dissenting.
I must respectfully dissent from the majority opinion in this case for the reasons set forth herein. In my examination of relevant Arizona case law I have been unable to find controlling precedent holding that the detection of the odor of marijuana by a sole policeman outside a dwelling, without more, constitutes probable cause to arrest the unknown occupant for the commission of a felony. In prior cases the detection of the aroma of marijuana has been an element, but not the sole factor, in *216establishing the requisite level of facts establishing probable cause.1
In denying Decker’s motion to suppress the trial court relied upon the cases of State v. McGuire, 13 Ariz.App. 539, 479 P.2d 187 (1971) and People v. Bock Leung Chew, 142 Cal.App.2d 400, 298 P.2d 118 (1956), for the proposition that probable cause for a felony arrest exists when a police officer receives through his senses knowledge of the commission of the offense. It must be noted, however, that Bock Leung Chew has been impliedly overruled by the case of People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 (1976). Furthermore, in my opinion, the McGuire case is factually distinguishable from the instant case since in McGuire the police were originally called to the scene of the crime specifically to investigate a reported pot party at the defendant’s residence rather than to investigate other unrelated criminal activity as in this case.
In my opinion, under the facts of this ease, the mere odor of burning marijuana is not by itself sufficient circumstantial evidence to constitute probable cause to justify entry into a private residence to effect a warrantless arrest. See Rogers v. State, 131 Ga.App. 136, 205 S.E.2d 901 (1974); Yawn v. State, 134 Ga.App. 77, 213 S.E.2d 178 (1975); and Clare v. State, 135 Ga.App. 281, 217 S.E.2d 638 (1975). The aroma of burnt marijuana may have a tendency to linger in a closed environment and provides no reliable clue regarding the occupants of the residence or whether a usable amount of marijuana is concealed therein.
It is not my intention to retreat from or mitigate the rule promulgated in Faber v. State, 62 Ariz. 16, 152 P.2d 671 (1944) and State v. McGuire, supra, that a police officer may rely on his senses to establish probable cause for warrantless arrest. I feel, however, that the mere odor of burnt marijuana, without additional incriminating evidence of criminal activity, does not provide sufficiently reliable evidence to justify entry into a private residence to effect a warrantless arrest.
I also believe that there is insufficient justification under ARS § 13-1411 for a warrantless entry by the police into Decker’s room and on this ground the trial court erred in failing to suppress the seized evidence. I rely on the recent case of State v. Cook, 564 P.2d 877 (1977), in which the Arizona Supreme Court held:
It is our opinion that under ARS Const. Art. 2, § 8, as well as the fourth amendment of the United States Constitution, a warrantless entry into a dwelling in order to effect an arrest is per se unreasonable absent exigent circumstances. Id. 62 Ariz. at 16,152 P.2d 671. [Emphasis added.] Citing to People v. Ramey, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 (1976).
Exigent circumstances were compiled and limited in Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), and adopted by our supreme court in Cook as: consent; response to an emergency; hot pursuit of a fleeing felon; and probability of *217imminent destruction of goods, or their removal from the jurisdiction. The only exigent circumstance arguably present here is the destruction of evidence, as the police officer may arguably have believed that it was literally going up in smoke. However, the Vale court, in limiting the scope of this circumstance to cases where “the goods ultimately seized were in the process of destruction,” implicitly held that the threat the evidence in the house might be destroyed was not sufficient to authorize a warrantless search. There was no showing in the instant case that the contraband was in the process of destruction or that the officer even considered this as a possible reason for his warrantless intrusion.
Decker’s hotel room was doubtless protected by the fourth amendment. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The inviolability of one’s living quarters from entry by the police without a warrant previously authorized by an impartial magistrate has been one of the most zealously protected freedoms of the American people. See, e.g., Wolff v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Johnson v. United States, supra; McDonald v. United States, supra; Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). “The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws.” Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145, 149 (1925).
It is therefore my opinion that the evidence of the marijuana was unlawfully obtained by Officer Sewell pursuant to his entry into Decker’s room, and that the trial court erred in failing to grant Decker’s motion to suppress this evidence. I would reverse the conviction and sentence.
. Arizona Supreme Court cases. State v. Mahoney, 106 Ariz. 297, 475 P.2d 479 (1970), policeman’s view in addition to smell of marijuana sufficient; but see, State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975) smell alone established probable cause in automobile search.
Court of Appeals Division Two cases. State v. McGuire, 13 Ariz.App. 539, 479 P.2d 187 (1971), combination of neighbor’s complaint of marijuana party with policeman’s detection of the odor; State v. Ballesteros, 23 Ariz.App. 211, 531 P.2d 1149 (1975), informer’s tip, policeman’s observation and detection of the odor; State v. Raymond, 21 Ariz.App. 116, 516 P.2d 58 (1973), defendant’s condition indicating that he is under the influence of something, not alcohol, and detection of the odor; State v. Caldwell, 20 Ariz.App. 331, 512 P.2d 863 (1973), discovery of marijuana in rental car repossessed from the premises plus detection of the odor; State v. Howard, 16 Ariz.App. 331, 493 P.2d 133 (1972), odor of marijuana plus observation of smoking in progress.
Court of Appeals Division One cases, State v. Salcido, 22 Ariz.App. 167, 525 P.2d 298 (1974) , policeman viewed freshly burned ashes on car seat, saw defendant with small hand-rolled cigarette tapered on one end and ragged on the other, and smelled strong odor of burning marijuana; but see, State v. Zamora, Ariz.App., 559 P.2d 195 (1976), smell alone established probable cause in automobile search.