david euchner

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.

Arizona Supreme Court Says State May Not Deny Medical Marijuana To Felons On Probation

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By Steve Elliott
Hemp News

The Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying medical marijuana use as a term of probation, if the convicted felons in question have valid medicinal cannabis authorizations.

In the first case, a Cochise County man convicted of possession of marijuana with intent to sell was forbidden from using medical marijuana by a probation officer after his release from prison, reports Michael Kiefer at The Arizona Republic. In the second, a woman pleading guilty to DUI in Yavapai County refused to abstain from using medicinal cannabis as a term of her probation, prompting the prosecution to withdraw the plea agreement. Both had valid Arizona medical marijuana cards.

The Arizona Supreme Court ruled that both probationers had the right to use marijuana for their medical conditions under state law, and that prosecutors and courts couldn't take that away from them as a term of probation.

"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, assistant Pima County public defender. Euchner argued in both cases as a member of Arizona Attorneys for Criminal Justice.

The court ruled, however, that the Yavapai County Attorney's Office had the right to withdraw from the offered plea deal because it had not yet been accepted by a judge.

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