Arizona: Appeals Court Says Marijuana Smell Not Enough For Cops To Bust In

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By Steve Elliott
Hemp News

The smell of marijuana is no longer enough for police to get a warrant and bust down the door, the Arizona Court of Appeals ruled on Wednesday.

The judges, in a split decision, acknowledged that the odor of cannabis, whether fresh or just smoked, had formerly been enough to provide the cops with probable cause that a crime was taking place, giving the basis to go to a judge to get a warrant for permission to enter and determine the source of the smell. But Judge Peter Eckerstrom, writing the majority opinion, said that all changed in 2010 when voters approved the Arizona Medical Marijuana Act.

"Medical marijuana use pursuant to AMMA is lawful under Arizona law," Judge Eckerstrom wrote. "Therefore its scent alone does not disclose whether a crime has occurred."

The smell of marijuana, absent other evidence, doesn't provide the consitutional basis for a search, Eckerstrom wrote. Instead, the court set up what is being called an "odor-plus" standard of probable cause.

The ruling is considered a huge setback for police and prosecutors who until now have found that claiming they smell marijuana comes in quite handy when they want to search a location but have flimsy or nonexistent evidence upon which to base such a search.

“Were we to adopt the state’s suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes,” Judge Eckerstrom reasonably wrote.

Pima County Assistant Public Defender David Euchner argued the case, and was encouraged by the ruling. But Euchner warned the decision is not an absolute escape clause for those who illegally possess marijuana.

According to Euchner, there are some situations where odor alone can provide the basis for a search, such as when someone is seen inhaling something in a public place. What someone says to police can also create sufficient probable cause for a warrant, he said.

The ruling is far from a blanket ban on police using the smell of pot to build a case against someone and get a warrant, agreed Pima County Chief Deputy Attorney Amelia Cramer. She said it's clear, however, that smell alone won't be providing the basis for searches in the future unless the Appeals Court ruling is overturned by the Arizona Supreme Court.

The case stems from three cops claiming there was an "overpowering" smell of fresh marijuana coming from a warehouse in a four-unit complex. After getting a warrant based on the odor, the police entered and found 357 cannabis plants and 53 pounds of harvested weed.

There was also evidence the warehouse served as a residence, and items indicating a young child lived there, according to the officers.

Occupant Ronald J. Sisco II was subsequently arrested. His bad to have the warrant quashed was rejected by a trial judge, and he was found guilty.

But Judge Eckerstrom said a search warrant requires "probable cause," and that means an officer has to show he or she knows facts that would mean the items being sought are connected with criminal activity.

The warrant cannot rely on behavior that might as equally be legal as illegal, the judge said -- and the 2010 medical marijuana vote changed all that.

"The possession of marijuana is not illegal per se, and therefore its scent alone does not disclose whether a crime has occurred," Eckerstrom wrote.

In Arizona, patients with a doctor's authorization may obtain and possess up to 2.5 ounces of cannabis every two weeks. Dispensaries are allowed to grow an unspecified number of plants at off-site facilities, and caregivers can grow up to 60 plants.

Judge Eckerstrom acknowledged his ruling may catch the cops off guard, since they've operated for years under the premise that marijuana is illegal, period. "Law enforcement officers may therefore have understandably developed practices in accord with that now-outdated assumption," he said.

Euchner said a police officer who comes into contact with someone who smells like marijuana is free to ask questions, including whether the person has a legal right to possess the weed. But, "The person may choose not to answer them," he said.

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