Marijuana: Sight of Someone Smoking a Joint Not Grounds for Home Search, California Appeals Court Rules

by psmith, January 18, 2008, 12:00am, (Issue #519)

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[Portuguese] Maconha: Ver alguém fumando um baseado não é fundamento para revistar sua casa, decide Tribunal de Apelações californiano

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.

12 comments

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welcome to the police state

by Anonymous, January 20, 2008, 12:33am

welcome to the police state !!!!

MJ privacy standards

by Anonymous, January 18, 2008, 12:52pm

Hey folks, the reign of King George the Lesser will soon end and hopefully the DEA will follow a more moderate path under the auspices of a new administration. VOTE DEMOCRAT in November, 2008

bush and the dea

by Anonymous, January 19, 2008, 05:31pm

pot doesnt scare people today
what scares people today are republicans..that and um...
democrats

hooray for Hua

by Anonymous, January 18, 2008, 02:50pm

turning the tide of the war on drugs is going to require all of us to take action like Hua to challenge the fascist interpretation of laws, which are actually taking away our own inherent right to do what we want to our own bodies.

flawed logic

by Anonymous, January 18, 2008, 11:27pm

This guy is the CA deputy AG. No wonder they can't win the war on drugs.

Drug Offender Pardons.

by Anonymous, January 19, 2008, 05:53am

Ron Paul has pledged to pardon and release all non-violent drug offenders. Vote Ron Paul in 2008.

Nivers analogy is flawed "If

by Anonymous, January 20, 2008, 04:31pm

Nivers analogy is flawed "If you see the streets are wet you can't infer its raining" rediculous, maybe a fire hydrant broke or maybe a water truck went by. I hope they use this in defence in the appeal.

American rights

by Anonymous, January 22, 2008, 07:19pm

I'm probably the only candidate for President in 2008, that wants to control the police. 4th Amendment rights "to be secure" will be enforced. If you are stopped for any driving offense, that's all that stop is legal for, and any follow up, will be illegal. Period.

Your right to not be forced to incriminate yourself, the right to remain silent when cops ask you "What are you doing here?" Where have you been?, where are you going? all illegal under the Constitution, and Bill of Rights. Want to retain your rights? I love video's of police action, that's our defense. But do not hit the police, that will defeat your case, just submit, and then win in court. I'll help you.

Don Cordell will protect those rights. While we need to be protected from crime in our nation, we also need police to follow the law.

I do not believe anyone should be arrested for using any drug, only crimes committed to get drugs or crimes committed because you are impared that affected the safety of society. Or, lets arrest, and send to prison anyone using the drug ALCOHOL, including any elected offical found under any influence of ALCOHOL. I think too many of our politicians are impared to begin with.

Lets have some common sense in this nation.
If it's OK for Drug Smugglers to bring drugs in to our nation, and for our own government to import these so called illegal drugs, then why should any citizen be in prison for this offense.

We are being screwed by Congress and the Senate, while they party, and you suffer. Do you think your government is being honest?

I know our elected politicians believe they are above reproach, I want them to answer to us, to start running this nation for American Citizens, not China, not Mexico, no one, but for American Citizens.

There is hope if you stop electing Republicans and Democrats. Otherwise our nation will be turned into the North American Union, and then handed over to the New World Order, United Nations. It's up to you America, are you ready to save this nation?

DRUGS IMPORTED BY OUR GOVERNMENT

by Anonymous, January 22, 2008, 07:24pm

http://www.Bordergate.net will show you a lot.
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http://www.customscoverup.com
http://www.druggingamerica.com

John Hua

by Anonymous, January 22, 2008, 10:46pm

hi this is john hua just wanted to personally thank Pacifica P.D. and the D.A. of San Mateo County for making it so easy to beat my case. thanks~ ^^

Awesome congrats on the

by Anonymous, January 26, 2008, 10:20pm

Awesome congrats on the victory John...:) Fuck the Police as my man LaRoche says...hail the Lakota tribe and Russell Means...fuck the Governent,Hearst and the NY Times, DuPont and all the billionaires that continue to "help" through genocide. It's just money right? Well its just a plant.

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