Police officers have long used the alleged scent of marijuana as an excuse to perform searches of alleged offenders’ motor vehicles when they refuse to consent to such searches. After the two divisions of the Arizona Court of Appeals came to different conclusions about the legality of the “plain smell doctrine”—the proposition that the smell of cannabis alone provides probable cause, the Arizona Supreme Court agreed to review of one of the cases.
The alleged offenders in both cases argued that the odor of marijuana no longer suffices to establish probable cause after the implementation of the Arizona Medical Marijuana Act (AMMA) in 2010. “We granted review because whether AMMA affects the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance,” the Arizona Supreme Court wrote in its decision in State Of Arizona v. Ronald James Sisco II, No. CR-15-0265-PR.
A magistrate issued a telephonic warrant in March 2013 that allowed Tucson police officers to search a storage warehouse where the officers were responding to a tip that “a strong odor of fresh marijuana” was emanating from one of the buildings in the complex. After the first unit the officers searched was vacant, the magistrate issued an amended warrant to search another unit where officers found “it was being used as a residence and a marijuana growing operation” with officers seizing “marijuana growing equipment, marijuana paraphernalia, and hundreds of marijuana plants.”
Sisco was charged with child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana, but he sought to have the evidence suppressed because, he argued, “the odor of marijuana no longer suffices to establish probable cause in light of AMMA.” The trial court denied this motion and Sisco was convicted of all charges.
On July 20, 2015, Division Two of the Arizona Court of Appeals reversed the trial court’s ruling on Sisco’s suppression motion and vacated his convictions and sentences. The majority ruled that AMMA “renders possession, cultivation, and use of marijuana lawful under some circumstances,” adding:
Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons stated below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant. We emphasize this holding is a limited one. Probable cause can arise when the scent of marijuana is coupled with additional, commonly evident facts or contextual information suggesting a marijuana-related offense. However, no such information was presented here. We, therefore, reverse the denial of Sisco’s suppression motion and remand the case to the trial court. Our disposition makes it unnecessary to address the evidence supporting his conviction of child abuse.
Nearly one year later on July 11, 2016, the Arizona Supreme Court affirmed the trial court’s ruling denying the motion to suppress and vacated the court of appeals’ opinion. The Supreme Court concluded:
The mere fact that AMMA authorizes use, possession, or cultivation of marijuana in certain circumstances does not dispel the probable cause established by the odor. Under AMMA, registered qualifying patients are generally authorized to possess up to two and one-half ounces of useable marijuana, while those patients that live more than twenty-five miles from the nearest dispensary may be authorized to cultivate up to twelve marijuana plants. § 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also cultivate up to sixty plants, but only if the caregiver cares for five patients, all five patients are authorized to cultivate marijuana, and each patient designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5); § 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the police here had reason to believe they had detected marijuana authorized by any of these provisions.
In sum, under the totality of the circumstances presented here, the odor of marijuana established probable cause. We have no occasion to assess how, in other circumstances, probable cause might be dispelled by such facts as a person’s presentation of a valid registration card.
Arizona Medical Marijuana Act (AMMA) as Defense in Marijuana Cases
While Division Two emphasized that it’s holding in Sisco was a limited one, it did not take long for Division One of the Arizona Court of Appeals to issue a decision that essentially contradicted the ruling that the scent of cannabis could no longer be used as probable cause for a search warrant. A mere three days after Division Two decided Sisco, Division One ruled in the State of Arizona v. Ian Harvey Cheatham that AMMA did not eliminate Arizona’s plain smell doctrine.
In Cheatham, police officers searched the car of the alleged offender after one officer noticed a strong odor of burnt marijuana from inside the vehicle they pulled over for a dark windshield that appeared to violate state law. An officer found an empty prescription bottle that smelled of unburnt marijuana, an empty cigar package, and a small amount of unburnt marijuana.
Like Sisco, Cheatham filed a motion to suppress, arguing the automobile exception to the search warrant requirement no longer authorizes searches based on the plain smell of marijuana after the enactment of AMMA. The superior court rejected the motion, and Cheatham was found guilty of the Class 1 misdemeanor offense of possession or use of marijuana and was placed on supervised probation for one year.
Division One concluded that the police officer satisfied the three prongs of the plain smell doctrine:
Cheatham argues the superior court abused its discretion by denying his motion to suppress because the only evidence supporting probable cause for the warrantless search of his car was the smell of marijuana. Under the plain smell doctrine, a police officer may conduct a warrantless search and seizure of contraband if: (1) the “officer [is] lawfully ․ in a position to [smell] the object;” (2) “its incriminating character [is] immediately apparent;” and (3) “the officer [has] a lawful right of access to the object.” State v. Baggett, 232 Ariz. 424, 428 ¶ 16, 306 P.3d 81, 85 (App.2013) (citations omitted). There is no dispute that the officer was lawfully in a position to smell the marijuana and had a lawful right of access. Moreover, in this case, the odor of marijuana provided sufficient probable cause that marijuana was present and that a crime was being or had been committed. See Harrison, 111 Ariz. at 509, 533 P.2d at 1144; Baggett, 232 Ariz. at 428 ¶ 20, 306 P.3d at 85. Accordingly, the record at the suppression hearing was sufficient to support a finding that all three requirements of the plain smell doctrine were met. Thus, the superior court did not err in denying Cheatham’s motion to suppress.
Arizona Cannabis Possession Laws
Under AMMA, qualifying patients registered with the Arizona Department of Health Services (ADHS) are able to purchase and possess up to 2.5 ounces of usable marijuana every two weeks. Arizona Revised Statute § 36-2811 establishes that there is a presumption that a qualifying patient or designated caregiver is engaged in the medical use of marijuana if the qualifying patient or designated caregiver is in possession of a registry identification card and in possession of an amount of marijuana that does not exceed the allowable amount of marijuana.
For all unlicensed individuals, marijuana possession in Arizona remains a felony offense. Under Arizona Revised Statute § 13-3405, possession of less than two pounds of cannabis is a class 6 felony, at least two pounds but less than four pounds is a class 5 felony, and four pounds or more is a class 4 felony.
Voters in Arizona may be able to legalize recreational on Election Day this coming November 8, however. Proposition 205 would legalize marijuana in the state and allow individuals 21 years of age or older to use cannabis products out of public sight.
Even if the initiative is voted into law, it still would not take effect until September 1, 2018. In the meantime, police officers throughout the state will still be able to use the plain smell doctrine as probable cause to search the motor vehicles of alleged offenders.
What to Do After a Marijuana Arrest
If you are stopped by police in Arizona and police claim to smell the scent of cannabis in your vehicle, it can be difficult to prevent a search of your automobile—even when you believe that an officer may be lying. Alleged offenders should do their best to remain calm and take the same steps to exercise their rights that they would in any encounter with law enforcement.
Remember that the right to remain silent under the Fifth Amendment to the United States Constitution means that you do not have to answer any questions. Also remember that the Fourth Amendment guarantees your right to be free from unreasonable searches and seizures.
If a police officer searches your vehicle despite your refusal to consent to any searches and finds marijuana in your car, you may still be able to challenge the legality of the search. When an officer claims that he or she smelled cannabis in your vehicle, it can be a very difficult assertion to disprove but courts may still consider the totality of the circumstances involved if you attempt to suppress the evidence in a criminal case.
The validity of the search is not the only legal defense in marijuana possession cases. An alleged offender may be able to claim that the cannabis belonged to someone else or that he or she was not aware the marijuana was in his or her vehicle.
First-time offenders accused of cannabis possession in Arizona may be eligible for deferred prosecution in which they are placed on probation. If the alleged offenders successfully complete the terms of their probation, the criminal charges are dropped.
Criminal Defense Attorney for Cannabis-Related Charges in Mesa, AZ
As felony offenses, marijuana possession convictions carry severe penalties with many long-term consequences. In addition possible prison time and fines, alleged offenders can face a lifetime of difficulty obtaining employment or housing because of their criminal records.
When a person has been arrested for allegedly possessing any amount of cannabis in Arizona, it is critical to immediately retain legal counsel for help attempting to get the criminal charges reduced or dismissed. The Law Office of James E. Novak helps clients achieve the most favorable outcomes to marijuana possession cases.
James Novak has experience handling these types of cases on both sides of the aisle as a former prosecutor in Maricopa County. He understands the most effective defenses that can be raised when alleged offenders have been accused of any marijuana-related offense.
The Law Office of James E. Novak defends people who have been charged with possession, sale, or cultivation of marijuana. James Novak represents clients throughout the greater Maricopa County area, including Phoenix, Gilbert, Mesa, Scottsdale, Tempe, Chandler, and many surrounding communities.
Call (480) 413-1499 or fill out an online contact form today to take advantage of a fee, confidential consultation that will let our criminal defense lawyer review your case and discuss your legal options.
- Regulate Marijuana Like Alcohol in Arizona: YES on 205
- Arizona Department of Health Services | Medical Marijuana
- Arizona | Marijuana Anonymous
- Judging Probable Cause | Hillel J. Einhorn and Robin M. Hogarth
- Arizona v. Hicks, 480 U.S. 321 (1987)
Additional Articles of Interest
- What You Should Know about Arizona DUI Laws
- Challenges to the Constitutionality of Arizona’s “Failure to Comply with an Order” under ARS 28-622(A)
- New Affirmative Defense for DUI Marijuana or Impairing Metabolite in Arizona
- Arizona Court of Appeals: Medical Marijuana Authorization Not Sufficient to Overcome DUI Charge
- Marijuana Mandatory Minimums: A Crime of Epic Proportions
- AMMA Today: What’s Covered, What’s Not Under Arizona’s Medical Marijuana Laws
- AZ Supreme Court Affirms “Possession-for-Sale” Possible, Even If No Drugs Taken