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January 2008
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California Appeals Court limits police ability to enter home when seeing marijuana

This is a good ruling — or at least a step in the right direction.

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.

Note that this only affects California, and that the police could still get a warrant, but it’s a positive ruling to prevent police from entering houses just because they saw someone smoking a joint through the window.
Police could still enter if they saw enough marijuana to reach a jail sentence, but they can’t infer it.

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.

There’s another good point by the Justice — I’ve always found that whole notion of passing a joint being considered the same as trafficking to be one of the most offensive aspects of marijuana criminal law (not that all of it isn’t, of course).
Naturally, some people aren’t happy with this ruling, notably Deputy Attorney Ronald Niver who says he’ll recommend appealing and had this bizarre statement:

“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.”

???

[Thanks, Tom]

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