# State v. Steelman

> Court of Criminal Appeals of Texas · October 23, 2002 · 93 S.W.3d 102

URL: https://www.frixlaw.com/law-library/cases/9692419

## Case

- **Full name:** The STATE of Texas v. Leo STEELMAN and Ian Steelman, Appellees
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 23, 2002
- **Citations:** 93 S.W.3d 102; 2002 Tex. Crim. App. LEXIS 206; 2002 WL 31398545
- **Precedential status:** Published
- **Opinion:** Dissent by Keller
- **Judges:** Holcomb, Keasler, Meyers, Price, Johnson, Cochran, Keller, Hervey
- **Cited by:** 350 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9692419

## How later opinions describe it (automated extraction)

- holding that State, in its appeal from trial court’s ruling on motion to suppress, cannot rely on theory that was not presented to trial court
- holding anonymous tip, that someone at the residence was dealing drugs, did not amount to anything; the tip was never substantiated, and none of the occupants were ever charged with drug dealing
- holding State forfeited attenuation-of-taint argument on appeal where it failed to present that argument to trial court
- noting that “the officers in this case had no idea who [inside the house] was smoking or possessing marijuana, and they certainly had no particular reason to believe that [appellant] was smoking or possessing marijuana”
- holding the mere odor of marijuana, standing alone, emitting from a residence does not give officers probable cause to believe Appellant was in 2 possession of marijuana in their presence

## Opinion text

KELLER, P.J.,
filed a dissenting opinion in which HERVEY, J., joined.
The Court relies on opinions that are not on point, 1 opinions that are one hundred and eighty degrees contrary to the Court’s proposition, 2 and one old, discredited, intermediate court, out-of-state case, 3 in support of its conclusion that the police did not have probable cause to arrest the ap-pellees. The Court also confuses the issue here (probable cause) by including in its discussion the fact that the arrests took place in a residence. The result is that Texas now, as it so often used to do, removes itself from the mainstream of legal thought in America, and 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.
And, unfortunately, that is not all that this opinion achieves. The Court holds that the smell of burning marijuana does not provide probable cause for an arrest. But, while other factors may. bear on an officer’s ability to arrest or search, probable cause is probable cause — whether it be for an arrest, a search, an arrest warrant, or a search warrant. So, after today, not only are the police forbidden to arrest without a warrant in these circumstances, they are also forbidden to search, and a magistrate may not issue an arrest warrant or a search warrant on the basis of these facts. And neither may an officer search a car if he smells marijuana smoke emanating from it, as long as the driver is not alone, because “the mere smell of marijuana in the air” does not give officers probable cause to believe that an offense, possession of marijuana, has been committed in their presence or that any particular one of the people present possesses marijuana. 4
Judge Cochran joins the Court’s opinion but seeks to limit its reach by ignoring what the opinion actually says and by claiming that officers would have had probable cause to temporarily restrain Ian Steelman outside his home to determine whether he actually possessed marijuana. This construction of the Court’s opinion is belied by the above statements and by the Court’s further comment regarding the lack of probable cause; “[Tjhe officers in this case had no idea who was smoking or possessing marijuana, and they certainly had no particular reason to believe that Ian was smoking or possessing marijua *114 na.” 5 The Court’s reasoning is unsound, and its holding is regrettably broad.
I respectfully dissent.
. Muniz v. State, 851 S.W.2d 238 (Tex.Crim.App.1993).
. Moulden v. State, 576 S.W.2d 817 (Tex.Crim.App.1978); Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1947).
. People v. Harshbarger, 24 Ill.App.3d 335 , 321 N.E.2d 138 (1974). Harshbarger , an opinion from an intermediate court, has not been the law since 1985 (if it ever really was the law). In People v. Stout, 106 Ill.2d 77 , 87 Ill.Dec. 521 , 477 N.E.2d 498 (1985), the Illinois Supreme Court held that the odor of burning cannabis, detected by officers trained to recognize the smell, gave them probable cause to search. Although Stout concerned an automobile search, that fact did not affect the probable cause analysis, but only the issue of whether a warrant was required.
.State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002).
.Id. at 109.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692419. Public record. Not legal advice.