Is a new precedent being set by telling Police Officers that what used to be one of their five senses, the smell of burning marihuana, is no longer probable cause to enter and "secure" a residence, pending a consent to search or search warrant? I'm hearing that Police Officers can no longer enter a residence after smelling the odor of burning marihuana, but must leave the residence, without being able to detain anyone or prevent the destruction of evidence, and obtain a search warrant. Sounds like a waste of time. Comments?

This issue came up in the Appellate section of the User Group. To read that thread, go to Appellate Thread.

I'll bet that this policy is the result of a misreading of State v. Steelman, 93 S.W.3d 102, which held that you don't have probable cause to rush into a home after smelling marijuana at the doorway and arrest everyone inside on the theory that an offense is being committed in your presence. It does not say that the smell of marijuana would not serve as the basis of an affidavit for a search warrant, nor that the premises cannot be secured prior to the obtaining of the warrant. So long as the officers don't jump the gun and immediately run in and arrest everyone.

Larry who? If you are brave enough to post, you should be brave enough to fill out your profile. With that said, I have heard a lot of things on this website! However, this is the FIRST time I have ever heard someone insinuate that the local PD (public defenders?) or the DA (District Attorney) are conspiring to keep the local law enforcement from investigating crime. Intriguing!!!!!!

So O.K., we can't make the board member-only, but how about "identifiable-only"? Larry may be completely legit, and if so, I apologize for any suggestion to the contrary, but I have seen at least one other "join-and-post" message lately from someone who definitely was out of place (I think the guy was a student trying to get help beating a traffic ticket or something goofy like that). If you could only post after providing some verifiable identity information, it wouldn't hamper anyone who is serious about the site.

Insinuated and spoken like a true defense lawyer. Keep up the good work Rebecca.

Which brings us to the question:

What does the odor of burnt marijuana really tell you. Does it tell you that there is more, or the evidence is already gone? Smoked, bonged, etc... Remember, reasonable suspicion for a Terry Stop will never be a HUNCH that there might be more.

We have had a lively discussion about this all day. I say the odor MIGHT be an indicator that a crime has been committed, but the evidence of the crime has gone up in smoke. And, also, like a local processing plant in our town and Skunks, odors do travel........

So, the moral? Where there is smoke, there is not always marijuana.

Isn't saying that there "might" be marijuana another way of saying that there is probable cause to believe it? How often does the smell of burnt marijuana lead to the discovery of more marijuana? It's my experience that most dopers don't smoke it all at once, so there's a pretty good chance that if they smoked a joint there's still some around. Besides, there are cases going back many years that say that the smell of burnt marijuana provides probable cause. Ms. Gibson, your argument sounds like something you might have just presented to a judge in support of, perhaps, a motion to suppress?

No, I did not present that argument, I won on other grounds. Thanks for asking.

My argument is not one to reduce us all to name calling or personal attacks, just one to spark a lively debate. You can't justify a terry stop on a "hunch". You have to be able to articulate that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity and some indication that the activity is related to a crime.

Here is the analysis. If there is MORE THAN ONE PERSON, OR JUST ONE in the home, why do you detain anyone on an odor alone. Are you guilty if you go to your grandmas house and the odor of marijuana is in the air and you stay? Is it nothing more than a HUNCH that any one person contributed to that odor? If you can't get to reasonable suspicion on a TERRY stop, HOW can you get to probable cause for a warrant?

Although, dopers don't smoke all their dope at once, if they have more than one joint (which you can buy by the joint, or a friend might give you one), then they have to get to the last one some time. Aren't you going out on a limb to say that there is more and not calling it a hunch.

And, of course, this is just one lowly defense attorney's perspective.

The smell of burnt marj. wafting from a house is far more than a hunch there might be more grass in the house, in fact it is way more than an "articulable reason" for suspecting marj. is still there. It is PC for a legitimate search of the house.

PC doesn't mean proof beyond a reasonable doubt, after all. If a doper's house gets searched because of the smell of burnt marj., but the cops don't find any because he's smoked it all up, he surely can't complain. That's what you get for smoking marijuana in a house that is not energy efficent enough to keep the smell from blowing into the street.

Didn't the Steelman decision already resolve this issue?

I thought the CCA already said the smell of burnt marijuana wasn't enough for warrantless entry into a residence.

Besides, otherwise what would keep officers from going door to door in high drug areas doing "sniff tests"?

We are getting our probable causes mixed up. Steelman does indeed hold that you do not have probable cause to make a warrantless arrest of someone in a house based upon the smell of burnt marijuana. It does not say that the smell of burnt marijuana will not provide probable cause for a search warrant. Some attorneys seem to be reading this into the decision but that is simply not what Steelman says. Probable cause to arrest must give reason to believe that a particular person is committing or has committed a crime. Probable cause to search, on the other hand, merely requires reason to believe that evidence of a crime will be found.

Larry (whoever you are), I would not exactly call Johnson, 333 U.S. 10 a new precedent, and it pretty much held the premises should just be secured while a magistrate reviewed the smell report (as I read the case). But the Steelman majority had no reason to say "odors alone do not authorize a search" unless they were referring to "of the individuals present". After all, the Johnson court said "We cannot sustain defendant's contention . . . that odors cannot be evidence sufficient to constitute probable cause for any search" and added detection of odor "might very well be . . . evidence of most persuasive character" that contraband was present.

Rebecca, I cannot deny that it would be possible for an odor to be present but no dope still there. But, the distinctive odor of marihuana use at least conveys the idea of recent presence, and that is about all it takes to form probable cause to believe the evidence searched for may be found. Thus the law will remain as it has been, because like it or not, the "Texas courts have found probable cause to search based solely on the smell of marihuana". Dickey, No. 01-01-901//03-CR (12/19/02). "The odor of marihuana alone provides . . . sufficient probable cause for an officer to believe" marihuana may still be present (even at grandma's house). Gant, No. 12-01-172-CR (02/05/03). I have no idea why any police department would suddenly think differently.

Still the best criminal law conversations anywhere, happen right here. Thanks for your replies.

My apologies for not completely signing on. I was in a hurry and was a first timer. I also should have been more specific. I wanted to get an opinion from other CA and DA's in the State in regards to Police Officers securing a residence and any persons present, based on the odor of Marihuana, and asking for consent to search or if denied, obtaining a search warrant. I have been advised that if a resident denies entry into the residence, the Police Officers cannot secure the inside of the residence or the persons inside, but can get a search warrant. We (Task Force Agents) have been operating under the premise that if we smell Marihuana at the front door of a residence, after making contact with the resident, we advise the resident of the odor and enter. We would conduct a search of the residence for any other persons. We would ask the resident for a consentual search for narcotics and if denied, obtain a search warrant. We do not arrest any persons or search the residence for anything other than persons hiding under beds, closets etc. prior to obtaining a consent or warrant. I agree that the local defense attorneys are attemping to apply a broader meaning to Steelman and thereby supress any evidence obtained by knock and talk (consent) searches. An acceptance of this line of thinking by local prosecutors would lead to a new precedent.

I read Steelman, but not recently, I thought that the opinion did NOT prohibit going in and securing the residence, only said you can't arrest everyone (or anyone) inside based on smell alone. Am I wrong, or can an officer still go in to secure the place if there are articulable exigencies?

Having come full circle to the point at which we started, you are right.

Sometimes this board is like a protracted evidentiary argument before a confused judge.