IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
RONALD JAMES SISCO II,
Appellant.
No. CR-15-0265-PR
Filed July 11, 2016
Appeal from the Superior Court in Pima County
The Honorable Howard J. Fell, Judge Pro Tempore
No. CR20131500-001
AFFIRMED IN PART
Opinion of the Court of Appeals, Division Two
238 Ariz. 229, 359 P.3d 1 (App. 2015)
VACATED AND REMANDED
COUNSEL:
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.
STATE V. SISCO
Opinion of the Court
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.
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STATE V. SISCO
Opinion of the Court
¶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, 133 S. Ct. 1050, 1055
(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
(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). This “practical and common-sense”
standard depends on the totality of the circumstances. Id.
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STATE V. SISCO
Opinion of the Court
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 (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 (1993); see also Horton, 496 U.S. at 133–34; Arizona v. Hicks,
480 U.S. 321, 326–27 (1987); Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923,
925 (1997).
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STATE V. SISCO
Opinion of the Court
¶12 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 (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 (noting
that police had probable cause to believe objects seized were incriminating
evidence); Hicks, 480 U.S. at 326–27 (recognizing plain view doctrine can
apply when officer has probable cause to believe object is contraband);
Brown, 460 U.S. at 741–42; 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 under the terms and conditions set forth in that Act. Reed-Kaliher
v. Hoggatt, 237 Ariz. 119, 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40 (2015); State
ex rel. Montgomery v. Harris, 234 Ariz. 343, 345 ¶ 16, 322 P.3d 160, 162 (2014).
Thus, although marijuana possession or use remains illegal under federal
law, the odor of marijuana no longer necessarily reflects criminal activity
under Arizona law.
¶15 Probable cause, however, does not turn on the “innocence” or
“guilt” of particular conduct, but instead on the “degree of suspicion that
attaches to particular types of non-criminal acts.” Gates, 462 U.S. at 243 n.13.
“[P]robable cause requires only a probability or substantial chance of
criminal activity, not an actual showing of such activity. . . . [T]herefore,
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STATE V. SISCO
Opinion of the Court
innocent behavior frequently will provide the basis for a showing of
probable cause.” Id.
¶16 Notwithstanding AMMA, 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. This
conclusion reflects that AMMA did not decriminalize the possession or use
of marijuana generally. A.R.S. § 13-3405(A) (criminalizing marijuana
possession and use in Arizona); A.R.S. § 36-2802(E) (limiting immunity
from civil, criminal, or other penalties for using marijuana to instances
where “authorized under [AMMA]”). If AMMA had done so, or if Arizona
eventually decriminalizes marijuana, our analysis and conclusion in this
context might well be different. Cf. Commonwealth v. Cruz, 945 N.E.2d 899,
908–09 (Mass. 2011) (no reasonable suspicion, let alone probable cause, of
criminal activity based on “faint odor” of marijuana because possession of
up to one ounce of marijuana is not criminal but rather a civil offense); State
v. Crocker, 97 P.3d 93, 96–98 (Alaska Ct. App. 2004) (no probable cause to
believe “strong odor” of marijuana coming from inside residence, without
more, indicated unlawful activity where state constitution authorizes all
citizens to grow marijuana for personal use, up to four ounces).
¶17 Instead, AMMA makes marijuana legal in only limited
circumstances. Possession of any amount of marijuana by persons other
than a registered qualifying patient, designated caregiver, or medical
marijuana dispensary agent is still unlawful, and even those subject to
AMMA must strictly comply with its provisions to trigger its protections
and immunities. See A.R.S. §§ 13-3405(A)(1), 36-2802(E). Thus, when an
officer detects marijuana by sight or smell, the “degree of suspicion that
attaches” remains high, notwithstanding AMMA. See Gates, 462 U.S. at 243
n.13. A reasonable officer is therefore justified in concluding that such sight
or smell is indicative of criminal activity, and thus probable cause exists.
See id.
¶18 This does not mean, however, that AMMA has no effect on an
officer’s probable cause determination. Because probable cause is
determined by the totality of the circumstances, Gates, 462 U.S. at 238, and
marijuana possession or use is lawful when pursuant to AMMA, Reed-
Kaliher, 237 Ariz. at 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40, a reasonable
officer cannot ignore indicia of AMMA-compliant marijuana possession or
use that could dispel probable cause. See, e.g., State v. Buccini, 167 Ariz. 550,
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STATE V. SISCO
Opinion of the Court
556–58, 810 P.2d 178, 184–86 (1991) (holding probable cause absent when
officer ignores information material to distinction between criminal and
non-criminal activity). Moreover, 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. Id. at 554–55, 557–58, 810 P.2d at 182–83, 185–86 (noting that
“omissions are material where there is a substantial possibility that the
omitted facts would have altered a reasonable magistrate’s probable cause
determination”) (internal quotation marks and citations omitted)); see also
State v. Carter, 145 Ariz. 101, 109–10, 700 P.2d 488, 496–97 (1985). We
reaffirm those principles here, giving effect to the interplay between
Arizona’s general proscription of marijuana and AMMA.
¶19 For instance, AMMA requires qualifying patients to register
with the Arizona Department of Health Services (“DHS”) and apply for a
registry identification card in order to lawfully possess and use medical
marijuana. A.R.S. § 36-2811(B) (limiting immunity from arrest, prosecution,
or penalty for marijuana offenses to the medical use of marijuana for a
“registered qualifying patient[]” (emphasis added)); A.R.S. § 36-2801(9)
(defining “medical use” of marijuana as “possession . . . [or] use” of
marijuana for treatment of a “registered qualifying patient’s debilitating
medical condition”) (emphasis added). If the qualifying patient satisfies all
statutory and regulatory requirements to possess and use medical
marijuana, DHS issues the patient a registry identification card. A.R.S.
§§ 36-2804.05(A),-2804.04(A), -2804.03(A).
¶20 Presentation of a valid AMMA registry identification card,
therefore, could indicate that marijuana is being lawfully possessed or used.
Such information could effectively dispel the probable cause resulting from
the officer’s detection of marijuana by sight or smell, unless of course other
facts suggest the use or possession is not pursuant to AMMA. See A.R.S.
§ 36-2811(H) (providing that possession of registration card does not
provide probable cause but also does not preclude existence of probable
cause on other grounds). The ultimate inquiry, as in other probable cause
determinations, turns on a “practical, common-sense” consideration of the
totality of the circumstances. Harris, 133 S. Ct. at 1055.
¶21 Sisco argues that AMMA has elevated the standard of
probable cause with respect to marijuana, either in general or at least with
respect to registered qualifying patients. Under that view, no person in
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STATE V. SISCO
Opinion of the Court
Arizona would be subject to search or seizure by state or local police officers
based only on an officer seeing or smelling marijuana. Instead, officers
would need something more to conclude criminal activity is occurring or
has occurred – what might be termed an “odor (or sight) plus” standard.
¶22 We disagree. AMMA does not broadly alter the legal status
of marijuana in Arizona but instead specifies particular rights, immunities,
and obligations for qualifying patients and others, such as designated
caregivers. See A.R.S. §§ 36-2801(13) (defining “qualifying patient” as those
diagnosed by a physician as having a debilitating medical condition); 36-
2811(B) (limiting AMMA’s protections only to those qualifying patients
registered with DHS and complying with AMMA’s limitations); 36-2802(E)
(reiterating marijuana possession and use remains unlawful in Arizona
“except as authorized under [AMMA]”).
¶23 Nor does AMMA’s broad immunity provision, § 36-2811(B),
or its subsection relating to probable cause, § 36-2811(H), suggest that
AMMA patients have greater protections from searches or increased
expectations of privacy than those enjoyed by the general public.
Subsection (B) affords immunities for specified conduct under AMMA;
subsection (H) provides that possession of a registry card does not itself
constitute probable cause, but also does not preclude the existence of
probable cause on other grounds. AMMA expressly does not prevent the
imposition of criminal or other penalties for using marijuana except as
permitted by the statute. § 36-2802(E). Taken together, these provisions
suggest that registered qualifying patients, and others covered by the Act,
are not generally afforded greater protections from searches than is the
general public, but instead enjoy such protections as AMMA specifically
provides. E.g., §§ 36-2811(E), (F) (affording certain protections against
searches of registered nonprofit medical marijuana dispensaries and their
agents).
¶24 Sisco also argues that allowing searches based merely on the
odor of marijuana would deny registered patients their right to privacy
protected by the Fourth Amendment and Article 2, Section 8 of the Arizona
Constitution. Denying this right, Sisco contends, would in turn violate
AMMA’s provision stating that a registered qualifying patient is not
“subject to . . . denial of any right or privilege” for the patient’s medical use
of marijuana. § 36-2811(B). But the right to privacy protected by the Fourth
Amendment and Article 2, Section 8 is not a guarantee against all
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STATE V. SISCO
Opinion of the Court
government searches and seizures, only unreasonable ones. U.S. Const.
amend. IV; United States v. Sharpe, 470 U.S. 675, 682 (1985); State v. Ault, 150
Ariz. 459, 463, 724 P.2d 545, 549 (1986). A search properly executed
pursuant to a valid warrant supported by probable cause generally
comports with that guarantee. See Gates, 462 U.S. at 262–63 (White, J.,
concurring); see also Ault, 150 Ariz. at 463, 724 P.2d at 549.
¶25 Given Arizona’s general prohibition against marijuana
possession and use, it is reasonable for officers to conclude that criminal
activity is occurring when they see or smell marijuana, thereby satisfying
probable cause. In this respect, registered qualifying patients are not
denied Fourth Amendment rights or privileges based on their medical
marijuana use; they are simply treated like the broader public. Moreover,
as we have explained, probable cause can be dispelled by indicia of AMMA-
compliant marijuana possession and use. Under the standard we adopt,
registered qualifying patients are not denied Fourth Amendment rights or
privileges, nor are they “subject to arrest, prosecution or penalty in any
manner,” for their medical use of marijuana. § 36-2811(B)(1).
¶26 We reject the “odor (or sight) plus” standard adopted by the
court of appeals and urged by Sisco. Instead, the general proscription of
marijuana in Arizona and AMMA’s limited exceptions thereto support
finding probable cause based on the smell or sight of marijuana alone
unless, under the totality of the circumstances, other facts would suggest to
a reasonable person that the marijuana use or possession complies with
AMMA. This “odor (or sight) unless” standard comports with the Fourth
Amendment standard prescribed in Gates and gives effect to AMMA’s
exceptions by precluding officers or magistrates from ignoring indicia of
AMMA-compliant marijuana use or possession when assessing probable
cause.
C.
¶27 Applying the “odor unless” standard, we hold that probable
cause existed to support issuance of the search warrant in this case. The
odor of marijuana suggested illegality, even if after AMMA it did not
conclusively establish a crime was occurring. Nothing in the record
suggests that the police, in seeking a warrant, disregarded any indicia that
marijuana was being used or possessed in compliance with AMMA. Sisco
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STATE V. SISCO
Opinion of the Court
is not a registered qualifying patient, nor is he otherwise authorized by
AMMA to cultivate or possess marijuana.
¶28 Here the police detected an “overpowering odor” of
marijuana emanating from a cinderblock warehouse complex. The mere
fact that AMMA authorizes use, possession, or cultivation of marijuana in
certain circumstances does not dispel the probable cause established by the
odor. Under AMMA, registered qualifying patients are generally
authorized to possess up to two and one-half ounces of useable marijuana,
while those patients that live more than twenty-five miles from the nearest
dispensary may be authorized to cultivate up to twelve marijuana plants.
§ 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also
cultivate up to sixty plants, but only if the caregiver cares for five patients,
all five patients are authorized to cultivate marijuana, and each patient
designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5);
§ 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites
in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the
police here had reason to believe they had detected marijuana authorized
by any of these provisions.
¶29 In sum, under the totality of the circumstances presented
here, the odor of marijuana established probable cause. We have no
occasion to assess how, in other circumstances, probable cause might be
dispelled by such facts as a person’s presentation of a valid registration
card.
III.
¶30 We affirm the trial court’s ruling denying the motion to
suppress, vacate the court of appeals’ opinion, and remand to the court of
appeals so it may consider Sisco’s argument that the evidence was
insufficient to support his conviction for child abuse and any other issues
he properly preserved in his appeal from his convictions and sentences.
10