New York Criminal Attorney: NY Criminal Defense – Bukh Law Firm

CA 1st: Police’s Warrantless Entry into Home Not Justified Merely Because Officer Sees Marijuana Smoking

A police officer who sees a person smoking marijuana inside their home is not justified in making a warrantless entry into that home on that basis alone, the First District Court of Appeal held Friday in People v. Hua, A116578.

The police’s warrantless entry was justified, the trial court  had believed, by “exigent circumstances.”  However, the court of appeal noted that exigent circumstances do not exist if the police do not have reason to believe that an individual possesses more than an ounce of marijuana, because “the simple possession of marijuana (Health & Saf. Code, § 11357, subd. (b)),4 is a nonjailable offense and, therefore, cannot justify an entry to prevent the imminent destruction of evidence.”

Additionally, the court notes in dicta that “even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered.”

The San Francisco Chronicle’s coverage of this case is here.