{"id":1693,"date":"2008-03-04T10:36:24","date_gmt":"2008-01-15T07:44:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-15T07:44:03","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1693","title":{"rendered":"CA: Because of legislative findings, smell of burning marijuana from a house is not exigent circumstances; arrestees don’t even go to jail"},"content":{"rendered":"

The legislature has determined that possession of small quantities of marijuana is a “low social and health hazard” so the mere smell of marijuana found by police during response to a noise complaint is not exigent circumstances. People v. Hua<\/a>, 158 Cal. App. 4th 1027, 70 Cal. Rptr. 3d 559 (1st Dist. 2008):<\/p>\n

Possession of less than 28.5 grams of marijuana is a misdemeanor punishable by a fine of no more than $ 100, which is less than the punishment imposed by Wisconsin in Welsh<\/em><\/a>. Relying on the line clearly drawn between jailable and nonjailable offenses in McArthur<\/em> and Thompson<\/em>, we conclude that the crime observed by the Pacifica police officers cannot support a warrantless entry, based on exigent circumstances.<\/p>\n

This conclusion is confirmed by certain policy factors considered during the enactment of Senate Bill No. 95, which amended Health and Safety Code section 11357, subdivision (b), to reduce the penalties for simple possession of marijuana. For example, in its analysis, the State Office of Narcotics and Drug Abuse recited as reasons for the amendment: (1) \u201c[U]se of a substance with a comparatively low health and social hazard such as marijuana does not warrant jail or imprisonment;\u201d and (2) \u201cThe [personnel] and dollar costs of enforcing present marijuana laws could be better spent for other, more beneficial social purpose.\u201d (State Off. of Narcotics and Drug Abuse, Enrolled Bill Rep. on Sen. Bill No. 95 (1975\u20131976 Reg. Sess.) July 1, 1975, p. 3.)<\/p>\n

The minor nature of this crime is also revealed in its treatment of repeat offenders. If a person who possesses less than 28.5 grams of marijuana \u201chas been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged\u201d the person must be placed in a drug diversion program pursuant to Penal Code sections 1000.1 and 1000.2. (Health & Saf. Code, \u00a7 11357, subd. (b).) And, if not accepted into a diversion program, the person shall be subject to the $ 100 fine. (Ibid<\/em>.) In addition, a person arrested for a violation of this subdivision is to be cited and released \u201cand shall not be subject to booking.\u201d (Ibid<\/em>.) This mandatory citation-only procedure appears to be unique among misdemeanor offenses. Finally, the preservation of the records of arrest and conviction for this offense is limited. Health and Safety Code section 11361.5, subdivision (a), expressly provides that records \u201cpertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 \u2026 shall not be kept beyond two years from the date of the conviction \u2026 .\u201d<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-1693","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1693","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1693"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/1693\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1693"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1693"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1693"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}