Pubdate: Wed, 23 Oct 2002
Source: Houston Chronicle (TX)
Copyright: 2002 Houston Chronicle Publishing Company Division, Hearst Newspaper
Contact:  http://www.chron.com/
Details: http://www.mapinc.org/media/198
Author: Janet Elliott, Houston Chronicle Austin Bureau

JUDGES THROW OUT ODOR-BASED DRUG BUST

AUSTIN -- Where there's smoke, there may not be fire, the Court of Criminal 
Appeals concluded Wednesday in ruling that the odor of marijuana didn't 
give Abilene police officers probable cause to enter a home.

"The odor of marijuana, standing alone, does not authorize a warrantless 
search and seizure in a home," wrote Judge Charles Holcomb in a 6-3 opinion.

"This case is about the right of citizens to be left alone in the privacy 
of their homes," wrote Judge Cathy Cochran in a concurring opinion.

The court upheld a Taylor County trial judge's suppression of the marijuana 
seized at the home of Leo and Ian Steelman, a father and son who work as 
electricians.

Police, acting on an anonymous tip, arrived at the Steelmans' home on April 
21, 1998. The officers peered into the house through a crack in a window 
blind and saw four men sitting in a living room but observed no illegal 
activity.

According to the court's opinion, the officers then knocked on the front 
door, which was opened by Ian Steelman, who stepped outside and closed the 
door behind him. The officers smelled the odor of burnt marijuana and 
proceeded to burst through the doorway, handcuff all the men and place them 
under arrest.

The marijuana was found about two hours later when police executed a search 
warrant. The Steelmans were charged with misdemeanor marijuana possession.

The majority said that because Ian Steelman had committed no crime in the 
officers' presence, the officers could not enter his home uninvited. The 
officers had no idea who was smoking or possessing marijuana, Holcomb wrote.

In strongly worded opinions, the dissenting judges criticized the ruling.

Presiding Judge Sharon Keller said that Texas now "establishes as a matter 
of law that people may not be arrested for smoking marijuana in their homes 
- -- as long as they don't do it alone."

Judge Mike Keasler began his dissent with one word: "Amazing."

"Of course, the marijuana did not spontaneously ignite. Somebody inside was 
smoking or had smoked it. And in order to burn it, one must possess it," 
Keasler wrote.

"If you knock on a door, someone opens it, and you smell burning marijuana 
wafting from inside the house, you must leave the inhabitants to smoke it 
in peace," Keasler wrote.

Judge Barbara Hervey also dissented.

Stan Brown, the Abilene lawyer who represented the Steelmans, said his 
clients were very happy to hear about the ruling.

"This ruling could possibly inhibit law enforcement from just going up and 
knocking on somebody's door in order to hope that they get a sniff of 
something," Brown said.

Some of the dissenting judges worried that the ruling would apply to 
traffic stops where an officer uses the smell of pot as probable cause to 
search a car. But Brown disagreed, saying a person's home is more protected 
than a car.

"Unless they smoke the last little bit or swallow it, they're going to 
jail. This isn't going to change that," Brown said.
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