Police can't enter a home without a warrant just because they see
someone inside smoking marijuana, a state appeals court ruled Friday.
In overturning a Pacifica man's conviction, the state Court of Appeal
in San Francisco said officers may enter someone's home to preserve
evidence of a crime - but only if the crime is punishable by jail or prison.
Under a 1975 California law, the court noted, possession of less than
an ounce of marijuana is a misdemeanor carrying a fine of as much as
$100, with no jail time even for a repeat offense. That means police
who see someone smoking can enter only if they have the resident's
permission or a warrant from a judge, the court said.
The case dated from March 2005, when Pacifica officers came to an
apartment where loud noises had been reported, smelled marijuana as
they approached, and looked through an opening in the window blinds
to see someone smoking what appeared to be a marijuana cigarette
among a group of people.
Over the objections of John Hua, who lived at the apartment, police
entered and found two marijuana cigarettes in the living room, 46
marijuana plants in a bedroom and an illegal cane sword on a
bookshelf, the court said. After a San Mateo County judge upheld the
search, Hua pleaded no contest to cultivating marijuana and
possession of the cane sword and served a 60-day jail sentence, his
In defense of the search, prosecutors argued that police had reason
to believe there was more than an ounce of marijuana elsewhere in the
apartment - enough to subject Hua to a possible one-year jail
sentence - and that Hua or others might be committing felonies by
handing marijuana cigarettes to each other.
The court said the first argument was based on "mere conjecture" and
the second was a misinterpretation of the law, which prescribes the
same maximum $100 fine for giving away a marijuana cigarette as for
smoking it. Justice Mark Simons wrote the 3-0 ruling.
The court recognized that "California's law treats possession of
marijuana as the least serious crime," said Hua's lawyer, Gordon Brownell.
As West Coast coordinator for the National Organization for the
Reform of Marijuana Laws, Brownell recalled, he drafted the 1975
marijuana law for then-state Sen. George Moscone, the San Francisco
Democrat who later became the city's mayor and was assassinated in
1978. The law was signed by then-Gov. Jerry Brown, now the state
attorney general and head of the office arguing to uphold Hua's conviction.
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."