Legal Framework for Marijuana Cultivation and Possession

Prop 215 (Compassionate Use Act of 1996)

Prop 215, also known as the Compassionate Use Act, allows patients with a physician’s recommendation and their primary caregivers to cultivate and possess marijuana for medical use. The act provides legal protection for patients and caregivers who need marijuana for medical treatment.

• Key Points:
  • Patients must have a valid recommendation from a licensed physician.
  • Primary caregivers are defined as individuals who consistently assume responsibility for the patient’s housing, health, or safety.
  • Provides a legal defense against charges of marijuana cultivation and possession.

SB 420 (Medical Marijuana Program Act)

SB 420, enacted in 2003, established the Medical Marijuana Program (MMP). This program created a voluntary ID card system for medical marijuana patients and caregivers, making it easier for law enforcement to identify those legally allowed to possess and grow marijuana.

• Key Points:
  • Created a state ID card system for patients and caregivers.
  • Set guidelines for the amount of marijuana that can be possessed: up to 8 ounces of dried marijuana and 6 mature or 12 immature plants.
  • Local jurisdictions can impose additional regulations.

Adult Use of Marijuana Act (AUMA or Prop 64)

Prop 64, passed in 2016, legalized the recreational use of marijuana for adults aged 21 and over. It allows adults to possess up to 1 ounce of marijuana and grow up to 6 plants for personal use. The act also established a regulatory framework for the commercial production and sale of marijuana.

• Key Points:
  • Adults aged 21 and over can legally possess up to 1 ounce of marijuana.
  • Allows the cultivation of up to 6 plants per residence for personal use.
  • Implemented a system for regulating and taxing commercial marijuana production and sales.
  • Aims to reduce illegal markets and ensure consumer safety.

Legal Basis for Search Warrants (PC 1523)

Under California Penal Code § 1523, a search warrant is a written order signed by a judge that directs law enforcement officers to search a specified location and seize specific items. The purpose of a search warrant is to protect individuals’ privacy while allowing the authorities to gather evidence for a criminal investigation.

Specific Criteria That Justify the Issuance of a Search Warrant

• Stolen Property: If the property sought is alleged to have been stolen.
• Evidence of a Felony: If the property sought is used as a means of committing a felony or is evidence of a felony.
• Possession with Intent: If the property is in possession of someone intending to use it to commit a crime or has delivered it to another person for concealment.
• Child Pornography: If the property reveals evidence of child pornography.
• Arrest Warrant: If an arrest warrant has already been issued for the person in possession of the property.

The “Plain Smell Doctrine”

The “Plain Smell Doctrine” refers to the principle that law enforcement officers can establish probable cause based on the smell of illegal substances, such as marijuana. This doctrine is an extension of the “Plain View Doctrine,” which allows officers to seize evidence without a warrant if it is clearly visible.

Key Cases and Their Implications

• United States v. Johns (1985): The Supreme Court acknowledged the plain smell doctrine but upheld the search on other grounds. Justice O’Connor referenced the doctrine in dicta, meaning her comments were not legally binding.
• Florida v. Jardines (2013): The Supreme Court mentioned the plain smell doctrine tangentially but did not rule on its validity. The case involved a drug-sniffing dog detecting the smell of marijuana outside a home, leading to a search warrant.

Application in Marijuana-Related Searches

In California, if officers or trained dogs detect the smell of marijuana, either burnt or fresh, they have probable cause to search the suspect’s person, vehicle, or home without a warrant. This smell can also be used as a basis to obtain a search warrant. It is important to note that while the plain smell doctrine can establish probable cause, the specifics of each case can affect its applicability and the legality of the search.

Sale or Distribution of Marijuana

In California, the law makes a clear distinction between simple possession of marijuana and possession with intent to sell. Simple possession, under California Health and Safety Code § 11357, is typically treated as a misdemeanor for adults over 21, with specified limits for personal use.

Possession with intent to sell, under California Health and Safety Code § 11359, is a more serious offense. This charge can be brought even if the amount of marijuana in possession is small, depending on other factors that suggest intent to distribute rather than personal use.

Evidence Used to Establish Intent to Sell

• Quantity: Large amounts of marijuana exceeding personal use limits.
• Packaging: Marijuana packaged in small, separate bags or containers.
• Paraphernalia: Presence of scales, baggies, or other packaging materials.
• Cash: Large amounts of cash, particularly in small denominations.
• Communications: Text messages, emails, or other communications indicating sales activity.
• Witness Testimony: Statements from witnesses or informants.

Consequences of Violating California Marijuana Laws

• Illegal Cultivation:
  • Cultivating more than 6 plants can result in a misdemeanor charge, punishable by up to 6 months in jail and a fine of up to $500.
  • Cultivation by individuals under 18 is treated as an infraction, which may involve drug counseling and community service.
• Illegal Possession:
  • Possession exceeding the legal limits for personal use can result in a misdemeanor charge.
  • Possession with intent to sell can be prosecuted as a felony, with potential penalties including imprisonment and significant fines.

Importance of Consulting with a Criminal Defense Attorney

If you are facing charges related to marijuana cultivation, possession, or distribution, consulting with a knowledgeable criminal defense attorney is crucial. An experienced attorney can help you understand the complexities of California’s marijuana laws, protect your rights, and provide you with a strategic defense. At The Law Offices of Arash Hashemi, we have been defending California residents against various criminal charges since 2003. With over 20 years of experience, Attorney Arash Hashemi provides expert legal representation for individuals accused of marijuana-related offenses. Our firm meticulously analyzes each case, scrutinizes the evidence, and develops a strategic defense tailored to challenge the prosecution’s claims effectively.

Contact a Los Angeles Marijuana Defense Attorney & Schedule Your Case Review Today

If you or someone you know is facing charges related to marijuana in Los Angeles, do not wait to seek legal assistance. With extensive experience in criminal defense, Attorney Arash Hashemi and his team are dedicated to providing professional, effective legal representation. We understand the serious implications of these charges and are committed to protecting your rights and future.

Schedule a Case Review:

Phone: (310) 448-1529
Email: Contact@hashemilaw.com
Address: 11845 W Olympic Blvd #520, Los Angeles, CA 90064
Office Hours: Monday to Friday, 8:30 AM – 5:00 PM, with flexible scheduling options available, including weekend appointments. Our office is conveniently located in the Westside Towers in Los Angeles, within minutes of Santa Monica, Beverly Hills, Westwood, and steps away from the Expo/Bundy Station. We have flexible hours and weekend appointments, and we will visit you in jail to discuss your case.