The California Court of Appeals in San Francisco ruled last Friday that police cannot enter a home without a search warrant just because they see someone smoking marijuana inside. Police may enter a home to preserve evidence of a crime, the court held, but only if the crime is punishable by jail or prison. The ruling came in People v. Hua.
Under California law, possession of less than an ounce of marijuana has been decriminalized with a maximum $100 fine and no jail time. Because simple possession has been decriminalized, even if police see someone smoking a joint inside a house, they have not witnessed a jailable offense, hence the only way they may enter without a search warrant is if they seek and receive the permission of a resident.
The case came about in March 2005, when officers in Pacifica came to an apartment on a noise complaint, smelled marijuana as they approached, then looked through a window to see what appeared to be someone smoking pot in a group of people. Police then entered and searched the apartment over the objections of resident John Hua. They found two joints in the living room, 46 plants in a bedroom, and an illegal cane-sword on a bookshelf.
After a San Mateo County judge upheld the police search, Hua pleaded no contest to cultivating marijuana and possession of the sword and served a 60-day jail sentence. But he retained his right to appeal the search ruling.
On appeal, prosecutors offered a two-pronged argument: that they had reason to believe there was more than an ounce of marijuana in the apartment, and that Hua or others might be committing a felony by handing the joint back and forth. But the court wasn't buying; it said the first argument was "mere conjecture" and the second was a misinterpretation of the law, which prescribes the same fine for giving a joint to someone as it does for smoking it.
Prosecutors aren't happy. California Deputy Attorney General Ronald Niver said he would recommend appealing the ruling to the state Supreme Court. "It's difficult to accept the proposition that if you see marijuana in one room, you cannot draw the inference that there's marijuana in another room," he said. "It's like saying that if you see the streets are wet, you can't infer that it's raining."
Ironically, Niver's boss, California Attorney General Jerry Brown, was the governor who signed the decriminalization bill in 1978.