COURT SAYS SMELLING LIKE MARIJUANA ISN'T ENOUGH FOR CONVICTION

MONTGOMERY, Ala. (AP) -- Smelling like marijuana is not enough evidence to
convict a person of a drug violation, a divided state appeals court said
Friday.

Police need to find some marijuana to get a conviction, the Court of
Criminal Appeals said in a 3-2 decision.

The court threw out Thomas Anthony Boyington's conviction for second-degree
possession of marijuana in Baldwin County.

Undercover police officers said they saw Boyington and another man appear to
smoke marijuana outside a nightclub near Robertsdale on Sept. 7, 1996. When
they approached Boyington, he appeared to rub something into little pieces.
Police couldn't find any marijuana on the ground, but Boyington was
convicted after police testified his fingers smelled like marijuana and the
smell of marijuana was in the air.

Writing for the majority, Judge Sue Bell Cobb said state law defines
second-degree possession of marijuana as possession for personal use, but
Boyington "was not in constructive possession of marijuana when he was
apprehended."

She wrote that "it is not a criminal offense to smell like marijuana and
that there was a possibility that the odor of marijuana was the result of
other bar patrons' smoking marijuana in the area before the officers
arrived."

In a dissenting opinion, Judge Pam Baschab wrote that there was sufficient
circumstantial evidence, including the smell of marijuana and the absence of
a cigarette butt on the ground, to establish that police saw Boyington
smoking marijuana.

Judge Ralph Long joined Mrs. Baschab in the dissent. Judges Bucky McMillan
and Jimmy Fry supported Mrs. Cobb in the majority decision.