CRIMINAL LAW: Marijuana Weed Crumbs on Floor Do Not Violate California’s “Open Container” Law, or Support Probable Cause
Trish Sifka—Senior Attorney
When California voters approved 2016 Proposition 64 legalizing the possession and transportation of recreational marijuana under 28.5 grams by individuals 21 years or older, the voters preserved certain limitations. The legislation was subject to Health and Safety Code §§ 11362.2, 11362.3, 11362.4 and 11362.45. Health and Safety Code § 11362.3(a)(4) makes it unlawful 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.” Voters included cannabis in this law to curtail marijuana-impaired driving. Cal. Health & Safety Code § 1136.3(a)(4).
In Sellers v. Superior Court, 19 Cal. 5th 75, 81, 582 P.3d 950, 341 Cal. Rptr. 3d 173 (2026), the California Supreme Court established when possession of marijuana violates this law. There, three Sacramento Police Officers pulled over a driver of a vehicle for “failing to stop fully behind the limit line of a crosswalk before turning through an intersection.” Id. at 79-80. Defendant Davonyae Sellers sat in the front passenger seat. Id. One officer stood on the driver’s side and two officers approached the passenger side. The officers testified that the driver was not driving erratically, the record check did not reveal any problems, and the driver and passenger cooperated fully. The officers merely noted that they looked nervous. Yet, the officers shined a flashlight throughout the inside of the vehicle and questioned whether “there was anything illegal in the car such as marijuana or guns.” Id. at 80. The driver stated that there were no guns or “weed” in the vehicle. “But they observed a rolling tray on the backseat, as well as what they called at the time ‘weed crumbs’ scattered on the rear floorboard behind and under the passenger seat.” Id. The officers asserted that this observation gave them probable cause to search the vehicle without a warrant, based on the “automobile exception.” Id. at 89 (citing People v. Lopez, 8 Cal. 5th 353, 372, 255 Cal. Rptr. 3d 526, 453 P.3d 150 (2019); see Robey v. Superior Court, 56 Cal. 4th 1218, 1225, 158 Cal. Rptr. 3d 261, 302 P.3d 574 (2013)). The alleged “weed crumbs” collected from the floor weighed approximately 0.36 grams, but were never tested or kept. Although the officers did not find any more drugs, they found an unregistered firearm near the passenger seat, so they charged Sellers with “unlawful possession of a firearm by a person previously adjudged a ward of the juvenile court.” Id. at 80.
The lower courts denied Sellers’ Motion to Suppress the firearm. The lower courts denied the Motion to Suppress because the loose “weed crumbs” on the floor constituted the illegal transportation of contraband. Id. at 75. The court of appeals further opined that the law required that the marijuana must be in a closed package while driving to be lawful possession. Sellers v. Superior Court, 104 Cal. App. 5th 468, 478, 324 Cal. Rptr. 3d 650 (2024). Therefore, the police officers also had probable cause. Id.
The California Supreme Court reversed. Sellers, 19 Cal. 5th 75. Loose “weed crumbs” on vehicle floor are not “open container” possession. The court took a non-literal, common sense approach to the statute, which would avoid absurd consequences in light of the obvious substance and consumable differences between alcohol and marijuana. “The nexus to impaired driving is inherent to open containers of alcohol; an open container of beer or liquor facilitates imminent consumption. For marijuana, many forms require preparation before ingestion, and the presence of an open container is not always necessary or sufficient to facilitate consumption.” Id. at 86. The court concluded that to be unlawful under the statute, the marijuana found in the vehicle must be in a state or form which is consumable and in a place accessible while driving or riding in the vehicle. Id. at 87. After all, “a small amount of beer spilled on the floor of a car would not constitute an open container” as the driver or rider could not consume it. Id. The court held that “to constitute a violation of section 11362.3, subdivision (a)(4), marijuana in a vehicle must be of a usable quantity, in imminently usable condition, and readily accessible to an occupant.” Id.
Since the California Supreme Court determined possession of these “weed crumbs” could not be unlawful, the officers lacked probable cause to search. Moreover, the statute specifically prohibited the use of the observation of lawful possession of marijuana to justify a search for potential unlawful possession of drugs. Id. at 90.
