Hello Everyone,

Long time reader, but first time poster. I'm a Texas peace officer who is having a disagreement with a supervisor about a legal issue, and I was hoping someone could help me out.

I'll start off with the scenario. Officers are dispatched to a report of kids smoking marijuana in an apartment. Officers arrive at scene, resident consents to officers entering, officers smell strong odor of burnt marijuana, and secure the residence to obtain a search warrant after the residents refuse to consent to a search of the apartment. No contraband is found in plain view. This is a college campus, so not all of the residents are friends or roommates by choice, and some of them are probably not involved with the marijuana usage.

In this instance I think that an officer should obtain a search warrant for the property and all persons found inside. Say during the execution of a search warrant marijuana is found in a drawer in one of the resident's rooms (the resident is present in the apartment), then that would be on-view possession of marijuana, and a warrantless arrest would be authorized under Art. 14.01 TX CCP to place the suspect under arrest.

However, my supervisor contends that unless you obtain a search and arrest warrant under Art. 18.03 TX CCP, you cannot arrest anyone for any narcotics you might find.

This confuses me because I thought the standard for obtaining an arrest warrant that is attached to a search warrant under Art. 18.03 was the same probable cause standard to obtain an arrest warrant completely separate from a search warrant.

In Steelman, 93 S.W.3d 102, the CCA held that the odor of marijuana alone, when multiple suspects are present, does not give rise to probable cause that a particular person is in possession of marijuana when no other evidence is present to point directly to any one of the occupants inside. Although Steelman deals with a warrantless arrest, I didn't think there would be any difference in the probable cause standard of a warrantless arrest vs an arrest with a warrant.

It seems to me that his course of action would be in effect obtaining an arrest warrant for all 5-7 people found inside even though the arrest warrant is attached to the search warrant. I don't see why we can't just find the marijuana through a regular search warrant, connect it to one or more of the occupants through affirmative links, and make a warrantless on-view arrest of the occupants we determine to be in possession who are present at the scene.

I would say his way would be correct if a robbery occurred two weeks ago, we identify a suspect, establish probable cause the suspect committed the robbery, and we want to go search the suspect's home for tools and fruits of the crime, and in addition arrest the suspect.

If I'm off base please let me know. I just don't understand why an on-view arrest would be prohibited when executing a regular search warrant with no arrest warrant attached to it.

Thanks in advance for your replies.

[This message was edited by MR on 03-07-11 at .]

Here is my suggestion that, I hope, should satisfy the supervisor.

Because you are lawfully on the premises (consent) and smell marijuana (probable cause) your correct about getting the search warrant. The safest solution to the occupants issue would be to detain them (if you have p/c/ there is marijuana in the place you have, at minimum "reasonable suspicion" to believe they are involved).

Have them identify themselves to you.

Again, taking the first approach, you can detain a person for a reasonable period of time to get the search warrant and execute it. When you write the search warrant, make sure to list all of the people that are inside of the place. That will satisfy Ybarra v. Illinois. In that case, you can search everyone at the scene of a search warrant as long as they are named or described in the search warrant. You don't have to include an arrest provision in the warrant. A search warrant with the listing of the people you found in the location, will suffice. Then you get to search them, along with searching the place.

The main thing is that you don't have to have an arrest warrant in order to search them. You can search them under the search warrant as long as you follow the rule set out in Ybarra.

Also, my recollection of the Steelman, I think the problem that the Court had with the arrest was the warratless entry (no consent) into the residence and then making the arrest. If you walked up the a group of folks standing the parking lot and you smelled a strong odor of marijuana I believe that you could search all of them "incident to their arrest". If you have probable cause they are possessing marijuana you have probable cause to believe they are violating the law. The difference is this arrest would not require a warrantless try into a residence to make the arrest, as they did in Steelman.

In our case, although you made a "warrantless entry" it was permissible because you had the consent of the person on charge. You didn't push your way in, after the person tried to close the door on you (like in Steelman).

But, rather than debate the supervisor with my second answer should this situation every happen again, try the first suggestion (detain them, name or describe the in the warrant and they become "searchable under the warrant".