Smell of Marijuana Alone Does Not Warrant a Police Search of a Residence

Posted on: December 25, 2012

Smell of marijuana alone in many instances does not justify a police search. Many in Texas, including attorneys, just summarily conclude if the police smell marijuana they may conduct a search without a warrant. A huge distinction should be made whether the area searched by police involved exigent circumstances wherein there was no time to procure a warrant, such as a readily-movable automobile or a static location such as a home or private office. Automobiles have their own body of case law and are not the topic of this article. This article focuses primarily on private static places such as homes, offices, hotel rooms, and the like where one would have a reasonable expectation of privacy. Smell of marijuana alone outside one of these locations is not sufficient cause for the police to obtain a warrant or enter and conduct a search of the dwelling or the occupants within without a warrant. The controlling case on this in Texas is: STATE v. Leo and Ian STEELMAN decided by the Texas Court of Criminal Appeals (our highest Criminal Court) on October 23, 2002.

The facts of the case are as follows: On April 21, 1998, the Abilene Police Department received an anonymous tip that drug dealing was taking place at the residence of Ian and Leo Steelman. In response, the department dispatched three officers to the scene. Upon arrival, the officers proceeded to the front door of the residence. Before they got to the front door, however, the officers peered into the house through a crack in one of the window blinds. They observed no illegal activity. They merely saw four men sitting in a living room. The officers then proceeded to knock on the front door. Ian opened the door, stepped outside, and closed the door behind him. When Ian opened the door, the officers smelled the odor of burnt marijuana. The officers asked Ian for identification. Ian informed the officers that he would have to retrieve his identification from inside the house. He then opened the door, walked back through it, and attempted to close it behind him. At that point, one of the officers placed his foot in the doorway and prevented Ian from closing the door. The officers then burst through the doorway, handcuffed all of the occupants, including Leo, and placed them all under arrest. At that point, the officers contacted narcotics agent David Varner. Varner arrived at the scene and smelled marijuana inside the residence. After asking for, but not receiving, Steelman’s consent to search the residence, Varner left to obtain a search warrant. In his search warrant affidavit, Varner asserted that probable cause existed to believe that the occupants of the residence were in possession of marijuana. Approximately two hours after the officers initially entered the residence, Varner obtained a search warrant, searched the residence, and found marijuana.

The Steelmans filed a motion to suppress the marijuana in the Trial Court. (Asking the court to find the evidence was unlawfully obtained and could not be used.) In their motion, Steelmans argued that both the warrantless arrests and the search of the residence pursuant to the warrant were illegal under the Texas Constitution and state statutory law, namely Texas Code of Criminal Procedure article 14.01(b). They further argued that because the initial arrest of Ian and the subsequent arrest of Leo were illegal, any evidence acquired thereafter was tainted by that illegality and, therefore, should be suppressed under Texas Code of Criminal Procedure article 38.23. (Article 38.23 mandates the suppression of the fruits of an illegal arrest).

At the suppression hearing, the State argued that once a police officer smells burning marijuana and determines which house it is coming from, the officer has probable cause to arrest the occupants and search that house. The Trial Court Judge suppressed the evidence and the State appealed to the Court of Appeals.The Court of Appeals affirmed the Trial Judge’s decision and the State appeals to the Court of Criminal Appeals. The Court of Criminal Appeals found:

…the arrest of Ian took place after the officers burst into his residence. But, under state law, an officer may not enter a residence to make a warrantless arrest unless “the arrest may be lawfully made without warrant” and the person consents or there are exigent circumstances. Tex.Code Crim. Proc. art. 14.05. Before we can consider whether the officers had authority to enter the residence under Article 14.05, we must first determine whether the initial arrest of Ian could be lawfully made without a warrant. A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions. One of those exceptions, Article 14.01(b), provides that “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”…

The test for probable cause for a warrantless arrest under [article 14.01(b)] is whether at that moment the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. However, the information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense.

Consider again the facts and circumstances before the officers that night. There is an unsubstantiated, anonymous tip that someone at the Steelman residence is dealing drugs. The officers walk up to the house, peer into the house through a small crack in the window blind, and, by their own admission, observe no criminal activity. They then knock on the door. Ian steps out and closes his door. They smell the odor of marijuana in the air but not on Ian himself. Given those circumstances, what did the officers have probable cause to believe? Certainly they had probable cause to believe that someone, somewhere, was or had been smoking marijuana. But, did the mere smell of marijuana in the air give the officers probable cause to believe that Ian possessed marijuana? No. This Court has recognized that odors alone do not authorize a search without a warrant. Why, then, did the officers burst into the house? What offense, if any, did they observe Ian committing? The State argues that given the anonymous tip and the odor of burned marijuana, the officers had probable cause to believe an offense, possession of marijuana, had been committed in their presence. We disagree.

First of all, a mere anonymous tip, standing alone, does not constitute probable cause. In this case, the tip, that someone at the residence was dealing drugs, did not amount to anything. The tip was never substantiated, and none of the occupants were ever charged with drug dealing.

Second, the mere odor of burning marijuana did not give the officers probable cause to believe that Ian had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home. An arresting officer must have specific knowledge to believe that the person to be arrested has committed the offense. Officers in this case had no idea who was smoking or possessing marijuana, and they certainly had no particular reason to believe that Ian was smoking or possessing marijuana.

Given the evidence before it, the trial court in the instant case could have reasonably concluded that the arrest of Ian was not lawfully made without a warrant because the arresting officers did not have probable cause to believe that Ian had committed an offense in their presence. 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. Therefore, the Court of Appeals did not err in upholding the trial court’s decision to grant the motion to suppress. We affirm the judgment of the Court of Appeals.” (Citations omitted)

Again, this article deals with smell alone at a static private location. What the occupant of a dwelling says or does in this initial encounter can often yield “consent” or add to police probable cause to conduct a warrantless search. This is why the police will try to threaten or coerce so-called consent or try and make other observations to bolster their probable cause concerning those occupants that were stupid enough to open their door for knocking police in the first place.

David Sloane – Attorney

Public Information Officer

DFW NORML