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Court Holds the Smell of Marijuana Still Gives Rise to the Probable Cause to Search, Despite Arizona’s Medical Marijuana Statute

Last month, a state appellate court issued an opinion in an Arizona drug possession case discussing an interesting motion to suppress that was brought by the defendant. The defendant argued that the smell of marijuana should no longer give a police officer probable cause to detain, search, or arrest based on the state’s loosening stance on marijuana and the availability of medical marijuana. The court, however, summarily rejected the defendant’s argument.

The Facts of the Case

According to the facts as outlined by the court, a postal inspector noticed several suspicious looking packages that were dropped off at various post offices. The inspector obtained a warrant to search the boxes, and found marijuana inside. The inspector then took fingerprints from inside the box, and the prints came back as belonging to the defendant.

Evidently, the inspector obtained an arrest warrant for the defendant. As police arrested the defendant, he asked if he could put his shoes on. The officer accompanied the defendant into his home as he grabbed his shoes. As the officers walked through the defendant’s home, the noticed large rolls of cellophane wrapping and could smell marijuana. Using that information, the officers obtained a warrant to search the defendant’s home, and discovered marijuana and other items that the officers believed to be drug paraphernalia.

The defendant filed a motion to suppress, making several arguments. Most interesting was the defendant’s claim that the officers should not be able to include the smell of marijuana in their probable-cause analysis, because Arizona permits medical marijuana. The defendant claimed that the officers should have inquired as to whether he had a valid prescription for marijuana before using the smell of marijuana as a basis for probable cause.

The court first pointed out that “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.” The court then briefly held that the defendant “provide[d] no reason to conclude this case is an exception to the general rule.”

This Case May Not Solve the Issue

As certain laws change over time, other laws may be impacted as a result. Thus, the defendant’s argument that the smell of marijuana should not be the basis of probable cause unless the officers know that the person they are investigating does not have a prescription seems to be a good argument. However, this case may not have been a good opportunity for the court to create an exception.

When courts make exceptions, they generally do so in cases where the exception will be limited, as to not swallow the entire rule. Here, the officers already had obtained other evidence indicating that the defendant may be involved in the sale of marijuana, i.e., the cellophane wrapping and other paraphernalia. The defendant’s fingerprints also connected him to the boxes of marijuana that were dropped off at the post office.

All this to say, the defendant’s argument has merit. Perhaps the court would have decided the issue differently if the smell of marijuana was the sole reason to search a motorist’s vehicle after an unrelated traffic stop.

Have You Been Arrested and Charged with a Marijuana Offense?

If you have recently been arrested and charged with the possession of marijuana for sale, contact Attorney James E. Novak. Attorney Novak is a dedicated Arizona criminal defense attorney with extensive experience handling all types of cases, including those presenting cutting-edge legal issues. To learn more about how Attorney Novak can help you defend against the charges you are facing call 480-413-1499 to schedule a free consultation today.

Additional Resources:

Other Articles of Interest from The Law Office of James Novak’s Award Winning Blog:

Court Determines Digital Photographs Were Reviewable by a Jury Even When Not Admitted into Evidence, Arizona DUI and Criminal Defense Attorney Blog, October 24, 2018

Court Finds Defendant Was Not Seized Although Police Boxed in Defendant’s Car, Preventing Him from Leaving, Arizona DUI and Criminal Defense Attorney Blog, November 6, 2018

The Crimes of Assault and Aggravated Assault in Arizona, Arizona DUI and Criminal Defense Attorney Blog, October 10, 2018

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