JUDGES THROW OUT ODOR-BASED DRUG BUST

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.

Police, acting on an anonymous tip, arrived at the Steelmans' home on April
21, 1998. The officers peered into the house through a crack in a window
blind and saw four men sitting in a living room but observed no illegal
activity.

According to the court's opinion, the officers then knocked on the front
door, which was opened by Ian Steelman, who stepped outside and closed the
door behind him. The officers smelled the odor of burnt marijuana and
proceeded to burst through the doorway, handcuff all the men and place them
under arrest.

The marijuana was found about two hours later when police executed a search
warrant. The Steelmans were charged with misdemeanor marijuana possession.

The majority said that because Ian Steelman had committed no crime in the
officers' presence, the officers could not enter his home uninvited. The
officers had no idea who was smoking or possessing marijuana, Holcomb wrote.

In strongly worded opinions, the dissenting judges criticized the ruling.

Presiding Judge Sharon Keller said that Texas now "establishes as a matter
of law that people may not be arrested for smoking marijuana in their homes
- -- as long as they don't do it alone."

Judge Mike Keasler began his dissent with one word: "Amazing."

"Of course, the marijuana did not spontaneously ignite. Somebody inside was
smoking or had smoked it. And in order to burn it, one must possess it,"
Keasler wrote.

"If you knock on a door, someone opens it, and you smell burning marijuana
wafting from inside the house, you must leave the inhabitants to smoke it
in peace," Keasler wrote.

Judge Barbara Hervey also dissented.

Stan Brown, the Abilene lawyer who represented the Steelmans, said his
clients were very happy to hear about the ruling.

"This ruling could possibly inhibit law enforcement from just going up and
knocking on somebody's door in order to hope that they get a sniff of
something," Brown said.

Some of the dissenting judges worried that the ruling would apply to
traffic stops where an officer uses the smell of pot as probable cause to
search a car. But Brown disagreed, saying a person's home is more protected
than a car.

"Unless they smoke the last little bit or swallow it, they're going to
jail. This isn't going to change that," Brown said.