I'm sure some of you have read the State v. Steelman opinion issued today (10-23-02) by the Court of Criminal Appeals. When we took the case up on appeal, we never dreamed that the Court could or would hold that the odor of burning marijuana is no longer probable cause, or that the level of probable cause is somehow different at a house than it is somewhere, anywhere, else. This decision seems to be horribly wrong and ill-considered for basic reasons applicable to these cases, as well as for all the reasons eloquently and vehemently expressed by the dissents.
Does anybody have any suggestions where we go from here? It seems that we are facing years of dealing with an awfully far-reaching opinion without much basis in reason,logic, or law, and I am not disposed to just let it go if we can do anything about it. When someone of Judge Keasler's character and statute starts his opinion with "Amazing," and ends it with "I dissent with all the vigor at my command," and when Presiding Judge Keller believes the opinion would foreclose obtaining a search warrant on such facts, I must feel like the opinion is just kind of way out there. But as I read the Rules, if we cannot show intervening circumstances, cases, etc., a motion for rehearing is not proper.
Please let me know what you guys think, and any and all suggestions will be appreciated. My e-mail address is firstname.lastname@example.org. Thanks!
Rule 79.2(c) applies only to orders refusing or dismissing a PDR, so a MFR is certainly in order without worrying about substantial intervening circumstances. The problem with Judge Holcomb's analysis is the assumption that the illegal arrest of Steelman (who happened to be inside his residence) tainted the probable cause used to secure the warrant. No information was obtained as a result of that arrest. So the actual legal principle involved is whether the officers legally entered the house or were legally where they were when they activated their sniffers. It appears to me that the officer did use some of the smells first observed inside the house as part of the probable cause for a search of the house. Had they relied only on what was observed at the door in the pc affidavit, then the issue of how close of a connection is required between distinctive odor and likelihood of the presence of the odiferous source to constitute probable cause would be presented (and hopefully still answered in favor of the State despite Moulden and Johnson). If no marihuana had been located, then I doubt Ian would have been (or would have stayed) arrested. So, really, the police did not enter to arrest him, but rather to search the house or prevent him from destroying evidence or to detain him for further questioning (though he may have returned to the front door once he got his id).
I would argue the smell alone (from the doorway) was sufficient to reasonably believe marihuana was present somewhere in the close proximity and that this information tended to corroborate the tip. Whether that gets you the legal right to enter the house, I do not know. It is immaterial whether Ian was properly arrested at that point since you do not seek to justify the subsequent search as an incident to that arrest and the evidence was not discovered until much later. The evidence was not obtained as a result of the arrest-- only as a result of the search of the house which only coincidentally was the place of his arrest. The argument then becomes whether the magistrate was required to rely on the "tainted" information (that derived from the illegal entry) in order to make a determination of whether there was likely marihuana then at the location to be searched. If not, then its presence in the affidavit may be immaterial. But, in any event, the subsequent search was conducted in good faith reliance on the magistrate's determination (unless it is found the officer purposely put tainted info in the affidavit and cannot remove that taint just by having a magistrate review it).
Now, you may have run into a Mercado problem in getting this analysis of the situation, but it is (I believe) the legal theory applicable to the facts. Which is exactly why I have previously said that case deserves to be re-examined (in an earlier post).
By the way, if it was known to be premises under the control of Ian or actually his residence, how can they say he was not the person most likely in possession of the suspected dope? I would say they had good reason to suspect him whether or not the odor was noticed about his person.
I guess it is so unusual for Eastland to rule against the State, the high court felt obliged to affirm them (and your trial judge) if there was anyway to do it. I am finding State's appeals, especially on search issues, can really screw up our jurisprudence in a hurry.
Maybe the need for most of Chapter 14 disappeared when the exclusionary rule was adopted by the courts. Certainly, those statutes should not be interpreted to make illegal police conduct that is reasonable and in compliance with the requirements of the constitution. We are all wishing you good luck in convincing a couple of judges to uncloud their minds.
I am assuming that the Court would say the following is still OK:
Officer smells marihuana while lawfully standing at the door of the house. He may enter to secure the house and prevent destruction of evidence. Anything he sees in plain view while securing the house may then be used in an affidavit for a search warrant.
He can't arrest defendant yet because we don't have enough evidence to connect him to possession of the marihuana (a fantasy, I agree, but one I can live with). He can identify the defendant, so he can later be arrested.
Of course, he might also question the defendant, asking him who owns the marihuana that the officer is smelling. An admission would help.
Officer then executes the search warrant and arrests anyone committing an offense in his view, including the occupants who the officer can infer knew of the drugs.
Or officer goes back to court and gets a warrant for particular persons
This only happens about a million times a week in every State.
It seems that the Court only has problems with the timing of the arrest.
Williamson County, Texas
I don't know if the Court will hold that line. It seems that the true import of their decision is that when there is no individual-specific probable cause, the officers have no authority to enter. The majority opinion's last full paragraph says, "Since the officers had no authority to make a warrantless arrest under article 14.01(b), they had no authority (under article 14.05) to enter the residence without a warrant and conduct a search, and any evidence seized as a result of those illegalities was tainted and subject to suppression." The court of appeals and the Court of Criminal Appeals gloss over the fact that no evidence was found except pursuant to the search warrant. They suppressed evidence not found as the result of the purported illegality.
I would like to think that you are right in your assumptions, but I can only go on what the Court actually said. Judges Johnson's and Cochran's opinions give me no hope that they see it the way you are; footnote 4 of Judge Cochran's opinion says, "That is what this case is about: Ian Steelman's right to close the door and retreat into his own home." Apparently burning marijuana is no exigency, and we cannot establish exigency simply by testifying that a person is likely to destroy evidence if left to their own while we stand around outside until a warrant can be secured.
Martin, thanks for the tip - I had confused it with the rehearing on refusal issue. I am working on the motion now. Anybody else?
I know y'all have not seen the record, but I am very troubled by what I believe to be a very selective and critical reading of the record to reach a desired result. And I am very disturbed that in a case purportedly about probable cause, so little, if any, effort is directed at the totality of the circumstances and reasonable-man common sense. If we cannot get a rehearing and a revision of the current opinion, I can only hope that the opinion will not be interpreted as the dissents interpret it.
I think scents are still part of the probable cause analysis (though entry into a house based thereon is certainly more problematic). So the dissents purposely paint with a broader brush than a reasonable interpretation of Holcomb's opinion requires.
I also think we are all learning that a very selective and critical reading of the record to reach a desired result is a distinct possibility where the trial court has granted a motion to suppress-- something which has to be evaluated in deciding whether to appeal under art. 44.01.
I think Martin does point out the key factor. You want to convince your local judge that the search was good. Otherwise, you have lost the most signficant advantage in any appeal: deference to the trial court's decision.
Williamson County, Texas
As a brief reminder for us and Judge Keasler of how easy it is for the police to justify entry into one's home read United States v. Bass, No. 01-5534 (6th Cir. October 28, 2002)Bass
KENTUCKY v. KING, held today that smell plus sounds of destruction of evidence is sufficient exigent circumstances to enter home.
What exactly is the sound of evidence being destroyed, aside from a flushing toilet?
"Dude! It's the cops! Get rid of that weed!"
Now clear that smell alone provides probable cause to believe contraband will be found, but does not create any exception to the warrant clause, even if the occupant might have reason to believe the officer detected the odor. Turrubiate
Perhaps this opinion suggests the officer should engage in a conversation about "what's that smell"? This might lead to consent to enter or might make entry more exigent.
Best of luck to Bexar County, but I fear you have won the battle, but lost the war. Does the mere presence of marihuana or evidence of recent use of it in a home sufficiently endanger a child (who is not shown even to be present at the time)? Guess we will find out.
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