Marijuana Odor NOT Probable Cause In Arizona

The state Court of Appeals ruled on Tuesday that the odor of marijuana is no longer probable cause for officers to search a person or their property.  Judges in the past had acknowledged that the scent of marijuana, whether fresh off the plant or freshly smoked, was enough probable cause for police to assume that a crime may be in progress.  However, since the passing of the Arizona Medical Marijuana Act, judges such as Peter Eckerstrom have protested the matter.

"Were we to adopt the state's suggestion that scent alone furnishes probable cause of a crime, medical marijuana patients would become second-class citizens, losing their rights to privacy and security, including privacy within their own homes,'' Eckestrom wrote.  While this may be true for those allowed to consume medical marijuana, this could conflict with those who could be in possession of marijuana illegally.  David Euchner, an assistant Pima County public defender, argued the case, saying there clearly are situations in which odor alone can provide the basis for a search, such as when someone is inhaling something in a public place.

Instead, the state enacted the odor-plus standard, which is similar to an officer not being able to arrest simply because they smell alcohol on a persons breath while driving.  "It's something an officer can ask more questions about,'' Euchner said. "But they can't just arrest just because they smell alcohol on the breath.''  The officer may ask questions but the person may choose not to answer them.  

The ruling did not end unanimously.  Judge Philip Espinosa stated his colleagues guilty of "innovative reasoning," in a bad way as well as scolded them for raising "alarmist fears'' about police and SWAT teams invading homes of citizens based simply on the smell of marijuana.