§ 4.2.2 Probable Cause Generally
“Probable cause exists when the facts known to a police officer ‘would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.’” State v. Sisco, 239 Ariz. 532, 373 P.3d 549 (2016) (quoting Florida v. Harris, [568 U.S. 237], 133 S. Ct. 1050, 1055 (2013)). See also State v. Wilson, 237 Ariz. 296, 350 P.3d 800 (2015) (citing same probable cause standard, citing Florida v. Harris). “We have consistently held that police must include exculpatory facts that are known to them and material to the probable cause determination in any affidavit in support of a search warrant.” Sisco, supra.
Hearsay can support the finding of probable cause supporting the issuance of a warrant. State v. Lawson, 144 Ariz. 547, 552, 698 P.2d 1266, 1271 (1985); Illinois v. Gates, 462 U.S. 213 (1983).
An incorrect statutory reference in a warrant affidavit does not affect the probable cause determination. Skoog v. County of Clackamas, 469 F.3d 1221, 1231 (9th Cir. 2006). See also other sections, infra.
See also § 4.2, “General Rule,” supra, for probable cause standards and additional cases.
Membership in a child porn site provided probable cause to search a member’s computer. United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006).
For probable cause to arrest, see § 5.1.7, “Arrest – Probable Cause and General Authority.”
1. Probable Cause of Drug Activity/Odor of Marijuana. The odor of marijuana “suffices to establish probable cause for issuance of a search warrant . . . unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by AMMA [Arizona’s Medical Marijuana Act], thereby dispelling the probable cause that otherwise would exist.” State v. Sisco, 239 Ariz. 532, 373 P.3d 549 (2016) (The Arizona Supreme Court found that the “overpowering odor” of marijuana provided probable cause for a search warrant in that case and rejected the court of appeals’ “odor-plus” standard, noting that a reasonable person would conclude that there was a fair probability that the storage unit contained contraband or evidence of crime. “An officer may rely on his or her senses, including the sense of smell, to establish probable cause if doing so would lead a reasonable person to believe that contraband or evidence of a crime is present.” “Because probable cause is determined by a totality of circumstances, and marijuana possession or use is lawful when pursuant to AMMA, a reasonable...
