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/
Attorneys Lanehart and Brock filed a pretrial motion to suppress the marijuana. The trial court denied the motion on the premise that the marijuana had been seized in plain sight before the actual search of Parker’s residence had been conducted. Parker was convicted of misdemeanor possession of marijuana, sentenced to 180 days in jail, and fined $1,000, but the jury recommended that the jail term and fine be suspended. 5/
Parker’s attorneys appealed his conviction to the CCA and based their request for a reversal of the conviction on the succinct principle that “while the odor of marijuana, coupled with other evidence, may give rise to probable cause, the odor of marijuana alone does not justify a warrantless search of a residence.” The attorneys added that “the case law in Texas regarding the existence of probable cause and exigent circumstances sufficient to allow officers to make a warrantless entry into a residence, based on the smell of contraband is, at first glance, confusing.” 6/
The CCA agreed to hear the appeal and dispel “any lingering confusion concerning the existence of probable cause to cross the threshold of a home when officers smell the odor of contraband emanating from that residence.” 7/
The confusion itself stems from the different standards for a warrantless entry into a residence and those for a warrantless arrest. “Each action requires the police to jump over two distinct hurdles,” the CCA explained. “In both situations the first hurdle involves the existence of probable cause to believe that some offense has been or is being committed, but differs depending upon whether probable cause points to a person (arrest) or a location (search). The second hurdle differs depending on whether the officer is crossing the threshold of a home without a warrant to investigate an offense, or he is making a warrantless arrest.” 8/
As for the search of a residence, the CCA and the U.S. Supreme Court have both held that in terms of probable cause there is no difference between a warrantless entry into a residence and a warrantless search of a residence. 9/
The CCA in Steelman listed the situations where a police officer may arrest without a warrant: 1) if there is probable cause as to a specific individual; or 2) if the arrest falls within one of the exceptions enunciated in Article 14.01(b) of the Texas Code of Criminal Procedure (an officer may make an arrest when an offense is committed in his presence or within his view). 10/
But outside the statutory exceptions of Art. 14.01(b) Texas law is quite explicit: “a police officer must have both probable cause with respect to the person being arrested, plus statutory authority to make that arrest.” 11/ The CCA in Parker issued the following caveat: “To establish probable cause to arrest, the evidence must show that ‘at that moment [of the arrest] the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrest person had committed or was committing an offense.’ There is, of course, a significant difference between the notion that there is probable cause to believe that someone has committed an offense and probable cause to believe that a particular person has committed an offense. Probable cause to arrest must point like a beacon toward the specific person being arrested. Second, the police officer who lacks a warrant to arrest must have statutory authority to make such a warrantless arrest.” 12/
The CCA illustrated this strict requirement by pointing out that an officer could smell the odor of burnt marijuana while patrolling in a section at Minute Maid Park, and while he may know with reasonable certainty that a crime has been or is being committed in that section, he does not have the authority to arrest everyone in the section for the offense. 13/
Thus while there may be probable cause to enter a residence without a warrant based on a reasonable belief (the odor of burnt marijuana) a crime has been or is being committed inside, it does not necessarily establish probable cause to arrest a specific person inside the residence. The odor of burnt marijuana satisfied the first legal hurdle officers Sanchez and Stevens had to surmount (satisfying probable cause that a crime had been or was being committed inside the residence) and they satisfied the second legal hurdle, “exigent circumstances” to enter and search, because there was an immediate need to enter the residence to keep the marijuana from being destroyed by any of the individuals inside the residence. Had the officers not been able to satisfy these two legal hurdles, the seizure of the marijuana would not have passed constitutional muster under the Fourth Amendment. 14/
The CCA then distinguished the difference in the Parker and Steelman cases: the Steelman case held firm to the established principle that the smell of marijuana coming from a residence, by itself, does not establish both probable cause and statutory authority to make the warrantless arrest of a particular person inside the residence. 15/
However, as the CCA explained, officers Sanchez and Stevens had probable cause to not only make a warrantless entry into the residence but they also had sufficient probable cause to arrest Parker as well:
“ … Officer Steven’s decision to enter appellant’s home was not based on one fact, but rather the sum of his knowledge of appellant and surrounding circumstances existing at that time. This evidence showed that appellant, a person known to the officer, had others present in his home. At least one of the others appeared to be a juvenile who was also known to the officers, thus corroborating, in part, Ms. Leal’s information about underage drinking. He knew that someone in the house had recently been smoking marijuana, and that, as soon as he knocked on the door, one of the minors ran up the stairs. This evidence, viewed in the light most favorable to the trial court’s ruling, is sufficient to establish probable cause for a warrantless entry into appellant’s residence to investigate further. Here, unlike the situation in Steelman, the ‘tip’ of ongoing criminal conduct was partially corroborated before any entry and the officers did not immediately arrest anyone inside.
“Because the totality of information and facts presented in the suppression hearing was sufficient to establish probable cause (and appellant does not dispute the existence of exigent circumstances for a warrantless entry), the court of appeals did not err in upholding the trial court’s [suppression] ruling.” 16/
Thus, with its Parker decision, the CCA has resolved any “lingering confusion” associated with warrantless entry into a residence and an ensuing arrest based on the odor of burnt marijuana. Odor, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest. To establish sufficient probable cause for both a warrantless entry and arrest based on the odor of burnt marijuana, there must be “exigent circumstances” to justify the arrest of a particular person associated with the odor.
SOURCES:
1/ 93 S.W.3d 102, 108-09 (Tex.Crim.App. 2002)
2/ Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006)
3/ Id., at 595
4/ Id.
5/ Id.
6/ Id.
7/ Id.
8/ Id., at 596
9/ McNairy v. State, 835 S.W.2d 101 (Tex Crim.App. 1991); Katz v. United States, 389 U.S. 347 (1967)
10/ 93 S.W.2d at 107
11/ Id.
12/ 206 S.W.3d at 596-97 [quoting Steelman, supra, 93 S.W.3d at 107)
13/ Id., at 597
14/ Id.
15/ Tex. Code Crim. Pro. arts. 14.01-14.04
16/ Id., 206 S.W.3d at 601