Plain Smell Doctrine and the Arizona Medical Marijuana Act

On July 22 I was interviewed by Kim Tobin with ABC 15 about a new Court of Appeals Division 2 court ruling on whether the odor of marijuana can be probable cause for a police search.

Three days later Division 1 issued a ruling on the same issue that came to a different result.  As a result of these two conflicting cases, I wrote an article for the The Record Reporter on these two seemingly conflicting cases.   Below is a version of the article that originally appeared in The Record Reporter on August 20, 2015.

Can’t You Smell that Smell:
The Odor of Marijuana, the Arizona Medical Marijuana Act, and Plain Smell Doctrine

By Russell B. Richelsoph, Partner, Davis Miles McGuire Gardner

Recently, Division One and Division Two of the Arizona Court of Appeals weighed in on the odor of marijuana being probable cause to support a search by police.  The Courts came to different results.  Division One upheld a warrantless search of a vehicle and Division Two suppressed a search based off of a search warrant for a combination commercial/residential structure.  The two courts make a very different analysis of the situations, but do not necessarily come to conflicting conclusions.

State of Arizona v. Ronald James Sisco II, No. 2 CA-CR 2014-0181, Filed July 20, 2015

In Sisco, police obtained a search warrant based on the “overpowering” or “strong odor of fresh marijuana” coming from one particular warehouse in a complex containing four warehouses, Unit 18.  Warrant in hand, the police entered Unit 18 and found it was vacant and no marijuana was inside.  Police then applied for and obtained a second warrant claiming that they had been able to narrow down the source of the smell to another building in the same complex, Unit 20.  Inside Unit 20 police found growing equipment and dozens of marijuana plants.  They also discovered that a separate portion of Unit 20 was being used as a residence and several items were found inside that indicated that a young child live there.

Sisco was charged with Child Abuse, Possession of Marijuana for Sale, and Production of Marijuana.  The trial court denied a Motion to Suppress and Sisco was convicted at trial.  The issue went to the Court of Appeals, Division Two, and in a two to one opinion, the Search Warrant of Unit 20 was found to lack probable cause and Sisco’s conviction and sentence were vacated.

Division Two reasoned that the Arizona Medical Marijuana Act (AMMA) had an effect on what constitutes probable cause with regards to the odor of marijuana.  The adoption of the AMMA now means that the odor of marijuana, by itself, is no longer an indication of criminal activity.  Division Two noted that the odor of fresh marijuana, coming from a warehouse, could indicate a legal marijuana growing operation.

Under our current statutory regime, the odor of marijuana does indicate the presence of a substance that might be possessed illegally. However, a reasonable, prudent, and cautious person could not, in the absence of further information, form a well-founded belief that a criminal offense was committed. Just as the possession of a prescription drug does not provide probable cause to suspect a drug offense under A.R.S. § 13-3406(A)(1), the mere scent of marijuana does not provide probable cause to suspect a crime under § 13-3405. A contrary conclusion would erase the distinction between lawful and unlawful marijuana at the heart of the AMMA, and it would authorize dragnet police practices that would capture “any number of . . . individuals not engaged in criminal activity.”

Id at ¶20 (citations omitted.)

Division Two adopts an “odor-plus” standard for probable cause as a manageable way to distinguish between probable criminal behavior and non-criminal activity.  The odor of marijuana must be additionally supported by facts indicating that the odor is associated with probable criminal behavior.

State of Arizona v. Ian Harvey Cheatham, No. 1 CA-CR 14-0072, Filed July 23, 2015

In Cheatham, police conducted a traffic stop for what they believed was a dark windshield.  When a police officer contacted Cheatham, he claimed he smelled a strong odor of burn marijuana coming from inside the vehicle.  Cheatham was asked to step out of the vehicle, and based on the plain smell the officer searched the vehicle finding a marble sized amount of unburnt marijuana under the driver’s seat.  Also found in the vehicle was an empty prescription bottle with the odor of unburnt marijuana and an empty cigar package.  Cheatham admitted to police the prescription bottle was his.

Cheatham was charged with Possession of Marijuana.  On a motion to suppress, Cheatham argued that the plain smell of marijuana no longer justified warrantless searches after the enactment of the AMMA.  The trial court upheld the search under the plain smell doctrine.  Cheatham was convicted at a bench trial of a class 1 misdemeanor.

In Cheatham Division One reasoned that the AMMA does not decriminalize the possession of marijuana.  Rather, the AMMA created an immunity provision for medical marijuana card holders who are using marijuana as proscribed by the AMMA provisions.  A person who is using marijuana under the provisions of the AMMA has a duty to plead and prove, by a preponderance of the evidence, his or her actions fall within the AMMA.  See id. at ¶11.  Cheatham made no claims that he held a medical marijuana card and conceded that he was not a registered qualifying patient under the AMMA.

Division One held that the search was justified under the plain smell doctrine because, according to them, all three prongs of the plain smell doctrine were met:

  1. The officer is lawfully in a position to smell the object;
  2. The objects incriminating character is immediately apparent;
  3. The officer has a lawful right of access to the object.

See id. at ¶ 14 citing State v. Baggett, 232 Ariz 424, 428 ¶ 16, 306 P.3d 81, 85 (App. 2013).  The court hints that had Cheatham told the officer he was a medical marijuana card holder, the search may not have been justified.

Cheatham v. Sisco: Resolving the Analytical Discrepancy

The Cheatham opinion came out three days after the Sisco opinion.  As such, Footnote 5 of the Cheatham opinion addresses Sisco.  Division One acknowledges that they used a different analysis from Division Two, but either analysis would have come to the same result in Cheatham.   The “odor plus” doctrine of Sisco could be used to find that the smell of burnt marijuana inside of an automobile supports probable cause for a search since the odor of burnt marijuana inside of a vehicle could be an indication of Driving Under the Influence, an activity not immune under the AMMA.  Division One also acknowledges that the search warrant in Sisco was obtained ex parte, while Cheatham had an opportunity to affirmatively present proof that he was a registered qualifying patient under the AMMA prior to the search being conducted.  Division One otherwise rejects the analysis and test of Division Two.

We are now left with a discrepancy between the reasoning of Division One and Division Two regarding the plain smell doctrine and marijuana post-AMMA.  It is expected that the Arizona Supreme Court will accept jurisdiction of these cases and resolve the issue.  It is my opinion that the “odor plus” test is a cleaner, easier to apply analysis for law enforcement officers in the field, then the analysis provided by Division One.  “Odor plus” also protects the rights of registered qualifying patients under the AMMA and prevents them from being treated like second class citizens.