Does Marijuana Odor Constitute Probable Cause in Arizona? Yes…and No.

Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued the because of the Arizona Medical Marijuana Act (AMMA), the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

Case #1 Overview 

The incident arose from a search warrant requested by police officers after they reported smelling a strong odor of marijuana from a multi-unit warehouse.

The judge issued the warrant, finding that the odor served as probable cause for search.

Prior to Arizona Medical Marijuana Act (AMMA) which passed in 2010, the courts recognized that the smell of marijuana indicated the probability of criminal activity, because Marijuana in any form was unlawful.

When the police arrived at the warehouse and entered, they found it empty.

So they requested a second warrant, to enter another building nearby based on the odor of Marijuana traced to that building.

The magistrate granted another warrant to search the second building.

In the second warehouse, they found dozens of marijuana plants and growing equipment.

They discovered that that young child and defendant both resided there.

The defendant was charged with child abuse, possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia.

The defendant filed a motion to suppress the evidence on the grounds that the marijuana scent was not enough to establish probable cause of criminal activity.

The trial court denied the motion, finding that the AMMA didn’t affect probable cause determinations.

The defendant was convicted of the charge, and sentenced to concurrent prison terms, the longest of which imposed a 3.5 year term.

The defendant appealed his convictions arguing that the AMMA should change the probable cause analysis with respect to the smell of marijuana.

One effect of the AMMA was that Marijuana may be lawful in other places now, for example, where it’s cultivated.

As a result, it is in both possession as well as other places where Marijuana is considered lawful.

And other circumstances now exists besides “mere possession itself”  where criminal conduct v. non-criminal activity must be determined.

Based on this rationale, the Court ruled that multiple circumstances should be considered along with the marijuana odor factor, in order to determine if police have sufficient probable cause for search.

In its decision, the appellate court explained that probable cause exists when a reasonably prudent person, based on the facts known to the police officer, would be justified in concluding that the items sought are related to criminal activity and will be found in a particular location.

The Court held that the odor of Marijuana does not necessarily mean that criminal activity has happened or will happen.

Lawful operations that take place under the AMMA such as medical marijuana dispensaries will cause the buildings in which they occur to smell.

Accordingly, the court found that the smell of marijuana is now insufficient by itself to provide probable cause for a search warrant for a building.

There must be some circumstantial evidence of criminal activity beyond the mere smell of marijuana in order to find probable cause.

The court expressly limited the holding since it was the odor of Marijuana from a building that raised suspicion that a crime was in process, and not actions of a suspect.

The Appeals Court did not address the issue of whether the smell itself constituted reasonable suspicion to conduct an investigative stop or detention.

The Justices noted that despite the protections under the AMMA, smoking Marijuana in or in an automobile can still suggest a crime has occurred as prohibited; as well as smoking Marijuana in public prohibited under A.R.S. 36-2802.

Therefore the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion for investigation, depending on a reasonable assessment of the circumstances.

Arizona Appeals Court Ruling – Case #2 (No. 1 CA-CR 14-0072)

The second case  opinion filed July 23, 2015, heard in Arizona Court of Appeals Division One, was an appeal for misdemeanor possession or use of marijuana.

During the proceeding in Maricopa County Superior Court, the defendant’s motion to dismiss a warrantless search of his vehicle was denied, resulting in the conviction.

 Case #2 Overview 

The Appeals Court found no error in denying the suppression of the evidence and affirmed the conviction.

This incident arose after police on routine patrol noticed a vehicle had window tinting darkness in violation of Arizona window tinting laws.

When they approached the vehicle they smelled a strong odor of Marijuana coming from inside of the vehicle.

The officer asked the defendant to step out of the vehicle. The defendant complied  without incident.

The police officer then searched the vehicle, and noticed an empty prescription medication bottle in the center console.  He opened it and smelled a strong odor of burnt marijuana.

Under the driver’s seat the officer then found what was described as a “marble size’ amount of unburnt marijuana.

Police arrested the suspect.  Following the arrest, the suspect’s Miranda Rights were read.

At that point the suspect admitted that the pill bottle that contained the burnt marijuana belonged to him.

During the lower court proceedings the defendant argued that automobile exception to the search based on “plain smell of marijuana” doctrine no longer authorizes police to search vehicles, due to the enactment of Arizona Medical Marijuana Act (AMMA) A.R. S. 36-2801.

The Superior Court denied this argument citing the Plain Smell doctrine.

“Plain smell” standard adopted in State of Arizona v. Harrison, which holds that the AMMA does not eliminate the “Plain Smell” Doctrine.

The Court also rejected the argument by the defendant that under protections of the AMMA Police must presume that any odor of marijuana they smell is lawful, and no longer an incriminating characteristic to establish probable cause of a crime.

The Appeals Court recognized that under the AMMA laws of Arizona A.R.S 36- 2811 a registered and qualifying patient is not subject to arrest, prosecution, or penalties for use as long as are using in accordance with the provisions of the AMMA law.

The Justices also noted the impacts that the Medical Marijuana Law does not have:

  • The AMMA does not immunize suspects from being subject to searches under the Plain Smell Doctrine.
  • The AMMA does not disqualify the plain smell of marijuana to be used as sufficient evidence to establish probable cause for search in Arizona.
  • The AMMA does decriminalize marijuana in the State.
  • The AMMA does not reduce the significance of Marijuana as an indicator of criminal activity.

The Appeals court held that the defendant did not show how the AMMA would extend immunities to him in this case.

The Court reviewed the “Plain Smell” Doctrine adopted by Arizona, that includes a three prong test. The doctrine makes the warrantless searches legal under the doctrine when the following criteria is met:

  • The officer is lawfully in a position to smell the evidence;
  • Incriminating character of the evidence is immediately apparent; and
  • The officer had lawful right of access to the evidence Arizona Baggett, 2013.

The Justices noted that there was no challenge to the fact that the officer was lawfully in a position to smell the marijuana, possessed lawful access at that time,  or that the marijuana odor constituted sufficient probable cause that a crime was in progress or had been committed.

This information verifying that the three three-prong-test standards were met during lower court proceedings.

Thus, the Appeals court ruled that the Superior Court did not error, in denying the motion to suppress.

Therefore the decision of the lower court to deny the motion to suppress, and the convictions were affirmed.

Analysis and Discussion: Comparison of Two Contrasting Verdicts; and Marijuana Odor as Probable Cause

The two Appeals Courts did, in fact, have conflicting opinions in one primary challenge in both cases.

That was whether or not the AMMA effects or dismisses marijuana Smell to be used as a determinate for probable cause.

(1) In the first case, the Appeals Court ruled that the AMMA did impact the plain smell doctrine and whether or not it could be used to determine probable cause.

The first Appeals Court ruled in its case, that under the AMMA where Medical Marijuana is legal, there is potential to smell Marijuana in a number of places such where it is lawful such as where it is being cultivated, stored, or sold. This was not the case before AMMA enactment.

In the first case the source of smell was a warehouse, which narrowed the ruling to the context of the inside of a building.

Use of Marijuana in a vehicle, or in public is prohibited under AMMA and Arizona Law.  Use of a Marijuana in a vehicle is still suggestive of criminal activity such as impaired driving.

These factors were paramount because to the Appeals Court decision to vacate the convictions.

(2) In the second case the Appeals Court rejected the idea that the AMMA impacted the “Plain Smell Doctrine” when determining probable cause for search; and that the Arizona Medical Marijuana Act does not immunize suspects from being subject to “Plain Smell” of Marijuana being sufficient for probable cause to search.  It only provides protections from arrest prosecution and any penalties.

Further, the source of the Marijuana smell was a vehicle, reinforcing their decision affirm the convictions since use in a vehicle is prohibited under AMMA;  Arizona Statute; and is still suggestive of criminal activity.

Marijuana smoke on a public road to still constitute reasonable suspicion or probable cause in the context of a vehicle search.  There are still some points that may need clarification.

The fundamental circumstances in the two cases are different, meaning it is unlikely that any changes in police policy related to Marijuana odor evidence at this point.

If in the first case, the odor of the marijuana had originated from an automobile, or while the suspect was in public, then a conflict in verdicts would have existed in Arizona case law.

It seems only a matter of time before these or other cases involving Probable Cause for Search based on Plain Smell of Marijuana cases end up in the Arizona Supreme Court.

Arizona and all other states progressing in Marijuana passage in some form, can expect repetitive ad continuing disputes that impact them at a state-wide level.

The state will continue to progress in setting forth laws or precedent guidelines that address the impacts the AMMA will have on reasonable suspicion or probable cause determinations in the future.

Considering the fact that the Federal laws still prohibit Marijuana under the Federal Controlled Substances Act, it is unlikely that they would agree to hear State Court disputes involving Marijuana.

So for now and unless the cases are heard in the Arizona Supreme Court, the Appeals Court decisions will be looked to as precedent cases.   And each case will need to be reviewed on a case by case basis.

Criminal Defense for Marijuana Crimes in Mesa AZ  

Marijuana and other Drug crimes in Arizona are very serious.  Even if a person is a qualified Medical Marijuana user, they may also be exposed to criminal charges if they are accused of violating the AMMA laws.

If you face Marijuana or any of drug charges it is crucial that you consult a criminal defense attorney to discuss your defense options and retain them for your charges. There may be defenses that can be used to challenge the charges.

In the cases above challenges were raised in the following areas:

1) Constitutional – Fourth Amendment Rights Violations for unlawful search and seizure;

2) Evidentiary –  Motions to dismiss evidence based on no probable cause for search; and

3) Statutory Challenges – Effect of AMMA on “Plain Smell” of Marijuana Doctrine to determine probable cause.

To protect your rights, and avoid self-incrimination, you should not make any statements to police regarding the charges until you speak with an experienced criminal defense attorney.

James E. Novak, Drug Crimes Defense Attorney, is a former prosecutor, experience trial lawyer, and dedicated drug defense attorney.  If retained he will provide you with a strong defense for your charges.

James Novak, of The Law Office of James provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale Arizona.  Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources

A.R.S. § 36-2801 (Arizona Medical Marijuana Act)

Arizona 13-3925

Requirements and Exceptions to Lawful Search Warrants in Arizona

Other Articles of Interest


