Pubdate: Wed, 13 Jul 2016
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2016 The Arizona Republic
Contact: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Website: http://www.azcentral.com/arizonarepublic/
Details: http://www.mapinc.org/media/24
Author: Michael Kiefer

HOW MARIJUANA RULING MAY APPLY TO SEARCHES

Rulings Say Police May Pursue Source of Odor

With a pair of opinions published Monday, the Arizona Supreme Court 
ruled that police can still use the odor of marijuana as probable 
cause to search a car or a premises, despite medical-marijuana laws.

In both cases, one from Tucson and the other from Maricopa County, 
defendants tried to claim that since the passage of the Arizona 
Medical Marijuana Act (AMMA) in 2010, law-enforcement officers could 
no longer assume that a crime was committed based on the mere odor of 
marijuana.

Chief Supreme Court Justice Scott Bales, who authored both opinions, 
did not agree.

"Instead, AMMA makes marijuana legal in only limited circumstances," 
he wrote. "Possession of any amount of marijuana by persons other 
than a registered qualifying patient, designated caregiver, or 
medical marijuana dispensary agent is still unlawful, and even those 
subject to AMMA must strictly comply with its provisions to trigger 
its protections and immunities."

Most important thing to know

Neither of the defendants was a registered medical-marijuana patient.

In March 2013, Tucson police were called to a storage facility where 
someone had reported an "overpowering" odor of marijuana. Police 
obtained warrants to search two units and found that one was being 
used as a residence, and the renter was growing "hundreds of marijuana plants."

He was charged not only with drug crimes, but also with child abuse. 
His attorney asked that the search be declared illegal and 
unreasonable, arguing that because of the medical-marijuana laws, the 
mere odor of marijuana was no longer probable cause for search.

Nevertheless, he was convicted and sentenced to 31 2 years in prison.

How the case got this far

But the division of the Arizona Court of Appeals based in Tucson 
overturned the conviction and sentence. The state took the case 
upstairs to the Supreme Court.

Meanwhile, that same spring of 2013, police in an unidentified 
location in Maricopa County pulled over a man because his window tint 
was possibly too dark. The car was filled with a "pretty strong" odor 
of marijuana smoke, triggering a search. The officers found "unburnt 
marijuana" under the front seat, and the man was charged with possession.

During his trial, his lawyers also argued that the smell was 
irrelevant because of the medical-marijuana laws, but the judge did 
not buy it and sentenced the man to a year's probation. He appealed 
to the Phoenix-based division of the Arizona Court of Appeals, which 
upheld his conviction.

The conflicting rulings then went to the Arizona Supreme Court.

In his opinion on the Tucson case, Bales also noted that a valid 
medicalmarijuana registry card could indicate that the possession is 
legal, but suggested that the amount of marijuana or the number of 
plants allowed under the law would not likely lead to an 
"overpowering odor." In the Maricopa County case, he reiterated that 
a valid registry card would be a consideration, but would not 
necessarily eliminate probable cause when officers become suspicious 
after detecting an odor.

Latest rulings on pot in Arizona

Since AMMA was passed in 2010, wrinkles in the law have come up to 
the Arizona Supreme Court for clarification on a number of occasions.

In 2014, the court ruled that the presence of marijuana metabolites 
in someone's bloodstream could not be used as proof of drug 
impairment. A year later, however, the court ruled that possession of 
a valid medical-marijuana card was not a "get-out-of-jail-free" card 
for those charged with a marijuana DUI.

But Monday's rulings stress that even as marijuana-legalization 
activists battle to get a ballot initiative on recreational marijuana 
in this November's election, right now, marijuana use outside of the 
strict parameters of AMMA is still illegal.
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MAP posted-by: Jay Bergstrom