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By Bruce Margolin and Joseph Quan

The smell of marijuana does not justify warrantless home entry
Courts, prosecutors and defense attorneys debate the

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By Bruce Margolin and Joseph Quan

The smell of marijuana does not justify warrantless home entry

Courts, prosecutors and defense attorneys debate the topic of searches every day in court. The only consensus among all is that the laws will continue to change as they are constantly challenged.

The Supreme Court has previously found that officers can enter your house without a warrant under the existence of an “exigency.” An exigency can include when a person’s life is in danger, when a felony crime is in progress, when evidence might be lost or in the pursuit of a suspect.

If an officer does enter your home, everything in plain view can be seized and used against you in court. However, a California Court of Appeal ruled in People v. Hua (158 Cal. App. 4th 1027) that the police cannot enter your house without a warrant just because they see small amounts of marijuana or smell small, burning amounts of marijuana.

In Hua, the defendant opened the door of his home to an officer responding to a noise complaint. Having already seen through an open window blind that people were smoking inside the apartment, the officers requested to enter but were denied entry by the defendant. Eventually, officers entered the home without consent and observed 46 marijuana plants in one of the bedrooms.

The prosecution argued that the police had to enter the house because, if they hadn’t, evidence would be destroyed (i.e. marijuana would be smoked, and therefore no longer exist) and that seeing the marijuana being smoked was enough evidence to believe that a lot more marijuana was in the apartment. The court said that marijuana possession of less than 28.5 grams does not justify entry into a home without a warrant as it is a misdemeanor offense, and that smoking marijuana does not provide evidence to support possession of more marijuana.

Mr. Hua’s 46 plants, and all other evidence that came as a result of the officer’s entering the apartment without consent, were suppressed.

This case is a good reminder to our readers that everyone has the right to refuse consent to a search without a warrant. Some people mistakenly believe that by refusing consent to the search, they will look guilty. In fact, by consenting, people make themselves guilty:  Not only do they lose their rights to anything in plain view, but it essentially gives the officers the right to search where consent was given. Although it is important to be polite to officers, it doesn’t mean you should give up our rights.

Bruce Margolin is a criminal defense attorney based in West Hollywood since 1967. He has served as director of Los Angeles NORML since 1973 and helped write Proposition 215. Reach him at (800) 420 LAWS (5297), or through his website at www.1800420laws.com.

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