Pubdate: Sat, 12 Jan 2008
Source: San Francisco Chronicle (CA)
Page: B - 3
Copyright: 2008 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko, Chronicle Staff Writer
Referenced: http://www.courtinfo.ca.gov/opinions/documents/A116578.PDF
Bookmark: http://www.mapinc.org/find?115 (Marijuana - California)

APPEALS COURT SNUFFS OUT WARRANTLESS MARIJUANA SEARCH

Police can't enter a home without a warrant just because they see 
someone inside smoking marijuana, a state appeals court ruled Friday.

In overturning a Pacifica man's conviction, the state Court of Appeal 
in San Francisco said officers may enter someone's home to preserve 
evidence of a crime - but only if the crime is punishable by jail or prison.

Under a 1975 California law, the court noted, possession of less than 
an ounce of marijuana is a misdemeanor carrying a fine of as much as 
$100, with no jail time even for a repeat offense. That means police 
who see someone smoking can enter only if they have the resident's 
permission or a warrant from a judge, the court said.

The case dated from March 2005, when Pacifica officers came to an 
apartment where loud noises had been reported, smelled marijuana as 
they approached, and looked through an opening in the window blinds 
to see someone smoking what appeared to be a marijuana cigarette 
among a group of people.

Over the objections of John Hua, who lived at the apartment, police 
entered and found two marijuana cigarettes in the living room, 46 
marijuana plants in a bedroom and an illegal cane sword on a 
bookshelf, the court said. After a San Mateo County judge upheld the 
search, Hua pleaded no contest to cultivating marijuana and 
possession of the cane sword and served a 60-day jail sentence, his 
lawyer said.

In defense of the search, prosecutors argued that police had reason 
to believe there was more than an ounce of marijuana elsewhere in the 
apartment - enough to subject Hua to a possible one-year jail 
sentence - and that Hua or others might be committing felonies by 
handing marijuana cigarettes to each other.

The court said the first argument was based on "mere conjecture" and 
the second was a misinterpretation of the law, which prescribes the 
same maximum $100 fine for giving away a marijuana cigarette as for 
smoking it. Justice Mark Simons wrote the 3-0 ruling.

The court recognized that "California's law treats possession of 
marijuana as the least serious crime," said Hua's lawyer, Gordon Brownell.

As West Coast coordinator for the National Organization for the 
Reform of Marijuana Laws, Brownell recalled, he drafted the 1975 
marijuana law for then-state Sen. George Moscone, the San Francisco 
Democrat who later became the city's mayor and was assassinated in 
1978. The law was signed by then-Gov. Jerry Brown, now the state 
attorney general and head of the office arguing to uphold Hua's conviction.

Deputy Attorney General Ronald Niver said he would recommend 
appealing the ruling to the state Supreme Court.

"It's difficult to accept the proposition that if you see marijuana 
in one room, you cannot draw the inference that there's marijuana in 
another room," he said. "It's like saying that if you see the streets 
are wet, you can't infer that it's raining." 
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