Saturday, January 12, 2008


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 

lawyer said.


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." 


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