Barr v. County of Albany

Mahoney, P. J., and Greenblott, J.,

dissent and vote to reverse in the following memorandum by Greenblott, J. Greenblott, J. (dissenting). We *917concur with that portion of the majority decision which holds that the failure of the search warrant to properly describe the property to be seized would not make entry upon the premises described therein illegal. However, we dissent from the majority’s holding that a question of fact was presented as to whether probable cause existed for the arrests. Upon entering the premises, the officers found evidence of marihuana being used. Several officers saw marihuana, smelled it and observed people hiding it. The record in the form of examinations before trial of the defendants Deputy Sheriffs provides ample proof of the existence of a marihuana plant, marihuana "roaches” and the smell of "grass”. From these facts there was probable cause for prudent police officers to arrest those persons present on the premises. Accordingly, we respectfully dissent and would grant defendants’ motions for summary judgment.