CONVICTION DOESN'T PASS SMELL TEST
Officer Needed Warrant To Enter Dwelling With Marijuana
Odor

The conviction of a Houston man for marijuana possession went up in
smoke Thursday when an appellate court said the arresting police
officer followed his nose instead of the law.

In what may be the first ruling of its kind, the 1st Court of Appeals
said a police officer cannot enter a residence without a search
warrant simply because the officer smells marijuana inside. The court
overturned the 1998 conviction of Josh January, 59, a drifter whose
whereabouts are unknown.

"If the opinion means some people get to sit in their homes and smoke
dope, so be it," said Donald Catlett, January's court-appointed attorney.

According to the opinion by a three-judge panel of the appellate
court, January had permission to live in an abandoned Houston
apartment building in 1998. Houston police Officer Gerald Siens
suspected drug trafficking was taking place inside and entered
January's residence without a warrant after smelling marijuana.

It is unclear from the appellate opinion if the officer knew if the
apartment was January's legal residence.

January pleaded no contest to possessing a small number of marijuana
cigars and was sentenced to 15 months in prison, Catlett said.

"This was this man's home," the attorney said. "Even though it was an
abandoned apartment complex, he should have the same constitutional
protection as any part of River Oaks."

The attorney said the opinion "validates the Fourth Amendment notion
that people are supposed to be safe and secure in their homes and not
subject to people coming in, kicking down their door without a warrant."

The appellate court ordered a new trial. Catlett said the marijuana
cigars will not be introduced into evidence if the ruling stands
because they were illegally seized.

He said January has likely already spent the 15 months in prison
because he was unable to afford a bond for his release while the
appeal was pending.

"That's the travesty of it," Catlett said.

Harris County Assistant District Attorney Rikke Graber, who prosecuted
the case, said she will appeal. She said the appellate court only
discussed whether an arrest was properly made, but the only issue
raised on appeal was whether the search was proper. She said searches
and arrests have different case laws, and the appellate court did not
properly distinguish between the two.

Catlett disagreed, saying the court ruled the arrest was based on an
illegal search.

According to state records, January had previous marijuana
convictions.

Both attorneys said the smell of marijuana smoke would likely be
enough reason for police to obtain a warrant. They also said police
would not necessarily need warrants to legally search cars if they
smelled smoke.

Catlett and Graber said they are not familiar with other appellate
rulings on whether the smell of illegal drugs gives police the right
to enter homes without a warrant. The appellate opinion cited other
cases in which warrants were issued.

The appellate court said that under state law, police officers can
enter residences either with a search warrant or if there are "exigent
circumstances" permitting warrantless entries. These circumstances
include: rendering assistance to those in need; preventing the
destruction of evidence; and protecting the officer from armed persons.

Graber said that once a person inside a residence realizes an officer
suspects the presence of drugs inside, an officer can go inside
without a warrant because the person might destroy evidence.

But the appellate court said prosecutors did not raise that
point.

"The state's sole argument on appeal to justify the warrantless search
is `a smell of marijuana emanating from an apartment,' " the opinion
said.

The opinion was authored by Justice Davie L. Wilson, with Justices
Michol O'Connor and Eric Andell concurring.