Is the Smell of Weed Probable Cause in Arizona?


With the passage of the Arizona Medical Marijuana Act (AMMA), proponents of marijuana had high hopes that the bill would ease the pressure on recreational marijuana-users. In 2016, the Arizona Court of Appeals legitimized these hopes when it ruled that police officers couldn’t use the smell of marijuana as probable cause, though the ruling was limited to certain situations.

Unfortunately, the jubilation was short-lived as the Arizona Supreme Court quickly overturned the Court of Appeals ruling. Consequently, Arizona law still allows the smell of marijuana to be used as probable cause for a search warrant.

The Cases in Question

There were two cases that prompted the pivotal Supreme Court ruling. The first case originated in 2013, when police in Tucson were summoned to a storage facility to investigate an overpowering aroma of marijuana. Based on the smell, the police were able to obtain warrants to search two of the units, where they found hundreds of marijuana plants, cultivated marijuana, and drug paraphernalia. The owner was subsequently arrested, convicted, and sentenced to 3.5 years in prison. 

In the second case, police officers in Maricopa County pulled a vehicle over for having tinted windows that were too dark under state regulations. The officers immediately detected a strong odor and obtained a warrant over the phone based on the smell of marijuana. Upon searching the vehicle, the officers found drugs and paraphernalia, and arrested the driver. The man was convicted and sentenced to one year in prison.

In both cases, the defendants’ attorneys argued that the police unlawfully obtained a search warrant based on the smell of marijuana, with the assumption that the AMMA eliminates the smell of marijuana as a source of probable cause. The lower courts ruled against this argument, so the attorneys filed an appeal.

The Arizona Court of Appeals Ruling

This is where things get interesting. While the Court of Appeals upheld the conviction and sentence against the defendant in Maricopa County, the court overturned the conviction and sentence against the defendant in Tucson. In the ruling for the overturned case, the court prescribed a “smell-plus” test which would require police officers to evaluate the smell of marijuana in conjunction with other factors when determining probable cause.

The Arizona Supreme Court’s Ruling

As the decisions for the Tucson and Maricopa County cases obviously contradicted each other, the attorneys appealed their cases to the Arizona Supreme Court. In both cases, the court ultimately ruled against the defendants and upheld the original court’s determination that the smell of marijuana is sufficient probable cause for a search warrant. This is important because rulings by the Supreme Court establish legal precedent that must be treated the same as the law (i.e. the same as if the Arizona Legislature passed a bill on the subject).

Chief Supreme Court Justice Scott Bales, who wrote the Opinions for both cases, ruled that while the AMMA offers some protections to qualified patients, designated caregivers, and dispensary agents, this represents only a fraction of the population. Furthermore, even those who are protected by the AMMA are bound to strict rules and regulations, so it’s possible for authorized persons to be in violation of the law, too. Finally, patients with a medical marijuana card shouldn’t have enough marijuana to create a substantial odor, so the presence of an overwhelming smell of marijuana is still probable cause to obtain a search warrant.

What Effect Does This Have on You?

If you have a valid medical marijuana card, you may be subject to a search based on the smell of marijuana. Providing you are not carrying more marijuana than the law allows, presenting law enforcement with your medical marijuana card should quickly clear the air. Considering this, it’s a good idea to just consent to a search without requiring a search warrant, as the officers will likely be much more understanding if you are cooperative.

However, if you are carrying more marijuana than the AMMA allows, or if you do not have a valid medical marijuana card, you should not consent to a search, and you should call an attorney as soon as possible. If the smell of marijuana is enough probable cause to justify a search warrant, you should comply with the warrant, but you should not admit any guilt or provide any information other than your name and address. 

What to Do If You Are Arrested 

While there are some police officers who are more lenient with marijuana-related charges, you will most likely be arrested and booked into the county jail if police find illicit drugs and/or paraphernalia. You won’t have an opportunity to call an attorney until you are booked, but you’ll need to start exercising your rights immediately. Keep in mind that law enforcement’s goal is a speedy conviction, and their interests are rarely aligned with yours (no matter how much they tell you otherwise).

If you get arrested, there are 5 important things to remember:

  1. You have the right to remain silent, and you should exercise this right: Don’t provide any personal information other than your name and address, and refrain from offering an alibi, explanation, or excuse. Your attorney will help you present a defense later, and waiting to provide this information will not harm your case.
  2. You have the right to speak with an attorney before speaking with the police: If you can’t afford an attorney, ask the police how you can contact a public defender.
  3. You have the right to make a phone call within a reasonable amount of time after you are booked into jail: If you choose to call an attorney, the attorney can reach out to a family member or friend on your behalf. If you call a family member or friend, you should instruct them to call an attorney.
  4. Before you post bail (on your own or with the assistance of a bail bondsman): You should see if your attorney can negotiate better bail terms with the court.
  5. Refrain from making any important decisions pertaining to your case (such as reaching a plea deal or offering a confession) until you have consulted with an attorney: If the police offer you a deal, that deal should still be on the table when your attorney is in the room.

Receive Help With Marijuana Possession Charges in Arizona

If you’ve been charged with marijuana possession in Arizona, a resourceful defense can work to get your charge dismissed or reduced to the minimum penalties. Even if you’re a first-time offender, navigating your course is complex, and without help, you could quickly lose your chances of success in court.

Let the defense lawyers of JacksonWhite Law help minimize the impact of your drug possession charges today.

To schedule a free and confidential consultation, call our criminal defense team today at (480) 467-4370.

Call the JacksonWhite Criminal Law team at (480) 467-4370 to discuss your case today.

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