In Sellers v. Superior Court, the Supreme Court on Thursday invalidated a warrantless car search that led to a gun charge. The officers’ predicate for the search was seeing “a small amount of loose marijuana scattered on the rear floor,” which they said violated Health and Safety Code section 11362.3, subdivision (a)(4). The statute, part of Proposition 64 that was enacted in 2016 to legalize marijuana possession for adults, makes it unlawful for a car’s driver or passenger to “[p]ossess an open container or open package of cannabis.”
The court’ unanimous opinion by Justice Goodwin Liu doesn’t read section 11362.3 literally because “[r]educing impaired driving necessarily focuses on the presence and accessibility of an intoxicating substance, not whether the substance is held in an actual container,” but the opinion also says “interpreting the statute to apply to any loose marijuana is too broad.” What the statute covers, the court said, “is conduct bearing a discernible nexus to the potential for impaired driving.” “[E]ven when present in a usable quantity, marijuana that is not in an imminently usable condition or is entirely inaccessible to the occupants of a vehicle does not implicate the provision’s underlying concerns.”
The court also concluded that the officers did not otherwise have probable cause to search the car. The opinion rejects arguments that “the marijuana-related conduct here was ‘suggestive’ of unlawful marijuana” and that “the apparent nervousness of [the vehicle’s occupants]” supported probable cause. Regarding the latter, the court adopts the part of a five-justice concurrence in People v. Flores (2024) 15 Cal.5th 1032 (see here) that “described the ‘danger in considering “nervous” and “evasive” behavior in the totality of the circumstances analysis when devoid of real world context.’ ”
The court reverses a 2-1 Third District published opinion. The Court of Appeal dissenter wrote that the search followed “what was clearly a targeted traffic stop of a car that appears to have contained African-American and Hispanic individuals.”
