Pot card can't stop searches, court says
March 22, 2007
Bob Egelko, San Francisco Chronicle
California's medical marijuana law doesn't protect card-carrying patients from being stopped and searched by police who detect the presence of the drug, a state appeals court ruled Thursday.
The 1996 initiative legalizing medical marijuana, Proposition 215, shields patients only from being convicted of growing or possessing cannabis for their health, and does not prevent officers from conducting their usual investigation when they have evidence of a crime, said the First District Court of Appeal in San Francisco.
The 3-0 ruling upheld a Sonoma County man's conviction for possessing about a pound and a half of marijuana that a Napa County sheriff's deputy found in an October 2005 car search.
The deputy said he approached a car in a Calistoga parking lot, smelled marijuana and spoke to Gabriel Strasburg, who admitted he had been smoking pot but said he had a medical marijuana card. The deputy refused to look at the document, which actually was a recommendation from Strasburg's doctor rather than the patient-identification card authorized by a recent state law, and instead searched the car.
The court noted that the amount of marijuana in the vehicle far exceeded the eight ounces that a patient can legally possess under post-Prop. 215 legislation. Strasburg pleaded no contest to a misdemeanor charge and was placed on probation.
In upholding the search, the appellate panel cited a 2002 California Supreme Court ruling that said medical marijuana patients were not immune from arrest but could use their status as grounds for dismissal of charges or as a defense at trial. That means they are also subject to searches, the appeals court said.
"The overall circumstances justified the deputy sheriff's search of the car to determine if more marijuana was present,'' Presiding Justice James Marchiano said. If a medical marijuana card were enough to stop a search, he said, "every qualified patient would be free to ... deal marijuana from his car with complete freedom from any reasonable search.''
Strasburg's lawyer, Jeffrey Glick, said he would probably appeal to the state Supreme Court. He said the ruling interpreted Prop. 215 too narrowly and provided little protection for patients who have a legal right to possess marijuana.
E-mail Bob Egelko at email@example.com.