1 

Filed 3/11/14 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

THE PEOPLE, 

 Plaintiff and Respondent, A137796 

 v. (Del Norte County 

 Super. Ct. No. CRF129128) 

MICHAEL CLARENCE WAXLER, 

 Defendant and Appellant. 

_____________________________________/ 

The question in this case is whether the odor of burnt marijuana emanating from a 

vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable 

cause to search that vehicle pursuant to the automobile exception to the warrant 

requirement. The answer is yes, notwithstanding the fact that possession of not more 

than 28.5 grams (an ounce) “of marijuana, other than concentrated cannabis, is . . . an 

infraction” punishable by a fine. (Health & Saf. Code, § 11357, subd. (b).)1

 Under the 

 

1

 Unless otherwise noted, all further statutory references are to the Health and 

Safety Code. Effective 2011, a person who possesses “not more than 28.5 grams of 

marijuana . . . is guilty of an infraction punishable by a fine of not more than $100.” 

(§ 11357, subd. (b), as amended by Stats. 2010, ch. 708, § 1.) “California has chosen to 

treat the offense of possession of less than 28.5 grams of marijuana as a minor offense 

that is nonjailable even for repeat offenders.” (People v. Hua (2008) 158 Cal.App.4th 

1027, 1037 (Hua).) An infraction, however, is still a “crime” under Penal Code section 

16. 
2 

automobile exception to the warrant requirement, a law enforcement officer may search a 

vehicle when he or she has probable cause to believe it contains contraband or evidence 

of a crime. (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1225 (Robey).) Under the 

current state of California law, nonmedical marijuana — even in amounts within the 

statutory limit set forth in section 11357, subdivision (b) — is “contraband” and may 

provide probable cause to search a vehicle under the automobile exception. Moreover, 

possession of a “215 card” does not vitiate probable cause to search pursuant to the 

automobile exception. (People v. Strasburg (2007) 148 Cal.App.4th 1052 (Strasburg).)2

We affirm the trial court’s denial of appellant Michael Waxler’s motion to 

suppress. 

FACTUAL AND PROCEDURAL BACKGROUND 

 We have taken the facts from the preliminary hearing transcript. 

The Incident 

In February 2012, Del Norte County Sheriff’s Deputy Richard Griffin learned a 

person was illegally dumping trash in a parking lot behind a Crescent City Safeway. 

Deputy Griffin drove to the Safeway and stopped next to appellant’s truck. Appellant 

was sitting in the driver’s seat. As Deputy Griffin “got close” to appellant’s truck, he 

smelled “the odor of burnt marijuana” and “saw a marijuana pipe with . . . what appeared 

to be burnt marijuana in the bowl.” The pipe was “on the bench seat right next to” 

appellant. Deputy Griffin searched the truck and found a methamphetamine pipe and a 

small bindle containing suspected methamphetamine with a street value of about $50. 

 Deputy Griffin’s partner detained appellant and “Mirandized”3

 him. Appellant 

initially said he knew the methamphetamine and methamphetamine pipe were in his 

vehicle. He claimed the methamphetamine “was not his” and had been left in the truck 

 

2

 A “215 card” refers to the government card issued under the Compassionate Use 

Act of 1996 (CUA), also known as Proposition 215. (§ 11362.5, subd. (a).) The Medical 

Marijuana Program Act (MMPA) enacted in 2003 created a voluntary medical marijuana 

identification card program. (See Strasburg, supra, 148 Cal.App.4th at p. 1057 

[describing CUA and MMPA].) 

3

 Miranda v. Arizona (1966) 384 U.S. 436. 
3 

by some friends, who were hitchhikers. Then he “changed his story a couple of times.” 

Later, appellant said the methamphetamine “had been in his truck for a few days because 

he’d picked up the hitchhiker . . . upstate” and “later he changed his story again to say 

he’d received this meth from the hitchhiker in payment for the ride.” 

 At some point during the conversation, appellant told Deputy Griffin he “had a 

215 card” and showed it to him. Deputy Griffin was not sure exactly when he became 

aware of the 215 card, but he learned about it after he searched appellant’s truck. He 

remembers he looked at the card after arresting appellant “for the methamphetamine 

issue.” As Deputy Griffin explained, “Even if he has a valid medical marijuana card I 

still have to confirm how much he has on him or if there are other issues with it. [H]e 

can have a valid card and have half a gram present in a pipe. I’ve seen many times 

people hide a quarter ounce or more . . . . So I still have to confirm how much marijuana 

is inside the vehicle. From my training and experience it’s still an arrestable offense. [ ] I 

have to determine whether it’s legally possessed or not.” 

The Charges, Motion to Suppress, and Plea 

 The People charged appellant with transportation of methamphetamine (§ 11379 

(Count 1)) and with possession of methamphetamine (§ 11377 (Count 2)). Appellant 

moved to suppress, claiming Deputy Griffin “did not have any reason to believe” 

appellant was “under the influence of marijuana or any other drug, . . . attempting to 

operate a vehicle while under the influence of marijuana, or . . . committing any crime at 

the time that would warrant a search of the vehicle.” 

According to appellant, the amount of “completely un-smoked marijuana . . . in 

the bowl” was a “miniscule” 0.3 grams and “was well below the personal limits that are 

allowed by law.” Appellant claimed Deputy Griffin’s observation of marijuana in the 

truck “could not have supported an arrest” because possession of up to 28.5 grams of 

marijuana is an infraction under section 11357. Finally, appellant argued the possession 

of “personal use medical marijuana” was legal with a doctor’s recommendation. The 

suppression motion attached a valid physician’s statement recommending the use of 
4 

marijuana for medical conditions (§ 11362.5) and a valid Washington State medical 

marijuana card. 

 In opposition, the People argued Deputy Griffin had probable cause to search 

appellant’s truck after observing “an odor of marijuana.” They also contended the CUA 

“does not provide immunity from arrest or criminal prosecution” and that possession of a 

215 card is “an affirmative defense to the crimes of possession and cultivation of 

marijuana at trial” and does “not protect one from a valid search nor arrest.” The parties 

stipulated appellant had a valid 215 card on the day of the incident. 

 At the conclusion of the preliminary hearing, the court denied appellant’s motion 

to suppress and held him to answer the charges. The court explained, “I think the 

possession of the 215 card is an affirmative defense. The observation of marijuana is 

sufficient to justify the officer’s investigating further. It’s up to the defendant at that 

point to say, . . . I’ve got a 215 card. And once that’s brought to [the law enforcement 

officer’s] attention I think [the officer] has no further justification. But in the absence of 

an affirmative defense being asserted at that time I think he has a right to proceed as he 

did.” 

 Appellant pled guilty to possession of methamphetamine (§ 11377 (Count 2)). 

The court dismissed the methamphetamine transportation charge (§ 11379 (Count 1)) and 

reduced the methamphetamine possession conviction to a misdemeanor (Pen. Code, § 17, 

subd. (b)). The court suspended imposition of sentence and placed appellant on 

probation. 

DISCUSSION 

I. 

Standard of Review 

 “The denial of the suppression motion may be challenged by an appeal from the 

judgment entered after defendant’s guilty or no contest plea. [Citations.] ‘ “The standard 

of appellate review of a trial court’s ruling on a motion to suppress is well established. 

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 
5 

was reasonable under the Fourth Amendment, we exercise our independent judgment. 

[Citations.]” [Citations.]’ ” (People v. Leath (2013) 217 Cal.App.4th 344, 350.) 

II. 

The Automobile Exception to the Warrant Requirement 

“[T]he Fourth Amendment to the United States Constitution permits the 

warrantless search of an automobile with probable cause.” (Strasburg, supra, 148 

Cal.App.4th at p. 1059.) Under the automobile exception to the warrant requirement, 

“[w]hen the police have probable cause to believe an automobile contains contraband or 

evidence they may search the automobile and the containers within it without a warrant. 

[Citation.]” (People v. Superior Court (Nasmeh) (2007) 151 Cal.App.4th 85, 100 

(Nasmeh); Ornelas v. United States (1996) 517 U.S. 690, 696 [probable cause to search 

exists “where 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”].) 

 “The ‘ “specifically established and well-delineated” ’ [citation] automobile 

exception to the Fourth Amendment’s warrant requirement is rooted in the historical 

distinctions between the search of an automobile or other conveyance and the search of a 

dwelling. [Citation.]” (Nasmeh, supra, 151 Cal.App.4th at p. 100.) The automobile 

exception is also “rooted in the reduced expectation of privacy in a vehicle [and] the fact 

a vehicle is inherently mobile.” (People v. Evans (2011) 200 Cal.App.4th 735, 753; 

California v. Carney (1985) 471 U.S. 386, 394 (Carney) [vehicle’s inherent mobility]; 

Arizona v. Gant (2009) 556 U.S. 332, 345 [reduced expectation of privacy in an 

automobile].) Under the automobile exception, “ ‘ “[i]f probable cause justifies the 

search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and 

its contents that may conceal the object of the search.” ’ [Citation.]” (Nasmeh, supra,

151 Cal.App.4th at pp. 100-101; People v. Diaz (2013) 213 Cal.App.4th 743, 754.) 
6 

III. 

The Odor of Marijuana and the Observation of Burnt Marijuana Inside a Vehicle 

Provide Probable Cause to Search Pursuant to the Automobile Exception 

 California courts have concluded the odor of unburned marijuana or the 

observation of fresh marijuana may furnish probable cause to search a vehicle under the 

automobile exception to the warrant requirement. (People v. Gale (1973) 9 Cal.3d 788, 

794, superseded by statute on another ground in People v. Johnson (1984) 162 

Cal.App.3d 1003, 1008 [“strong odor of fresh marijuana” gave the officer “ ‘probable 

cause to believe . . . that contraband may be present’ ”]; People v. Cook (1975) 13 Cal.3d 

663, 667-669, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 

[scent of marijuana emanating from a car’s trunk provided probable cause to a search 

under the automobile exception to the warrant requirement]; Strasburg, supra, 148 

Cal.App.4th at p. 1060; People v. Dey (2000) 84 Cal.App.4th 1318, 1320 (Dey) 

[observation of a “useable quantity of marijuana . . . in the passenger compartment” of 

the defendant’s car “provided probable cause for the search of the vehicle’s trunk”]; 

People v. Hunter (2005) 133 Cal.App.4th 371, 375 (Hunter) [officer saw a “sandwich 

bag containing a green residue that his training and experience told him . . . was 

marijuana”]; Robey, supra, 56 Cal.4th 1218, 1254 (conc. opn. of Liu, J.) [noting the 

“settled proposition that the smell of marijuana can establish probable cause to search 

and, in the context of an automobile search . . . , can provide a sufficient basis to proceed 

without a warrant”]; see also People v. Fitzpatrick (1970) 3 Cal.App.3d 824, 826-827 

[probable cause to arrest the defendant who smelled of burned marijuana during a traffic 

stop].) 

 Appellant concedes the odor of marijuana justifies the warrantless search of an 

automobile under Strasburg. In that case, a division of this court concluded a police 

officer had probable cause to search the defendant’s car when the officer smelled 

marijuana immediately after the defendant opened the driver’s side door. (Strasburg, 

supra, 148 Cal.App.4th at pp. 1058-1059.) As the Strasburg court explained, the officer 
7 

“had probable cause to search defendant’s car for marijuana after he smelled the odor of 

marijuana. [Citations.] Defendant admitted smoking marijuana, and the deputy sheriff 

saw another bag of marijuana in the car after the defendant handed him one. Armed with 

the knowledge that there was marijuana in the car, ‘a person of ordinary caution would 

conscientiously entertain a strong suspicion that even if defendant makes only personal 

use of the marijuana found in [the passenger area], he might stash additional quantities 

for future use in other parts of the vehicle . . . .’ [Citation.]” (Id. at p. 1059.) 

 The Strasburg court rejected the defendant’s claim that the officer could not 

“detain him, frisk him, or search his car” because “he immediately produced a doctor’s 

prescription for marijuana, thus identifying himself as a qualified patient under the 

[CUA].” (Strasburg, supra, 148 Cal.App.4th at p. 1058.) As the court explained, “[t]he 

fact that defendant had a medical marijuana prescription, and could lawfully possess an 

amount of marijuana greater than that [the officer] initially found, does not detract from 

the officer’s probable cause. . . . [T]he [CUA] provides a limited immunity — not a 

shield from reasonable investigation. An officer with probable cause to search is not 

prevented from doing so by someone presenting a medical marijuana card or a marijuana 

prescription. Given the probable cause here, the officer is entitled to continue to search 

and investigate, and determine whether the subject of the investigation is in fact 

possessing the marijuana for personal medical needs, and is adhering to the eight-ounce 

limit on possession. Unlawful possession of marijuana remains a criminal offense under 

. . . section 11350, subject to seriously ill persons using marijuana for medical purposes 

recommended by a physician . . . not being subject to criminal liability . . . .” (Id. at 

pp. 1059, 1060.) 

Appellant claims Strasburg is inapposite. According to appellant, when Strasburg

was decided in 2007, marijuana possession was a misdemeanor and now, possession of 

less than an ounce of marijuana is a nonjailable offense. Appellant is correct that 

possession of up to an ounce of marijuana is an infraction, punishable by a fine. 

(§ 11357, subd. (b).) He seems, however, to misunderstand the automobile exception to 

the warrant requirement. A “warrantless search of an automobile is permissible so long 
8 

as the police have probable cause to believe the car contains evidence or contraband.” 

(Robey, supra, 56 Cal.4th at p. 1225, italics added, citing Chambers v. Maroney (1970) 

399 U.S. 42, 48; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained 

Evidence, § 266, p. 1083.) 

“Both federal and California laws generally prohibit the use, possession 

cultivation, transportation and furnishing of marijuana.”4

 (City of Riverside, supra, 56 

Cal.4th at p. 737.) Section 11357, subdivision (b) has reduced the penalty associated 

with possession of up to an ounce of marijuana, but “[t]echnically speaking, marijuana 

usage is not ‘legal’ in the State of California.” (In re Drake M. (2012) 211 Cal.App.4th 

754, 769, fn. 10.) Other than certain quantities of medical marijuana, possession of any 

amount of marijuana — even an amount within the limit of section 11357, subdivision 

(b) — is illegal in California and is therefore “contraband.” (Black’s Law Dict. (9th ed. 

2009) p. 365 [defining contraband as “[g]oods that are unlawful to import, export, 

produce, or possess”]; 3 Oxford English Dict. (2d ed. 1989) p. 833 [contraband is 

“anything prohibited to be imported or exported; goods imported or exported contrary to 

law or proclamation” or something “[f]orbidden, illegitimate, unauthorized”].) Thus, a 

law enforcement officer may conduct a warrantless search of a vehicle pursuant to the 

automobile exception when the officer has probable cause to believe the vehicle contains 

marijuana, which is contraband. 

Here, Deputy Griffin had probable cause to believe appellant’s truck contained 

contraband after smelling burnt marijuana near the truck and seeing burnt marijuana in 

the truck, irrespective of whether possession of up to an ounce of marijuana is an 

infraction and not an arrestable offense (§ 11357, subd. (b)). Other courts have reached 

 

4

 The “CUA and the MMP ‘decriminalize,’ for state purposes, specified activities 

pertaining to medical marijuana” (City of Riverside v. Inland Empire Patients Health & 

Wellness Center, Inc. (2013) 56 Cal.4th 729, 754 (City of Riverside)) but the CUA does 

not “decriminalize marijuana on a wholesale basis.” (People v. Urziceanu (2005) 132 

Cal.App.4th 747, 773; see also People v. Wayman (2010) 189 Cal.App.4th 215, 223 

[“[t]he medical marijuana laws were never intended to be ‘a sort of “open Sesame” 

regarding the possession, transportation and sale of marijuana in this state’ ”].) 
9 

similar conclusions. (See State v. Smalley (Or.App. 2010) 225 P.3d 844, 848 (Smalley) 

[police officer had probable cause to search the defendant’s truck pursuant to the 

automobile exception after smelling marijuana because marijuana is contraband 

“regardless of its quantity”]; see also State v. Tovar (Or.App. 2013) 299 P.3d 580 

[following Smalley]; State v. McGrath (Minn.App. 2005) 706 N.W.2d 532, 544 [rejecting 

the argument “that small, noncriminal amounts of marijuana cannot establish a fair 

probability that evidence of a crime or contraband will be found in a particular place”].)5

 

Relying on Commonwealth v. Cruz (Mass. 2011) 945 N.E.2d 899 (Cruz), appellant 

urges us to adopt a rule precluding a law enforcement officer from searching a vehicle 

without a warrant unless: (1) the odor of marijuana suggests the defendant possesses 

more than 28.5 grams; or (2) the officer observes more than 28.5 grams of marijuana in 

the vehicle. In Cruz, police officers saw two men sitting inside a car parked in front of a 

fire hydrant. (Id. at pp. 902-903.) One officer saw the driver light a type of cigar known 

to mask the smell of marijuana smoke. Another officer smelled “a ‘faint odor’ of burnt 

marijuana” from the driver’s side of the car; the officer “had previously seen the 

defendant” — the passenger — “smoking a marijuana ‘blunt.’ ” (Id. at p. 903.) Based on 

the “ ‘odor of marijuana’ ” and the nervous way the men were acting, the police officers 

ordered the men out of the car and searched it. They discovered crack cocaine on the 

 

5

 The District Court of Maine reached a similar result in United States v. Pugh

(D.Me. 2002) 223 F.Supp.2d 325, 330 (Pugh). There, the defendant argued the police 

officer lacked probable cause to search pursuant to the automobile exception “because 

possession of small amounts of marijuana and the presence of open containers of alcohol 

. . . are only civil violations under Maine law.” (Id. at p. 330.) The Pugh court rejected 

this argument, explaining, “Even in amounts within the Maine statutory limit for a civil 

violation, marijuana is an unlawful drug. Under Maine law, marijuana, even in an 

amount that would only give rise to a civil violation, can be the legitimate object of a 

search warrant and may be seized and confiscated if found. [Citation.] Accordingly, the 

only question here is whether the marijuana seed and two marijuana roaches — or the 

cups containing alcohol — provided sufficient cause to justify the search of the trunk.” 

The court concluded there “was probable cause to search the trunk of the defendant’s car 

. . . based on the presence of the marijuana and the surrounding circumstances.” (Id. at 

pp. 330, 331.) 
10 

defendant. (Id. at pp. 903-904.) The trial court granted the defendant’s motion to 

suppress. (Id. at p. 902.) 

The Massachusetts Supreme Court affirmed the suppression of the cocaine. It 

explained, “Although we have held in the past that the odor of marijuana alone provides 

probable cause to believe criminal activity is underway,[ ] we now reconsider our 

jurisprudence in light of” the changed “status of the possession of one ounce or less of 

marijuana from a criminal to a civil offense.” (Cruz, supra, 945 N.E.2d at pp. 904-905.) 

Despite acknowledging that “possession of marijuana, in any amount, remains illegal” 

and that “any amount of marijuana is considered contraband,” the Cruz court held that to 

search a vehicle pursuant to the motor vehicle exception, the police must have “probable 

cause to believe that a criminal amount of contraband is present in the car,” not merely 

some lesser amount. (Id. at pp. 911-913.) The court also held that “without at least some 

other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor 

of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to 

justify an exit order.” (Id. at p. 910; see also Commonwealth v. Daniel (Mass. 2013) 985 

N.E.2d 843 [following Cruz].) 

Cruz does not apply here for at least two reasons. First, in contrast to 

Massachusetts, possession of up to an ounce of nonmedical marijuana in California is a 

“crime.” (Pen. Code, § 16.) Second, neither the California Supreme Court nor the 

United States Supreme Court has limited the automobile exception to situations where the 

defendant possesses a “criminal amount of contraband.” As our high court recently 

stated, the automobile exception applies when “the police have probable cause to believe 

the car contains evidence or contraband.” (Robey, supra, 56 Cal.4th at p. 1225; see also 

Maryland v. Dyson (1999) 527 U.S. 465, citing Carney, supra, 471 U.S. 386.) We are 

bound by the rulings of our Supreme Court (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455), not out-of-state authority (Amerigraphics, Inc. v. Mercury 

Casualty Co. (2010) 182 Cal.App.4th 1538, 1553). 

That appellant possessed a valid 215 card does not vitiate Deputy Griffin’s 

probable cause to search the truck pursuant to the automobile exception. First, appellant 
11 

did not tell Deputy Griffin about the 215 card until after Deputy Griffin searched the 

truck. Second, the Strasburg court considered — and rejected — an identical argument 

and appellant has not established Strasburg was wrongly decided. (Strasburg, supra, 148 

Cal.App.4th at p. 1060.) Under Strasburg, the CUA is “not a shield from reasonable 

investigation. An officer with probable cause to search is not prevented from doing so by 

someone presenting a medical marijuana card or a marijuana prescription. Given the 

probable cause here, the officer is entitled to continue to search and investigate, and 

determine whether the subject of the investigation is in fact possessing the marijuana for 

personal medical needs, and is adhering to the eight-ounce limit on possession.” (Ibid.) 

That California has decriminalized medicinal marijuana in some situations and has 

reduced the punishment associated with possession of up to an ounce of marijuana does 

not bar a law enforcement officer from conducting a search pursuant to the automobile 

exception. Here, Deputy Griffin was entitled to investigate to determine whether 

appellant possessed marijuana for personal medical needs and to determine whether he 

adhered to the CUA’s limits on possession. “Otherwise, every qualified patient would be 

free to violate the intent of the medical marijuana program expressed in section 11362.5 

and deal marijuana from his car with complete freedom from any reasonable search.” 

(Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the 

preliminary hearing that people often possess more marijuana than allowed under the 

CUA and “hide” additional quantities of marijuana in their vehicles. It is well settled that 

even if a defendant makes only personal use of marijuana found in the passenger 

compartment of a car, a police officer may reasonably suspect additional quantities of 

marijuana might be found in the car. (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter, 

supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of 

defendant’s car” did not foreclose possibility of additional “drugs being found in the 

trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].) 

Appellant relies on two cases, Hua, supra, 158 Cal.App.4th 1027 and People v. 

Torres (2012) 205 Cal.App.4th 989 (Torres) to support his argument that “the odor of 

burnt marijuana and the sight of burnt marijuana in a bowl” cannot support a warrantless 
12 

search of an automobile. In Hua, police officers approached a noisy apartment and 

noticed the “ ‘distinct odor’ of burnt marijuana.” They knocked on the door and, while 

waiting for a response, peered through the open window blinds. They saw several people 

inside, one of whom inhaled from what appeared to be a marijuana cigarette, confirming 

the officers’ suspicion that criminal activity was likely under way. The officers entered 

the apartment without the defendant’s consent and found “growing marijuana plants and 

a cane sword.” (Hua, supra, 158 Cal.App.4th at pp. 1030-1031.) The trial court denied 

the defendant’s suppression motion, concluding there were “exigent circumstances.” (Id.

at p. 1033.) 

This court reversed, holding the exigent circumstances doctrine did not justify the 

officers’ warrantless entry into the apartment. (Hua, supra, 158 Cal.App.4th at p. 1033.) 

As we explained, “an entry into a home to preserve evidence from imminent destruction 

is limited to evidence of crimes that are not minor” and “California has chosen to treat the 

offense of possession of less than 28.5 grams of marijuana as a minor offense that is 

nonjailable even for repeat offenders . . . . [O]ne consequence of that decision is to 

preclude officers who see this offense being committed from entering a home without a 

warrant or consent to seize the offender or the contraband, in order to prevent the 

imminent destruction of evidence of the offense.” (Id. at pp. 1034, 1037.) 

Torres reached a similar result. In that case, officers noticed a “strong smell” of 

marijuana near a hotel room door and entered the room without a warrant. (Torres, 

supra, 205 Cal.App.4th at p. 992.) Relying on Hua, the Torres court concluded the 

officers lacked probable cause to believe destruction of evidence of a jailable offense was 

imminent. As the court explained, “police only smelled the odor of burning marijuana. 

They had no other information about marijuana possession or any other marijuana-related 

crime occurring in the hotel room. No evidence indicated the officers had reason to fear 

the imminent destruction of evidence of a jailable offense. . . . [A] belief that evidence of 

a nonjailable offense will be imminently destroyed is not sufficient to justify a 

warrantless entry based on exigent circumstances.” (Id. at p. 995.) 
13 

 Neither Hua nor Torres assists appellant because those cases concerned 

warrantless entry into a dwelling and the application of the exigent circumstances 

doctrine to minor, nonjailable offenses. “The automobile exception to the warrant 

requirement does not require a showing of exigent circumstances. ‘If a car is readily 

mobile and probable cause exists to believe it contains contraband, the Fourth 

Amendment thus permits the police to search the vehicle without more.’ [Citation.]” 

(4 Witkin & Epstein, Cal. Criminal Law, supra, § 266, p. 1083 [“[w]arrantless 

examinations of automobiles may be proper in circumstances in which a search of a home 

or office would not be” and explaining different rationales for the two types of searches].) 

“It is axiomatic that the ‘physical entry of the home is the chief evil against which 

the wording of the Fourth Amendment is directed.’ [Citation.] And a principal 

protection against unnecessary intrusions into private dwellings is the warrant 

requirement imposed by the Fourth Amendment on agents of the government who seek to 

enter the home for purposes of search or arrest. [Citation.]” (Welsh v. Wisconsin (1984) 

466 U.S. 740, 748.) The concerns at issue in Hua and Torres do not exist here, where 

Deputy Griffin searched a vehicle, not a home. As our high court recently explained, 

“[t]he case law on automobile searches . . . reveals that the rationale for allowing a 

vehicle to be searched without a warrant is rooted in practical concerns unique to 

automobiles.” (Robey, supra, 56 Cal.4th at p. 1232.) Here, Deputy Griffin searched 

appellant’s truck, not his home. As a result, neither Hua nor Torres applies here. 

We hold 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 

Strasburg, supra, 148 Cal.App.4th at page 1060, we also conclude the possession of a 
14 

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. 
15 

DISPOSITION 

 The judgment is affirmed. 

 _________________________ 

 Jones, P.J. 

We concur: 

_________________________ 

Needham, J. 

_________________________ 

Bruiniers, J. 
1 

Superior Court of Del Norte County, No. A137796, William H. Follett, Judge. 

Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, 

Gerald A. Engler, Senior Assistant Attorney General, René A. Chacón, Supervising 

Deputy Attorney General, and Bruce Ortega, Deputy Attorney General, for Plaintiff and 

Respondent.