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Arizona Supreme Court Rules That Marijuana Odor Allows Searches

Posted by Shawn Hamp | Jul 19, 2016 | 0 Comments

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Despite Medical Marijuana Act, AZ Supreme Court Rules Odor of Marijuana Sufficient For Probable Cause For Police Searches

On July 11th, 2016, the Arizona Supreme Court issued two rulings that concluded that the odor of marijuana is sufficient probable cause for a search warrant despite Arizona's Medical Marijuana Act.

Lawyers argued that because the Arizona Medical Marijuana Act (AMMA) authorizes users to legally use marijuana to treat a medical conditions, the mere odor of marijuana is insufficient probable cause that a crime was being committed. Therefore any search based on the mere odor of marijuana was an unreasonable search under the 4th Amendment of the United States Constitution.

Evidence obtained as a result of an Illegal search in violation of the 4th Amendment may be suppressed and thrown out by the trial court. The lawyers in both separate cases asked the trial court to throw out evidence based on the observations of officers who reported they detected the smell of marijuana.

The Arizona Supreme Court disagreed with those arguments and denied the motions to surprise evidence in both cases.

CASE BACKGROUND

In State of Arizona vs. Sisco, the Tucson Police Department responded to a warehouse complex because of a tip that “a strange odor of fresh marijuana” was emanating from a storage warehouse. Police obtained a search warrant for a storage unit that revealed a residence and a large marijuana growing operation. The police obtained equipment, paraphernalia and hundreds of marijuana plants.

In State of Arizona v. Cheatham, two police officers stopped Mr. Cheatham's car for suspicion of having excessive window tint. When the officers contacted the driver they reported that they smelled a “pretty strong” odor of burnt marijuana. The officer ordered Mr. Cheatham out of the vehicle and searched it to find a small amount of marijuana “the size of a marble” under the driver's seat.

In both cases the trial court denied the motion to suppress evidence filed by the defense attorneys. The Division One appeals court in Cheatham affirmed and upheld his conviction for possession of marijuana ruling that the odor of marijuana was sufficient probable cause to search his vehicle.

In Sisco however, the appeals court in Division Two, held that probable cause of the odor of marijuana was insufficient for the search warrant issued in that case, and the conviction was overturned.

The Arizona Supreme Court accepted both cases for review because “the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance”.

COURT RULES THAT ODOR OF MARIJUANA IS SUFFICIENT PROBABLE CAUSE

The Arizona Supreme Court evaluated the facts of both cases and determined that the officers had sufficient probable cause to conduct the searches based solely on the odor of marijuana detected.

Despite the fact that the AMMA permits the possession and use of marijuana in very limited circumstances for qualified patients, the Arizona Supreme Court Justices ruled in a unanimous decision that under the facts of the case and existing constitutional law, the searches did not violate the 4th Amendment of the United States Constitution.

The Court was not persuaded by arguments that individuals who use medical marijuana may be subject to unreasonable searches and seizures for what otherwise would be lawful possession of marijuana.

The Justices however did rule that if officers had information that the suspects had authorization to possess marijuana under the AMMA that this fact could dispel probable cause for an officer to conduct an automobile search or for a court to not issue a search warrant when reviewing the totality of the circumstances. In both cases the defendants were not authorized to possess medical marijuana.

EXTREME CIRCUMSTANCES OF THE CASES LEAD TO JUSTICES RULING

There is a saying that “Bad Facts” or “Hard Cases” make for “Bad Law”. This is an adage that means an extreme case becomes a poor basis for a general rule of law. From a defense attorney perspective that is probably what contributed to the rulings in this case. The circumstances and rulings in Sisco and Cheathamhighlight this fact.

Even though the Sisco and Cheatham decisions were issued the same day. The AZ Supreme Court opinion inCheatham cited the decision in Sico for the proposition that the odor of marijuana was sufficient to determine probable cause for illegal possession of marijuana despite the AMMA.

Sisco did not involve a few marijuana plants which arguably would have been legal under the AMMA, but instead involved hundreds of marijuana plants. Obviously the Supreme Court considered the testimony of the officers that there was a “strong odor of unburnt marijuana” as credible and able to distinguish between a few marijuana plants and hundred of marijuana plants.

Sisco was therefore an extreme example of a possession and cultivation of marijuana for sales case.

The Arizona Supreme Court then uses the Sisco case as legal precedent to support their decision in Cheatham which are simultaneously published and issued the same day. Sisco then become “the law” that Cheatham is decided.

Cheatham however is a more typical scenario or situation that law enforcement encounters on a regular basis. Police officers who conduct traffic stops and encounter the smell of marijuana is a more common scenario than hundred of marijuana plants in an anonymous warehouse unit. Legal users of medical marijuana are therefore more likely to be the suspects of a search during a traffic stop even though they can lawfully possess marijuana.

This is a reality that the AZ Supreme Court gave little to no discussion in issuing their opinions in Sisco and Cheatham. The Court most likely believed that an unreasonable search would likely not occur and should not occur if the suspect of an automobile search could provide a copy of their medical marijuana card to an officer prior to conducting a search.

The take away from this case is that if you do lawfully possess marijuana for medical use be certain that you possess your medical marijuana card when contacted by police and do plan on being inconvenienced by searches conducted by law enforcement. It would not be surprising that even if Arizona fully legalizes marijuana even for recreational use, the Supreme Court may still reach some of the same conclusions again.

About the Author

Shawn Hamp

President and lead counsel for the Law Offices of Shawn B. Hamp, P.C. (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

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