Pot Odor Not Enough For Search

Houston Chronicle ^ | 10/24/2002 | Janet Ellitot

[wildbill]

Judges throw out odor-based drug bust By JANET ELLIOTT

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.

[wildbill]

Overturns a whole body of law IMHO. Personally, I smell marijuana all the time which then turns out to be regular cigarettes.

[Maceman]

I support the legalization of marijuana, and also support limiting cops' ability to search our vehicles.

But even so, since marijuana IS illegal, I don't really see how its tell-tale odor doesn't qualify as probable cause for a search.

[Phantom Lord]

Basic cigarettes smell like MJ more than any other I have noticed.

Smell alone should not be enough to authorize the authorities to enter a home.

[Vicki]

There is a flower bulb, can't remember the name, that emits a strong marijuana smell.

[KeepUSfree]

Fritillarias - smeel like GOOD skunk weed.....

[Phantom Lord]

Becuase dogs noses are far better than ours, and each of the dogs are trained for particular smells. There are pot dogs, explosives dogs, cocain dogs, agriculture dogs, etc... Plus, if memory serves me right, once a dog has identified your "luggage" or "Vehicle" as containing a substance you have the right to refuse a search until a warrant is obtained.

[Squawk 8888]

I don't really see how its tell-tale odor doesn't qualify as probable cause for a search.

You mean besides the fact that an odour detectable outside a home is more likely to be coming from outside than in? Letting it stand would just give the cops a wonderful tool to go on fishing expeditions.

[tacticalogic]

Why if a dog does smells it it's ok though?

Or an anonymous phone call, or the unsubstantiated word of an unnamed "informant"?

[A2J]

Smell alone should not be enough to authorize the authorities to enter a home.

Agreed, but only because a home is a permanent structure.

However, if this was a search of a vehicle, it would be legitimate.

[DryFly]

I think that an important factor in this particular case was that it involved a personal residence. A much higher standard applies than the one applicable to a search of an automobile. Anymore, there is hardly any expectation of privacy in a vehicle, so authorities have been given more and more power to conduct searches on little or no probable cause.

[tacticalogic]

Search warrants of homes haven't been obtained based on anonymous tips, or informants, without any attempt at independent verification first?

[goose1]

We used to have horses and their droppings we used to rake up into a pile and burn It smelled just like MJ we switched food and the birds would breakup the droppings because of the seeds in the feed so it saved us from burning it and possibly arrest from the locals thinking we were haveing a big MJ party.

[Free the USA]

http://www.freerepublic.com/perl/bump-list

[DWPittelli]

Basic cigarettes smell like MJ more than any other I have noticed. Smell alone should not be enough to authorize the authorities to enter a home.

Although the judge's decision sounds absurd at first glance, I support it, even though I bet most cops can tell what marijuana smells like. The problem with allowing "smell searches" is that, smell being subjective (and often short-lived), a cop could search any house he wanted merely by saying he thought he smelled marijuana, and there would be no way to refute it either at that time or in court.

Once a cop has legally entered on probable cause, he would be free to note any other illegal objects or acts; the absence of found marijuana (which "might have been fully consumed or flushed down the toilet"), would not hinder prosecution on other charges. So if the judge decided otherwise, the 4th Amendment would become virtually meaningless.

[DWPittelli]

Search warrants of homes haven't been obtained based on anonymous tips, or informants, without any attempt at independent verification first?

My understanding is that for home search warrants, the police have to claim that they have the word of an informant who they know (but they don't have to put his name in the warrant request or otherwise tell his name to the judge, for his protection). And generally, to get a warrant (without other evidence) they have to claim that the informant has given them good information previously.

I think that in some jurisdictions this is not true for vehicular searches. But it is highly problematic to give warrants for truly anonymous tipsters, since the police can of course give themselves any "tip" they want.

[Looking for Diogenes]

But even so, since marijuana IS illegal, I don't really see how its tell-tale odor doesn't qualify as probable cause for a search.

The court didn't say that marijuana odor was insufficient for probable cause for a search, only that it was insufficient for a warrentless search.

"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.

[Britton J Wingfield]

I know exactly what mj smells like, but sometimes a cigarette really smells like pot for some reason.

[Digger]

Just imagine. A smell fo MJ gets your house ransaked. What the heck country have we become?

[citizenK]

So if the judge decided otherwise, the 4th Amendment would become virtually meaningless.

The practice of no-knock raids has already rendered the 4th Ammendment virtually meaningless. What freedom we enjoy in this country, or what freedom we think we enjoy, is overly dependent upon the benevolence of our police forces, and not so much upon the rule of law as it should be.

This is a good ruling, and I support it too (like you).