Get Active Subscribe Support Us

ARIZ.  COURT: POT SMELL ENOUGH TO OK SEARCH

PHOENIX - Got marijuana? Not legally? Might want to keep the smell down.

A pair of new court rulings Monday allows the police to pursue a search of your place or your vehicle solely based on the odor.

Attorneys for both men who were convicted based on such searches argued that the 2010 voter-approved law which allows some people with certain medical conditions to legally possess or use marijuana means that the smell alone is no longer evidence that a crime is occurring.  The fact that neither of them was a medical marijuana cardholder, the lawyers said, is irrelevant.

But Chief Justice Scott Bales, writing for the unanimous court, said that 2010 law did not legalize the drug for the vast majority of Arizonans.

"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," he wrote.

And Bales specifically rejected the contention that the law - and the fact some people can possess and use the drug - means that the smell alone cannot trigger a search.

"Under that view, no person in Arizona would be subject to search or seizure by state or local police officers based only on an officer seeing or smelling marijuana," the chief justice said.  He said the 2010 law "does not broadly alter the legal status of marijuana but instead specifies particular rights, immunities, and obligations for qualifying patients and others, such as designated caregivers."

And the court specifically rejected arguments that a search based merely on smell runs afoul of state and federal constitutional provisions protecting the right to privacy.

"The right to privacy ...  is not a guarantee against all government searches and seizures, only unreasonable ones," Bales explained.

That, in turn, gets back to the fact that marijuana use remains illegal for most of the public, at least for the time being.

The most recent figures from the Arizona Department of Health Services show there are close to 98,000 people who are legally qualified to use the drug.  ON top of that there are 853 people certified as "caregivers" plus another 2,625 dispensary agents.

By contrast, the state's population exceeds 6.7 million.

"In this respect, registered qualifying patients are not denied Fourth Amendment rights or privileges based on their medical marijuana use," Bales wrote.  "They are simply treated like the broader public."

He stressed, though, that police, in deciding whether there is enough evidence for a search, "cannot ignore indicia of AMMA-compliant marijuana possession and use that could dispel probable cause."

But David Euchner, a deputy Pima County public defender, said that is hardly enough to protect individual rights.

"How would you feel if you were the guy using legally and the police broke into your house and kicked down the door and only later found out that you had a ( medical marijuana ) card?" he asked.  "Now, according to this decision, they basically are allowed to search first, ask questions later."

Euchner also said the ruling would appear to allow searches based solely on smell - especially of vehicles where a warrant is unnecessary - even if voters approve a ballot measure in November to allow Arizonans to possess and use marijuana for recreational purposes.