulatory, licensing, zoning, or other power with respect to the operation of medical

marijuana dispensaries that meet state law requirements would not violate conflicting federal

82

law]; County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 826

[because the federal “CSA law does not compel the states to impose criminal penalties for

marijuana possession, the requirement that counties issue cards identifying those against whom

California has opted not to impose criminal penalties does not positively conflict with the CSA”];

City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 385, 391 [principles

of federal preemption did not preclude return of marijuana seized from qualified medical

marijuana user during traffic stop, after drug charge against him was dismissed]; but see

People v. Crouse (Colo. 2017) 388 P.3d 39 [holding the provision of Colorado’s medical

marijuana which requires law enforcement officers to return, or distribute, marijuana necessarily

requires law enforcement officers to violate federal law and constitutes a “positive conflict”

between the return provision and the CSA’s distribution prohibition such that “the two cannot

consistently stand together.”]; Frazier v. State (Alaska 1977) 566 P.2d 1023, 1024 [federal law

rendering marijuana contraband prevented return of marijuana to defendant].)

There are cases minimizing the distinction between the fresh and burnt marijuana odors and

indicating the smell of either odor can support probable cause to search. (See e.g., People v.

Waxler (2014) 224 Cal.App.4th 712, 725 [“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”]; People v. Lovejoy (1970) 12

Cal.App.3d 883, 887 [“The obvious truism that the odor of burning marijuana furnishes

probable cause to believe that the substance itself is present has been given frequent expression

by our appellate courts.”]; People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826–827 [officer

had probable cause to search defendant’s person and vehicle based on the odor of burnt

marijuana since the “inference that marijuana is present on the person of one who has recently

smoked it is not unreasonable” and “[i]t seems reasonable to believe that one who has recently

smoked a marijuana cigarette has others in his possession.”]; People v. Cummings

(unpublished) 2017 WL 2298439, at *3 [noting that “[i]t makes no difference whether the odor is

of fresh or burnt marijuana” in upholding search of vehicle based on odor of fresh marijuana];

People v. Greene (unpublished) 2015 WL 780788, at *7 [probable cause existed to search

vehicle regardless of fact officer was unable to say whether the odor was that of fresh or burnt

marijuana “because, under the case law, both types of odors can lead an officer to reasonably

B. Will it make a difference whether the odor is of unburnt, as opposed

to burnt, marijuana? And, if so, will it make a difference whether

the odor of unburnt marijuana is strong?

83

suspect that marijuana is present.”]; United States v. Peltier (8th Cir.2000) 217 F.3d 608,

610 [finding probable cause to search a truck where the deputy smelled odor of burnt marijuana

coming from the cab]; United States v. McCoy (8th Cir. 2000) 200 F.3d 582, 584 [the odor

of burnt marijuana on the suspect and the smell of air freshener in the car gave officer probable

cause to search the vehicle]; United States v. Neumann (8th Cir. 1999) 183 F.3d 753, 756

[smell of burnt marijuana provided probable cause to search the entire vehicle for drugs]; State

v. Sarria (Fla. Dist. Ct. App. 2012) 97 So.3d 282, 284 [“For the purpose of providing a basis for

probable cause, we see no reason to distinguish the odor of burnt marijuana from the odor of raw

marijuana”]; United States v. Liu (E.D. Cal., 2015) (unpublished) 2015 WL 163006, *3 [smell

of marijuana (without distinguishing between burnt and unburnt smell) provides probable cause

to search vehicle despite medical marijuana laws].)

However, notwithstanding the fact that courts have allowed searches of a vehicle based on either

the smell of burnt marijuana or the smell of unburnt marijuana, in a post-Prop 64 world some

courts may be unwilling to permit a search of a vehicle based solely on the smell of burnt

marijuana while remaining open to the idea that the smell of unburnt marijuana would permit

such a search because the latter provides a greater amount of suspicion that an unlawful quantity

of marijuana is possessed. (See Robey v. Superior Court (2013) 56 Cal.4th 1218, 1252

(conc. opn. of J. Liu) [citing numerous decisions, including Wimberly v. Superior Court

(1976) 16 Cal.3d 557, 571-572, that “have recognized ‘a commonsense distinction between the

smells of burnt and raw marijuana’” and noting that since “‘the smell of burnt marijuana is

generally consistent with personal use of marijuana’ . . ., the smell does not necessarily indicate

the presence of marijuana when it emanates from a closed container.”].) If a court is of this

inclination, prosecutors can point out all the California cases finding that the smell of marijuana

or seeing people smoke marijuana did not provide probable cause to believe additional unlawful

quantities of over an ounce of marijuana would be possessed (i.e., Hua, Torres, and D.W. –

see this IPG memo, question 14 at p. 72) involved the odor of burnt marijuana.

Based on the above cases and analysis, prosecutors should be prepared to argue that the smell of

raw marijuana permits a greater inference the person is possessing an unlawful amount of

marijuana than could be drawn based solely on the smell of burnt marijuana. (State v. Sarria

(Fla. Dist. Ct. App. 2012) 97 So.3d 282, 284 [“the overpowering smell of raw marijuana”

provides “an even stronger basis for a search than exists when the odor of burnt marijuana is

present”]; but see Commonwealth v. Overmyer (Mass. 2014) 11 N.E.3d 1054, 1058

[recognizing that “the odor of unburnt, rather than burnt, marihuana could be more consistent

84

with the presence of larger quantities,” but nonetheless finding “it does not follow that such an

odor reliably predicts the presence of a criminal amount of the substance, that is, more than one

ounce, as would be necessary to constitute probable cause”].)

Moreover, while some courts have not placed much emphasis on whether the odor is strong or

faint (compare United States v. Smith (8th Cir. 2015) 789 F.3d 923, 929 [finding both will

support probable cause to search based on the odor of marijuana] with Com. v. Overmyer

(Mass. 2014) 11 N.E.3d 1054, 1058 [holding it does not make a difference whether there is a

“strong” or “very strong” smell of unburnt marihuana” since “such characterizations of odors as

strong or weak are inherently subjective; what one person believes to be a powerful scent may

fail to register as potently for another.”])*, in cases involving a “strong” odor of marijuana,

prosecutors may logically argue that the more powerful the odor of unburnt marijuana, the

greater the probable cause to believe a vehicle contains more than an ounce of marijuana. (See

People v. Jones (N.Y. Co. Ct. 2016) 40 N.Y.S.3d 889, 894 [noting that when “an officer

encounters, as was the case here, the overpowering smell of raw marijuana, there is a fair

probability that the car is being used to transport large quantities of marijuana . . .”]; State v.

Sarria (Fla. Dist. Ct. App. 2012) 97 So.3d 282, 284 [same]; United States v. Downs (10th

Cir. 1998) 151 F.3d 1301, 1303 [same]; People v. Lewis (unreported) 2013 WL 1232768,*3

[officer could reasonably suspect more marijuana than the small amount seen was present in the

car because officer “testified that based on his experience, he did not think the amount he saw

would produce such a strong odor”].)

One thing to keep in mind is that regardless of whether the smell of marijuana emanating from a

vehicle provides probable cause to believe the defendant is possessing an unlawful amount of

marijuana, it still can provide probable cause to believe the defendant is possessing an open

container of marijuana. (See this IPG memo, question 14-c at p. 85, immediately below.)

*Editor’s note: The conclusion in Com. v. Overmyer (Mass. 2014) 11 N.E.3d 1054 that an officer’s opinion

that the smell of unburnt marijuana is strong or weak cannot be relied upon because the characterization of the

strength of the odor is subjective (id. at p. 1058) is irrational. After all, many observations leading to probable

cause are based on an officer’s subjective but trained opinion (e.g., how fast someone is traveling), but that does

not mean the opinion cannot carry weight in assessing probable cause.

85

Odor of marijuana

Regardless of whether the smell of marijuana emanating from a vehicle no longer provides

probable cause to believe the defendant is possessing an unlawful amount of marijuana, the

smell of unburnt marijuana (and even burnt marijuana) can still provide probable cause to

believe the defendant is possessing an open container of marijuana in the same way that the odor

of alcohol emanating from a vehicle provides probable cause to believe the driver is carrying an

open container of alcohol – even though possession of alcohol is generally lawful. (See People

v. Molina (1994) 25 Cal.App.4th 1038, 1042 [“There was no question but that, once he noticed

the odor of fresh beer, Officer Petersen had probable cause to believe that an offense was being

committed. The officers, therefore, were entitled to search the passenger compartment of the

truck, including any containers therein, for open containers of alcohol.”]; People v. Evans

(1973) 34 Cal.App.3d 175, 179 [overpowering odor of alcohol that did not appear to be have been

coming from just the driver or passenger allowed for search of vehicle, including paper bag for

open container of alcohol]; see also People v. Nottoli (2011) 199 Cal.App.4th 531, 551–552

[citing to United States v. Reagan (2010) 713 F.Supp.2d 724, 733 at fn. 7 for the proposition

that it would be reasonable to believe physical evidence in a DUI case (which presumably, would

be an open container of alcohol) would be found in a vehicle could arise based on, inter alia, “the

smell of alcohol emanating from within the passenger compartment”]; Gomez v. State (Okla.

Crim. App. 2007) 168 P.3d 1139, 1142 [smell of alcohol and a missing container from an

otherwise undisturbed six-pack of alcoholic beverages, coupled with centerline swerving gave

probable cause to search vehicle for open container]; People v. Brooks (N.Y. App. Div. 2005)

804 N.Y.S.2d 140, 142 [odor of alcohol in vehicle and observation of a six-pack carton of beer

with only one bottle remaining provided sufficient probable cause to search for open containers];

State v. Wigginton (Idaho 2005) 125 P.3d 536, 539 [probable cause to search for open

container of alcohol existed where overwhelming odor of alcohol came from inside the vehicle,

alcohol could have spilled when car hit a rock while pulling over, both vehicle occupants denied

drinking and claimed smell came from earlier spill that arose when heater was turned on, and

field sobriety tests confirmed the driver had not been drinking]; State v. Haibeck (N.D. 2004)

685 N.W.2d 512, 518 [holding there was probable cause to search for open containers when a

C. Can a vehicle be searched based on the odor of marijuana or seeing

uncontained marijuana in any amount in a vehicle under the

rationale there is evidence of the crime of possessing an open

container of marijuana?

86

smell of alcohol came from the vehicle and a breath test revealed that the occupants had

consumed alcohol]; State v. Hoer (Neb. 1989) 436 N.W.2d 179, 183 [smell of alcohol coming

from car and minor, coupled with minor’s failure on field sobriety tests and preliminary breath

test gave probable cause to search for open container]; State v. Peterson (S.D. 1987) 407

N.W.2d 221, 223 [odor of alcohol from car and driver gave probable cause to search for

violations of “open container” law]; State v. Schinzing (Minn. 1983) 342 N.W.2d 105, 109

[odor of alcohol from car driven by 17-year old gave probable cause to search for violations of

“open container” law]; but see State v. Stevenson (Kan. 2014) 321 P.3d 754, 762-763 [no

probable cause to search for open containers in vehicle based solely on very strong odor of

alcohol emanating from within the vehicle, where transportation of open container not always

unlawful and officers did not “acquire additional inculpatory facts relating to the crime being

investigated”]; State v. Burbach (Minn. 2005) 706 N.W.2d 484, 489 [under state

constitution no probable cause to do vehicle search based solely on an adult passenger smelling

of alcohol].) An open container of marijuana in a vehicle remains contraband since it is

unlawful to possess marijuana in this fashion. (See Health & Saf. Code, 11362.3(a)(4)/

11362.4(b) and Veh. Code, § 23222(b).) Thus, officers who smell an odor of unburnt marijuana

emanating from a vehicle should be able to search the vehicle based on probable cause to believe

there is evidence of a crime or contraband in the vehicle: an open container of marijuana inside

the vehicle.

Arguably, the smell of burnt marijuana coming from a vehicle would also indicate recent use of

marijuana in the vehicle, which in turn could provide probable cause to believe there will be

evidence of the infraction of possessing uncontained marijuana in a vehicle. Certainly though, if

SB 65 passes, which makes it an infraction (i.e., a “crime”) to smoke or ingest marijuana while

driving a vehicle (see proposed Vehicle Code section 23221(b)), officers who smell an odor of

burnt marijuana emanating from a vehicle may be able to search the vehicle based on probable

cause to believe there is evidence of a crime (i.e., the end of a smoked cigarette or a device used

for smoking marijuana like a vaporizer pen or e-cigarette) in the vehicle. (See also Health &

Saf. Code, §§ 11362.3(a) (7) [stating “Section 11362.1 does not permit any person to: . . . Smoke or

ingest cannabis or cannabis products while driving, operating a motor vehicle, . . . or other

vehicle used for transportation.”]; 11362.3(a)(8) [“Section 11362.1 does not permit any person to:

. . . Smoke or ingest cannabis or cannabis products while riding in the passenger seat or

compartment of a motor vehicle, . . . or other vehicle used for transportation except as

permitted” in certain circumstances]; cf., United States v. Pearson (C.D. Cal. 2017) 2017 WL

87

1628397, at *6 [noting that while marijuana use is lawful in California, fact defendant was rolling

a joint gave officers reasonable suspicion to believe he was using marijuana while in and

operating a vehicle].)

Sighting of uncontained marijuana

The same basic rationale that would allow for a search of a vehicle for evidence of an open

container based on smelling the odor of marijuana emanating from a vehicle (see this IPG,

question 14-C at pp. 85-86) should permit a search of a vehicle for additional evidence of

marijuana in an open container based on seeing uncontained marijuana in an amount under an

ounce. The search is justified on the same basis that a search for additional unlawful possession

of otherwise legal alcohol is justified when an open container is spotted in a vehicle. (See

People v. Chapman (1990) 224 Cal.App.3d 253, 256 [“there is no quarrel with the legal

proposition that, after observing the open container of alcohol, the officers had the right to

search the vehicle for additional containers of alcohol”]; People v. Carter (1985) 163

Cal.App.3d 1183, 1185 [“The officer’s entry into the car to seize the open beer bottle was clearly

justified because the bottle was in plain view from the outside. This justification to enter the car

also authorized a search within the car for more open containers of alcohol.”].)

Even if a court is inclined to find that seeing under an ounce of marijuana in a closed container

does not provide justification to search a vehicle, marijuana in an open container or when

uncontained is unlawful to possess and remains contraband. (See Health & Saf. Code,

11362.3(a)(4)/11362.4(b) and Veh. Code, § 23222(b).) Thus, entry into a vehicle to seize the

uncontained or openly contained marijuana or search for more would not be barred by section

11362.1(c), which states: “Marijuana and marijuana products involved in any way with conduct

deemed lawful by this section are not contraband nor subject to seizure, and no conduct

deemed lawful by this section shall constitute the basis for detention, search, or arrest.”

(Health & Saf. Code, § 11362.1(c), emphasis added by IPG.)

If a court is not prepared to find probable cause exists to search a vehicle for additional unlawful

quantities based solely on the smell of either burnt or unburnt marijuana, prosecutors should

make sure to explore whether there are additional facts present that, in conjunction with the

smell of marijuana, permit an inference the defendant may be in possession of additional

D. If a court finds the smell of either burnt or raw marijuana is not

sufficient by itself to provide probable cause to search a vehicle,

what other arguments should prosecutors consider making?

88

unlawful amounts of marijuana and/or is possessing the marijuana for an unlawful purpose (i.e.,

for sale). (Cf., People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1056 [rejecting defendant’s claim

that “the odor of marijuana cannot contribute to probable cause now that possession of one

ounce or less of marijuana is allowed under Colorado law” and holding “the odor of marijuana is

relevant to the totality of the circumstances test and can contribute to a probable cause

determination.”]; People v. Cox (Colo. 2017) 2017 WL 481620, *1 [agreeing with Zuniga and

rejecting defendant’s claim that canine alert from a dog “trained to detect any amount of

marijuana, including legal amounts” could not be considered in determining whether probable

cause existed to search vehicle]; State v. Bingman (Ore. 1999) 986 P.2d 676, 678-679

[holding “the discovery of less than one ounce [of marijuana] is a relevant fact that, when

combined with other facts, may create probable cause’ that a criminal offense has been

committed” even assuming “possession of less than an ounce of marijuana is a ‘violation,’ not a

criminal ‘offense,’” and even if “possession of such a small quantity cannot, by itself, support

probable cause for an arrest or search”].)

For example, in People v. Zuniga (Colo. 2016) 372 P.3d 1052, the court held there was

probable cause to search a vehicle for illegal drugs following a traffic stop where, in addition to

the heavy odor of raw marijuana, the driver and passenger gave remarkably disparate accounts

of their visit to Colorado when questioned (raising a reasonable inference that they were

attempting to conceal illegal conduct), the passenger and driver exhibited extreme nervousness,

and there was an alert by a police dog that could have stemmed from either a lawful or unlawful

amount of marijuana or from possession of several other illegal drugs. (Id. at pp. 1059-1060.)

And in State v. Brito (Conn. App. Ct. 2017) 154 A.3d 535, the court upheld the search of a

vehicle stopped for a traffic violation for evidence of marijuana – even though in Connecticut

mere possession of less than half-ounce of marijuana is only a civil offense - where the

defendant directed the officer to a ‘roach’ on his person, the officer detected an odor of marijuana

emanating from the interior compartment of the vehicle, the defendant had a large sum of

money in his right side pocket, admitted previously dealing heroin, and had convictions for drugs

and weapons violations. (Id. at pp. 553, 560-564.) The Brito court noted the facts “gave rise to

a suspicion of criminal activity, specifically, that the defendant was driving while under the

influence of marijuana” and thus “the police had probable cause to search the vehicle for

evidence of a crime, namely, his recent use of marijuana inside of the vehicle.” (Id. at p. 563.)

89

It is a misdemeanor to drive while under the influence of marijuana. (See Veh. Code, §

23152(f).) Health and Safety Code section 11362.45 makes it clear that “[s]ection 11362.1 does

not amend, repeal, affect, restrict, or preempt: (a) Laws making it unlawful to drive or operate a

vehicle, boat, vessel, or aircraft, while smoking, ingesting, or impaired by, cannabis or cannabis

products, including, but not limited to, subdivision (e) of Section 23152 of the Vehicle Code, or

the penalties prescribed for violating those laws.” (Health & Saf. Code, § 11362.45(a).)

If a defendant is subject to a custodial arrest for driving under the influence of marijuana, police

may search the vehicle for evidence of that offense (e.g., marijuana) pursuant to the search

incident to arrest exception as described in Arizona v. Gant (2009) 556 U.S. 332. (See Gant

at p. 351 [“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is

within reaching distance of the passenger compartment at the time of the search or it is

reasonable to believe the vehicle contains evidence of the offense of arrest.”]; People v. Quick

(2016) 5 Cal.App.5th 1006, 1012-1013 [“when a driver is arrested for driving under the influence,

or being under the influence, it will generally be reasonable for an officer to believe evidence

related to that crime might be found in the vehicle” and “it is certainly logical and reasonable to

expect that items related to alcohol or drug consumption, such as alcoholic beverage bottles or

drug paraphernalia, might readily be contained in the intoxicated driver's car”]; People v.

Evans (2011) 200 Cal.App.4th 735, 750 [same]; People v. Nottoli (2011) 199 Cal.App.4th

531, 553 [citing numerous cases to support the proposition that defendant’s “arrest for ‘being

under the influence of a controlled substance’ supplied a reasonable basis for believing that

evidence ‘relevant’ to that type of offense might be in his vehicle.”]; United States v. Phillips

(E.D. Cal. 2014) 9 F.Supp.3d 1130, 1137 [“because the officers also had probable cause to arrest

Defendant for driving under the influence and drug-related offenses, the officers conducted a

valid search of the vehicle . . .”].)

Alternatively, even absent a custodial arrest, a search of a vehicle can be justified pursuant to the

automobile exception if there is probable cause to believe evidence of the crime of driving under

the influence will be found. (See State v. Brito (Conn. App. Ct. 2017) 154 A.3d 535, 563 fn. 22

E. Can a vehicle be searched for evidence of the crime of driving under

the influence of marijuana?

*Editor’s note: Section 11362.45 should be modified to reflect that the subdivision of section 23152 relating

to driving under the influence of drugs is subdivision (f). However, because the scope of section 11362.45(a) is

not limited to subdivision (e), the erroneous reference will have no practical impact.

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[upholding search of vehicle for evidence of driving under influence of marijuana and rejecting

claim by defendant that since the odor of marijuana could have been related to an amount of

marijuana that was lawful for him to possess, the trial court could not consider the fact an officer

smelled marijuana; and noting there was probable cause to believe that there was evidence of

driving under the influence of marijuana was “not dependent upon the presence of a particular

quantity of marijuana in the vehicle”]; cf., People v. Allen (2000) 78 Cal.App.4th 445, 448

[declining to address whether warrantless search of a vehicle (e.g., a bicycle) was justified based

on defendant’s detention for an infraction because there was probable cause to believe there was

evidence of contraband in the bicycle, thus justifying the search under the vehicle exception].)

In California, it has long been the law that an alert by a well-trained drug detection dog,

standing alone, can establish probable cause for the search of a driver’s vehicle. (People v.

Stillwell (2011) 197 Cal.App.4th 996, 1006; see also Florida v. Harris (2013) 568 U.S. 237,

246 fn. 2[“a well-trained dog’s alert establishes a fair probability—all that is required for

probable cause—that either drugs or evidence of a drug crime ... will be found.”].) However, with

the passage of Prop 64, prosecutors should anticipate the defense arguming that since a narcotics

dog can potentially “alert” on lawfully possessed marijuana, the alert no longer provides such

probable cause unless the canine is able to signal to the handler that he is alerting to an illegal

amount of marijuana in the car or another illegal substance.

The short answer to this argument is that probable cause just requires “a fair probability that

contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983)

462 U.S. 213, 238.) The fact that a canine alert may sometimes stem from the existence of a legal

amount of marijuana may make the alert slightly less probative, but it does not vitiate probable

cause just because it is also consistent with possession of any number of other illegal drugs or a

lawful amount of marijuana. Indeed, even the fact that a canine alert can occur when no drugs

are currently present in a vehicle does not vitiate the existence of probable cause. (See Florida

v. Harris (2013) 568 U.S. 237, 246, fn. 2 [noting that though a dog may alert when the

substance is gone, “the mere chance that the substance might no longer be at the location” does

not mean an alert does not provide probable cause drugs or evidence of a drug crime will be

found in the vehicle]; State v. Cabral (Md. Ct. Spec. App. 2004) 859 A.2d 285, 297, 300 [fact

trained canine may alert when drugs are not present at the time of the alert but might have been

present 72 hours earlier “does not compel the finding that there is no probable cause; for

F. Can a vehicle be searched based on a post-Prop 64 narcotics dog

alert indicating the presence of contraband in a vehicle?

91

purposes of the probable cause analysis, we are concerned with probability, not certainty”].)

Since the issue has not specifically been addressed in California, some guidance may be provided

by looking at how the issue has been addressed in other states where possession of marijuana by

adults in certain circumstances has been legalized.

In Washington, where possession of marijuana by adults in certain circumstances has been

lawful since 2012 (see RCW 69.50.4013), the issue has been raised in two unpublished cases:

In the case of State v. Souza (Wash. Ct. App.) [unpublished] 2017 WL 2955534, the defendant

argued that a dog sniff could not create probable cause to obtain a search warrant for a vehicle

because the dog was trained to alert to, among other drugs, marijuana- which was legal in

Washington state. The defendant claimed that any information gleaned from the alert could not,

by its nature, be sufficient to establish an inference that he was involved in criminal activity. The

State conceded that canines trained to “hit” on marijuana could lead to problematic search

warrants when the warrant relies solely on the canine alert. Nevertheless, the court held that

while the dog was trained “to detect miniscule amounts of marijuana before the substance’s

legalization, such training does not disqualify his alert.” (Id. at p. *6.) In support of its

conclusion there was probable cause to search, the court pointed out that “marijuana remains

illegal for some persons and under some circumstances,” there was evidence that the driver

attempted to elude the police, and the defendant denied his truck contained any drugs rather

than claiming he had a legal amount of marijuana in his truck. (Ibid.)

In State v. Shabeeb (Wash. Ct. App.) [unpublished] 2016 WL 3264421, the defendant claimed

a search warrant for his car based on a canine alert was invalid because the dog “may have

alerted on marijuana rather than the other five drugs it was trained to detect and because

marijuana is legal to possess in certain quantities, there is little or no probative value that can be

drawn from the alert on his car.” (Id. at p. *3.) The State conceded and the court agreed “that

since the decriminalization of marijuana, a K–9 alert standing alone no longer establishes

probable cause when the K–9 was trained to alert on multiple narcotics, one of which is

marijuana.” (Id. at p. *3, emphasis in original.) However, the court went on to find probable

cause existed and held a “magistrate may consider a K–9 alert as one factor in determining if

probable cause exists.” (Ibid.) The court stated “[t]his is particularly true where there is no

evidence that any marijuana was present and there was evidence that other drugs for which the

K–9 was trained were present.” (Id. at p. *3.)

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In Colorado, another state which legalized possession of limited amounts of marijuana by

persons 21 years or older in 2012 (see Colo. Const. art. XVIII, § 16), three courts have addressed

the question of whether a narcotics dog alert can provide probable cause to search a vehicle.

In People v. Zuniga (Colo. 2016) 372 P.3d 1052, the court upheld a search of a defendant's

vehicle after a drug-detection dog—trained to detect marijuana and other controlled

substances—alerted to the vehicle. Even though possessing marijuana did not violate Colorado

law under some circumstances, the court rejected the defense argument that this prevented the

court from considering the alert and concluded that the dog’s alert “suggested that illegal drugs

were present in the vehicle” and “contribut[ed] to the existence of probable cause.” (Id. at p.

1060, emphasis added.)

In People v. Cox (Colo. 2017) 2017 WL 481620, the California Supreme Court agreed with its

earlier decision in Zuniga and rejected defendant’s claim that a canine alert from a dog “trained

to detect any amount of marijuana, including legal amounts” could not be considered in

determining whether probable cause existed to search vehicle. (Id. at p. *1.)

However, a concurring justice in the Colorado appellate court opinion in People v. McKnight

(Colo. App.) 2017 WL 2981808, stated that neither Zuniga nor Cox directly addressed the

question of whether an alert from a dog trained to detect several substances, including

marijuana, by itself may amount to probable cause justifying a search of a vehicle considering

that Colorado law now generally allows anyone who is at least twenty-one years old to possess

small amounts of marijuana for personal use. The concurring justice concluded that “such a

dog’s alert alone no longer supplies probable cause where the occupants of the vehicle are

twenty-one years or older and the officer conducting the search is not a federal officer” under the

Colorado Constitution. (McKnight at p. *5.) Significantly, the concurring justice did not

opine on whether the change in Colorado’s marijuana laws affects the Fourth Amendment

analysis (which is the governing analysis in California). Moreover, the concurring justice

recognized that even under the Colorado Constitution the alert “was of course indicative of

possible criminal activity” and that the “result would be different if the dog was not trained to

detect marijuana, or if the vehicle’s occupants were not at least twenty-one years old.” (Id at p.

*8, fn. 1.)

In Maryland, which has decriminalized, but not legalized, possession of less than ten grams of

marijuana, the courts have held that a canine alert by itself can provide probable cause to search

93

a vehicle even though the dog does not have ability to distinguish between less than 10 grams

and more than 10 grams. (See Bowling v. State (Md. App. 2016) 134 A.3d 388, 398 [canine

alert]; see also Robinson v. State (Maryland 2017) 152 A.3d 661, 665 [upholding search

based on odor of marijuana (rather than dog sniff) but citing to Bowling favorably]; Grimm v.

State (Md. Ct. Spec. App. 2017) 158 A.3d 1037, 1047 [same].) However, one of the primary

reasons the Bowling court came to its conclusion was because it believed that automobile

exception applied not only to situations where there was probable cause to believe evidence of a

“crime” would be present but also where there was probable cause to believe “contraband”

would be present. These courts believed that, based on the legislative history of the

decriminalization law, it was still illegal (i.e., a violation of civil law) to possess any quantity of

marijuana, and thus marijuana retained its status as contraband. Thus, the prior law allowing

searches of vehicle based on a canine alert still applied. (Bowling at p. 398.)

Expect the defense to attempt to draw inferential support for the position a canine alert cannot,

by itself, supply probable cause to search a vehicle from the case of Bowling and cases relying

on Bowling because those decisions seem to suggest that their conclusion was contingent upon

the fact possession of marijuana remained a civil violation and thus marijuana could still be

considered contraband - whereas in California, possession by an adult of under an ounce of

marijuana in most situations is now completely lawful and subdivision (c) of Health and Safety

Code section 11362.1 states “no conduct deemed lawful by this section shall constitute the basis

for detention, search, or arrest.” (See this IPG memo, question 14 at pp. 72-76 [discussing the

significance of this section 11362.1(c) in the context of deciding whether an officer who smells

marijuana can conduct a search of a vehicle].)

Note: In all other regards, the question whether an alert by the narcotics-sniffing

dog provides probable cause to conduct a search of a vehicle is almost identical to

the question of whether the odor of marijuana provides probable cause to conduct

a search of a vehicle. (See this IPG memo, question 14 at pp. 72-76.)

The previous discussions of whether officers can search based on the odor of marijuana or seeing

a small amount of marijuana in a vehicle all presumed the driver or occupants of the vehicle were

over the age of 21. All the arguments and facts in favor of allowing a search of a vehicle when the

G. Will it make a difference if the odor of marijuana comes from a

vehicle being driven or occupied by persons under 21?

94

driver or occupants of the vehicle are over 21 will also apply when the persons in the vehicle are

under 21. (See this IPG memo, question 14 at pp. 74-79.) However, the fact that the driver or

occupant is under 21 provides additional reasons to justify a vehicle search and will

undermine almost all defense counter arguments.

For starters, Prop 64 did not legalize possession of marijuana by persons under 21. Such

possession remains unlawful. (See this IPG memo, question 2 at pp. 17-19; Health & Saf. Code,

§ 11362.45 [“Section 11362.1 does not amend, repeal, affect, restrict, or preempt: . . .(c) Laws

prohibiting a person younger than 21 years of age from engaging in any of the actions or conduct

otherwise permitted under Section 11362.1.”].) Thus, any protection against a search supplied by

Health and Safety Code section 11362.1(c) is inapplicable. (See Health & Saf. Code, § 11362.1(c)

[“Cannabis and cannabis products involved in any way with conduct deemed lawful by this

section are not contraband nor subject to seizure, and no conduct deemed lawful by this section

shall constitute the basis for detention, search, or arrest.”]. And any arguments for preventing

searches of vehicles based on smelling the odor of marijuana or seeing a small amount of

marijuana unless there is probable cause to believe an unlawful amount of marijuana is present

(see this IPG memo, question 14 at pp. 72-74) should be found equally inapplicable. That is, the

pre-Prop 64 California law allowing searches of vehicles for marijuana (notwithstanding the fact

possession was simply an infraction) should still govern post-Prop 64 searches of vehicles for

marijuana based on smelling marijuana or seeing small amounts of marijuana when the

occupants are juveniles. (See this IPG memo, question 14 at pp. 68-71.)

Indeed, even the concurring opinion in the Colorado case of People v. McKnight (Colo. App.)

2017 WL 2981808, an opinion that held a canine alert by itself can no longer provide probable

cause to justify a vehicle search in light of Colorado’s legalization of small amounts of marijuana

for adults, recognized that the “result would be different if . . . the vehicle’s occupants were not at

least twenty-one years old.” (Id at p. *8, fn. 1; this IPG memo, question 14-F at p. 92.)

Pursuant to Health and Safety Code section 11362.1(a), it is no longer unlawful in California for a

person over 21 to be in possession of less than an ounce of marijuana unless it is possessed

15. Did Prop 64 impact whether an officer can arrest someone based on seeing the person in possession of less than an ounce of marijuana (or 8 grams of concentrated cannabis) or based on smelling the odor of marijuana (fresh or burnt) coming from their person?

95

“upon the grounds of a school, day care center, or youth center while children are present”

(Health & Saf. Code, § 11362.3(a)(5)) or it is possessed in an open container or package while the

person is driving, operating, or riding in the passenger seat or compartment of a . . . vehicle used

for transportation” (Health & Saf. Code, § 11362.3(a)(4)).

Moreover, section 11362.1(c) states: “Marijuana and marijuana products involved in any way

with conduct deemed lawful by this section are not contraband nor subject to seizure, and no

conduct deemed lawful by this section shall constitute the basis for . . . arrest.”

(Health & Saf. Code, § 11362.1(c).)

So, in light of section 11362.1(c), if an officer sees a person over 21 possessing (e.g., smoking or

carrying) less than an ounce of marijuana under circumstances where it is lawful to possess that

amount, can the officer arrest the person based on the belief or inference that the person may be

in possession of more than an ounce of marijuana?

Assuming that the person seen smoking or carrying marijuana is over 21 and the marijuana is

not possessed or being used in an area where possession or use is otherwise prohibited, section

11362.1(c) clearly prohibits an arrest if the person is only in possession of less than an

ounce of marijuana or under 8 grams of concentrated cannabis. (See Health & Saf. Code, §

11362.1(a)&(c).)

Moreover, even if the possession is otherwise unlawful, either because the person possessing it is

under 21 (see this IPG, question 2 at pp. 17-19) or it is otherwise unlawfully possessed (see this

IPG, question 9 at pp. 55-59), a custodial arrest would still likely be prohibited unless the person

could not provide adequate identification (see Pen. Code, § 853.5; Veh. Code, § 40302) since,

with one exception*, all such conduct constitutes a nonjailable offense. (See People v.

Macabeo (2016) 1 Cal.5th 1206, 1218-1219.)

The issue of whether state or local law enforcement may arrest a defendant for a violation of

federal law based on possession of less than an ounce of marijuana is similar to the issue of

whether searches of vehicles for violations of federal law based on possession of less than an

*Editor’s note: There is one kind of possession of under an ounce of marijuana that would allow for a

custodial arrest: a second violation of Health and Safety Code section 11362.3(a)(5)/11362.4(c) for smoking or

ingesting marijuana on school grounds while children are present is punishable “by imprisonment in a county

jail for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been

committed.” (Health & Saf. Code §§ 11362.4(c)/11357(c).)

96

ounce of marijuana can be made - notwithstanding the passage of Prop 65. For a discussion of

the latter question, see this IPG memo, question 14-A at pp. 77-82.

Considering, it is no longer generally unlawful in California for a person over 21 to be in

possession of less than an ounce of marijuana (Health & Saf. Code, § 11362.1(a)) and that

“cannabis and cannabis products involved in any way with conduct deemed lawful by” section

11362.1 “are not contraband nor subject to seizure, and no conduct deemed lawful by [section

11362.1] shall constitute the basis for detention” (Health & Saf. Code, § 11362.1(c)), if an officer

sees a person over 21 possessing (e.g., smoking or carrying) less than an ounce of marijuana

under circumstances where it is lawful to possess that amount, can the officer detain the person

based on the belief or inference that the person may be in possession of more than an ounce of

marijuana? It is an open question.

Some of the same arguments (pro and con) that can be made for allowing a search of a vehicle

based on smelling the odor of marijuana emanating from the vehicle or seeing a small amount of

marijuana in the vehicle (see this IPG, question 14 at pp. 72-82) also would be applicable in the

context of assessing whether such information allows for a detention – with the caveat that a

detention needs only to be justified by the less demanding standard of reasonable

suspicion rather than probable cause. (See Navarette v. California (2014) 134 S. Ct.

1683, 1687; People v. Wells (2006) 38 Cal.4th 1078, 1083.) Thus, even if a court does not find

that probable cause to search can be shown based on the inference of unlawful possession arising

from the lawful possession or the odor of marijuana, it can still find that reasonable suspicion to

detain may be shown based on that inference.

Here’s what prosecutors can expect defense counsel to argue: First, defense counsel may argue that section 11362.1(c) would prohibit even a detention of a

person over 21 based on seeing that person in possession of a lawful amount of marijuana or

concentrated cannabis or based on smelling the odor or burnt or unburnt marijuana – at least

when the odor of marijuana cannot be determined to arise from more than a lawful amount of

16. Did Prop 64 impact whether an officer can detain a person over 21 based on smelling the odor of marijuana (burnt or unburnt) coming from their person or based on seeing the person in possession of under an ounce of marijuana or less than 8 grams of concentrated cannabis?

97

marijuana. Defense counsel may assert that if officers could always detain someone based on

what appears to be lawful possession of marijuana, it would effectively moot (and undermine the

intent behind) the language in section 11362.1 stating “no conduct deemed lawful by this section

shall constitute the basis for detention. . .”. (Health & Saf. Code, § 11362.1(c), emphasis added.)

Second, defense counsel may claim that, even absent subdivision (c), possession of under an

ounce of marijuana by a person over 21 or the smell of marijuana cannot provide the necessary

reasonable suspicion to detain (at least by itself) a person now that such possession is generally

lawful. The cases likely to be cited in support of this position are: People v. Hua (2008) 158

Cal.App.4th 1027; People v. Torres (2012) 205 Cal.App.4th 989; and In re D.W. (2017) 13

Cal.App.5th 1249 [2017 WL 2875860]. The defense will claim that these cases all stand for the

proposition that whatever inference may be drawn that a person is in possession of unlawful

quantities of marijuana based on the odor of marijuana or seeing someone in possession of

under an ounce of marijuana, it is not a sufficiently strong inference that by itself, can provide

reasonable suspicion to search for unlawful quantities of marijuana. (See People v. Brukner

(N.Y. City Ct. 2015) 25 N.Y.S.3d 559, 570-571 [where possession of less than 25 grams of

marijuana is a non-criminal violation carrying a maximum penalty of $100.00, the mere odor of

marihuana emanating from a pedestrian, without more, does not create reasonable suspicion

that a crime has occurred, and consequently does not authorize law enforcement to forcibly stop,

frisk, or search the individual.”].)

Here’s how prosecutors can respond to these defense arguments: First, prosecutors can point out that, notwithstanding subdivision (c) of section 11362.1, a

detention of a person over 21 seen possessing a “lawful” amount of marijuana is permitted

because subdivision (c) only prohibits detentions or searches based on “conduct deemed lawful

by this section[.]” (Health & Saf. Code, § 11362.1(c), emphasis added.) However, when an officer

detains someone for being in possession of a lawful amount of marijuana, the basis for the

detention is not the lawful conduct observed by the officer but the reasonable inference that the

person is in unlawful possession of greater than an ounce of marijuana. (See People v.

Letner (2010) 50 Cal.4th 99, 146 [“the United States Supreme Court has acknowledged that by

allowing the police to act based upon conduct that was ‘ambiguous and susceptible of an

innocent explanation,’ the court in Terry ‘accept[ed] the risk that officers may stop innocent

*Editor’s note: The pertinent facts, holding, and analysis of Hua, Torres, and In re D.W. are described in

this IPG memo, question 14 at p. 73.

98

people.’”]; People v. Glaser (1995) 11 Cal.4th 354, 373 [“that a person’s conduct is consistent

with innocent behavior does not necessarily defeat the existence of reasonable cause to

detain.”].)

Second, prosecutors can point to language from two California cases indicating that possession

of some marijuana (even in an amount that is lawful) provides probable cause to believe that

additional marijuana (in an unlawful amount) is present. (See e.g., People v. Strasburg

(2007) 148 Cal.App.4th 1052, 1059 [upholding search of vehicle based on smell of marijuana

emanating from vehicle and possession of less than an ounce of marijuana, even though

defendant arguably could have lawfully possessed marijuana pursuant to the medical marijuana

laws, under the rationale that even when a 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, including the trunk.”]; People v. Waxler (2014) 224 Cal.App.4th 712, 720-721

[agreeing with rationale of Strasburg and upholding search of vehicle based on smell of

marijuana emanating from vehicle and seeing burnt marijuana in the truck, even assuming the

defendant could lawfully possess the amount of marijuana seen, and “irrespective of whether

possession of up to an ounce of marijuana is an infraction and not an arrestable offense”]; see

also People v. Dey (2001) 84 Cal.App.4th 1318, 1320 [holding presence of a single marijuana

bud among defendant’s effects in the passenger compartment of the vehicle he was driving

provided probable cause for the search of the vehicle, including the trunk]; People v. Hunter

(2005) 133 Cal.App.4th 371, 377 [citing to People v. Coleman (1991) 229 Cal.App.3d 321,

325–328 and People v. Brocks (1981) 124 Cal.App.3d 959, 964–965 as cases holding “that

possessing less than an ounce of marijuana, while exempt from arrest or booking where one

furnishes satisfactory identity and promises to appear, nevertheless may support a search for

further contraband”].) Prosecutors can explain the decisions in Strasburg and Waxler

hinged, in part, upon the fact that possession of more than the recommended amount of medical

marijuana remained unlawful. While acknowledging that possession of marijuana is now legal

in more circumstances than when Strasburg and Waxler were decided, prosecutors should

assert the basic principle established in those pre-Prop 64 cases (i.e., that possession of some

lawful marijuana leads to an inference that additional unlawful possession marijuana might be

occurring) still applies. The detention of a person seen in possession of a lawful amount of

marijuana or smelling of marijuana could be justified under a similar rationale: the person might

be carrying around additional quantities for future use. Prosecutors can also point to language

from People v. Strasburg (2007) 148 Cal.App.4th 1052 that if a detention could not be based

99

on seeing someone in possession of under an ounce of marijuana, “every qualified patient would

be free to violate the intent of the medical marijuana program and deal marijuana from his car

with complete freedom from any reasonable search.” (Id. at p. 1060.) By the same token, if

every person could avoid detention based on possessing less than an ounce of marijuana,

everyone would be free to violate the intent behind Prop 64 of preventing untaxed and

unregulated sale of marijuana and deal marijuana with complete freedom from any reasonable

search of their person. (Cf., People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1059 [upholding

search of vehicle based, in part on odor of marijuana, even though Colorado has legalized

possession of one ounce or less of marijuana, since “a substantial number of other marijuana-

related activities remain unlawful under Colorado law” and “[g]iven that state of affairs, the odor

of marijuana is still suggestive of criminal activity”].)

Third, prosecutors can distinguish the cases of People v. Hua (2008) 158 Cal.App.4th 1027 and

People v. Torres (2012) 205 Cal.App.4th 989 on the ground both involved searches of homes

under the exigent circumstances exception and explain the focus in both Hua and Torres was

on whether the observations justified the entry into the home. In that circumstance, the courts

were naturally more reluctant to allow such entry based on the inference that a minor crime

provided probable cause to believe a more serious crime was occurring. The same considerations

do not apply to detentions which are much more minor intrusions. The case of In re D.W.

(2017) 13 Cal.App.5th 1249 [2017 WL 2875860] can be distinguished because it was deciding

whether the odor of marijuana, coupled with an admission by the person of smoking marijuana,

could support an inference of unlawful possession for purposes of establishing probable cause to

arrest rather than reasonable suspicion to detain.

*Editor’s note: Defense counsel will likely counter this argument by noting that Strasburg and Waxler

pre-date full legalization of possession of less than an ounce of marijuana by persons over 21 and were

premised, in part, on marijuana remaining a criminal offense and contraband. (See Strasburg at pp. 1059,

1060 and Waxler at p. 721.) The defense will point out that, with the passage of Proposition 64, that is no

longer true. To the contrary, section 11362.1(c) expressly states: “Marijuana and marijuana products involved

in any way with conduct deemed lawful by this section are not contraband . . .” (Health & Saf. Code, §

11362.1(c).) As to the indication in People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1059 that a search of

vehicle based, in part on odor of marijuana, is proper even though Colorado has legalized possession of one

ounce or less of marijuana, defense counsel may point out that while Colorado, like California, has generally

legalized possession of less than an ounce of marijuana, there is no provision in Colorado’s law regarding

marijuana comparable to section 11362.1(c)’s prohibition on detentions or searches based on “conduct deemed

lawful” under Prop 64. Ultimately, a court is going to have to decide whether possession of some lawful

marijuana can still lead to an inference that additional unlawful possession marijuana might be occurring.

100

If a court is not prepared to permit detentions based solely on an officer seeing an adult

defendant walking around in possession of a lawful amount of marijuana or giving off an odor of

marijuana, prosecutors should make sure to explore whether there are additional facts present

that, in conjunction with the defendant’s possession of under an ounce of marijuana or the

odor of marijuana, permit a reasonable inference the defendant may be in possession of

additional unlawful amounts of marijuana and/or is possessing the marijuana for an unlawful

purpose. (Cf., People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1056 [rejecting defendant’s claim

that “the odor of marijuana cannot contribute to probable cause now that possession of one

ounce or less of marijuana is allowed under Colorado law” and holding “the odor of marijuana is

relevant to the totality of the circumstances test and can contribute to a probable cause

determination.”]; People v. Cox (Colo. 2017) 2017 WL 481620, *1 [agreeing with Zuniga and

rejecting defendant’s claim that canine alert from a dog “trained to detect any amount of

marijuana, including legal amounts” could not be considered in determining whether probable

cause existed to search vehicle]; State v. Bingman (Ore. 1999) 986 P.2d 676, 678-679

[holding “the discovery of less than one ounce [of marijuana] is a relevant fact that, when

combined with other facts, may create probable cause’ that a criminal offense has been

committed” even assuming (erroneously as determined by later case law) that since “possession

of less than an ounce of marijuana is a ‘violation,’ not a criminal ‘offense,’ possession of such a

small quantity cannot, by itself, support probable cause for an arrest or search”].) Prosecutors

should explore whether law enforcement was aware of other facts indicating the person’s use or

possession of the marijuana was unlawful. Here are two thoughts:

Smoking or possession in public or otherwise prohibited location: The odor of burnt

marijuana and/or seeing the person in possession of a partially burnt marijuana cigarette or e-

cigarette may provide reasonable suspicion the person was smoking marijuana in public and

permit a detention to investigate a violation of the laws prohibiting the use or possession of

marijuana under certain circumstances. (See Health & Saf. Code, §§ 111362.3(a)(1)

/11362.4(a)[prohibiting smoking or ingesting marijuana in a public place]; 11362.3(a)(2)/

11362.4(b) [prohibiting smoking marijuana where tobacco smoking is prohibited]; 11362.3(a)(3)

A. What can a prosecutor do if the court does not accept the argument

that a detention of someone over 21 may be based solely on the smell

of marijuana or seeing someone in possession of under an ounce of

marijuana (or 8 grams of concentrated cannabis)?

101

/11362.4(b) [prohibiting smoking marijuana within 1,000 feet of a school, day care center, or

youth center while children are present]; 11362.3(a)(5)/11362.4(c) [prohibiting possessing,

smoking, or ingesting marijuana in or upon the grounds of a school, day care center, or youth

center while children are present]; 11357(c)[laying out punishment for persons over 18 but under

21 possessing under an ounce of marijuana or four grams of concentrated cannabis, upon the

grounds of, or within, any school providing instruction in kindergarten or any of grades 1

through 12 during hours the school is open for classes or school-related programs”].)

Person appears to be under 21: It remains unlawful for persons under 21 years of age to

possess any amount of marijuana. (Health & Saf. Code, § 11357(a); this IPG memo, question 2 at

pp. 17-19.) Thus, police should be able to stop an adult in possession of, or who smells of,

marijuana when the person objectively appears to be under 21 years of age to investigate

whether a violation of the law has occurred. (Cf., In re James D. (1987) 43 Cal.3d 903, 916–

917 [holding youthful appearance was a highly relevant and objectively verifiable factor that, in

conjunction with other factors, can support a detention to investigate whether the person is a

truant]; Akron v. Fair (Ohio 1994) 646 N.E.2d 1205 [officer had reasonable suspicion to detain

adult with youthful appearance for underage curfew violation]; State v. Vaughters (2006-

Ohio-2474 unreported) 2006 WL 1360436, *3 [same and citing other cases with similar

holdings]; State v. Beasley (Ga. Ct. App. 2004) 607 S.E.2d 245, 247 [officer had reasonable

suspicion to detain defendant “though the officer only suspected, based upon Beasley’s youthful

appearance, that he was involved in underage drinking”].)

A detention based on reasonable suspicion to believe a violation of the laws prohibiting use of

marijuana in certain circumstances or possession by persons under 21 is or has occurred could be

justified even absent any inference the defendant was in possession of additional marijuana.

Also, while this discussion has assumed a detention of a pedestrian, officers may be able to

detain the occupant of a vehicle (stopped or moving) if circumstances arise indicating a violation

of the laws relating to the use or possession of marijuana in a vehicle. For example, detentions

could be authorized to investigate the carrying of open containers of marijuana in a vehicle (see

this IPG memo, question 14-C at pp. 85-87), to investigate a violation of the proposed new law

banning smoking or ingesting marijuana while in a vehicle (see this IPG, question 9-C at pp. 56-

57, question 14-C at p. 87), to investigate someone for driving under the influence of marijuana

(see this IPG 14-E at pp. 89-90), or to investigate the possession of marijuana by someone in the

vehicle under 21 (cf., People v. McKnight (Colo. App.) 2017 WL 2981808, *8, fn. 1

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(concurring opinion) [indicating that Colorado initiative legalizing possession of under an ounce

of marijuana prevented officers from relying solely on canine alert to justify search of vehicle

under the Colorado Constitution, it would still allow search if the vehicle's occupants were not at

least twenty-one years old]; In re James M. (1977) 72 Cal.App.3d 133, 137 [probable cause to

arrest for violation of Vehicle Code section 23123.5 (now 23224), which generally prohibited

persons under 21 from knowingly driving a vehicle carrying any alcoholic beverage unless

accompanied by a specified adult, existed where deputy observed minor sitting in passenger seat

of parked automobile and another person in driver’s seat and observed beer can on dashboard

and both minor and driver exited as deputy approached]; People v. Gherna (Ill. 2003) 784

N.E.2d 799, 801-802, 809 [officers had a justifiable basis to briefly detain and question females

sitting in a parked pickup truck about underage drinking taking place where passenger appeared

to be pretty young and there was a bottle of beer spotted in the center console between the two

females even though it was later determined the bottle of beer was closed and the two females

were mother and daughter].)

The issue of whether state or local law enforcement may detain a defendant for a violation of

federal law based on possession of less than an ounce of marijuana is similar to the issue of

whether searches of vehicles for violations of federal law based on possession of less than an

ounce of marijuana can still be made- notwithstanding the passage of Prop 64. For a discussion

of the latter question, see this IPG memo, question 14-A at pp. 77-82.

It is well established that an alert by a trained narcotics-sniffing dog can provide probable cause

to believe a person is in possession of drugs. (See this IPG, question 14-F at pp. 90-93.) It

necessarily follows that it can provide a basis for simply detaining a person, which simply

requires reasonable suspicion. With the passage of Prop 64, prosecutors should anticipate

defendants arguing that since a narcotics dog can potentially “alert” to lawfully possessed

marijuana on a person, the alert no longer provides reasonable suspicion to detain a person

unless the canine is able to signal to the handler that he is alerting to an illegal amount of

marijuana in the car or another illegal substance.

B. Can an argument be made that a detention is justified because

possession of even small amounts of marijuana remains a federal

crime?

C. Can a person be detained based on a post-Prop 64 narcotics dog

alert indicating the presence of contraband on the person?

103

All the arguments for allowing such an alert to provide the basis for a search of vehicle,

notwithstanding the canine’s inability to distinguish between lawfully and unlawfully possessed

marijuana (see this IPG, question 14-F at pp. 90-93), will apply equally to allow such an alert to

provide the basis for a detention of a person. However, they will apply with even greater force in

the context of a detention because a detention requires a lesser standard of suspicion. (See

Navarette v. California (2014) 134 S. Ct. 1683, 1687; People v. Wells (2006) 38 Cal.4th

1078, 1083.) Conversely, arguments based on case law indicating the legalizing or

decriminalizing of less than an ounce of marijuana prevents the formation of probable cause

based solely on a canine alert will apply with less force.

The question of whether an officer can search someone (or their belongings) based on seeing

them in possession of less than an ounce of marijuana or smelling the odor of marijuana is

similar, but not identical, to the question of whether an officer can conduct a search of a vehicle

in those circumstances. (See this IPG memo, question 14 at pp. 72-82 [discussing arguments for

allowing versus disallowing searches of vehicles occupied by persons over 21 based on the odor of

marijuana or upon sighting of less than an ounce of marijuana].)

However, there are some additional arguments available to the defense when the challenge is to a

search of the person that are not available in the context of a challenge to the search of a vehicle.

First, defense counsel might point out that the cases relied on by the People involving searches of

vehicles pursuant to the automobile exception (see this IPG, question 14 at pp. 68-70, 75) can

be distinguished from searches of a person because it is more likely that someone might be

carrying additional illegally possessed marijuana in a vehicle than on their person. (See People

v. Brukner (N.Y. City Ct. 2015) 25 N.Y.S.3d 559, 570-571 [treating searches of vehicles based

on odor of marijuana as distinct from searches of pedestrians based on odor of marijuana and

allowing the former but not the latter in state where possession of less than 25 grams of

marijuana is a non-criminal violation carrying a maximum penalty of $100.00].)

17. Did Prop 64 impact whether an officer can search someone based on seeing the person in possession of less than an ounce of marijuana (or 8 grams of concentrated cannabis) or based on smelling the odor of marijuana (fresh or burnt) coming from their person?

104

Second, defense counsel might point out that even assuming the odor of marijuana or seeing

under an ounce of marijuana in a post-Prop 64 world still provides probable cause to believe

evidence of unlawful possession of marijuana will be found on the person, it is not entirely clear

whether a search of an individual can occur absent a warrant. A warrantless search of the

person or property under their immediate control, even though justified by probable cause, must

still generally fall within an exception to the warrant requirement. (See Mincey v. Arizona

(1978) 437 U.S. 385, 393–94 [“warrants are generally required to search a person’s home or his

person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling

that the warrantless search is objectively reasonable under the Fourth Amendment”], emphasis

added by IPG; People v. Hawkins (1969) 273 Cal.App.2d 529, 533 [“ordinarily probable cause

for search, standing alone, cannot justify constitutionally a search without a warrant therefor.”].)

Searches of persons or property under their immediate control for contraband like narcotics are

usually justified under the exception for searches incident to arrest. (See e.g., People v.

Limon (1993) 17 Cal.App.4th 524, 538; People v. Fay (1986) 184 Cal.App.3d 882, 893.)

These searches can precede a custodial arrest as long as the search is contemporaneous with the

arrest and the officer had probable cause before the search to make the arrest. (See Rawlings

v. Kentucky (1980) 448 U.S. 98, 111; People v. Valdez (1987) 196 Cal.App.3d 799, 805.) If

no inference supporting probable cause to arrest for possessing an unlawful amount of

marijuana can arise from the odor of marijuana emanating from a person or from seeing the

person in possession of a lawful amount of marijuana, then a search of the person incident to

arrest would not be justified in that circumstance – even before the passage of Prop 64. (See

People v. Macabeo (2016) 1 Cal.5th 1206, 1218-1219 [evidence seized pursuant search

incident to custodial arrest in violation of state law does not require suppression if search does

not violate the Fourth Amendment, but evidence seized pursuant to search incident to

noncustodial citation must be suppressed]; In re D.W. (2017) 13 Cal.App.5th 1249 [2017 WL

2875860, *2] [search of person based on smell of marijuana and minor’s admission that he just

smoked some did not provide probable cause minor possessed enough to constitute a jailable

offense and “there is no exception for a search incident to citation”].)

On the other hand, assuming probable cause can arise from the inference a person is carrying an

unlawful amount of marijuana based merely on the odor of marijuana or seeing the person in

possession of a lawful amount of marijuana, prosecutors may argue the search can be justified as

a roughly contemporaneous search incident to arrest if the officer testifies that he or she

intended to make a custodial arrest of the person even before the search of the person was

105

conducted. (See People v. Temple (1995) 36 Cal.App.4th 1219, 1227–1228 [“There is no

discernible distinction between probable cause to believe a person is carrying narcotics and

probable cause to arrest for carrying narcotics as far as the consequence here is concerned.... In

simple terms, if you have probable cause to believe a suspect has illegal narcotics in his pocket,

you necessarily have an honest and strong suspicion the person searched is guilty of a crime.”];

People v. Gorrostieta (1993) 19 Cal.App.4th 71, 84 [same].) The exception for a

contemporaneous search incident to arrest, however, would have to be viewed as allowing

searches of persons even if no formal arrest is eventually made, i.e., in circumstance where the

lack of evidence subsequently eliminates probable cause to arrest. This position is not

necessarily inconsistent with the California Supreme Court’s understanding of the exception.

(See People v. Macabeo (2016) 1 Cal.5th 1206, 1219 [“Once it was clear that an arrest was not

going to take place, the justification for a search incident to arrest was no longer operative.”].)

But courts which are unwilling to interpret the search incident to arrest exception in this

expansive fashion, may find it easier just to conclude probable cause cannot arise based merely

on the odor of marijuana or possession of a lawful amount of marijuana. (See In re D.W.

(2017) 13 Cal.App.5th 1249 [2017 WL 2875860, *2].) And this may be an even more appealing

approach for a court given that it is now generally legal for adults to possess less than an ounce

of marijuana.

Accordingly, prosecutors may wish to explore an alternative argument when a court is reluctant

to find a search of a person reeking of unburnt marijuana is justified as a contemporaneous

search incident to arrest. The alternative argument is premised on the idea that the “Fourth

Amendment does not proscribe all searches and seizures, but only those that are unreasonable.”

(Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616–617.) This

principle applies to warrantless searches: “warrantless searches are allowed when the

circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense

with the warrant requirement.” (Kentucky v. King (2011) 563 U.S. 452, 462.) The argument

is simply that, regardless of whether a formal arrest is contemplated, a search is reasonable

where there is probable cause to believe (i) a person is in possession of evidence of a crime; (ii)

there is insufficient time to obtain a warrant; and (ii) the evidence is easily disposed of and likely

to be lost unless it is seized. Granted, if the search is for evidence of a crime that is a non-serious

misdemeanor, the likelihood is diminished that a court will find the search to prevent the loss of

evidence justified. (See Welsh v. Wisconsin (1984) 466 U.S. 740, 753 [“an important factor

to be considered when determining whether any exigency exists is the gravity of the underlying

106

offense for which the arrest is being made.”].) However, Welsh involved an intrusion into the

home and a search of the person is less intrusive than a search of a house (see Payton v. New

York (1980) 445 U.S. 573, 585 [the “physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed”].) Consequently, the search of a person to

prevent the loss of evidence is not likely to require the crime be as serious as when entry is made

into the home. (Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 619 [as

a general rule, the question of whether a particular practice is unreasonable, and thus violates

the Fourth Amendment, “‘is judged by balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate governmental interests.’”].)

It is not so clear that probable cause to believe a person is in unlawful possession of marijuana

amounting to no more than a non-jailable infraction will permit the search of a person pursuant

to the search incident to arrest exception. (See In re D.W. (2017) 13 Cal.App.5th 1249 [2017

WL 2875860, *2] [discussed in this IPG, question 14 at p. 73].) If a court is not prepared to

permit searches of persons based solely on an officer seeing an adult defendant walking around

in possession of a lawful amount of marijuana or giving off an odor of marijuana or when the

crime for which probable cause exists only is a nonjailable infraction, prosecutors should make

sure to explore whether there are additional facts present that, in conjunction with the

defendant’s possession of under an ounce of marijuana or the odor of marijuana, permit a

reasonable inference the defendant may be in possession of additional unlawful amounts of

marijuana amounting to at least a misdemeanor and/or is possessing the marijuana with an

intent to sell. (Cf., People v. Zuniga (Colo. 2016) 372 P.3d 1052, 1056 [rejecting defendant’s

claim that “the odor of marijuana cannot contribute to probable cause now that possession of

one ounce or less of marijuana is allowed under Colorado law” and holding “the odor of

marijuana is relevant to the totality of the circumstances test and can contribute to a probable

cause determination.”]; People v. Cox (Colo. 2017) 2017 WL 481620, *1 [agreeing with

Zuniga and rejecting defendant’s claim that canine alert from a dog “trained to detect any

amount of marijuana, including legal amounts” could not be considered in determining whether

probable cause existed to search vehicle]; State v. Bingman (Ore. 1999) 986 P.2d 676, 678-

679 [holding “the discovery of less than one ounce [of marijuana] is a relevant fact that, when

A. What can a prosecutor do if the court does not accept the argument

that a search of a person over 21 may be based solely on the smell of

marijuana or seeing someone in possession of under an ounce of

marijuana (or 8 grams of concentrated cannabis)?

107

combined with other facts, may create probable cause’ that a criminal offense has been

committed” even assuming (erroneously as determined by later case law) that since “possession

of less than an ounce of marijuana is a ‘violation,’ not a criminal ‘offense,’ possession of such a

small quantity cannot, by itself, support probable cause for an arrest or search”].)

Keep in mind that some courts may be unwilling to find probable cause based solely on the odor

of marijuana or possession of under an ounce of marijuana, but will remain open to allowing

searches of the person based on probable cause to believe evidence of an infraction might be

found. Thus, any evidence indicating there is an infraction occurring should be brought out.

(See this IPG, question 16-A at pp. 100-102 [discussing what circumstances law enforcement

should be looking for that will permit a detention for unlawful possession of marijuana in

addition to the mere odor of marijuana or possession of less than an ounce of marijuana.].)

The issue of whether state or local law enforcement may search a person for a violation of federal

law based on possession of less than an ounce of marijuana is similar to the issue of whether

searches of vehicles for violations of federal law based on possession of less than an ounce of

marijuana can still be made- notwithstanding the passage of Prop 64. For a discussion of the

latter question, see this IPG memo, question 14-A at pp. 77-82.

In light of Prop 64’s reduction of many marijuana-related offenses, including unlawful

cultivation of marijuana, sale of marijuana, and possession for sale of marijuana, to

misdemeanors (see this IPG, questions 3-5 at pp. 19-46), can a search warrant still issue to

investigate such offenses? The answer should be yes.

Penal Code section 1524 is the statute that describes when a search warrant may issue. Section

1524(a) provides “A search warrant may be issued upon any of the following grounds: . . .¶

(2) When the property or things were used as the means of committing a felony. ¶ . . .

B. Can an argument be made that a search of a person based on the

odor of marijuana or based on seeing the person in possession of a

lawful amount of marijuana or concentrated cannabis is justified

because possession of even small amounts of marijuana remains a

federal crime?

18. Did Prop 64 impact whether a search warrant can issue to investigate marijuana-related offenses?

108

(4) When the property or things to be seized consist of any item or constitute any evidence that tends

to show a felony has been committed, or tends to show that a particular person has committed a

felony.” (Emphasis added by IPG.)

Thus, neither subdivision (a)(2) or (a)(4) would allow warrants to issue in order to obtain evidence

of most marijuana cultivation, sale or possession for sale offenses unless probable cause exists to

believe the target of the warrant may be eligible for felony punishment. (See this IPG, question 3-E

at p. 26 [describing circumstances when cultivation may be punished as felony], 4-A at p. 29

[describing circumstances when possession for sale may be punished as felony], 5-A at p. 36

[describing circumstances when sale, furnishing, transportation, etc., may be punished as felony]

question 6 [discussing felony of using minor to assist in sale, furnishing, transportation, etc.,].)

Alternatively, a search warrant may potentially issue under Penal Code section 1524(a)(4) for

evidence of a felony if there is probable cause to believe more than one person was involved in

the possession for sale, sale, or unlawful cultivation of, marijuana in the residence and the target

crime may properly be characterized as a felony. (See People v. Tatman (1993) 20

Cal.App.4th 1, 7 [“conspiracy to commit a misdemeanor may be punished as a felony (Pen.Code,

§ 182, subd. (a))”].)

However, even if subdivisions (a)(2) or (a)(4) are inapplicable, subdivision (3) of section 1524

should allow for search warrants in many misdemeanor cases without stretching the language of

subdivision (3) too far. Subdivision (3) allows for warrants to issue “[w]hen the property or things

are in the possession of any person with the intent to use them as a means of committing a public

offense*, or in the possession of another to whom he or she may have delivered them for the

purpose of concealing them or preventing them from being discovered.” (Emphasis added IPG.)

Thus, regardless of whether the target crime being investigated is a misdemeanor marijuana

offense, police should be able to seek and obtain a warrant for a home under subdivision (3)

because it is reasonable to believe that a person with unlawful contraband (e.g., marijuana) in

their house intends to use the marijuana as a means of committing a public offense. (See Dunn

v. Municipal Court, Eureka Judicial Dist. (1963) 220 Cal.App.2d 858, 874 [“where the

possession is declared to be unlawful by law, it is not necessary to show a specific intent to use it

for the commission of a public offense because the possession itself is the public offense”].)

*Editor’s note: A “public offense” includes misdemeanors and even infractions. (See Pen. Code, § 16 [Crimes

and public offenses include: 1. Felonies; 2. Misdemeanors; and 3. Infractions.”].)

109

Even before Prop 64 passed, courts had held that an officer could not conduct a warrantless

search a residence based on the smell of burning marijuana or seeing persons smoking

marijuana inside the residence. In People v. Hua (2008) 158 Cal.App.4th 1027, officers

responding to a noise disturbance call, smelled burnt marijuana coming from an apartment and

saw someone smoking marijuana inside the apartment through a window. (Id. at pp. 1030–

1031.) The court held the evidence of marijuana use did not establish exigent circumstances

justifying the warrantless entry into a home to preserve from imminent destruction evidence of a

crime punishable by incarceration because the officers’ observations did not necessarily suggest

possession of more than 28.5 grams marijuana – a nonjailable offense. And thus, the evidence

sought to be preserved did not relate to a crime sufficiently serious to support a warrantless

entry. (Id. at pp. 1034-1036.) Similarly, in People v. Torres (2012) 205 Cal.App.4th 989, the

court held the odor of burning marijuana coming from a hotel room did not support probable

cause to believe a jailable offense was being committed (i.e., that more than 28.5 grams of

marijuana would be found in the room) even assuming there were more than two people inside

the room. The court applied the same reasoning adopted in Hua to conclude the search could

not be justified under the exigent circumstances exception. (Id. at pp. 993-996; see also In re

D.W. (2017) 13 Cal.App.5th 1249 [2017 WL 2875860, *2].)

California courts have not determined whether the strong odor of fresh marijuana coming from a

residence, coupled with the belief the evidence will be destroyed before a warrant can be

obtained, will justify an entry into the home. However, since possession of even a greater

amount than an ounce of marijuana is generally permitted in the home (see Health & Saf. Code,

§ 11362.1(a) [allowing possession of up to six living cannabis plants and the plants produce],

unless the officer can articulate that the odor is consistent with possessing more than six living

19. Did Prop 64 impact whether an officer can make a warrantless entry into a home, or obtain a search warrant for a home, based on the odor of marijuana coming from the home or based on seeing or having information that the persons inside the home are in possession of a lawful amount of marijuana or concentrated cannabis?

A. Can warrantless entry into the home to seize marijuana be made

based on the odor of marijuana or seeing a small amount of

marijuana?

110

cannabis plants or a quantity inconsistent with lawful possession, courts may be reluctant to

permit a warrantless entry under the exigent circumstances exception into the home based on

the fresh odor of marijuana in light of the reasoning of Hua and Torres – especially

considering that marijuana may now be lawfully possessed in even more circumstances than

when Hua and Torres were decided.

Nevertheless, whether police can make a warrantless entry to prevent the destruction of evidence

based on the smell of burnt or fresh marijuana or based on seeing persons smoking marijuana is

a different question than whether a search warrant can issue in those same

circumstances.

Before the passage of Prop 64, courts had held that the strong aroma of fresh marijuana could

establish probable cause to believe contraband is present, and thus could support issuance of a

search warrant. (See People v. Benjamin (1999) 77 Cal.App.4th 264, 273; see also People

v. Pullman (unreported) 2017 WL 2823003, at *4 [citing to the California Supreme Court

decision of Robey v. Superior Court (2013) 56 Cal.4th 1218, 1240 and Arizona Supreme

Court decision of State v. Sisco (2016) 239 Ariz. 532, 534 for the proposition that —the “odor

of marijuana alone can establish probable cause for issuance of a search warrant unless other

facts would cause a reasonable person to believe the marijuana use or possession is authorized by

state medical marijuana law.”].) It is an open question whether the odor of marijuana

or seeing someone in possession of a lawful amount of marijuana can still, by itself

permit, the issuance of a search warrant now that possession of limited quantities

of marijuana is generally lawful?

Defense counsel will argue that unless there is probable cause to believe a residence contains

more than a lawful amount of marijuana, no warrant should issue – and that, for all the reasons

that the mere odor of marijuana or sight of marijuana in a lawful amount no longer can provide

probable cause in general (see this IPG, question 14 at pp. 72-74), it does not provide probable

cause for issuance of a warrant. That is, the defense will argue that probable cause cannot arise

from the inference that someone is in possession of an unlawful amount of marijuana based on

the person being in possession of a lawful amount of marijuana, based on the smell of marijuana

that cannot be attributed to more than an ounce of marijuana or six living plants and their

B. Can a search warrant issue based solely on the odor of marijuana or

seeing small amounts of marijuana in a home?

111

product, or based on an alert by a narcotics dogs that is not trained to distinguish between lawful

and unlawful amounts. (See State v. Crocker (Alaska Ct. App. 2004) 97 P.3d 93, 96-97

[finding search warrant could not issue for evidence of marijuana possession in home unless the

state establishes probable cause to believe that the person’s possession of marijuana falls outside

the person’s state constitutional right to privacy, which protects an adult's right to possess less

than four ounces of marijuana in the home]; cf., Bennett v. State (Ark. 2001) 44 S.W.3d 310,

313 [finding smell of denatured alcohol alone was insufficient to support a finding of probable

cause for warrant and distinguishing People v. Benjamin (1999) 77 Cal.App.4th 264 because

it involved a warrant based on the smell of an unlawful substance].)

Prosecutors can respond to these defense arguments in the same way they can respond to the

arguments that the mere odor of marijuana or the mere sighting of a lawful amount of marijuana

does not provide probable cause in general. (See this IPG, question 14 at pp. 74-82.)

However, because this it is an open question whether probable cause for a post-Prop 64 warrant

can be based solely on the odor of marijuana or knowing the residents are in possession of at

least a lawful amount of marijuana, officers should be encouraged to develop additional

evidence aside from the smell of marijuana and/or evidence the person in the house possesses

a lawful amount of marijuana. (See e.g., State v. Smith (Alaska Ct. App. 2008) 182 P.3d 651,

653 [distinguishing State v. Crocker (Alaska Ct. App. 2004) 97 P.3d 93, and upholding search

warrant for home in Alaska where affidavit stated that if an officer can smell cultivating

marijuana on the outside air, the amount being cultivated is likely in excess of four ounces

because marijuana plants must be present in a sufficient number or mass for the odor to be

detectable outside of a residence and affidavit also explained that a personal-use grow does not

typically involve a venting system, which is normally responsible for conducting the smell to the

outside air].)

Prop 64 reduced various marijuana offenses from felonies to misdemeanors subject to certain

exceptions. If the defendant was facing charges for possessing marijuana (Health & Saf. Code, §

11357(a)), cultivation of marijuana (Health & Saf. Code, § 11358), possessing marijuana for sale

20. What is the impact of Prop 64 on marijuana prosecutions that were pending, or marijuana convictions that were not yet final, at the time of its passage?

A. Must pending felony prosecutions be reduced to misdemeanors?

112

(Health & Saf. Code, § 11359), or selling marijuana (Health & Saf. Code, § 11360(a)) at the time

Prop 64 passed, the charges should be reduced to misdemeanor charges unless they still qualify

for felony punishment.

This is because when a new statute simply amends a statute to reduce the potential punishment

for committing an offense, the prosecution may proceed with the prosecution of the offense but

the defendant is entitled to the benefit of any reduction in punishment. (See In re Estrada

(1965) 63 Cal.2d 740, 748 [“where the amendatory statute mitigates punishment and there is no

saving clause, the rule is that the amendment will operate retroactively so that the lighter

punishment is imposed.”].)

Some defense attorneys have argued that Prop 64 was intended to completely prohibit continued

prosecution of all pending cases involving marijuana offenses that were reduced from felonies to

misdemeanors. The defense theory is that the enactment of Proposition 64 did not amend

section 11357-11360. Rather, it repealed those offenses and enacted brand-new offenses. In

that circumstance, according to the defense, the older pending prosecutions had to terminate.

(See People v. Rossi (1976) 18 Cal.3d 295, 298 [“when a statute proscribing certain

designated acts [is] repealed without a saving clause, all prosecutions for such act that had not

been reduced to final judgment [are] barred.”].) And since the “new” offenses of sections 11357-

11360 did not exist at the time of the commission of the offenses underlying the pending

*Editor’s note: In Estrada, defendant was convicted of escape from prison. At the time, Penal Code section

4530 provided that an escape or attempt to escape was punishable by at least a one-year period of

imprisonment to commence from the time the prisoner would otherwise be discharged from prison (and made

no distinction as to punishment between escapes with or without force or violence). Penal Code section 3044,

at that time, provided that no person convicted of an escape could be paroled until he has served at least two

calendar years from and after the date of his return to the prison after such conviction. Before defendant’s

conviction was final, the legislature amended both these statutes. Section 4530 was divided into two

subdivisions, one of which maintained the punishment when the escape was by force and one of which reduced

the minimum amount of time a prisoner had to serve for a non-forcible escape to six months and capped the

maximum time at five years. Section 3044 was amended to provide that persons convicted of a violation of

section 4530(a) could not be paroled for two years (the same as before), but the amended section said nothing

about parole for persons convicted under section 4350(b) that is as to escapes “without force or violence.” (Id.

at p. 743-744.) The Estrada court held that defendant was entitled to a hearing on whether he should be

paroled in light of the new standard but, significantly, no more than that. (Id. at pp. 747-751.)

B. Must pending felony prosecutions be dismissed?

113

prosecutions, they could not be retroactively applied to allow prosecution under the “new”

offenses without violating the ex post facto clause.

The quick answer to this claim is that sections 11357 through 11360 were not repealed by Prop

64. Rather, they were simply amended. This is obvious from comparing the pre-Prop 64

offenses with the post-Prop 64 offenses. Sections 11357-11360 remain on the books and allow

punishment for violations of the statutes ranging from an infraction to a felony. Proposition 64

simply imposed a reduced punishment and did not change the substantive offense. Moreover,

unless Proposition 64 expressly intended to bar prosecutions for marijuana-related offenses

were pending at the time of its passage, pending prosecutions for those offenses may go forward.

Government Code section 9608 provides: “The termination or suspension (by whatsoever means

effected) of any law creating a criminal offense does not constitute a bar to the

indictment or information and punishment of an act already committed in

violation of the law so terminated or suspended, unless the intention to bar such indictment or

information and punishment is expressly declared by an applicable provision of law.” (Gov.

Code, § 9608, emphasis added.)

The fact that additional elements must now be proved in order to penalize a defendant for a

felony violation of some of the offenses does not prevent continued prosecution either - so long

as the People proved the additional facts required by the new law in order to impose the

punishment. (See People v. Eagle (2016) 246 Cal.App.4th 275, 280; People v. Ramos

(2016) 244 Cal.App.4th 99, 103-104; People v. Figueroa (1993) 20 Cal.App.4th 65, 69-72.)

Finally, even if Proposition 64 could be viewed as repealing sections 11357-11360, it would not

matter because the sections were replaced with substantially similar offenses. As numerous

California cases have recognized, even when a statute may technically have been repealed, “the

rule barring prosecution under a repealed statute does not apply when the repealed statute is

substantially reenacted, because in such cases ‘it will be presumed that the legislative body “did

not intend that there should be a remission of crimes not reduced to final judgment.”’” (Henry

v. Municipal Court (1985) 171 Cal.App.3d 721, 725 citing to In re Dapper (1969) 71 Cal.2d

184, 189; see also Govt. Code, § 9608.) The changes by Prop 64 are not substantial changes

that would preclude continued prosecution under the new versions since “the defendant’s act

was a crime when committed; the crime has not been made more serious by the subsequent

statute, nor has the punishment been increased or the quantum of evidence necessary to sustain

a conviction been reduced.” (Henry v. Municipal Court (1985) 171 Cal.App.3d 721, 725.)

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The above argument in response to claims that Prop 64 requires the dismissal of pending

marijuana prosecutions is a very truncated version of a more detailed argument opposing such

dismissal. Prosecutors seeking a copy of a sample brief responding to this claim in a

more expanded fashion, should contact IPG. It is available upon request.

If a person has already been convicted and sentenced for a crime whose punishment was reduced

by Prop 64, is the person entitled to an automatic reduction of punishment?

In the case of People v. Rascon (2017) 10 Cal.App.5th 388, the court held a person sentenced

for possession of marijuana for sale prior to the enactment of Proposition 64, whose judgment is

not yet final, was not automatically entitled to the reduction of punishment provided by

Proposition 64. (Id. at p. 395.) Rather Proposition 64 expressly restricts the availability of the

reduced criminal punishment to persons “‘currently serving a sentence for a conviction’ of

Health and Safety Code section 11359 (and other marijuana-related crimes) [who] petition the

trial court to recall the person’s sentence and resentence the person in accordance with the

amended statute.” (Id. at p. 392, 394 [bracketed information added by IPG].)

NEXT EDITION: EITHER A PRINT ONLY EDITION FOR PROSECUTORS ON PROTECTING CONFIDENTIAL INFORMATION AND INFORMANTS OR A PODCAST AND ACCOMPANYING MEMO ON LAST MONTH’S CALIFORNIA SUPREME COURT DECISION IN PEOPLE V. HOPSON (2017) 3 CAL.5TH 424 – A CASE THAT READS LIKE A LAW SCHOOL HYPOTHETICAL HIGHLIGHTING THE POTENTIAL PITFALLS WHEN SEEKING TO INTRODUCE STATEMENTS OF ABSENT ACCOMPLICES FOR PURPORTEDLY NON-HEARSAY PURPOSES SUCH AS IMPEACHING A DEFENDANT.

Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be

directed to Jeff Rubin at (408) 792-1065.

C. Does Prop 64 automatically reduce felony convictions for

marijuana-related offenses that were not final at the time of Prop

64’s passage?