Marijuana law is one of the most rapidly evolving areas of law nationwide. Half of the states, including Arizona, have legalized marijuana for medical purposes. Many of these new legalization laws have been enacted within the past ten years, which has resulted in a lack of historical precedent and court confusion on how to interpret the laws.
There had previously been a misconception that Arizona courts have decided the odor alone is not sufficient to support a search. However, there was actually an appellate split where two divisions of the Arizona Court of Appeals dealt with very similar issues, but came out with seemingly opposite results. In the earlier State v. Sisco, 238 Ariz. 229, (App. 2d Div. 2015) the court decided that the scent of marijuana alone does not support a search, whereas in State v. Cheatham, 237 Ariz. 502, (App. 1st Div. 2015) decided that odor alone can support a search. Although these two July 2015 cases had some arguable distinctions, the Arizona Supreme Court reviewed both decisions and provided clarity.
Today, the Arizona Supreme Court has decided that notwithstanding the Arizona Medical Marijuana Act (AMMA), the odor of marijuana alone is sufficient for an officer to have probable cause to search. Personally, I think the Court got it wrong and goes against the intent of AMMA. I think this decision detrimentally affects all Arizonans.
For example, the police can now secure a warrant to search your apartment if the police smell marijuana from outside. They might do this even if it turns out that the smell of marijuana is coming from a neighboring apartment but police confuse it for yours. I wish I could say this is such an extreme example, but this is pretty close to what actually happened in Sisco where the police first searched the wrong unit. 238 Ariz. at 232. What’s worse is you might have your apartment searched when the smell is coming from your neighbor who might actually be using marijuana under AMMA as prescribed.
The Supreme Court did note that the odor alone standard constitutes “probable cause unless” in that law enforcement officers may have evidence of AMMA-compliant use or possession that might dispel probable cause ordinarily established by just the smell of marijuana. However, in practice, I cannot imagine this making any difference. Short of a patient or caregiver providing an AMMA card it is hard to imagine what type of evidence officers might consider demonstrating marijuana use consistent with AMMA.
The only language within the decision that gives me hope is that the Arizona Supreme Court notes in Paragraph 16 of State v. Sisco that “if Arizona eventually decriminalizes marijuana, our analysis and conclusion in this context might well be different.”
The Arizona Supreme Court’s opinions may be viewed at the following links:
Click to access CR150265PR.pdf
Click to access CR150286PR.pdf
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