Scent Alone is No Longer Enough for a Search Warrant in Arizona
Arizona passed the Medical Marijuana Act in 2010. Recently the Arizona state Court of Appeals issued an important ruling that the scent of marijuana is no longer enough evidence to issue a police search warrant.
In 2010 the state of Arizona passed the Medical Marijuana Act which grants the legal right to qualified patients, dispensaries, dispensary workers, cultivators, and caregivers to possess and/or use marijuana. As of today the number of people who are part of that legally recognized group exceeds 65,000. Because there is a legally recognized use for marijuana and hence the scent of it’s most typical use, smoking, this important ruling by the Court of Appeals recognizes that the telltale smell does not necessarily signify illegal activity. This is a very important case recognizing the rights of individuals against improper search by authorities.
An article on the Phoenix New Times discusses the case that led to the ruling. In essence Tucson police used the smell of marijuana in the area of several warehouses to obtain a search warrant. Upon searching the suspected warehouse they found it empty. However, local police noticed that they continued get an overpowering smell of marijuana in the area. They then proceeded to obtain a second search warrant for the warehouse next door, again only based on the smell in the area. While police did find a sophisticated growing operation in that warehouse the defendant was able to successfully argue that, based on the 2010 Medical Marijuana Act, the smell alone should not have been enough to grant police a warrant. Based on the ruling that was issued, the courts obviously agreed.
Previous case law already bans police from searching anyone and everyone whom they find suspicious. This ruling simply expands on that. The expectation is that if police suspect that a real crime is occurring then they should be able to come up with more substantial evidence that would allow the granting of a search warrant.
However, there is a very important caveat to all of this…state law still allows police to temporarily detain a person and perform a warrantless search if there is reasonable suspicion that a crime has occurred. Hence, beware. Despite the ruling, and turning all of this on its head, the police can in practice still act when they smell the scent of marijuana and if there is ‘probable cause’. It may all be just a game of words as long as the right phrases are used.