Can a cop search my home or vehicle without consent just because he smells marijuana?
This question is one I field on a regular basis as new clients seek out an experienced marijuana defense attorney. “After all,” the new client will invariable ask, “isn’t medical marijuana now legal in this state.” Unfortunately, when it comes to probable cause for a search, there is a huge difference between medical marijuana and legalized recreational marijuana.
The Arizona Medical Marijuana Act (the “AMMA”) was adopted in 2010 and is codified in Arizona Revised Statute §§ 36-2801 through 2819. Prior to the AMMA, however, Arizona peace officers could always presume that the smell of marijuana alone provided probable cause that criminal activity was afoot or contraband was present. With the advent of the AMMA, however, common sense seemed to indicate that the smell of marijuana would no longer (by itself) always justify probable cause for a search. Unfortunately, on July 11, 2016, the Arizona Supreme Court declared that, in spite of the AMMA, smell alone is still enough to establish probable cause.
In 2013, Tucson Police officers obtained a search warrant for a storage unit based solely upon what officers described as an “overpowering odor of fresh marijuana.” Officers subsequently found growing equipment and hundreds of marijuana plants. In upholding the search warrant, the Arizona Supreme Court agreed that “the odor of marijuana no longer necessarily reflects criminal activity under Arizona law.” State v. Sisco, 239 Ariz. 532, 534, 373 P.3d 549, 551 (2016). That statement notwithstanding, a police officer can still rely on smell alone because the concept of probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” 373 P.3d at 553. While shocking to most of my clients, the Arizona Supreme Court has reaffirmed what defense attorneys have known for decades – “innocent behavior frequently will provide the basis for a showing of probable cause.” 373 P.3d at 553. Trucks, cars, and motorcycles are not treated any different than real estate when it comes to the smell of marijuana. In a decision released the same day as Sisco, the Arizona Supreme Court also upheld the warrantless search of a vehicle based solely on the odor of marijuana. See State v. Cheatham, 375 P.3d 66 (2016).
The Arizona Supreme Court did admit that if recreational marijuana is ever legalized in Arizona, then its foregoing analysis would most likely change. Until that happens, our marijuana defense attorneys have vast experience in attacking searches and seizures based on smell alone. If you need our help, please call us today at (480) 833-2341.