In State v. Sisco, II, No. CR-15-0265-PR (7/11/16), the Arizona Supreme Court held that the odor of marijuana alone may establish probable cause for the issuance of a search warrant, notwithstanding the terms of the Arizona Medical Marijuana Act (AMMA).
In Sisco, police officers responded to a tip that a strong odor of fresh marijuana was emanating from a storage warehouse. When the officers approached the complex they could smell an “overpowering odor of fresh marijuana.” After determining it was coming from a particular storage unit, the officers sought and obtained a telephonic warrant for that unit. No contraband was found in the search of that unit; however, based on the odor they smelled during the search of that first unit the officers obtained an amended search warrant for a second nearby unit. In the search of the second unit officers found and seized contraband including marijuana. The defendant was identified as an occupant of the second unit.
The defendant was arrested and charged with several crimes including possession of marijuana for sale. There was no evidence the defendant possessed an AMMA card.
In the trial court the defendant moved to suppress the use of the contraband evidence, arguing, among other things, that the odor of marijuana is no longer sufficient to establish probable cause in light of AMMA. AMMA authorizes the possession and use of marijuana by Arizona State-authorized AMMA cardholders. The trial court denied his motion. The defendant was then convicted at trial and sentenced to prison.
On appeal, the appeals court held that denial of the motion to suppress was error and reversed the convictions. The court of appeals held that because of AMMA the scent of marijuana, in itself, is insufficient evidence of criminal activity to establish probable cause for the issuance of a warrant.
The State then appealed to the Arizona Supreme Court, which reversed the court of appeals decision. In doing so the court held the odor of marijuana suffices to establish probable cause for issuance of a search warrant, notwithstanding the Arizona Medical Marijuana Act, unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by a AMMA cardholder.
In doing so the court pointed out the possession of marijuana remains a crime in Arizona and its use is limited under AMMA.
The court said, “[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. . . . [T]herefore, innocent behavior frequently will provide the basis for a showing of probable cause.” The court said, the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present however the court did say that if the defendant does produce a valid AMMA card before the request for a warrant is made that is a factor which must be considered and so for an AMMA cardholder, probable cause for a warrant must exist from facts besides the odor of marijuana.
Lastly the Supreme Court said the decision may well be different in the future if Arizona, like Colorado, legalizes possession of marijuana.
In a companion case, State v. Ian Cheatham, No. CR-15-0286-PR (7/11/16), the Supreme Court upheld the search of a vehicle in a case where the defendant made the same argument, namely given AMMA, the search of a motor vehicle could not be justified by the odor of marijuana alone.
The case opinions may be found at the links below:
Sisco:
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150265PR.pdf
Cheatam:
http://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2016/CR150286PR.pdf
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