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The odor of marijuana smoke wafting from an open door isn’t enough to provide police officers, drawn to a house to check out an anonymous tip of drug dealing, with probable cause to believe the man who opened the door had marijuana on him and therefore to arrest everyone in the house. At least that’s what the Texas Court of Criminal Appeals held on Oct. 23 in a split decision. The court’s opinion affirms a ruling in 2000 from the 11th Court of Appeals in Eastland, Texas. The appeals court ruling upholds a trial court’s decision to grant a motion to suppress any evidence seized following the illegal warrantless arrests of two men in Abilene, Texas. The Court of Criminal Appeals found that neither the anonymous tip nor the odor of burning marijuana provided police with the probable cause to arrest one of the men without a warrant or to search the house without a warrant. The opinion, written by Judge Charles Holcomb, and joined by judges Lawrence Meyers, Tom Price, Cheryl Johnson and Cathy Cochran, was met with strongly worded dissents filed by Presiding Judge Sharon Keller and Judges Mike Keasler and Barbara Hervey. In addition to her own dissent, Hervey joined in the dissenting opinions filed by Keller and Keasler. On the other side, Johnson filed a concurring opinion. So did Cochran, and Meyers joined her. Judge Paul Womack concurred in the result. Suggesting the opinion in Texas v. Leo Steelman and Ian Steelman will affect hundreds of thousands of future cases, Keasler said it will effectively limit the circumstances under which police can find probable cause to arrest someone suspected of committing a crime. “According to the majority, anytime there are two or more people involved at a crime scene, and there is any ambiguity as to which of them is the perpetrator, officers lack probable cause to arrest any of them,” he wrote. “This is preposterous.” “The court’s reasoning is unsound, and its holding is regrettably broad,” Keller wrote. Stan Brown, a criminal defense attorney in Abilene who represents Leo Steelman and Ian Steelman, says the dissenting judges raising alarms about the broad impact of the opinion are taking it too far. “It could to an extent inhibit the police from just going up and knocking on doors as a result of an anonymous tip. I don’t think it will have any bearing in a situation where the odor of marijuana comes into [it] more often, where there’s a legitimate traffic stop,” says Brown, a solo practitioner. Brown says the opinion simply says police need to have a particularized probable cause to arrest. “The dissenters don’t seem to care about the requirement that probable cause needs to be individualized,” says Neil McCabe, a professor at South Texas College of Law in Houston, who says the decision is not nearly as startling or far-reaching as the three dissenting judges argue. “What if there were 50 people in there and this was a party? By the dissenters’ reasoning, you could go in and arrest everyone there because one jerk had lit up a joint,” McCabe says. George Dix, a criminal law professor at the University of Texas School of Law, also says the decision is narrow. “There’s some unfortunately broad language in there, but as I understand it, the only thing the court holds [is] when Ian … walked back inside, at that moment the officers did not have probable cause to believe he was right then and there in their view and presence possessing marijuana. And that’s it,” Dix says. BROAD OR NARROW? According to the opinion, the Steelmans were arrested in 1998 by Abilene police who were responding to an anonymous tip of drug dealing at their house. The opinion says the police officers arrived at the house and peered inside through a crack in a blind and observed four men sitting in a living room but saw no illegal activity. The police smelled burnt marijuana after Ian Steelman answered their knock on the door and stepped outside. When Ian Steelman opened the front door to go back inside the house to retrieve his identification, the opinion says, the officers went inside and arrested all of the men. Police searched the house after getting a warrant and found marijuana. Leo and Ian Steelman were indicted for misdemeanor possession of marijuana, and their lawyer, Brown, filed a motion to suppress the marijuana evidence. Brown argued that the evidence should be suppressed on the grounds the arrest without a warrant and the search of the house with a warrant were unconstitutional and illegal under Texas Code of Criminal Procedure Article 14.01 (b), which allows police to arrest someone without a warrant for any offense committed in his presence or within his view. The trial judge, 350th District Judge Jesse Holloway of Abilene, granted the motion to suppress, concluding that the warrantless arrests of the Steelmans were illegal; therefore, any evidence seized during the subsequent search of the house was tainted and should be suppressed. James Eidson, the criminal district attorney in Taylor County, says it defies common sense to accept the court’s decision. He is hopeful the court will decide on its own to rehear the case because of the fragmentation of the court over the finding. “I think it’s stretching the imagination to accept the proposition the smell of burning marijuana when standing on someone’s doorstep does not constitute probable cause,” Eidson says. Eidson says he can’t really say how the opinion would affect police procedure in Taylor County. He suggests that if the facts were just slightly different — if the police officer had asked Ian Steelman if he lived there — the decision might have gone the other way. Holcomb wrote that the Court of Criminal Appeals held in 1993′s Clark v. State that an offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness, but another opinion that year, Muniz v. State, held the information provided to the officer by his senses must give that officer reason to believe a particular suspect committed the offense. Holcomb wrote that the mere smell of marijuana in the air did not give the Abilene police officers probable cause to believe Ian Steelman possessed marijuana and further didn’t give them probable cause to believe the offense of possession of marijuana was committed in their presence. “[T]he 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,” he wrote. In a concurring opinion, Judge Cochran wrote that the sky will not fall as a result of the court’s holding. “This case is about the right of citizens to be left alone in the privacy of their homes,” she said. In another concurrence, Judge Johnson wrote the opinion simply reinforces what police know — “that they need a warrant, consent or probable cause plus exigent circumstances to lawfully enter a person’s home to make an arrest.” But Judge Keller interpreted the opinion more broadly, writing that it holds that the odor of burning marijuana does not provide probable cause for an arrest. “So, after today, not only are the police forbidden to arrest without a warrant in these circumstances, they are also forbidden to search, and a magistrate may not issue an arrest warrant or a search warrant on the basis of these facts. And neither may an officer search a car if he smells marijuana smoke emanating from it,” Keller wrote in a dissent on Oct. 23. In his dissent, Keasler wrote that the Abilene police had probable cause at the time they smelled the marijuana to believe each person in the house possessed it. He writes that it doesn’t matter that more than one person was in the house and it doesn’t matter that the case involved entry into a house. He disagreed with Cochran’s interpretation that the opinion is narrow. He wrote that the opinion does establish a right for people to smoke and possess marijuana in their homes, even if police have probable cause to believe the citizens are doing so. “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. Hervey, in a dissent joined by Keller and Keasler, argued the majority opinion is erroneous because it holds as a matter of state law that the marijuana the police seized should be suppressed because the Steelmans were illegally arrested. She wrote that based on the facts in the case and under the legal standard for probable cause, the police could have reasonably determined “a fair probability existed that Ian [Steelman] was in possession of marijuana.”

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