from the Superior Court in Pima County. The Honorable Howard
J. Fell, Judge Pro Tempore. No. CR20131500-001. Opinion of
the Court of Appeals, Division Two. 238 Ariz. 229, 359 P.3d 1
(App. 2015) .
from the Superior Court in Pima County, AFFIRMED IN PART.
Opinion of the Court of Appeals, Division Two, VACATED AND
Brnovich, Arizona Attorney General, John R. Lopez IV,
Solicitor General, Joseph T. Maziarz, Section Chief Counsel,
Criminal Appeals Section, Jonathan Bass (argued), Assistant
Attorney General, Tucson, Attorneys for State of Arizona.
R. Sonenberg, Pima County Public Defender, David J. Euchner
(argued), Assistant Public Defender, Tucson, Attorneys for
Ronald James Sisco II.
Knight (argued), Kuykendall & Associates, Tucson; and
Kathleen E. Brody, Jana L. Sutton, Osborn Maledon, P.A.,
Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and
Here we consider whether the odor of marijuana suffices to
establish probable cause for issuance of a search warrant,
given the adoption of the Arizona Medical Marijuana Act
(" AMMA" ), A.R.S. § § 36-2801 through
2819. We hold that it does, unless other facts would cause a
reasonable person to believe the marijuana use or possession
is authorized by AMMA, thereby dispelling the probable cause
that otherwise would exist.
In March 2013, Tucson police officers responded to a tip that
" a strong odor of fresh marijuana" was emanating
from a storage warehouse at 18 West 35th Street. This address
is for Unit 18 in a complex of four similar buildings. When
the officers approached the complex in their patrol car, they
could smell an " overpowering odor of fresh
marijuana." After they walked on the sidewalk around the
complex's perimeter, the officers believed the odor was
emanating from Unit 18.
Based on the odor of marijuana, the officers sought a
telephonic warrant to search Unit 18. The magistrate issued
the warrant, but when the officers searched this unit, they
found it vacant. The police then applied for an amended
warrant to search Unit 20, which was separated from Unit 18
by a wall and locked gate. The officers avowed that after
entering Unit 18 they could better identify the source of the
odor. The magistrate issued an amended warrant. When the
officers entered Unit 20, they found it was being used as a
residence and a marijuana growing operation. In the ensuing
search, officers seized marijuana growing equipment,
marijuana paraphernalia, and hundreds of marijuana plants.
As a result of the search, Ronald James Sisco II was
identified as an occupant of Unit 20. He was charged with
child abuse, possession of drug paraphernalia, possession of
marijuana for sale, and production of marijuana. Sisco moved
to suppress evidence found in the search, arguing among other
things that the odor of marijuana no longer suffices to
establish probable cause in light of AMMA. After an
evidentiary hearing the trial court denied the motion,
finding that AMMA does not impact the probable cause
determination. Sisco was convicted of all charges and the
court imposed concurrent prison terms, the longest of which
was three and one-half years.
The court of appeals, in a split decision, reversed the trial
court's ruling on Sisco's suppression motion and
vacated his convictions and sentences. State v.
Sisco, 238 Ariz. 229, 246 ¶ 57, 359 P.3d 1, 18
(App. 2015). The majority held that after AMMA, the scent of
marijuana, in itself, is insufficient evidence of criminal
activity to supply probable cause, and there were no "
additional, commonly evident facts or contextual information
suggesting a marijuana-related offense." Id. at
232 ¶ 2, 359 P.3d at 4. The dissent argued that the odor
of marijuana still suffices to establish probable cause after
AMMA and, even if it does not, the facts suggested the
possession here was not in compliance with AMMA and thus
supported the warrant. Id. at 249 ¶ 68, 359
P.3d at 21 (Espinosa, J., dissenting).
We granted review because whether AMMA affects the
determination of probable cause based on the odor of
marijuana is a recurring issue of statewide importance. We
have jurisdiction pursuant to Article 6, ...