§ 5.5.1 Probable Cause
1. Odor of Marijuana. (See also “Dog Alert,” infra.) The odor of marijuana provides probable cause to search. State v. Reyna, 205 Ariz. 374, 71 P.3d 366 (App. 2003) (Div. 1) (officer smelled marijuana); State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975) (odor of marijuana provided probable cause to believe car contained contraband); State v. Chavez-Inzunza, 145 Ariz. 362, 701 P.2d 858 (App. 1985) (Div. 2) (same); State v. Baggett, 232 Ariz. 424, 306 P.3d 81 (App. 2013) (Div. 1) (odor of marijuana provided probable cause to search a backpack); State v. Mahoney, 106 Ariz. 297, 475 P.2d 479 (1970) (odor emanating from suitcase provided probable cause to search).
The existence of an Arizona medical marijuana card does not extinguish probable cause based on the odor of marijuana; rather, Arizona officers must consider this fact among the totality of circumstances to determine whether probable cause exists. See State v. Cheatham, 240 Ariz. 1, 375 P.3d 66 (2016) (“[W]e hold that the odor of marijuana sufficed to establish probable cause, and the ensuing search was therefore authorized by the automobile exception to the warrant requirement.” The Arizona Supreme Court found that Arizona’s Medical Marijuana Act (AMMA) did not eliminate probable cause to believe that the vehicle contains contraband or evidence of a crime, based on the officer’s smelling of marijuana from driver’s window after car was lawfully stopped. The officer “would be required to consider any indicia of AMMA-compliant possession or use,” but in this case, no such facts were present. “[N]o other facts known to the officer would have suggested to a reasonable person that the odor of burnt marijuana reflected use permitted by AMMA.”); State v. Sisco, 239 Ariz. 532, 373 P.3d 549 (2016) (The Arizona Supreme Court found that the strong odor of fresh marijuana established probable cause for search warrant to search storage unit, notwithstanding AMMA. The court noted that “[a]n 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.”). See also State v. Raffaele, 249 Ariz. 474, 471 P.3d 685 (App. 2020) (Div. 1) (officer possessed reasonable suspicion of criminal activity to continue to detain defendant during vehicle stop, including after detecting odor of marijuana, notwithstanding that defendant presented a medical marijuana card; court reiterated the rule of Cheatham and Sisco, supra, that whether probable cause exists to search a vehicle based on odor of marijuana, when a driver produces such a card, depends on “the totality of the circumstances”).
“In 2020, Arizona voters adopted Proposition 207, sometimes called the Smart and Safe Arizona Act (Act) . . .” State v. Williams, 254 Ariz. 516, 524 P.3d 1172, 1174 (App. 2023) (Div. 1) (discussing...
