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Marijuana Court Cases (CA)

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Medicinal Cannabis Grow

Medicinal Cannabis Grow

Key Marijuana Court Cases (CA)

People v. Waxler (1st Dist 2014) holding that "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. Consistent with People v. Strasburg, we also conclude 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."

City of Riverside v. Inland Empire Patients Health and Wellness Center (CA Supreme Court 2013) holding that local jurisdictions may totally ban medical marijuana dispensaries through land use and nuisance ordinances, stating that "neither the CUA nor the MMP expressly or impliedly preempts the authority of California cities and counties, under their traditional land use and police powers, to allow, restrict, limit, or entirely exclude facilities that distribute medical marijuana, and to enforce such policies by nuisance actions."

Florida v. Jardines (US Supreme Court 2013) holding that the government's use of trained police dogs to investigate a home and its immediate surroundings is a "search" within the meaning of the Fourth Amendment, therefore requiring a warrant or probable cause prior to use of drug sniffing dogs at or around a home. In this case, police took a drug-sniffing dog to Jardines' front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court's decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause. Affirmed. See also, Kyllo v. US (US Supreme Court 2001), holding thermo imaging of a home is also a search requiring a warrant), but see, Illinois v. Caballes (US Supreme Court 2005), holding that the use of a drug sniffing dog during a valid traffic stop does not violate the 4th Amendment, and People v. Mayberry (Cal Supreme Court 1982), holding that use of a drug sniffing dog in the context of airport luggage searches does not violate the 4th Amendment. See more cases relevant to this issue below.

People v. Jackson (4th Dist. 2012) reversing lower court holding which had disallowed any defense by a dispensary owner under the Medical Marijuana Program Act (MMPA), Health & Safety Code section 11362.7 et seq., due to the large number of co-op members and their lack of participation in the business other than shopping at the co-op. The appeals court noted evidence that this particular collective complied in every way with applicable guidelines and regulations. Citing People v. Colvin (2nd Dist. 2012), the court rejected the argument that members must participate in a collective in a certain way, and further held that there is nothing in the MMPA which limits the number of cooperative members, or suggests where such a numerical limit should be placed and in any event a numerical limit would be somewhat at odds with one of the express purposes of the MMPA, to wit: enhancing access to medical marijuana. In its ruling, the appeals court warned that "where, as here, a collective has a large membership, the overwhelming number of whom do not, in any fashion, participate in the operation or governance of the collective and there is evidence of a high volume of purchases by the members, a trier of fact could reasonably conclude that, notwithstanding Jackson's testimony to the contrary, the organization is a profit-making enterprise which distributes marijuana to customers rather than to members of a nonprofit collective organization and is therefore outside the scope of the defense offered by the MMPA. Thus, on remand, the jury should be instructed that in determining whether Jackson is entitled to a defense, the jury must determine whether the collective he participates in is a profit-making enterprise and further that in resolving that question, it should consider, in addition to other evidence of profit or loss, the size of the collective's membership, the volume of purchases from the collective and the members' participation in the operation and governance of the collective."

People v. Torres (2nd Dist. 2012) holding officers warrantless entry into hotel room based solely on smell of burning marijuana was illegal absent any indicia that a jailable offense had or was occurring (possession of not more than 28.5 grams of marijuana is an infraction punishable by a fine of no more than $100 per H&S 11357(b)). See, also, People v. Hua (1st Dist. 2008).

Robey v. Superior Court of Santa Barbara (2nd Dist. 2011) refusing to apply a "plain smell" doctrine, where a FedEx package was pulled from the shipping line due to a strong odor of marijuana and turned over to police pursuant to FedEx policy. The court held that, in a non-automobile case, although the odor of marijuana gave police probable cause to obtain a search warrant, there was no "exigent circumstance" (compelling necessity) excusing the warrant requirement since the package was in custody, and without other evidence corroborating the contents of the package, when the officers chose not to seek a warrant, the search resulting from opening the package was illegal and the evidence of the marijuana was suppressed.

People v. Doolaege (unpublished, not to be cited; 1st Dist. 2011) originating in Sonoma County, reversing conviction for unlawful cultivation of marijuana (Health & Saf. Code, § 11358), finding sheriff's deputies illegally entered defendants' property: "A person who surrounds his back yard with a fence, and limits entry with a gate, locked or unlocked, has shown a reasonable expectation of privacy for that area. The area is protected from unreasonable government intrusion, or a warrantless search, unless the circumstances excuse the warrant."

People v. Wayman (4th Dist. 2010) examining transportation of medical marijuana

People v. Beaty (5th Dist. 2010) reversing denial of Prop. 36 diversion with medical marijuana recommendation

People v. Kelly (Cal Supreme Court 2010) invalidating H&S 11362.77 limiting quantity for non-card holders rather than permitting an amount reasonably related to current medical needs. See also, People v. Phomphakdy

People v. Moret (1st Dist. 2009) questioning the validity of Tilehkooh (below) in light of the subsequently enacted H&S 11362.795(a), and finding that a defendant can choose to waive his MMP rights in favor of a lighter sentence on probation, where a probation condition is to refrain from use or possession of marijuana regardless of a valid physician's recommendation, in a case where the probation condition is related to the conviction (illegal marijuana possession, cultivation). See also, People v. Hughes, People v. Bianco, and People v. Brooks

County of Butte v. Superior Court (Williams) (3rd Dist. 2009) allowing civil action for damages in illegal police seizure of marijuana

Ross v. RagingWire (Cal Supreme Court 2008) holding an employer may require preemployment drug tests and take illegal drug use into consideration in making employment decisions; the Compassionate Use Act is not applicable to employment law

County of San Diego v. NORML (4th Dist. 2008) rejecting challenges by San Diego and San Bernardino Counties to the Medical Marijuana Program Act (Health & Saf. Code, §§ 11362.7-11362.9 (MMP)), which requires counties to implement a program permitting persons—those who qualify for exemption from California's statutes criminalizing certain conduct with respect to marijuana—to apply for and obtain an identification card verifying their exemption, holding that the federal Controlled Substances Act (21 U.S.C. §§ 801-904 (CSA)) does not preempt or invalidate the MMP.

People v. Bergen (2nd Dist. 2008) examining hash processing

City of Garden Grove v. Superior Court (Kha) (4th Dist. 2007) requiring return of illegally confiscated marijuana, reaffirming state courts cannot enforce federal criminal statutes

People v. Mentch (6th Dist. 2006) examining primary caregivers

Gonzales v. Raich (US Supreme Court 2005) holding that the federal government has the authority under the Commerce Clause of the US Constitution to prohibit the local cultivation and use of marijuana pursuant to the CSA regardless of a person's compliance with California law

People v. Urziceanu (3rd Dist. 2005) examining & upholding collectives. See also, People v. Colvin (2nd Dist. 2012)

People v. Spark (5th Dist. 2004) holding the court cannot second-guess a doctor recommendation for medical marijuana use

People v. Tilehkooh (3rd Dist. 2003) rejecting prohibition of medical marijuana use while on probation, and holding state courts cannot enforce federal criminal statutes (but see the 2009 Moret case, above)

People v. Mower (Cal Supreme Court 2002) holding H&S 11362.5(d) grants a defendant limited immunity from prosecution, which not only allows a defense at trial, but also permits a motion to set aside an indictment or information prior to trial

People v. Rigo (1st Dist. 1999) requires physician approval prior to cultivation/use/arrest, not subsequent to arrest

People v. Trippet (1st Dist. 1997) allowing medical marijuana defense to possession and transportation charges, with showing of oral or written physician recommendation or approval

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Any result portrayed was dependent on the facts of that case, and the results will differ if based on different facts.

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Dave Jake Schwartz is an Honors Graduate from UC Hastings Law School, and UC Davis, former Federal Judicial Clerk, and Nationally Qualified Sobriety Tests Practitioner. Member of the California Bar for 30 years, North Bay resident for over 20 years, handles only DUI cases, including thousands of North Bay DUIs and DMV hearings: first/multiple offenders, minors, seniors, tourists, undocumented immigrants, veterans, probation violations, suspended license, public intoxication, open container, minor in possession, child endangerment, collisions, hit and run, evading, resisting arrest.

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