Police can't search home just because they see pot smoking, court says

[}Dragon{]

What's wrong with seeing a violation of the law, in plain view, and enforcing it?

The point that everyone seems to be missing:

11357 H&S is an infraction, IIRC, right?

The court's ruling is that an Officer's right to enter the premises sans warrant (exigent circumstances) is negated by that the on-view offense carries no jail time as an infraction and does not green light a warrant-less search of a person's residence.

Rel- the burnt weed smell coming from a car example is apples and oranges, since you would be investigating multiple misdemeanors.

 

[afm199]

If any of you LEOs enter my house with or without a warrant, my Pit Bull will lick you silly.

 

[brichter]

This was in direct response to this:

Sorry, without a direct quote, I take it as a general response.

MM4L was simply showing that no matter what "you've never" situation you think you've got - one of us, or another LEO out there, has done it.

Actually, his response stated he HAD NOT ever experienced firsthand the scenario that Summitdog put forth.

As for the PC for smoking marijuana vs. cigarettes - give me about 2 minutes watching and every LEO here could tell you which it is. There are big differences in the way it's smoked. Marijuana is a deep inhale and hold, cigarettes are not. If in a group setting, marijuana will be shared - cigarettes are rarely. Give it a couple minutes, and it'll be obvious. Most of us could testify to this in court very easily as well.

Ahh, but you're only addressing one of my points. A good defense attorney would use all of the points to make the arresting officer look like a fool on the stand.

I'm also confused:

Why did we move from the "reasonable suspicion" to detain someone for committing a crime to the "probable cause" to search? If I see someone smoking marijuana in their house, I have reasonable suspicion they're committing a crime - not necessarily probable cause to search the residence.

That is exactly the pont I mentioned, except in this case the officer didn't have reasonable suspicion to assume a crime was being committed. Due to the passage of Prop 215, smoking marijuana in and of itself does not always constitute a crime, correct?. What observation did the original officer base his "reasonable suspicion" of a crime being committed? It states clearly that he saw a single person smoking a joint. It also stated that the person smoking was in a group of people, but did not state that any other persons were smoking. AFAIK, Prop 215 (or any laws related to it) doesn't state that a person qualifying for legal use must do so in a solitary environment.

 

[BlacKat]

If any of you LEOs enter my house with or without a warrant, my Pit Bull will lick you silly.

If they don't shoot it first.

 

[afm199]

If they don't shoot it first.

Somehow I won't lose sleep nights worrying about rouge LEO's entering my home to shoot my dog.

 

[ThinkFast]

How can you "see" someone smoking pot? Joints (or even pipes - altho this case sounds like it was a joint) aren't always pot - sometimes people roll their own cigs. Just cuz the cop smelled it from the sidewalk doesn't mean that it had to have been coming from the guy in the window. Could've been from another apartment, or anywhere.

 

[}Dragon{]

How can you "see" someone smoking pot? Joints (or even pipes - altho this case sounds like it was a joint) aren't always pot - sometimes people roll their own cigs. Just cuz the cop smelled it from the sidewalk doesn't mean that it had to have been coming from the guy in the window. Could've been from another apartment, or anywhere.

Does this look like a cigarette to you?

or this: http://www.thefreshscent.com/wp-content/post_imgs/1106/small_joint.jpg

 

[Daredevil]

im just curious of the following hypothetical scenario.


i'm in my house, i can be veiwed from the window. I''m smoking weed in my living room and an officer walks by. he see's and smells my smoking of the marijuana. he knocks down my door immediatly (no warrent, etc) all on probable cause, etc. now he barges in, but i hvae a medical card for marijuana. is there ANYTHING i can do for the officer to get reprimanded. i mean really. it seems to me cops can almost ALWAYS dish it out, but there's nothing a citizen can do to "fight" back. cop busts in, causes comotion, makes me look horrible in front of neighbors, wastes my time and his and tax payers dollars. is there anything i can do about it? or is it just a lost cause? as of now i don't know of anything i can do as a citizen, and thats a major problem with today's judical and criminal system in my eyes. too many cops have too much power imo.

 

[Daredevil]

How can you "see" someone smoking pot? Joints (or even pipes - altho this case sounds like it was a joint) aren't always pot - sometimes people roll their own cigs. Just cuz the cop smelled it from the sidewalk doesn't mean that it had to have been coming from the guy in the window. Could've been from another apartment, or anywhere.

that's what summit dog was mentioning.


p.s. i have some huge respect for summit dog simply for this thread.

 

[highonF4i]

Great! Lemme just go home and rip five-footers in my front window then!
seriously though, only in SF.

arty

 

[summitdog]

im just curious of the following hypothetical scenario.


i'm in my house, i can be veiwed from the window. I''m smoking weed in my living room and an officer walks by. he see's and smells my smoking of the marijuana. he knocks down my door immediatly (no warrent, etc) all on probable cause, etc. now he barges in, but i hvae a medical card for marijuana. is there ANYTHING i can do for the officer to get reprimanded. i mean really. it seems to me cops can almost ALWAYS dish it out, but there's nothing a citizen can do to "fight" back. cop busts in, causes comotion, makes me look horrible in front of neighbors, wastes my time and his and tax payers dollars. is there anything i can do about it? or is it just a lost cause? as of now i don't know of anything i can do as a citizen, and thats a major problem with today's judical and criminal system in my eyes. too many cops have too much power imo.

Many departments have an Independent Police Auditor, seperate from Internal Affairs. You can certainly go that route. This is the type of information that is disclosed as a result of a Pitchess Motion.

Most Pitchess disclosures are limited to five years and related to the declaration in support of the motion. A few departments do have an "open file" policy but most of the information is kept out during the Motions in Limine.

Keep in mind, this whole thread is dealing with a "victimless crime" (and don't give me the silly economic victim BS argument) committed in the comfort and security of one's home vs. LEOs invading the sanctity of one's home for an infraction. I think this is one case where both "bleeding heart liberals" and "facist conservatives" will be in agreement about what the outcome should be.

Scotty

 

[motorman4life]

Sorry, without a direct quote, I take it as a general response.

Actually, his response stated he HAD NOT ever experienced firsthand the scenario that Summitdog put forth.

That is exactly the pont I mentioned, except in this case the officer didn't have reasonable suspicion to assume a crime was being committed. Due to the passage of Prop 215, smoking marijuana in and of itself does not constitute a crime, correct?

This was a direct response to a direct question about bodies in the trunk. I did not quote it becasue I assumed anyone that had been following the thread would have seen it was not a general response.

My point was, I don't have to find a BODY IN THE TRUNK for a simple "routine" contact to result in uncovering multiple more serious crimes.. even dead bodies. While I did not find a body in the trunk, what I did find led us to multiple convictions for multiple murders.. and a body. So, essentially, I DID find a body in the trunk.

Prop 215 did not make marijuana patently LEGAL in CA anymore than section 197 of the Penal Code makes homicide legal.

Cocaine is available by prescription and for medical purposes.. that does not mean anytime I see someone using, selling or packaging cocaine, that is is lawful. Why is it that I am okay to assume someone STABBING another person MAY be breaking the law (vs. acting in self-defense).. or someone snorting cocaine MAY be breaking the law (vs. using it lawfully).. but due to Prop 215, I'm supposed to ASSUME anyone smoking weed is legit and I have absolutely no right or obigation to investigate further?

I understand the whole "castle" thing.. I'm cool with that. I do think there is a lot that has been left out of the story. Saying, "Police responded to a noise complaint and upon arrival, they smelled and saw somone smoking marijuana in the residence.." is pretty stripped down. Nothing in REAL LIFE is that straight forward. There is always more to the story, such as premises history, the number of people on scene. The ages of the involved parties. I'm just saying, it is rarely as cut and dry as one run-on sentence. The officers deal with the totality of the situation in real-time. The courts have the luxury of being able to sleep on it and make a ruling months later.

If they say no entry for plain-view infractions, then I'm cool with that. I'm a soldier.
No entry for plain-view infractions. 10-8.

 

[}Dragon{]

If they say no entry for plain-view infractions, then I'm cool with that. I'm a soldier.
No entry for plain-view infractions. 10-8.

How about 11358 H&S? You see 5 mature plants through a window.

Is there a possibilty that the person may have a medical marijuana card?

 

[brichter]

Why is it that I am okay to assume someone STABBING another person MAY be breaking the law (vs. acting in self-defense).. or someone snorting cocaine MAY be breaking the law (vs. using it lawfully).. but due to Prop 215, I'm supposed to ASSUME anyone smoking weed is legit and I have absolutely no right or obigation to investigate further?
[/B]

That's not the case here. You don't have the legal prerequisite to enter their home without consent to determine if they are legally smoking said substance (which may or may not be an illicit substance) or not. Is the legal decision on this case really that hard for you to understand?

Case in point following your logic:

If you see someone take a pill from a prescription bottle and wash it down with their orange juice through their window, are you going to enter their home against their will to make sure the prescription is theirs? If it's not their prescription, it's a felony.



BTW, cocaine is not medically prescribed to be snorted. And, if you look through a window and see someone weighing, packaging or selling cocaine there is a violation taking place. Obviously a home does not meet the legal definition of a pharmacy (with all the security measures required to be in place. At the least you've got them on a code violation for operating a business outside a properly zoned area.

You're still just making up more "what if" scenarios, none of which have a basis on this case.

 

[}Dragon{]

That's not the case here. You don't have the legal prerequisite to enter their home without consent to determine if they are legally smoking said substance (which may or may not be an illicit substance) or not. Is the legal decision on this case really that hard for you to understand?

Case in point following your logic:

If you see someone take a pill from a prescription bottle and wash it down with their orange juice through their window, are you going to enter their home against their will to make sure the prescription is theirs? If it's not their prescription, it's a felony.

It could be X

BTW, cocaine is not medically prescribed to be snorted. And, if you look through a window and see someone weighing, packaging or selling cocaine there is a violation taking place. Obviously a home does not meet the legal definition of a pharmacy (with all the security measures required to be in place. At the least you've got them on a code violation for operating a business outside a properly zoned area.

You're still just making up more "what if" scenarios, none of which have a basis on this case.

IIRC the only cocaine used in medical practice is in liquid form and is used as an ophthalmological (eye) surgery as a local anesthetic.

Any white powdery substance being inhaled nasally or smoked via a glass pipe or stem, would raise my suspicion that a felony is occurring.

 

[motorman4life]

How about 11358 H&S? You see 5 mature plants through a window.

Is there a possibilty that the person may have a medical marijuana card?

There are many more times the number of people on probation and parole in CA compared to the number of legally registered medical marijuana patients.. so, statistically, when the cop saw him smoking pot, he was more likely to be seeing a FELONY in progress vs. a lawful use of med-pot by a "law abiding citizen."

The fact that the guy was NOT a medical marijuana user and the fact that the bust resulted in multiple felony charges only confirms the fact that this was good, sound, police work.

The officer was following the law, as it existed at the time and took the appropriate action. No one was hurt and the criminal was arrested for the charges that were investigated and deemed to meet the probable cause standard.

I don't think we should force entry based upon the possible minimum penalty that may be imposed any more than I think we should force entry based upon the possible worst crime that may be discovered. I think an on-view crime is an on-view crime and if there is an exigency (possibility that evidence may be destroyed), then we should be able to take action, within the law, to investigate.

 

[brichter]

It could be X





IIRC the only cocaine used in medical practice is in liquid form and is used as an ophthalmological (eye) surgery as a local anesthetic.

Any white powdery substance being inhaled nasally or smoked via a glass pipe or stem, would raise my suspicion that a felony is occurring.

They use it in rare instances for nasal or dental surgery also.

 

[RolnCode3]

I don't think we should force entry based upon the possible minimum penalty that may be imposed any more than I think we should force entry based upon the possible worst crime that may be discovered. I think an on-view crime is an on-view crime and if there is an exigency (possibility that evidence may be destroyed), then we should be able to take action, within the law, to investigate.

That makes the most sense to me as well. If different violations have different 4th Amendment provisions, all it does is create confusion.

 

[}Dragon{]

There are many more times the number of people on probation and parole in CA compared to the number of legally registered medical marijuana patients.. so, statistically, when the cop saw him smoking pot, he was more likely to be seeing a FELONY in progress vs. a lawful use of med-pot by a "law abiding citizen."

Re-read the case in post #1... it was an on-view of an infraction (11357 H&S), that lead to a felony (11358 H&S).

Now, nothing wrong with going to the door and (gasp) asking for entry... if the suspect is that stoned he lets you in, so be it (you have a valid arrest).

 

[bertocci]

The fact that the guy was NOT a medical marijuana user and the fact that the bust resulted in multiple felony charges only confirms the fact that this was good, sound, police work.

The end result of what was found in the house has absolutely nothing to do with whether the decision to enter the house was "good, sound, police work." The circumstances of whether an officer should have entered the house either existed or not SOLELY based on what happened prior to the officer(s) entering the house. All the what if scenarios, ranging from "it's just medical marijuana" to "he's growing 1500 plants and has a dead body in his closet," are totally irrelevant.