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Can I Still Be Searched or Arrested for Possessing Marijuana?

Most Californians are aware that marijuana is legal in California for medical and recreational use. Proposition 64 and various statutes, including HS 11362.1 and HS 11357, legalized marijuana in the State. However, possessing/smoking marijuana may lead to a search and even arrest.

HS 11362.1(a) provides that it is not a violation of state or local law for a person over 21 years of age or older to do the following:

  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 cannabis in the form of concentrated cannabis, including as contained in cannabis 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.

The issue comes from HS 11362.1(c), which provides:

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.

The language, “deemed lawful” is the exception courts have used to allow law enforcement to continue to search, seize, and make arrests based on marijuana possession. Courts have held that law enforcement can conduct a vehicle search when smelling burnt marijuana near a vehicle and seeing marijuana in the vehicle. Law enforcement is allowed to conduct a search to determine if the person is in compliance with the law. If during this search, law enforcement finds evidence it deems illegal, unrelated to marijuana, the person may be arrested.

It is still illegal to possess an open container, open package, or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle (HS 11362.3(4). It is also illegal to smoke or ingest cannabis or cannabis products while driving a motor vehicle. There are other restrictions under HS 11362.3, which may include smoking in certain public places, smoking within 1000 feet of a school, day care center, or possessing/smoking cannabis on school grounds, day care center, and smoking while riding in a boat or aircraft.

These actions are not “deemed lawful” and law enforcement may be able to conduct a search to determine if one is in compliance with the law. This search often leads to other charges, including possession of controlled substances (HS 11377, HS 11350), possession of a firearm (PC 29800; VC 25400; PC 25850) or other charges.

If you have been searched and/or arrested based on an allegation of possessing, smoking, or transporting marijuana, contact Kern Law, APC today; we provide a free, confidential consultation.

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