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by Janet Elliott, Houston Chronicle Austin Bureau,

Texas State.

 AUSTIN — Where there’s smoke, there may not be fire, the Court of
 Criminal Appeals concluded Wednesday in ruling that the odor of
 marijuana didn’t give Abilene police officers probable cause to enter 
 a home.

"The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home," wrote Judge Charles Holcomb in a 6-3 opinion.

"This case is about the right of citizens to be left alone in the privacy of their homes," wrote Judge Cathy Cochran in a concurring opinion.

The court upheld a Taylor County trial judge’s suppression of the marijuana seized at the home of Leo and Ian Steelman, a father and son who work as electricians.

Police, acting on an anonymous tip, arrived at the Steelmans’ home on April 21, 1998. The officers peered into the house through a crack in a window blind and saw four men sitting in a living room but observed no illegal activity.

According to the court’s opinion, the officers then knocked on the front door, which was opened by Ian Steelman, who stepped outside and closed the door behind him. The officers smelled the odor of burnt marijuana and proceeded to burst through the doorway, handcuff all the men and place them under arrest.

The marijuana was found about two hours later when police executed a search warrant. The Steelmans were charged with misdemeanor marijuana possession.

The majority said that because Ian Steelman had committed no crime in the officers’ presence, the officers could not enter his home uninvited. The officers had no idea who was smoking or possessing marijuana, Holcomb wrote.

In strongly worded opinions, the dissenting judges criticized the ruling.

Presiding Judge Sharon Keller said that Texas now "establishes as a matter of law that people may not be arrested for smoking marijuana in their homes – — as long as they don’t do it alone."

Judge Mike Keasler began his dissent with one word: "Amazing."

"Of course, the marijuana did not spontaneously ignite. Somebody inside was smoking or had smoked it. And in order to burn it, one must possess it," Keasler wrote.

"If you knock on a door, someone opens it, and you smell burning marijuana wafting from inside the house, you must leave the inhabitants to smoke it in peace," Keasler wrote.

Judge Barbara Hervey also dissented.

Stan Brown, the Abilene lawyer who represented the Steelmans, said his clients were very happy to hear about the ruling.

"This ruling could possibly inhibit law enforcement from just going up and knocking on somebody’s door in order to hope that they get a sniff of something," Brown said.

Some of the dissenting judges worried that the ruling would apply to traffic stops where an officer uses the smell of pot as probable cause to search a car. But Brown disagreed, saying a person’s home is more protected than a car.

"Unless they smoke the last little bit or swallow it, they’re going to jail. This isn’t going to change that," Brown said.