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State v. Sisco

Supreme Court of Arizona

July 11, 2016

STATE OF ARIZONA, Appellee,
v.
RONALD JAMES SISCO II, Appellant

         Appeal 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) .

          Appeal from the Superior Court in Pima County, AFFIRMED IN PART. Opinion of the Court of Appeals, Division Two, VACATED AND REMANDED.

         Mark 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.

         Steven R. Sonenberg, Pima County Public Defender, David J. Euchner (argued), Assistant Public Defender, Tucson, Attorneys for Ronald James Sisco II.

         Amy P. Knight (argued), Kuykendall & Associates, Tucson; and Kathleen E. Brody, Jana L. Sutton, Osborn Maledon, P.A., Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.

         CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and BOLICK joined.

          OPINION

         BALES, CHIEF JUSTICE

         [¶1] 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.

         I.

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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).

         [¶6] 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, ...


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