1

Filed 11/24/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DONTAYE T. HALL,

Defendant and Appellant.

 A157868

 (San Francisco County

 Super. Ct. No. SCN230138)

When defendant Dontaye T. Hall was pulled over for a vehicleequipment violation in 2018, a police officer observed in the car “a clear 

plastic baggie” of what appeared to be marijuana. Based on this observation, 

two police officers searched Hall’s car and found a gun in a closed backpack, 

resulting in criminal charges against Hall. The trial court denied Hall’s 

motion to suppress the evidence found in this search. 

Since the passage of Proposition 64 by voters in 2016, however, it has 

been legal for persons 21 years of age and older to possess and transport 

small amounts (up to 28.5 grams) of marijuana. (Health & Saf. Code,1

§ 11362.1, subd. (a)(1).) We now join those courts that have held the lawful 

possession of marijuana in a vehicle does not provide probable cause to 

search the vehicle. (See People v. Lee (2019) 40 Cal.App.5th 853, 865–867

(Lee); People v. Shumake (2019) 45 Cal.App.5th Supp. 1, 6 (Shumake); People 

1 Further undesignated statutory references are to the Health and 

Safety Code. 
2

v. Johnson (2020) 50 Cal.App.5th 620, 634 (Johnson); People v. McGee (2020) 

53 Cal.App.5th 796, 801–802 (McGee).) 

Under Proposition 64, a driver is not permitted to “[p]ossess an open 

container or open package of cannabis or cannabis products” (§ 11362.3, subd. 

(a)(4)), but there was no evidence in this case that the plastic baggie observed 

by the officers was an “open container.” We therefore reverse the order 

denying Hall’s motion to suppress. 

FACTUAL AND PROCEDURAL BACKGROUND

Hall’s motion to suppress was heard at his preliminary hearing, where 

the only witness was San Francisco police officer Steve Colgan, who testified 

as follows. 

Traffic Stop and Car Search

Around 11:00 p.m. on September 3, 2018, Colgan and his partner were 

on duty in a marked patrol vehicle in the area of Capp and 18th Streets when 

they saw a late model Dodge Charger with a nonoperational license plate 

lamp. He and his partner initiated a traffic stop, and the car pulled over in a 

parking lot. Hall was the driver, and there was another occupant in the front 

passenger seat. 

Looking inside the car, Colgan observed in the center console “a clear 

plastic baggie, inside of which was a green leafy substance,” which he 

believed was marijuana. He also saw in the cup holders “an ashtray filled 

with ashes,” “burnt cigar wrappers, commonly used to wrap marijuana,” and 

“a green leafy substance, that appeared to be broken up” “in the lap of the 

driver.”

Colgan did not see any smoke in Hall’s car. Defense counsel asked if he 

smelled the cigar wrappers to determine whether the smell was consistent 

with marijuana, and Colgan responded that he did not. The officer was not 
3

otherwise asked about odors emanating from the car or Hall, and he did not 

mention smelling marijuana (either burnt or unburnt). Nor did Colgan

observe any signs indicating Hall was under the influence. Defense counsel 

asked whether the officer had any information that Hall “was armed and 

dangerous, or anything like that,” before he was pulled over. Colgan 

answered no, “there was nothing prior on the vehicle or Mr. Hall, that I was 

aware of.”

Colgan and his partner decided to search the car based on the presence 

of marijuana in the car. He testified, “due to the fact that having an open 

container of marijuana is a violation of the law, [we determined] that we 

would search the vehicle to possibly find additional evidence of that crime.” 

Hall and his passenger complied with the officers’ commands to get out of the 

car and sit down nearby. On the floor of the rear passenger’s side, Colgan 

found a backpack with all the compartments “zipped up, or at least most of 

the way.” He opened the main compartment and found a black pistol. 

Argument and Denial of the Motion to Suppress

Defense counsel argued the officers had no probable cause to search 

Hall’s car after the traffic stop because they had no reason to believe Hall

was either armed and dangerous or involved in any criminal activity. The 

prosecutor responded that the search “was not based on the traffic stop, it 

was based on seeing a plain view of the apparent open containers of 

marijuana in the car, which then did justify the search, and the officers might 

find contraband related to that offense.” 

Judge Braden C. Woods, acting as magistrate, denied the motion to 

suppress finding, “[b]ased upon the totality of the circumstances and the 

evidence in this case, . . . the officers did act reasonably during each step of 

the process.” The magistrate reasoned that persons are not permitted to
4

possess open containers of cannabis or cannabis products or to smoke or 

ingest cannabis or cannabis products while driving. (See § 11362.3, subds. 

(a)(4) and (7).)

Denial of Motion to Set Aside the Information and Disposition

Hall was held to answer on two felony weapons counts and an

infraction. By information, he was charged with carrying a loaded firearm in 

a public place (Pen. Code, § 25850, subd. (a)), carrying a concealed firearm in

a vehicle, (id., § 25400, subd. (a)(1)), and having no license plate lamp, an 

infraction (Veh. Code, § 24601). Hall moved to set aside the information 

under Penal Code section 995, renewing his argument that the search of his 

car violated the Fourth Amendment. The trial court (Hon. Eric R. Fleming) 

denied the motion. 

The parties then reached a plea agreement. Hall entered a plea of no 

contest to a single misdemeanor firearm offense (carrying a loaded firearm, 

Pen. Code, § 25850, subd. (a)), the remaining charges were dismissed, the 

trial court suspended imposition of sentence, and Hall was placed on 

probation for three years, with six months to be served in county jail. 

DISCUSSION

A. The Automobile Exception to the Warrant Requirement

The Fourth Amendment of the United States Constitution protects 

against “unreasonable searches and seizures” and generally requires a 

warrant before an officer may conduct a search. Warrantless searches “are 

per se unreasonable under the Fourth Amendment—subject only to a few 

specifically established and well-delineated exceptions.” (Katz v. U.S. (1967) 

389 U.S. 347, 357, fn. omitted.)

One such exception to the warrant requirement is the automobile 

exception, under which an officer may search a vehicle without a warrant so 
5

long as the officer has probable cause to believe the vehicle contains

contraband or evidence of a crime. (Robey v. Superior Court (2013) 56 Cal.4th 

1218, 1225.) “Probable cause is a more demanding standard than mere 

reasonable suspicion.” (Lee, supra, 40 Cal.App.5th at p. 862.) Probable cause 

exists when “the known facts and circumstances are sufficient to warrant a 

[person] of reasonable prudence in the belief that contraband or evidence of a 

crime will be found.” (Ornelas v. U.S. (1996) 517 U.S. 690, 696.) 

The prosecution bears the burden of establishing an exception applies. 

(People v. Macabeo (2016) 1 Cal.5th 1206, 1213.) 

B. Standard of Review

“ ‘[I]n proceedings under [Penal Code] section 995 it is the magistrate 

who is the finder of fact; the superior court . . . sits merely as a reviewing 

court; it . . . cannot substitute its judgment as to the credibility or weight of 

the evidence for that of the magistrate. [Citation.] On review by appeal or 

writ, moreover, the appellate court in effect disregards the ruling of the 

superior court and directly reviews the determination of the magistrate.’ ” 

(People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) 

Thus, we disregard the lower court’s rationale for denying the motion to 

set aside the information and directly review the court’s ruling at the 

preliminary hearing denying Hall’s motion to suppress. 

“We defer to the trial court’s factual findings, express or implied, where 

supported by substantial evidence. In determining whether, on the facts so 

found, the search or seizure was reasonable under the Fourth Amendment, 

we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 

354, 362.) We determine probable cause considering the totality of the 

circumstances. (Johnson, supra, 50 Cal.App.5th at p. 625.) We may affirm 
6

the ruling if it is correct on any theory, even if the trial court’s reasoning was 

incorrect. (People v. McDonald (2006) 137 Cal.App.4th 521, 529.) 

C. Analysis

The Attorney General contends probable cause existed to search Hall’s

car, first, because observation of marijuana inside a vehicle always justifies a 

search of the entire vehicle and, second, because the marijuana in this case 

was in an “open container” in violation of law. We consider each of these 

asserted grounds for probable cause to conduct the search. 

1. Marijuana in the Car Did Not Justify the Search

The Attorney General claims, “An officer who observes that a vehicle 

contains marijuana is entitled to search the vehicle to determine whether the 

defendant in fact possesses the marijuana for personal use and has adhered 

to legal limits or has additional quantities stashed in other parts of the car.” 

Under section 11362.1, subdivision (a)(1), enacted as part of Proposition 

64, it is lawful for persons 21 and older to possess and transport up to 28.5 

grams of cannabis. Subdivision (c) of the statute (§ 11362.1(c)) further

provides, “[c]annabis 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.” (Italics added.) Thus, under the plain 

language section 11362.1(c), the lawful possession of marijuana in a vehicle, 

by itself, cannot justify a warrantless car search. 

We are not the first court to consider Proposition 64’s effect on the 

probable cause determination when an officer notices marijuana in a vehicle 

during a traffic stop. In Lee, Division One of the Fourth District Court of 

Appeal rejected the argument that evidence the defendant had marijuana in 
7

his pocket, along with other circumstances,

2 established probable cause to 

search his vehicle after a traffic stop. (Lee, supra, 40 Cal.App.5th at pp. 857, 

861–862.) The Lee court observed, “The recent legalization of marijuana in 

California means we can now attach fairly minimal significance to the 

presence of a legal amount of the drug on [the defendant]’s person,” and

concluded the remaining circumstances were insufficient to establish 

probable cause. (Id. at p. 861.) The court explained that the presence of a 

lawful amount of marijuana in a vehicle cannot, by itself, justify an officer’s

search for more marijuana on the theory that if a person has a lawful amount 

of marijuana, there may be a greater, unlawful amount of marijuana in the 

person’s car. Instead, “there must be evidence—that is, additional evidence 

beyond the mere possession of a legal amount—that would cause a 

reasonable person to believe the defendant has more marijuana. And it 

would be incorrect to say that California’s legalization of marijuana is of no 

relevance in assessing whether there is probable cause to search a vehicle in 

which police find a small and legal amount of the drug.” (Id. at p. 862.) 

Shumake, supra, 45 Cal.App.5th Supp. 1, an appellate division 

decision, is also instructive. There, the defendant was pulled over for a 

license plate violation, and an officer noticed “a strong smell of marijuana, 

both fresh and ‘freshly burnt’ ” as she approached the car. The defendant 

said he had “ ‘some bud’ in the center console.” The officer found 1.14 grams 

2 In Lee, the People argued the following circumstances taken together 

established probable cause to believe evidence of illegal activity would be 

found in the vehicle of the defendant, Lee: “(1) the marijuana in Lee’s pocket; 

(2) Lee’s affirmative response when Officer Robles asked if he delivered 

medical marijuana; (3) the ‘wadded-up’ $100 to $200 cash in his pocket; (4) 

the additional $10 in cash in the center console; and (5) the manner in which 

Lee ‘tensed’ as Robles handcuffed him and led him to the patrol car.” (Lee, 

supra, 40 Cal.App.5th at p. 862.) 
8

of marijuana bud in the console and then searched the entire vehicle, finding

a loaded pistol under the driver’s seat. (Id. Supp. at p. 4.)

The appellate division panel rejected the argument that the discovery 

of a legal amount of marijuana in the console provided probable cause to 

search the entire car for additional marijuana: “[T]his inference violates 

California law. Health and Safety Code Section 11362.1 states that ‘no 

conduct deemed lawful by this section shall constitute the basis for detention, 

search, or arrest.’ [The defendant]’s container with 1.14 grams of loose 

cannabis flower is far below the 28.5 grams permitted by law. As [the 

defendant] was lawfully transporting the marijuana, that marijuana could 

not then serve as the basis for the search of [his] car.” (Shumake, supra, 45 

Cal.App.5th Supp. at p. 6, italics added.) 

The Shumake court also rejected the People’s argument that the smell 

of marijuana coupled with the defendant’s statement that there was 

marijuana in the console established probable cause to search the entire car. 

(Shumake, supra, 45 Cal.App.5th Supp. at p. 7.) Analogizing marijuana to 

alcohol,

3 the court explained that the officers could have investigated further

by, for example, asking the defendant about how much marijuana he 

possessed, whether it was in a container, where it was located, and when he 

last smoked. Such questions would be “consistent with the type of reasonable 

inquiry officers use when they smell alcohol in a car.” (Shumake, supra, 45 

Cal.App.5th Supp. at p. 8.) But these facts (the smell of marijuana plus the 

statement that there was “ ‘some bud’ ” in the console) could not justify the

search of defendant’s car. (Ibid.) 

3 It is illegal to drive under the influence of any drug, just as it is illegal 

to drive under the influence of alcohol. (Veh. Code, § 23152, subds. (a) and 

(f).) 
9

Similarly, in Johnson, supra, 50 Cal.App.5th at page 629, the Third 

District Court of Appeal recognized, “Now that individuals age 21 or older 

may lawfully possess and transport up to 28.5 grams of marijuana,” it is no 

longer the case that “the observation of any amount of marijuana provides 

probable cause to search a vehicle.” (See also McGee, supra, 53 Cal.App.5th 

at p. 802 [recognizing section 11362.1(c) means “the mere presence of a lawful 

amount of marijuana” is not sufficient to establish probable cause to search 

under the automobile exception].) The Johnson court further held that “the

odor of marijuana alone no longer provides an inference that a car contains 

contraband because individuals over the age of 21 can now lawfully possess 

and transport up to 28.5 grams of marijuana. (§ 11362.1, subd. (a)(1).)” 

(Johnson supra, at p. 634.) 

Here, Officer Colgan testified he saw a clear plastic baggie containing a 

green leafy substance in the center console of Hall’s car. There was no 

testimony about the weight of the baggie and no description of the baggie 

from which one could reasonably infer that it contained over 28.5 grams of 

marijuana. Thus, there was no evidence to support a belief that Hall had an 

unlawful amount of marijuana in his car. Nor did Colgan suspect that Hall 

was driving under the influence of marijuana. Following the reasoning of

Lee, Shumake, Johnson, and McGee, we conclude Colgan’s observation of a

not-unlawful amount of marijuana in Hall’s car did not establish probable 

cause to believe contraband or evidence of a crime would be found in the car. 

In support of his position that there was probable cause to search Hall’s 

automobile, the Attorney General cites People v. Fews (2018) 27 Cal.App.5th 

553 (Fews), People v. Steele (2016) 246 Cal.App.4th 1110, People v. Waxler

(2014) 224 Cal.App.4th 712 (Waxler), and People v. Strasburg (2007) 148 

Cal.App.4th 1052 (Strasburg). We agree with the many appellate courts that 
10

have concluded Waxler and Strasburg are of little persuasive value because 

they pre-date the enactment of Proposition 64 and, in particular, section 

11362.1(c), which fundamentally changed the probable cause determination

by specifying lawfully possessed cannabis is “not contraband” and lawful 

conduct under the statute may not “ ‘constitute the basis for detention, search 

or arrest.’ ” (See Johnson, supra, 50 Cal.App.5th at pp. 628–629 [finding

Waxler and Strasburg not pertinent to analysis of whether the smell of 

marijuana and a plastic baggie of two grams of marijuana in plain view 

justified search of a car because the subsequent passage of section 11362.1(c) 

“definitively affects probable cause determinations”]; Lee, supra, 40 

Cal.App.5th at pp. 864–865 [“Waxler relied heavily on the fact that any 

amount of nonmedical marijuana remained contraband,” which is no longer 

the case under section 11362.1(c); Proposition 64 “similarly appear[s] to 

undercut much of Strasburg’s probable cause analysis”].)

4

Fews was decided after Proposition 64 was enacted, but it is easily

distinguishable on its facts. In that case, officers observed an SUV with 

expired registration being driven in a suspicious manner; the driver failed to 

comply with officer commands and had a half-burnt rerolled cigar that an

officer believed contained marijuana; officers smelled “ ‘recently burned 

marijuana emanating from’ ” both the driver and the SUV; and the 

4 People v. Steele, supra, 246 Cal.App.4th at page 1120, decided before 

section 11362.1 was enacted, cited Waxler and Strasburg for the proposition 

that an officer could prolong the detention of the defendant to investigate and 

lawfully search the defendant’s car after smelling marijuana coming from the 

defendant’s car and seeing marijuana on the back seat. The issues presented 

in that appeal, however, related to whether the initial contact between 

officers and the defendant was consensual and whether the officers had 

reasonable suspicion to detain the defendant, not whether there was probable 

cause to search the defendant’s car. (Id. at p. 1115.) 
11

passenger, defendant Fews, made “ ‘furtive’ movements,” continuously 

moving his lower body and fidgeting inside the SUV. (Fews, supra, 27 

Cal.App.5th at p. 557.) Further, the traffic stop was in an area “known for 

narcotics sales and use, and numerous shooting and stabbings in the area 

were related to narcotics.” (Id. at pp. 557–558.) Fews wore multiple layers of 

baggy clothing, and the officers decided to pat search him “because of the 

high-crime area they were in, Fews’s fidgeting in the vehicle, the possibility 

that Fews’s baggy clothing could conceal a weapon, and the fact that the 

officers ‘were going to be conducting a search of the vehicle at which point it 

would be one officer watching the two subjects and the other officer with his 

back turned to the vehicle.’ ” (Id. at p. 558.) An officer found a loaded 

semiautomatic gun in Fews’s jacket. (Ibid.) 

Fews challenged the pat search, arguing that under Proposition 64, a 

person’s mere possession of a small amount of marijuana is no longer enough 

to establish probable cause to believe the person is armed or engaged in 

criminal activity. (Fews, supra, 27 Cal.App.5th at p. 561.) But our colleagues 

in Division One concluded the facts known to the officers, which included 

many additional circumstances beyond the possession of a small amount of 

marijuana, justified the pat search. The court reasoned, “[T]he odor and 

presence of marijuana in a vehicle being driven in a high-crime area, 

combined with the evasive and unusual conduct displayed by Fews and [the 

driver] . . ., were still reasonably suggestive of unlawful drug possession and 

transport to support the Terry5 frisk.” (Id. at p. 561.) The court also 

concluded the search of the SUV was supported by probable cause: “Driving a 

motor vehicle on public highways under the influence of any drug [citation] or 

while in possession of an open container of marijuana [citations] are not acts 

5 Terry v. Ohio (1968) 392 U.S. 1.
12

‘deemed lawful’ by section 11362.1. . . . Here, the evidence of the smell of 

‘recently burned’ marijuana and the half-burnt cigar containing marijuana 

supported a reasonable inference that [the driver] was illegally driving under 

the influence of marijuana, or, at the very least, driving while in possession of 

an open container of marijuana.” (Id. at p. 563.) 

In contrast, in Hall’s case there was no evidence the traffic stop 

occurred in a dangerous area known for drug sales, no odor of recently burnt 

marijuana (or of any marijuana at all), and no suspicious conduct by Hall or 

his passenger. Colgan testified he had no information suggesting Hall was 

armed or involved in criminal activity. That there was probable cause for the 

searches in Fews does not mean the search of Hall’s car under very different 

known facts and circumstances was justified. In short, we reject the 

proposition that the officer’s observation of an apparently lawful amount of 

marijuana in Hall’s car justified the search in this case. 

2. There Was No Substantial Evidence of an “Open Container”

Next, the Attorney General argues the search in this case was justified 

because Hall was observed in “possession of an open container of marijuana,” 

citing section 11362.3, subdivision (a)(4). Section 11362.3 describes conduct 

not legalized by Proposition 64, and subdivision (a)(4) provides, “Section 

11362.1 does not permit any person 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.” 

In the hearing on Hall’s motion to dismiss in the trial court, the 

prosecutor argued, “The People believe that the legislature in designating an 

open container to be unlawful meant anything other than a sealed container 

such as one that would be purchased in a marijuana dispensary or what-
13

have-you.” Defense counsel observed, “[T]here are no facts to suggest that it 

was open or closed.” 

Denying Hall’s motion to dismiss, Judge Fleming stated, “[W]e would 

assume it should be some type of permanent seal. I’m not saying that is what 

the legislation requires but it has to be—talking about an open container, it 

should be something more than just taking apart a plastic baggie. A kid can 

reach in and take apart a plastic baggie. [¶] So the Court is going to find the 

officers—this was an open container.” 

On appeal, Hall argues Judge Fleming incorrectly interpreted “open 

container” for purposes of section 11362.3, subdivision (a)(4), to require some 

type of permanent seal. Hall’s position finds support in Johnson, supra, 50 

Cal.App.5th 620. There, the Court of Appeal held a “plastic bag [that] was 

knotted at the top” was not “open” and, thus, there was no violation of section 

11362.3, subdivision (a)(4), to support probable cause to search the 

defendant’s car. (Id. at pp. 624, 634.) 

The Attorney General counters that an “open container” is any 

receptacle containing cannabis or cannabis products “which has been opened 

or has a seal broken,” relying on the language of Vehicle Code section 23222.

6 

6 Vehicle Code section 23222, subdivision (b)(1), provides, “Except as 

authorized by law, a person who has in their possession on their person, 

while driving a motor vehicle upon a highway or on lands . . ., a receptacle

containing 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).” (Italics added.) 
14

Hall responds, first, that the prosecutor never argued probable cause 

was supported by an alleged violation of Vehicle Code section 232227 and, 

second, that the statute does not apply because the plastic baggie in this case 

was not found “on [Hall’s] person” as required under Vehicle Code section 

23222, subdivision (b)(1). 

We reject the Attorney General’s theory of probable cause based on 

Vehicle Code section 23222. Assuming for the sake of argument the Attorney 

General may rely on a possible violation of this statute to justify the search 

(even though the prosecution did not argue this theory and the magistrate 

did not rely on this statute), there was no substantial evidence in this case of 

such a violation. Initially, we agree with Hall’s defense counsel at the 

hearing on the motion to dismiss—there simply was no evidence about the 

condition of the plastic baggie. Colgan’s entire testimony on the container of 

marijuana in Hall’s car was as follows: “I observed a clear plastic baggie, 

inside of which was green leafy substance. Based on my training and 

experience, I believed it to be marijuana.” The officer offered no description 

of the state of the plastic baggie. For all we know, the baggie was purchased 

from a dispensary and had never been opened, or it may have been vacuum 

sealed; Colgan, after all, did not smell any marijuana in the car. 

Furthermore, as Hall points out, no evidence was presented that the baggie 

of marijuana was “in [Hall’s] possession on [his] person” as required for a 

7 Our Supreme Court has “cautioned that appellate courts should not 

consider a Fourth Amendment theory for the first time on appeal when ‘the 

People’s new theory was not supported by the record made at the first 

hearing and would have necessitated the taking of considerably more 

evidence . . . .’ or when ‘the defendant had no notice of the new theory and 

thus no opportunity to present evidence in opposition.’ ” (Robey v. Superior 

Court, supra, 56 Cal.4th at p. 1242.)
15

violation of Vehicle Code section 23222, subdivision (b)(1), and, in fact, the 

evidence was to the contrary. (See People v. Squadere (1978) 88 Cal.App.3d 

Supp. 1, 4 [insufficient evidence open beer bottles found in a car were “ ‘in his 

possession on his person’ ” of defendant to support conviction under Vehicle 

Code section 23222]). The prosecution had the burden to prove probable 

cause, and it failed to establish a violation of Vehicle Code section 23222. 

Finally, the Attorney General appears to assert that even if the plastic

baggie was not an open container, “the loose marijuana on the center console 

and in [Hall]’s lap was not in any container,” establishing probable cause to 

search. Hall responds that there was no evidence of a usable quantity on his 

lap or in the console, citing People v. Leal (1966) 64 Cal.2d 504, 512, in which 

the Supreme Court recognized that evidence of “possession of traces of 

narcotics” without a showing that “such residue was usable for sale or 

consumption” is insufficient to uphold a conviction for drug possession. Hall 

also relies on People v. Thomas (1966) 246 Cal.App.2d 104, in which an officer 

“shook out the pocket debris” of defendant Thomas’s shirt and saw what

looked like “ ‘fragments of marijuana.’ ” (Id. at p. 107.) The appellate court 

reversed Thomas’s conviction of marijuana possession, reasoning: “[T]he 

principle ‘de mininis non curat lex’[8]is applicable even to this serious 

accusation, and the Supreme Court has indicated that the finding alone of 

minuscule amounts of marijuana debris, such as were shaken from Thomas’

shirt, do not warrant a conviction.” (Id. at p. 112.) 

Officer Colgan testified there was ash in the cupholders, and “in the lap 

of the driver I observed a green leafy substance, that appeared to be broken 

8 “[T]he maxim de minimis non curat lex . . . means ‘[t]he law does not 

concern itself with trifles.’ ” (Troester v. Starbucks Corp. (2018) 5 Cal.5th 

829, 835.) 
16

up, I believed to be marijuana.” When the officers searched Hall’s car, they 

seized the clear plastic baggie and “some remnants of suspected marijuana 

from the ashtray,” but the substance on Hall’s lap “fell off somewhere at the 

scene during the course of the investigation.”9 Nothing in the record 

indicates the magistrate considered the ash, “remnants,” and/or the 

substance on Hall’s lap to constitute either an “open container or open 

package of cannabis or cannabis products” under section 11362.3, subdivision 

(a)(4) or “loose cannabis flower not in a container” under Vehicle Code section 

23222, subdivision (b)(1). (See fn. 6, ante.) During the traffic stop, Colgan 

did not smell marijuana—either burnt or unburnt, Hall complied with officer 

commands, and, most significantly, Colgan did not suspect Hall of driving 

under the influence. Considering the totality of the circumstances known to 

the officers during the traffic stop, we conclude there was no probable cause 

to justify the search of Hall’s car. 

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court 

with directions to set aside its order denying the motion to suppress, enter an 

order granting the motion, allow defendant to move to withdraw his plea, and 

conduct further proceedings consistent with this opinion.

9 Three exhibits were admitted in evidence at the preliminary hearing, 

but none related to the marijuana found in Hall’s car. They were photos of 

Hall’s car, photos of the backpack and firearm found inside, and a 

“Certification of Firearm History.”
17

_________________________

Miller, J.

WE CONCUR:

_________________________

Kline, P.J.

_________________________

Richman, J.

A157868, People v. Hall
18

Court: San Francisco County Superior Court

Trial Judge: Hon. Brandon C. Woods, Hon. Eric R. Fleming, Hon. 

Christopher C. Hite

Walter K. Pyle, under appointment of the Court of Appeal, for Defendant and 

Appellant

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. 

Share, Ashley Harlan, Deputy Attorneys General, for Plaintiff and 

Respondent

A157868, People v. Hall