Pubdate: Tue, 12 Jul 2016
Source: Sun, The (Yuma, AZ)
Copyright: 2016 The Sun
Author: Howard Fischer, Capitol Media Services


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.
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MAP posted-by: Jay Bergstrom