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State v. Cheatham

Court of Appeals of Arizona, First Division

July 23, 2015

STATE OF ARIZONA, Appellee,
v.
IAN HARVEY CHEATHAM, Appellant

Appeal from the Superior Court in Maricopa County. No. CR2013-424212-001. The Honorable Jeanne M. Garcia, Judge.

Arizona Attorney General's Office, Phoenix, By Myles A. Braccio, Counsel for Appellee.

Maricopa County Public Defender's Office, Phoenix, By Carlos Daniel Carrion, Counsel for Appellant.

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Michael J. Brown joined.

OPINION

Page 383

THUMMA, Judge:

[¶1] Ian Harvey Cheatham appeals his conviction for misdemeanor possession or use of marijuana and resulting probation grant. Cheatham argues the superior court abused its discretion by denying his motion to suppress evidence obtained from a warrantless search of his car. Finding no error, Cheatham's conviction and probation grant are affirmed.

FACTS[1] AND PROCEDURAL HISTORY

[¶2] One evening in late May 2013, two police officers were on patrol when they pulled over a car with a dark windshield that appeared to violate Arizona law. One officer approached the driver's window and made contact with Cheatham, the driver. As the officer spoke with Cheatham, he noticed a strong odor of burnt marijuana from inside the vehicle. Cheatham complied with the officer's request to step out of the car and the officer searched the car.

[¶3] During the search, the officer saw an empty prescription bottle in the center console. The officer opened the bottle and smelled unburnt marijuana. The officer also saw an empty cigar package on the driver's seat. As he testified at the suppression hearing, the significance of the empty cigar package was that people " take the tobacco out of the cigars and fill them with marijuana, and then they refer to those as blunts out in the street. They're marijuana cigarettes." The officer then searched under the driver's seat, where he found a small amount (described as the " size of a marble" ) of whet he identified as unburnt marijuana. The officer seized the marijuana and arrested Cheatham. After being read his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,

Page 384

16 L.Ed.2d 694 (1966), Cheatham admitted the prescription bottle containing the odor of unburnt marijuana was his.

[¶4] Before trial, Cheatham filed a motion to suppress, arguing the automobile exception to the search warrant requirement no longer authorizes searches based on the plain smell of marijuana after the enactment of the Arizona Medical Marijuana Act (AMMA), Arizona Revised Statutes (A.R.S.) § § 36-2801 to -2819 (2015).[2] The superior court denied the motion, finding probable cause existed based on the " plain smell" doctrine as adopted in State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975). Although noting it " may well be an issue of first impression," the superior court rejected Cheatham's contention that, under the AMMA, " the police now have to presume that any marijuana that they're smelling or seeing out there is lawful and that it needs to then be shown otherwise."

[¶5] After a bench trial, Cheatham was found guilty of possession or use of marijuana, a Class 1 misdemeanor, and placed on supervised probation for one year. From Cheatham's timely appeal of his conviction and probation grant, this court has jurisdiction pursuant to the Arizona Constitution, Article 6, ...


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