Medical Marijuana Laws Cause Shifts in Court Rulings on Marijuana Odor and Probable Cause for Search Warrants

In order to obtain a search warrant, a police officer must have probable cause to suspect that a search will turn up contraband, such as illegal drugs, or other evidence of criminal activity. The odor of marijuana is a very commonly claimed basis for probable cause. As more and more states adopt laws permitting marijuana use for medical or recreational purposes, courts must review whether the “odor of marijuana” is still so definitive for this purpose. Texas’ medical marijuana law is extremely limited, but many states now allow medical patients with a valid prescription to smoke marijuana. The Arizona Supreme Court recently ruled on a defendant’s challenge to a search warrant based on marijuana odor. The state appellate court reversed his conviction in 2015, citing the medical marijuana law. The state supreme court vacated most of that ruling, with some important caveats for the police. State v. Sisco, No. CR-15-02656-PR, slip op. (Ariz., Jul. 11, 2016).

No distinct definition exists for “probable cause,” and U.S. courts have adopted a variety of interpretations over the years. The U.S. Supreme Court expressly adopted a “totality of the circumstances” approach in Illinois v. Gates, 462 U.S. 213 (1983). It held that a magistrate must consider the circumstances presented in the search warrant affidavit, along with the “veracity” and knowledgeability of the person presenting the affidavit, to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238.

Marijuana is a Schedule I controlled substance under federal law, and, until recently, it has been heavily restricted under state laws as well. Courts have generally held that the odor of marijuana weighs strongly in favor of probable cause for a search warrant, provided that the officer making the claim about the odor has sufficient knowledge and training in the matter. State laws allowing medical and even recreational use of the drug complicate this analysis, since the mere odor of marijuana does not imply criminal activity in jurisdictions where the use of the drug is permitted. This was the finding of the Arizona Court of Appeals in the Sisco case, which vacated the defendant’s sentence. 359 P.3d 1 (2015).

The case began when officers responded to a report of a strong marijuana odor emanating from an apartment building. The officers identified the unit from which they believed the odor originated, and they used this information to obtain a telephonic search warrant for the defendant’s apartment. The defendant moved to suppress the evidence obtained in the search, arguing that the state’s medical marijuana law rendered marijuana odor an insufficient basis for probable cause. The trial court denied his motion, and he was convicted.

Although the appellate court ruled in the defendant’s favor, the state supreme court vacated that ruling. It held that marijuana odor can still form the basis for probable cause despite the medical marijuana law. The court cited Gates’ holding that the “degree of suspicion that attaches to particular types of non-criminal acts” is the important factor, rather than “guilt” or “innocence.” Sisco, slip op. at 5, citing Gates, 462 U.S. at 243 n.13. Since state law allows marijuana use on a limited basis, however, the court held that officers must pay attention to “indicia of [lawful] marijuana possession or use that could dispel probable cause.” Sisco at 6.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For over 20 years, board-certified drug crime lawyer Michael J. Brown has defended the rights of people facing charges in west Texas state and federal courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a knowledgeable and skilled criminal justice advocate.

More Blog Posts:

Marijuana Use Is a Human Right, According to Ruling from Mexico’s Supreme Court, Texas Criminal Lawyer Blog, April 1, 2016

Marijuana Could Be Decriminalized at the Federal Level in Several Ways, Not Just by an Act of Congress, Texas Criminal Lawyer Blog, February 12, 2016

Medical Marijuana User’s Spouse Charged with Marijuana-Related Offenses; State Supreme Court Rules in Her Favor, Texas Criminal Lawyer Blog, January 18, 2016


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