Court: Medical Marijuana Law Doesn't Bar Search

March 21, 2007

Bay City News, KPIX CBS 5 (San Francisco)

California's medical marijuana law doesn't protect a person who claims to be a patient from a reasonable search of his or her car, a state appeals court in San Francisco ruled today.

The Court of Appeal said, "The Compassionate Use Act provides a limited defense against prosecution, but does not provide a shield against reasonable investigations and searches."

A three-judge panel of the court upheld a Napa County sheriff's deputy's search of the car of Gabriel Strasburg in Calistoga in Oct. 25, 2005.

The search turned up about a pound and one-half of marijuana and a full-size scale.

The state's voter-approved medical marijuana law protects seriously ill patients who use marijuana on a doctor's recommendation from criminal prosecution. But the law limits patients to possession of no more than 8 ounces at a time.

Strasburg pleaded no contest to a misdemeanor charge of marijuana possession, but in an appeal claimed the search was illegal because he had told Deputy Sheriff Aaron Mosely he had a doctor's prescription for marijuana.

The appeals court said the search was reasonable because Mosely, after smelling marijuana smoke and seeing that there were two people in the car, was justified in suspecting the car might contain more than 8 ounces of the drug.

Justice James Marchiano wrote, "We note that defendant was not sitting at home nursing an illness with the medicinal effects of marijuana. He was smoking in a parked car in a public place, a gas station lot, with another person."

The court said the discovery of the pound and one-half of marijuana and the scale was "a strong suggestion that (Strasburg) was using the Compassionate Use Act as a facade to conceal illegal activity."

The appeals court based its ruling on a 2002 California Supreme Court decision that said the 1996 law gave patients limited immunity from prosecution, but did not protect them from arrest and investigation.

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