AZ Court: Cannabis Odor Not Sufficient for Search Warrant

The smell of cannabis, while appealing and quite fragrant, can be a smoker’s worst nightmare when dealing with law enforcement officials. If a police officer catches just one whiff of the potent stench, a marijuana user could quickly end up behind bars due to a little thing known as “probable cause.”

In certain states, under the rules of probable cause, if a police officer has sufficient evidence to suspect that a person has cannabis on their person or has consumed it recently, they then have the right to perform a search and seizure. That means that even just the smell of cannabis could be considered “sufficient evidence.” While there are some scenarios that do require a warrant to comply with these actions, not all cases require this, placing a large amount of bias and legal worry for marijuana users (legal or not) across the nation.

A Division Two appeals court in Arizona has now taken steps toward protecting cannabis users’ rights in the state. According to the split-decision ruling, a law enforcement officer cannot obtain a search and seizure warrant for the scent of cannabis alone. This ruling stems from the 2010 Medical Marijuana Act for Arizona, also known as Proposition 203, which legalized medicinal use of marijuana in the state for patients with qualifying medical conditions.

While this Act did provide access to the substance for patients, it did little to protect their rights to use the medicine in Arizona and patients are worried that if they happen to have used their medicine recently they would be subject to a search by police officers simply because they smell like it.

The court case that brought this to the state’s legal attention involves an illegal marijuana growing operation that was discovered in March of 2013. According to a news release on the case, police in South Tucson who were patrolling a warehouse district noticed an overpowering smell of marijuana emitting from the area. Relying on the probable cause statute, they filed for a search warrant for one of the warehouses. They obtained the warrant and searched the warehouse but found nothing inside.

The cannabis smell was continuing to linger, so police filed for another warrant to search another warehouse in the area. Upon entering the second warehouse, a SWAT team reportedly found over 357 fresh plants, over 53 pounds of cultivated marijuana and evidence that the warehouse was being used as a residence for what seemed to be an adult and a very young child.

According to reports, it was discovered that a Ronald Sisco and his 22-month-old child had been living in the warehouse where Sisco had been running a big-scheme illegal marijuana dealing operation. Once he realized his operation had been discovered by law enforcement, Sisco willingly turned himself in and was charged with felony possession of marijuana, illegally growing marijuana, narcotic drug possession and child abuse due to keeping his child in the warehouse as a living arrangement.

However, when Sisco was brought to court, his public defenders began to question whether the search that was performed on the warehouse was actually done legally under the Arizona Medical Marijuana Act (AMMA).

While Sisco was not a registered patient, the appeals court decided to agree with their defense. This essentially ended the trial because it was ruled that none of the evidence found in the searching of the warehouse could be legally used as evidence. The court then ruled that the smell of marijuana alone is not probable cause enough for a law enforcement officer to apply for a search warrant; the officer must provide some other form of concrete evidence for the application to be accepted.

Judge Peter Eckerstrom, the judge who wrote for the majority in this case, explained the passing of the new law as something that is meant to protect the rights of legal cannabis users to be able to use their medicine without fear of being harassed by law enforcement officers for doing so.

“Medical marijuana use pursuant to AMMA is lawful under Arizona law,” Eckerstrom wrote in his ruling. “Therefore its scent alone does not disclose whether a crime has occurred.”

The Arizona Medical Marijuana Act forbids the use of cannabis in public or while operating a motor vehicle, so marijuana users still need to be careful where they decide to toke up.

“For instance,” as it is written in the ruling, “even with the AMMA’s passage, the odor of burnt marijuana in public or in an automobile still suggests that a crime has occurred.”

The appellate court has advised law enforcement officials to adopt what they call an “odor-plus” stance on applying for search warrants for cannabis. Officers can begin to legally investigate a scene where they suspect marijuana is being used illegally, but must provide further evidence on top of the smell in order to obtain the warrant.

Dave Euchner, one of Sisco’s public defenders in the court case, explains that the new ruling applies mostly to marijuana being used in a private residence or home.

“This opinion recognizes that your home not be searched unless there’s a really good reason for it,” Euchner explains. “It reaffirms the very American principal that you have a right to privacy in your own home.”

Unfortunately, the decision was not entirely unanimous. Appellate Judge Philip Espinosa, another judge who ruled over the Sisco case, believes that the new ruling will do nothing but raise unfounded beliefs and “alarmist fears” that the police and SWAT teams are simply raiding houses without provocation or necessary reason.

Nonetheless, the law provides at least a little bit more of a stable mindset for medical patients in Arizona, so long as they comply with the legal requirements set forth by the AMMA.

Should the smell of marijuana be considered probable cause for a search warrant? Let us know what you think in the comments below.