By Steve Elliott
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.