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State v. Sisco

Court of Appeals of Arizona, Second Division

July 20, 2015


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Appeal from the Superior Court in Pima County. No. CR20131500001. The Honorable Howard Fell, Judge Pro Tempore.

For Appellee: Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Jonathan Bass, Assistant Attorney General, Tucson.

For Appellant: Steven R. Sonenberg, Interim Pima County Public Defender, By David J. Euchner and Walter I. Gonç alves, Jr., Assistant Public Defenders, Tucson.

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Miller concurred and Judge Espinosa dissented.


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ECKERSTROM, Chief Judge:

[¶1] Following a bench trial, appellant Ronald Sisco II was convicted of child abuse, possession of drug paraphernalia, possession of marijuana for sale, and production of marijuana. The trial court imposed concurrent prison terms, the longest of which are 3.5 years. On appeal, Sisco challenges the denial of his motion to suppress and the sufficiency of the evidence supporting his conviction for child abuse.

[¶2] We address here the effect of the Arizona Medical Marijuana Act (AMMA), A.R.S. § § 36-2801 through 36-2819, on determinations of probable cause. That Act renders possession, cultivation, and use of marijuana lawful under some circumstances. Accordingly, those circumstances--not the mere possession itself--now determine whether such activity is criminal or permitted under state law. For this reason, and for the reasons stated below, we hold that the scent of marijuana, standing alone, is insufficient evidence of criminal activity to supply probable cause for a search warrant. We emphasize this holding is a limited one. Probable cause can arise when the scent of marijuana is coupled with additional, commonly evident facts or contextual information suggesting a marijuana-related offense. However, no such information was presented here. We therefore reverse the denial of Sisco's suppression motion and remand the case to the trial court. Our disposition makes it unnecessary to address the evidence supporting his conviction of child abuse.

Factual and Procedural Background

[¶3] When a search warrant is challenged based on a lack of probable cause, we consider only the evidence presented to the magistrate at the time the search warrant was issued. See State v. Jung, 19 Ariz.App. 257, 258-59, 506 P.2d 648, 649-50 (1973); see also State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002). The initial search warrant affidavit stated that three police officers had smelled, from a street and sidewalk, an " overpowering" or " strong odor of fresh marijuana" coming from one particular warehouse in a four-unit complex: Unit 18. Based on this information, the magistrate concluded there was probable cause of unlawful possession of marijuana and issued a warrant. When the officers entered the building, they found it was vacant and contained no marijuana.

[¶4] The same police officer who had applied for the first search warrant then applied for a second warrant for a nearby building, Unit 20, which was separated by a wall and locked gate. He avowed that after he and other officers had entered the property of Unit 18 they had been able to " narrow . . . down" the source of the odor and exclude other potential sources. The magistrate issued an amended warrant for Unit 20, again based only on information about the scent. Inside that warehouse, officers discovered growing equipment and dozens of marijuana plants. In a separate portion of the building that served as a residence, they also found several items indicating that a young child lived there.

[¶5] Personal property found in Unit 20 established that Sisco was one of its occupants, and he subsequently was charged with several criminal offenses noted above. He filed a suppression motion challenging the search warrant on numerous grounds, among

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them that the scent of marijuana failed to establish probable cause of criminal activity. After an evidentiary hearing, the trial court denied the motion, finding the AMMA had no impact on the probable-cause determination in this case. This appeal followed Sisco's convictions and sentences.


[¶6] As he did below, Sisco challenges the suppression ruling because it was based on case law that has been abrogated by the AMMA. The state maintains the trial court did not abuse its discretion because the odor of marijuana is still sufficient to support a finding of probable cause under all circumstances.

[¶7] Absent exceptions not applicable here, a search warrant supported by probable cause is required by the Fourth Amendment of the United States Constitution and article II, § 8 of the Arizona Constitution. See State v. Hyde, 186 Ariz. 252, 268, 921 P.2d 655, 671 (1996); State v. Adamson, 136 Ariz. 250, 257, 665 P.2d 972, 979 (1983). Once issued, a search warrant is presumed to be valid, and a defendant challenging it for lack of probable cause carries the burden of going forward below. Hyde, 186 Ariz. at 268, 270, 921 P.2d at 671, 673. A magistrate's finding of probable cause will be upheld when there is a substantial basis for it. Id. at 272, 921 P.2d at 675; State v. Ballinger, 19 Ariz.App. 32, 34-35, 504 P.2d 955, 957-58 (1973); State v. McMann, 3 Ariz.App. 111, 112-13, 412 P.2d 286, 287-88 (1966). We will not disturb a trial court's ruling on a motion to suppress unless the court clearly has abused its discretion. State v. Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). However, an error of law made in the process of making a discretionary determination constitutes an abuse of discretion. State v. Simon, 229 Ariz. 60, ¶ 7, 270 P.3d 887, 889 (App. 2012); State v. Noceo, 223 Ariz. 222, ¶ 3, 221 P.3d 1036, 1038 (App. 2009). And, whether officers presented information legally sufficient to establish probable cause is a question of law that we review de novo. See State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996); Frimmel v. Sanders, 236 Ariz. 232, ¶ 25, 338 P.3d 972, 978 (App. 2014).

A. Constitutional Analysis

1. Probable Cause

[¶8] " Probable cause to conduct a search exists when 'a reasonably prudent person, based upon the facts known by the officer, would be justified in concluding that the items sought are connected with criminal activity and that they would be found at the place to be searched.'" State v. Spears, 184 Ariz. 277, 285, 908 P.2d 1062, 1070 (1996), quoting State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985); accord State v. Prince, 160 Ariz. 268, 272, 772 P.2d 1121, 1125 (1989). This is the test by which we determine whether a " fair probability" of criminal activity exists under the Fourth Amendment standard articulated in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991). Although probable cause is a fluid, nontechnical concept, id. at 558, 810 P.2d at 186; State v. Emery, 131 Ariz. 493, 505-06, 642 P.2d 838, 850-51 (1982), it is not without limits. Our case law establishes boundaries between circumstances that support a justified belief in criminal activity, on the one hand, and those that provide mere suspicion or reasonable grounds for further investigation, on the other. See State v. Dupuy, 116 Ariz. 151, 155, 568 P.2d 1049, 1053 (1977); see also Buccini, 167 Ariz. at 557, 810 P.2d at 185.

[¶9] When assessing probable cause, comparison to the reasonable-suspicion standard is instructive. Reasonable suspicion for traffic stops cannot rest solely on " circumstances or factors that do not reliably distinguish between suspect and innocent behaviors . . . because they may cast too wide a net and subject all travelers to 'virtually random seizures.'" State v. Sweeney, 224 Ariz. 107, ¶ 22, 227 P.3d 868, 874 (App. 2010), quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). The facts must be " specific, distinct, or 'particular' to the suspect" so as to " reduce the risk of sweeping in a substantial number of innocent travelers." State v. Evans, 237 Ariz. 231, ¶ ¶ 10, 17, 349 P.3d 205, 208, 209 (2015). A description of " entirely

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ordinary" activity does not give rise to a reasonable, particularized suspicion. Id. ¶ 12. Probable cause is a higher standard than reasonable suspicion. Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); State v. O'Meara, 198 Ariz. 294, ¶ 10, 9 P.3d 325, 327 (2000). It therefore follows that when a description of circumstances " fits any number of other individuals not engaged in criminal activity," it fails to establish probable cause. State v. Swanson, 172 Ariz. 579, 586, 838 P.2d 1340, 1347 (App. 1992).

[¶10] Our supreme court has recognized this principle. In Drury v. Burr, the court announced that " [w]here there is more than one inference equally reasonable[,] then probable cause does not exist, but where one inference is more reasonable than another and is on the side of guilt, then probable cause may be said to exist." 107 Ariz. 124, 125, 483 P.2d 539, 540 (1971).[1] Similarly, in Maricopa County Juvenile Action No. J-84984, the court held that " probable cause requires a reasonably prudent person to find more probably than not the existence of the contested fact." 138 Ariz. 282, 284, 674 P.2d 836, 838 (1983). On several other occasions, our high court has indicated that probable cause is lacking unless the facts suggest that criminal activity is " more probable than not." State v. Will, 138 Ariz. 46, 49, 672 P.2d 1316, 1319 (1983); State v. Million, 120 Ariz. 10, 15, 583 P.2d 897, 902 (1978); State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144 (1975).[2]

[¶11] The common law developed the concept of probable cause " '[l]ong before the law of probabilities was articulated as such.'" State v. Espinosa-Gamez, 139 Ariz. 415, 417, 678 P.2d 1379, 1381 (1984), quoting Gates, 462 U.S. at 231. Yet the " 'reasonable,'" Will, 138 Ariz. at 49, 672 P.2d at 1319, quoting State v. Heberly, 120 Ariz. 541, 544, 587 P.2d 260, 263 (App. 1978), " responsible," State v. Superior Court, 149 Ariz. 269, 275, 718 P.2d 171, 177 (1986), " 'prudent,'" Spears, 184 Ariz. at 285, 908 P.2d at 1070, quoting Carter, 145 Ariz. at 110, 700 P.2d at 497, and " 'cautio[us],'" State v. Summerlin, 138 Ariz. 426, 431, 675 P.2d 686, 691 (1983), quoting United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970), person employed in the analysis is necessarily someone who is concerned not only with the potential inferences of criminal activity that might be drawn from certain facts, but also with the need to safeguard personal rights and minimize false-positives. See State v. Gunter, 100 Ariz. 356, 361, 414 P.2d 734, 738 (1966) (recognizing standard's role in balancing " the individual interest in immunity from police interference and the community's interest in law enforcement" ). Accordingly, our supreme court has emphasized that more intrusive investigative measures such as detentions or searches cannot be used to dispel police suspicions aroused by apparently lawful behavior. See State v. Richcreek, 187 Ariz. 501, 504, 930 P.2d 1304, 1307 (1997) (disapproving prior jurisprudence which had stated that police officers who confront " 'strange or unusual activities . . . should satisfy [themselves] as to the innocence of the activity by all reasonable, lawful means'" ), quoting State v. Jarzab, 123 Ariz. 308, 311, 599 P.2d 761, 764 (1979).

[¶12] Although the probable-cause standard might occasionally disturb the innocent, Gates, 462 U.S. at 243 n.13, it is not designed to do so as a matter of course, turning a blind eye to lawful activities and seeing instead only potential crimes. Our state has long recognized that the standard is not met when " slight reflection"

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would suggest to an ordinarily cautious and prudent person that those suspected of an offense " might have been peaceable and respectable people." Wiley v. State, 19 Ariz. 346, 354, 170 P. 869, 873 (1918); see, e.g., Ex parte Beaver, 23 Ariz. 24, 26, 201 P. 94, 95 (1921) (finding no probable cause for arrest when noncriminal explanations for facts were reasonable assumptions, and evidence failed to show any crime had been committed).

[¶13] When mistakes are made, " 'the mistakes must be those of reasonable [people], acting on facts leading sensibly to their conclusions of probability.'" State v. Pederson, 102 Ariz. 60, 66, 424 P.2d 810, 816 (1967), quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In other words, the circumstances should be " 'sufficiently strong in themselves to warrant a cautious [person] in believing the accused guilty.'" State v. Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987), quoting Monroe v. Pape, 221 F.Supp. 635, 642-43 (N.D. Ill. 1963) (emphasis added). For this reason, we must distinguish " [f]acts that would cause the officer to investigate the matter further . . . from facts that support a finding of probable cause." Buccini, 167 Ariz. at 559, 810 P.2d at 187 (Cameron, J., specially concurring).

2. Effect of AMMA

[¶14] In State v. Baggett, we declined to address whether the AMMA had altered the " 'plain smell' standard" establishing probable cause for a search based on the scent of marijuana. 232 Ariz. 424, ¶ 16, n.10, 306 P.3d 81, 84, 85 n.10 (App. 2013). Here, with the issue fully argued below and on appeal, we resolve the question with reference to fundamental and longstanding principles of the law of search and seizure.

[¶15] For many decades, Arizona law strictly criminalized all possession of marijuana. See 1987 Ariz. Sess. Laws, ch. 307, § 18; 1981 Ariz. Sess. Laws, ch. 264, § 8 (former A.R.S. § 13-3405). Our courts therefore repeatedly held that the scent of marijuana provided probable cause to believe a criminal offense had been committed. E.g., State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978); State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975); State v. Mahoney, 106 Ariz. 297, 301-02, 475 P.2d 479, 483-84 (1970); State v. Raymond, 21 Ariz.App. 116, 119, 516 P.2d 58, 61 (1973); State v. McGuire, 13 Ariz.App. 539, 541, 479 P.2d 187, 189 (1971). Given the substance's " distinctive odor," Raymond, 21 Ariz.App. at 119, 516 P.2d at 61, a person familiar with it would recognize it as such and thereby know that a crime involving marijuana had occurred. McGuire, 13 Ariz.App. at 540-41, 479 P.2d at 188-89. In this way, the scent of marijuana had the same evidentiary impact as an item of contraband falling under the plain-view or plain-feel doctrines: with " its incriminating character . . . immediately apparent" to a trained law enforcement officer, perception alone provided probable cause for a search, so long as the officer also was in a lawful position to perceive and access the item. Baggett, 232 Ariz. 424, ¶ 16, 306 P.3d at 85; see State v. Morrow, 128 Ariz. 309, 312, 625 P.2d 898, 901 (1981); State v. Ahumada, 225 Ariz. 544, ¶ 15, 241 P.3d 908 (App. 2010).

[¶16] With the 2010 passage of the AMMA, this rationale no longer applies. " Medical marijuana use pursuant to AMMA is lawful under Arizona law." Reed-Kaliher v. Hoggatt, 237 Ariz. 119, ¶ 17, 347 P.3d 136, 140 (2015). The possession of marijuana is not illegal per se, State ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 16, 346 P.3d 984, 987 (2014), and therefore its scent alone does not disclose whether a crime has occurred. Medical marijuana dispensaries may now grow an unspecified number of marijuana plants in an off-site facility. See § § 36-2804(B)(1)(b)(ii), 36-2806(E). A designated caregiver may cultivate up to twelve plants for each patient and may serve up to five patients, for a total of sixty plants. § 36-2801(1)(b)(ii), (5)(d). A qualifying patient likewise is authorized to possess 2.5 ounces of marijuana and might also be allowed to grow up to twelve marijuana plants. § § 36-2801(1)(a), 36-2804.02(A)(3)(f). Indeed, thousands of Arizonans have acquired the authorization to possess marijuana in one or more of these ways. See Arizona Department of Health Services, Arizona Medical Marijuana Act (AMMA) End of Year Report (2014) (noting 63,417 active cardholders, with nearly

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2,000 patients and designated caregivers authorized to cultivate).[3]

[¶17] Despite these developments, the state maintains the odor of marijuana still supplies probable cause to suspect that an offense has been committed under § 13-3405, both as a general matter of law and under the facts of ...

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