Ever since police dogs have been used to sniff out drugs and contraband, the courts have recognized what we lawyers call “the plain sniff” rule. What this means is that any contraband that can be smelled by a dog can give law enforcement probable cause to search just as if the contraband were in plain view of the officer. Under this rule, for example, a drug sniffing dog alerting on your car at a traffic stop or checkpoint, gives automatic probable cause to search your vehicle for drugs.
Arizona Medical Marijuana Act (“AMMA”)
In 2010, the Arizona voters passed the AMMA, which gives qualifying individuals with certain medical conditions a privilege to possess, cultivate, and consume small amounts of marijuana for personal use. A.R.S. § 36-2801 et seq. Persons who qualify under the Act can possess up to 2.5 ounces of marijuana or, with the proper endorsement, cultivate up to 12 plants in an enclosed area. Of course, those items would emit some sort of odor, legal or not. The question then became whether the AMMA “immunized” registrants from search or seizure when law enforcement smelled the plant material and decided to search anyway.
Cheatham and Sisco
On July 11, 2016, in a pair of cases -- State v. Cheatham and State v. Sisco -- the Arizona Supreme Court clarified and reinforced the so-called “plain sniff” rule in light of the AMMA. The defendant in Cheatham had the smell of burnt marijuana in his car when he was pulled over for a traffic offense. The police searched Cheatham’s car based on the odor and found a usable quantity of marijuana under the seat and he was charged. In Sisco, the police reacted to a tip that an odor of marijuana was emanating from a locked storage facility Based on the tip and the odor, law enforcement obtained a warrant for the storage locker and discovered a marijuana growing operation with hundreds of plants. Neither Cheatham nor Sisco possessed a “green card” under the AMMA, but both invoked the AMMA as a defense; with marijuana now partially legal, they argued, the smell of weed can no longer serve as probable cause to search. The Arizona Supreme Court disagreed, and upheld the evidence in both cases. Because marijuana is only partially de-regulated, it wrote, the odor of it may still satisfy probable cause to search because the smell’s “incriminating character” is “immediately apparent” and the police “need only have probable cause to associate” the place or object with criminal activity. Horton v. California, 496 U.S. 128, 142 (1990). Based on this, the issue was really whether a reasonable person would conclude there was a “fair probability” that Sisco’s storage shed or Cheatham’s car contained contraband or evidence of a crime, even though marijuana, under the AMMA, no longer definitively reflects criminal activity all of the time.Probable cause, the court held, is not a question of “innocence” or “guilt” but instead turns on the “degree of suspicion that attaches” to certain types of non-criminal acts. Because the AMMA did not completely de-criminalize possession of marijuana for everybody, “the odor of marijuana, in most circumstances, will [still] warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present.” Sisco at ¶ 16. The AMMA does have impact, though; “a reasonable officer cannot ignore, and must consider, indicia of AMMA-compliant marijuana possession or use that could dispel probable cause.” Sisco at ¶ 18. For example, the court wrote, possession of a valid “green card” could “effectively dispel the probable cause resulting from the officer’s detection of marijuana by sight or smell.” Sisco at ¶ 20. Thus, prominent display of one’s AMMA card in the window of one’s residence might be enough to give the police pause before exercising a search warrant. The supreme court put it this way: “[T]he general [prohibition] of marijuana in Arizona and AMMA’s limited exceptions thereto support finding probable cause based on the smell or sight of marijuana alone unless … other facts would suggest to a reasonable person that the marijuana use or possession complies with AMMA.” Sisco at ¶ 26. The upshot of this is: if you have a card, carry it with you and display it prominently to ward away undesired visits from law enforcement.
What the future holds
The court left open the possibility that it might revisit this holding and the “plan sniff” rule should Arizona voters in the fall decide to decriminalize personal possession of marijuana.For the full text of the Sisco opinion, click here.For the full text of the Cheatham opinion, click here. DISCLAIMER: The foregoing is not intended to be legal advice and is included for informational purposes only. Each case is different. The reader is encouraged to consult with counsel on these or any other issues.