Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/
Lubbock attorneys Chuck Lanehart and Ralph H. Brock argued the Court of Criminal Appeals (“CCA”) had established a blanket rule, or at least the impression of a blanket rule, in Steelman so they filed a motion to suppress evidence seized from their client, Christopher Chad Parker, on the night of April 2, 2001. A local resident named Ms. Vangie Leal had informed two Lubbock police officers named Ralph Sanchez and Rodney Stevens that night at a local convenience store about alcohol allegedly being served to minors at a nearby residence. Acting on this information, which they believed to be reliable, officers Sanchez and Stevens drove to the nearby two-story house where they saw several vehicles parked outside but no unusual activity. Then Sanchez spotted someone parting the blinds inside the residence and heard someone say, “it’s the police.” 2/
Sanchez and Stevens believed these actions warranted further investigation. They approached the residence and knocked. Christopher Parker opened the door. Officer Stevens saw what appeared to be a juvenile run up the stairs and recognized him from previous minor encounters the officer had with the juvenile. Stevens also immediately smelled the odor of burnt marijuana. He informed Parker that he and officer Sanchez were there to investigate a report of “kids drinking alcohol.” Stevens also told Parker the two officers would have to enter the residence because of the smell of marijuana. Parker allowed the officers inside the residence. 3/
Stevens and Sanchez gathered all the occupants of the residence into the living room. Stevens went to find the person he had seen running up the stairs and in the process found Parker’s mother sleeping. The officer asked her to join everyone in the living room. A short time thereafter two police supervisors arrived. Just as one of the supervisors was asking Parker’s mother for consent to search the residence, officer Stevens saw a marijuana cigarette butt and some loose marijuana in plain sight on top of a pizza box in the living room. While the mother consented to a search of the residence, the marijuana had been already spotted and seized before she actually consented. 4/
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