State v. Sisco

238 Ariz. 229

359 P.3d 1

717 Ariz. Adv. Rep. 6

The STATE of Arizona, Appellee

v.Ronald James SISCO II, Appellant.

No. 2 CA–CR 2014–0181.

Court of Appeals of Arizona, Division 2.

July 20, 2015.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson, Counsel for Appellee.

Steven R. Sonenberg, Interim Pima County Public Defender, By David J. Euchner and Walter I. Gonçalves, Jr., Assistant Public Defenders, Tucson, Counsel for Appellant.

Chief Judge ECKERSTROM authored the opinion of the Court, in which Presiding Judge MILLER concurred and Judge ESPINOSA dissented.

OPINION

ECKERSTROM, Chief Judge:

¶ 1 Following a bench trial, appellant Ronald Sisco II was convicted of child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana. The trial court imposed concurrent prison terms, the longest of which are 3.5 years. On appeal, Sisco challenges the denial of his motion to suppress and the sufficiency of the evidence supporting his conviction for child abuse.

¶ 2 We address here the effect of the Arizona Medical Marijuana Act (AMMA), A.R.S. §§ 36–2801 through 36–2819, on determinations of probable cause. That Act renders possession, cultivation, and use of marijuana lawful under some circumstances. Accordingly, those circumstances—not the mere possession itself—now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons stated below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant. We emphasize this holding is a limited one. Probable cause can arise when the scent of marijuana is coupled with additional, commonly evident facts or contextual information suggesting a marijuana-related offense. However, no such information was presented here. We therefore reverse the denial of Sisco's suppression motion and remand the case to the trial court. Our disposition makes it unnecessary to address the evidence supporting his conviction of child abuse.

Factual and Procedural Background

¶ 3 When a search warrant is challenged based on a lack of probable cause, we consider only the evidence presented to the magistrate at the time the search warrant was issued. See State v. Jung, 19 Ariz.App. 257, 258–59, 506 P.2d 648, 649–50 (1973) ; see also State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App.2002). The initial search warrant affidavit stated that three police officers had smelled, from a street and sidewalk, an “overpowering” or “strong odor of fresh marijuana” coming from one particular warehouse in a four-unit complex: Unit 18. Based on this information, the magistrate concluded there was probable cause of unlawful possession of marijuana and issued a warrant. When the officers entered the building, they found it was vacant and contained no marijuana.

¶ 4 The same police officer who had applied for the first search warrant then applied for a second warrant for a nearby building, Unit 20, which was separated by a wall and locked gate. He avowed that after he and other officers had entered the property of Unit 18 they had been able to “narrow ... down” the source of the odor and exclude other potential sources. The magistrate issued an amended warrant for Unit 20, again based only on information about the scent. Inside that warehouse, officers discovered growing equipment and dozens of marijuana plants. In a separate portion of the building that served as a residence, they also found several items indicating that a young child lived there.

¶ 5 Personal property found in Unit 20 established that Sisco was one of its occupants, and he subsequently was charged with several criminal offenses noted above. He filed a suppression motion challenging the search warrant on numerous grounds, among them that the scent of marijuana failed to establish probable cause of criminal activity. After an evidentiary hearing, the trial court denied the motion, finding the AMMA had no impact on the probable-cause determination in this case. This appeal followed Sisco's convictions and sentences.

Discussion

¶ 6 As he did below, Sisco challenges the suppression ruling because it was based on case law that has been abrogated by the AMMA. The state maintains the trial court did not abuse its discretion because the odor of marijuana is still sufficient to support a finding of probable cause under all circumstances.

¶ 7 Absent exceptions not applicable here, a search warrant supported by probable cause is required by the Fourth Amendment of the United States Constitution and article II, § 8 of the Arizona Constitution. See State v. Hyde, 186 Ariz. 252, 268, 921 P.2d 655, 671 (1996) ; State v. Adamson, 136 Ariz. 250, 257, 665 P.2d 972, 979 (1983). Once issued, a search warrant is presumed to be valid, and a defendant challenging it for lack of probable cause carries the burden of going forward below. Hyde, 186 Ariz. at 268, 270, 921 P.2d at 671, 673. A magistrate's finding of probable cause will be upheld when there is a substantial basis for it. Id. at 272, 921 P.2d at 675 ; State v. Ballinger, 19 Ariz.App. 32, 34–35, 504 P.2d 955, 957–58 (1973) ; State v. McMann, 3 Ariz.App. 111, 112–13, 412 P.2d 286, 287–88 (1966). We will not disturb a trial court's ruling on a motion to suppress unless the court clearly has abused its discretion. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). However, an error of law made in the process of making a discretionary determination constitutes an abuse of discretion. State v. Simon, 229 Ariz. 60, ¶ 7, 270 P.3d 887, 889 (App.2012) ; State v. Noceo, 223 Ariz. 222, ¶ 3, 221 P.3d 1036, 1038 (App.2009). And, whether officers presented information legally sufficient to establish probable cause is a question of law that we review de novo. See State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996) ; Frimmel v. Sanders, 236 Ariz. 232, ¶ 25, 338 P.3d 972, 978 (App.2014).

A. Constitutional Analysis

1. Probable Cause

¶ 8 “Probable cause to conduct a search exists when ‘a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched.’ ” State v. Spears, 184 Ariz. 277, 285, 908 P.2d 1062, 1070 (1996), quoting State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985) ; accord State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989). This is the test by which we determine whether a “fair probability” of criminal activity exists under the Fourth Amendment standard articulated in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991). Although probable cause is a fluid, nontechnical concept, id. at 558, 810 P.2d at 186 ; State v. Emery, 131 Ariz. 493, 505–06, 642 P.2d 838, 850–51 (1982), it is not without limits. Our case law establishes boundaries between circumstances that support a justified belief in criminal activity, on the one hand, and those that provide mere suspicion or reasonable grounds for further investigation, on the other. See State v. Dupuy, 116 Ariz. 151, 155, 568 P.2d 1049, 1053 (1977) ; see also Buccini, 167 Ariz. at 557, 810 P.2d at 185.

¶ 9 When assessing probable cause, comparison to the reasonable-suspicion standard is instructive. Reasonable suspicion for traffic stops cannot rest solely on “circumstances or factors that do not reliably distinguish between suspect and innocent behaviors ... because they may cast too wide a net and subject all travelers to ‘virtually random seizures.’ ” State v. Sweeney, 224 Ariz. 107, ¶ 22, 227 P.3d 868, 874 (App.2010), quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). The facts must be “specific, distinct, or ‘particular’ to the suspect” so as to “reduce the risk of sweeping in a substantial number of innocent travelers.” State v. Evans, 237 Ariz. 231, ¶ ¶ 10, 17, 349 P.3d 205, 208, 209 (2015). A description of “entirely ordinary” activity does not give rise to a reasonable, particularized suspicion. Id. ¶ 12. Probable cause is a higher standard than reasonable suspicion. Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ; State v. O'Meara, 198 Ariz. 294, ¶ 10, 9 P.3d 325, 327 (2000). It therefore follows that when a description of circumstances “fits any number of other individuals not engaged in criminal activity,” it fails to establish probable cause. State v. Swanson, 172 Ariz. 579, 586, 838 P.2d 1340, 1347 (App.1992).

¶ 10 Our supreme court has recognized this principle. In Drury v. Burr, the court announced that “[w]here there is more than one inference equally reasonable[,] then probable cause does not exist, but where one inference is more reasonable than another and is on the side of guilt, then probable cause may be said to exist.” 107 Ariz. 124, 125, 483 P.2d 539, 540 (1971).¹ Similarly, in Maricopa County Juvenile Action No. J–84984, the court held that “probable cause requires a reasonably prudent person to find more probably than not the existence of the contested fact.” 138 Ariz. 282, 284, 674 P.2d 836, 838 (1983). On several other occasions, our high court has indicated that probable cause is lacking unless the facts suggest that criminal activity is “more probable than not.” State v. Will, 138 Ariz. 46, 49, 672 P.2d 1316, 1319 (1983) ; State v. Million, 120 Ariz. 10, 15, 583 P.2d 897, 902 (1978) ; State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144 (1975).²

¶ 11 The common law developed the concept of probable cause “ ‘[l]ong before the law of probabilities was articulated as such.’ ” State v. Espinosa–Gamez, 139 Ariz. 415, 417, 678 P.2d 1379, 1381 (1984), quoting Gates, 462 U.S. at 231, 103 S.Ct. 2317. Yet the “ ‘reasonable,’ ” Will, 138...