Monday, July 11, 2016

READ, ARIZONA SUPREME COURT: Marijuana Odor Sufficient For Search Or Warrant...At Least Until Legalization; "Odor Unless" Standard, But Not "Plain Smell Doctrine"

The Arizona Supreme Court unanimously decided today that the odor of marijuana - whether overpowering or not - is grounds for "probable cause" to issue a search warrant or to search a vehicle... even with medical marijuana being legal.

In twin opinions, the Justices rejected the somewhat playful term of a "plain smell doctrine" (playing off of the well-known "plain view doctrine"). Saying the parties' use of the term was confusing, they instead noted that they were delineating an "odor unless" standard.

Police are already allowed to sniff out possible criminal activity, and "odor" IS appropriate grounds for a search warrant.  The "unless" refers to the also-already-existing case law that officers are required to include possible exculpatory evidence that would impact a magistrate's probable cause determination; evidence of authorized medical use would be an example of that.

The Supreme Court opinions, authored by Chief Justice Scott Bales, also said that the Court's decision might become less relevant if Arizona voters pass a marijuana legalization measure expected to be on the November ballot.
Notwithstanding AMMA, 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. This conclusion reflects that AMMA did not decriminalize the possession or use of marijuana generally. A.R.S. § 13-3405(A) (criminalizing marijuana possession and use in Arizona); A.R.S. § 36-2802(E) (limiting immunity from civil, criminal, or other penalties for using marijuana to instances where “authorized under [AMMA]”). If AMMA had done so, or if Arizona eventually decriminalizes marijuana, our analysis and conclusion in this context might well be different.
The first case overturns the Arizona Court of Appeals, Division 1, decision in the matter, and that case dealt with a storage unit being used to grow and store marijuana (and had the grower living in the unit). The second case vacated the opinion of Division 2, and found that the officers had probable cause to search a vehicle pulled over for a different reason, after they used their noses.

(Contributed by co-founder and Arizona attorney Paul Weich.)

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