State v. Sisco

• Decision Date: 11 July 2016
• Docket Number: No. CR–15–0265–PR,CR–15–0265–PR
• Citation: 373 P.3d 549,239 Ariz. 532
• Parties: State of Arizona, Appellee, v. Ronald James Sisco II, Appellant.
• Court: Arizona Supreme Court

239 Ariz. 532

373 P.3d 549

State of Arizona, Appellee

v.Ronald James Sisco II, Appellant.

No. CR–15–0265–PR

Supreme Court of Arizona.

Filed July 11, 2016

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals Section, Jonathan Bass (argued), Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Steven R. Sonenberg, Pima County Public Defender, David J. Euchner (argued), Assistant Public Defender, Tucson, Attorneys for Ronald James Sisco II.

Amy P. Knight (argued), Kuykendall & Associates, Tucson; and Kathleen E. Brody, Jana L. Sutton, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶ 1 Here we consider whether the odor of marijuana suffices to establish probable cause for issuance of a search warrant, given the adoption of the Arizona Medical Marijuana Act (“AMMA”), A.R.S. §§ 36–2801 through 2819. We hold that it does, unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by AMMA, thereby dispelling the probable cause that otherwise would exist.

I.

¶ 2 In March 2013, Tucson police officers responded to a tip that “a strong odor of fresh marijuana” was emanating from a storage warehouse at 18 West 35th Street. This address is for Unit 18 in a complex of four similar buildings. When the officers approached the complex in their patrol car, they could smell an “overpowering odor of fresh marijuana.” After they walked on the sidewalk around the complex's perimeter, the officers believed the odor was emanating from Unit 18.

¶ 3 Based on the odor of marijuana, the officers sought a telephonic warrant to search Unit 18. The magistrate issued the warrant, but when the officers searched this unit, they found it vacant. The police then applied for an amended warrant to search Unit 20, which was separated from Unit 18 by a wall and locked gate. The officers avowed that after entering Unit 18 they could better identify the source of the odor. The magistrate issued an amended warrant. When the officers entered Unit 20, they found it was being used as a residence and a marijuana growing operation. In the ensuing search, officers seized marijuana growing equipment, marijuana paraphernalia, and hundreds of marijuana plants.

¶ 4 As a result of the search, Ronald James Sisco II was identified as an occupant of Unit 20. He was charged with child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana. Sisco moved to suppress evidence found in the search, arguing among other things that the odor of marijuana no longer suffices to establish probable cause in light of AMMA. After an evidentiary hearing the trial court denied the motion, finding that AMMA does not impact the probable cause determination. Sisco was convicted of all charges and the court imposed concurrent prison terms, the longest of which was three and one-half years.

¶ 5 The court of appeals, in a split decision, reversed the trial court's ruling on Sisco's suppression motion and vacated his convictions and sentences. State v. Sisco , 238 Ariz. 229, 246 ¶ 57, 359 P.3d 1, 18 (App. 2015). The majority held that after AMMA, the scent of marijuana, in itself, is insufficient evidence of criminal activity to supply probable cause, and there were no “additional, commonly evident facts or contextual information suggesting a marijuana-related offense.” Id. at 232 ¶ 2, 359 P.3d at 4. The dissent argued that the odor of marijuana still suffices to establish probable cause after AMMA and, even if it does not, the facts suggested the possession here was not in compliance with AMMA and thus supported the warrant. Id. at 249 ¶ 68, 359 P.3d at 21 (Espinosa, J., dissenting).

¶ 6 We granted review because whether AMMA affects the determination of probable cause based on the odor of marijuana is a recurring issue of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 7 Prohibiting “unreasonable searches and seizures,” the Fourth Amendment to the United States Constitution provides that “no warrants shall issue, but upon probable cause.” See also Ariz. Const. art. 2, § 8 ; A.R.S. § 13–3913. Whether a magistrate's probable cause determination comports with the Fourth Amendment is a mixed question of law and fact that we review de novo. State v. Moore , 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009).

¶ 8 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.” Florida v. Harris , –––U.S. ––––, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (internal quotation marks and citations omitted). The facts need not show it is more likely than not that contraband or evidence of a crime will be found. “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the [probable-cause] decision.” Id. (quoting Illinois v. Gates , 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Instead, all that is “required is the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ” Id. (quoting Gates , 462 U.S. at 238, 103 S.Ct. 2317 ). This “practical and common-sense” standard depends on the totality of the circumstances. Id.

A.

¶ 9 An officer can 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. E.g. , State v. Decker , 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978). Accordingly, Arizona decisions predating AMMA held that an officer detecting the odor of marijuana was itself sufficient to establish probable cause, as the possession or use of marijuana was per se illegal. See id. (holding that odor of burning marijuana emanating from hotel room afforded probable cause to believe crime had been or was being committed); see also State v. Harrison , 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975) (holding that odor of marijuana afforded probable cause to believe automobile contained contraband); State v. Mahoney , 106 Ariz. 297, 301–02, 475 P.2d 479, 483–84 (1970) (holding that probable cause was established by odor of marijuana emanating from suitcase).

¶ 10 The parties have used the phrase “plain smell doctrine” to refer to the proposition that marijuana's odor can alone provide probable cause. This terminology, however, is imprecise, partly reflecting that court opinions have used the phrase “plain smell” in different contexts. The phrase has sometimes been used to describe circumstances when no “search” has occurred because detecting an odor does not invade an expectation of privacy. See, e.g. , State v. Morrow , 128 Ariz. 309, 312, 625 P.2d 898, 901 (1981) (holding that dog's sniffing a bag at an airport is not a search and stating that “plain smell” doctrine is akin to “plain view” doctrine). Whether detecting an odor constitutes a search is, of course, a different issue than whether an odor affords probable cause.

¶ 11 Equating the “plain smell” or “plain view” doctrines with relying on one's senses to establish probable cause is also potentially confusing because the United States Supreme Court has used the plain view doctrine to identify circumstances when a police officer may lawfully seize items without a warrant. See Horton v. California , 496 U.S. 128, 133–34, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The doctrine allows police to seize an object “if they are lawfully in a position to view it, if its incriminating character is immediately apparent, and if they have a lawful right of access to it.” Minnesota v. Dickerson , 508 U.S. 366, 374–75, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ; see also Horton , 496 U.S. at 133–34, 110 S.Ct. 2301 ; Arizona v. Hicks , 480 U.S. 321, 326–27, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ; Mazen v. Seidel , 189 Ariz. 195, 197, 940 P.2d 923, 925 (1997).

By requiring that an object's “incriminating character” be “immediately apparent” for purposes of the plain view doctrine, the United States Supreme Court has not adopted a standard more stringent than probable cause. Although the phrase “immediately apparent” might suggest “near certainty,” Texas v. Brown , 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court has rejected such “an unduly high degree of certainty as to the incriminatory character of evidence” for application of the plain view doctrine, id. clarifying that police need only have probable cause to associate the object with criminal activity. See Horton , 496 U.S. at 142, 110 S.Ct. 2301 (noting that police had probable cause to believe objects seized were incriminating evidence); Hicks , 480 U.S. at 326–27, 107 S.Ct. 1149 (recognizing plain view doctrine can apply when officer has probable cause to believe object is contraband); Brown , 460 U.S. at 741–42, 103 S.Ct. 1535 ; see also State v. Apelt , 176 Ariz. 349, 363, 861 P.2d 634, 648 (1993) (noting that plain view doctrine justified seizure if apparent evidentiary value of items established probable cause).

¶ 13 This case does not concern whether a search occurred when police detected the odor of marijuana or whether the plain view (or “plain smell”) doctrine authorized a warrantless seizure. Instead, we must decide whether, in light of AMMA, the officers' detection of an “overpowering odor” of marijuana afforded probable cause; that is, whether a reasonable person would conclude there was a “fair probability” the storage unit contained contraband or evidence of a crime.

B.

¶ 14 AMMA has made the use of marijuana lawful for medicinal purposes...