'Plain smell' doctrine dates from 1975 ruling
By Paul Davenport
Associated Press
PHOENIX (AP) - The mere smell of marijuana can still be the basis for police to obtain a warrant to conduct a search, Arizona's top court said Monday in a ruling that generally maintains a decades-old legal doctrine in the wake of the state's legalization of medical marijuana.
However, the state Supreme Court's ruling also said the smell-based legal foundation for a search can be dispelled if a person has a valid medical marijuana card or authorities have other indications the suspected marijuana use or possession is authorized by the 2010 medical marijuana law.
Arizona adopted the so-called "plain smell" doctrine in a 1975 ruling.
The unanimous ruling Monday upheld a trial judge's decision in a Tucson case to allow evidence from a search conducted after police smelled marijuana and obtained a warrant. Officers who had noted an "overpowering odor" found a growing operation with hundreds of plants, the ruling said.
Arizona voters' approval of the 2010 medical marijuana law didn't generally decriminalize marijuana use or possession and makes marijuana legal in only limited circumstances, Chief Justice Scott Bales wrote.
Because of that, "the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present," Bales wrote
Two Arizona Court of Appeals panels issued contradictory rulings on the marijuana smell issue in the Tucson case and a case in Maricopa County.
The Arizona ruling largely tracks a 2012 decision by the state high court in Vermont, which also has a medical marijuana law. The Vermont decision said a trial judge properly considered the odor of fresh marijuana coming from a defendant's home in deciding to give police a search warrant "in the absence of any indication that a resident of a home is a registered patient."
The Arizona case of Ronald James Sisco II now returns to a lower court for consideration of other appeals issues. He is serving a 3.5-year prison sentence on marijuana and child abuse convictions.
David Euchner, a Pima County assistant public defender helping represent Sisco in the Supreme Court appeal, did not immediately return a call for comment.
Published: Wed, Jul 13, 2016
