Arizona Criminal Defense Attorney Blog

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Why Two Appeals Court Rulings Contrasted: Justices Review Effects of AMMA on Marijuana Odor on Probable Cause.

In late July, two different Appeals Courts in Arizona released contrasting opinions involving appeals to dismiss the Marijuana evidence due to lack of probable cause for the search.

In both cases the defendants argued that the effects of Arizona Medical Marijuana Act (AMMA) were that the smell of Marijuana should not be used for determination of Probable cause.

In one case the conviction was reversed.  In the other case the conviction was affirmed.  Here we find out why they differed.

Arizona Appeals Court Ruling – Case #1 (No. 2 CA-CR 2014-0181)

On July 20, 2015, the Arizona Court of Appeals Division Two issued the first ruling.

The Court considered the effect that the Arizona Medical Marijuana Act (AMMA) had on probable cause to for issuance of search warrant, based on an odor of Marijuana.

In this case, the Appeals Court ruled that the scent of marijuana alone was insufficient evidence of criminal activity.

Therefore, it was not adequate to justify probable cause for search and seizure warrant.

The Appeals Court held that in order to satisfy the probable cause standard, the scent of the Marijuana would need to be combined with other evidence or facts, which were not presented in this case.

Case #1 Overview 

The incident arose from a search warrant requested by police officers after they reported smelling a strong odor of marijuana from a multi-unit warehouse.

The judge issued the warrant, finding that the odor served as probable cause for search.

Prior to Arizona Medical Marijuana Act (AMMA) which passed in 2010, the courts recognized that the smell of marijuana indicated the probability of criminal activity, because Marijuana in any form was unlawful.

When the police arrived at the warehouse and entered, they found it empty.

So they requested a second warrant, to enter another building nearby based on the odor of Marijuana traced to that building.

The magistrate granted another warrant to search the second building.

In the second warehouse, they found dozens of marijuana plants and growing equipment.

They discovered that that young child and defendant both resided there.

The defendant was charged with child abuse, possession of marijuana for sale, production of marijuana, and possession of drug paraphernalia.

The defendant filed a motion to suppress the evidence on the grounds that the marijuana scent was not enough to establish probable cause of criminal activity.

The trial court denied the motion, finding that the AMMA didn’t affect probable cause determinations.

The defendant was convicted of the charge, and sentenced to concurrent prison terms, the longest of which imposed a 3.5 year term.

The defendant appealed his convictions arguing that the AMMA should change the probable cause analysis with respect to the smell of marijuana.

One effect of the AMMA was that Marijuana may be lawful in other places now, for example, where it’s cultivated.

As a result, it is in both possession as well as other places where Marijuana is considered lawful.

And other circumstances now exists besides “mere possession itself”  where criminal conduct v. non-criminal activity must be determined.

Based on this rationale, the Court ruled that multiple circumstances should be considered along with the marijuana odor factor, in order to determine if police have sufficient probable cause for search.

In its decision, the appellate court explained that probable cause exists when a reasonably prudent person, based on the facts known to the police officer, would be justified in concluding that the items sought are related to criminal activity and will be found in a particular location.

The Court held that the odor of Marijuana does not necessarily mean that criminal activity has happened or will happen.

Lawful operations that take place under the AMMA such as medical marijuana dispensaries will cause the buildings in which they occur to smell.

Accordingly, the court found that the smell of marijuana is now insufficient by itself to provide probable cause for a search warrant for a building.

There must be some circumstantial evidence of criminal activity beyond the mere smell of marijuana in order to find probable cause.

The court expressly limited the holding since it was the odor of Marijuana from a building that raised suspicion that a crime was in process, and not actions of a suspect.

The Appeals Court did not address the issue of whether the smell itself constituted reasonable suspicion to conduct an investigative stop or detention.

The Justices noted that despite the protections under the AMMA, smoking Marijuana in or in an automobile can still suggest a crime has occurred as prohibited; as well as smoking Marijuana in public prohibited under A.R.S. 36-2802.

Therefore the smell of marijuana smoke in public places or from a vehicle may still give rise to probable cause and reasonable suspicion for investigation, depending on a reasonable assessment of the circumstances.

Arizona Appeals Court Ruling – Case #2 (No. 1 CA-CR 14-0072)

The second case  opinion filed July 23, 2015, heard in Arizona Court of Appeals Division One, was an appeal for misdemeanor possession or use of marijuana.

During the proceeding in Maricopa County Superior Court, the defendant’s motion to dismiss a warrantless search of his vehicle was denied, resulting in the conviction.

 Case #2 Overview 

The Appeals Court found no error in denying the suppression of the evidence and affirmed the conviction.

This incident arose after police on routine patrol noticed a vehicle had window tinting darkness in violation of Arizona window tinting laws.

When they approached the vehicle they smelled a strong odor of Marijuana coming from inside of the vehicle.

The officer asked the defendant to step out of the vehicle. The defendant complied  without incident.

The police officer then searched the vehicle, and noticed an empty prescription medication bottle in the center console.  He opened it and smelled a strong odor of burnt marijuana.

Under the driver’s seat the officer then found what was described as a “marble size’ amount of unburnt marijuana.

Police arrested the suspect.  Following the arrest, the suspect’s Miranda Rights were read.

At that point the suspect admitted that the pill bottle that contained the burnt marijuana belonged to him.

During the lower court proceedings the defendant argued that automobile exception to the search based on “plain smell of marijuana” doctrine no longer authorizes police to search vehicles, due to the enactment of Arizona Medical Marijuana Act (AMMA) A.R. S. 36-2801.

The Superior Court denied this argument citing the Plain Smell doctrine.

“Plain smell” standard adopted in State of Arizona v. Harrison, which holds that the AMMA does not eliminate the “Plain Smell” Doctrine.

The Court also rejected the argument by the defendant that under protections of the AMMA Police must presume that any odor of marijuana they smell is lawful, and no longer an incriminating characteristic to establish probable cause of a crime.

The Appeals Court recognized that under the AMMA laws of Arizona A.R.S 36- 2811 a registered and qualifying patient is not subject to arrest, prosecution, or penalties for use as long as are using in accordance with the provisions of the AMMA law.

The Justices also noted the impacts that the Medical Marijuana Law does not have:

  • The AMMA does not immunize suspects from being subject to searches under the Plain Smell Doctrine.
  • The AMMA does not disqualify the plain smell of marijuana to be used as sufficient evidence to establish probable cause for search in Arizona.
  • The AMMA does decriminalize marijuana in the State.
  • The AMMA does not reduce the significance of Marijuana as an indicator of criminal activity.

The Appeals court held that the defendant did not show how the AMMA would extend immunities to him in this case.

The Court reviewed the “Plain Smell” Doctrine adopted by Arizona, that includes a three prong test. The doctrine makes the warrantless searches legal under the doctrine when the following criteria is met:

  • The officer is lawfully in a position to smell the evidence;
  • Incriminating character of the evidence is immediately apparent; and
  • The officer had lawful right of access to the evidence Arizona Baggett, 2013.

The Justices noted that there was no challenge to the fact that the officer was lawfully in a position to smell the marijuana, possessed lawful access at that time,  or that the marijuana odor constituted sufficient probable cause that a crime was in progress or had been committed.

This information verifying that the three three-prong-test standards were met during lower court proceedings.

Thus, the Appeals court ruled that the Superior Court did not error, in denying the motion to suppress.

Therefore the decision of the lower court to deny the motion to suppress, and the convictions were affirmed.

Analysis and Discussion: Comparison of Two Contrasting Verdicts; and Marijuana Odor as Probable Cause

The two Appeals Courts did, in fact, have conflicting opinions in one primary challenge in both cases.

That was whether or not the AMMA effects or dismisses marijuana Smell to be used as a determinate for probable cause.

(1) In the first case, the Appeals Court ruled that the AMMA did impact the plain smell doctrine and whether or not it could be used to determine probable cause.

The first Appeals Court ruled in its case, that under the AMMA where Medical Marijuana is legal, there is potential to smell Marijuana in a number of places such where it is lawful such as where it is being cultivated, stored, or sold. This was not the case before AMMA enactment.

In the first case the source of smell was a warehouse, which narrowed the ruling to the context of the inside of a building.

Use of Marijuana in a vehicle, or in public is prohibited under AMMA and Arizona Law.  Use of a Marijuana in a vehicle is still suggestive of criminal activity such as impaired driving.

These factors were paramount because to the Appeals Court decision to vacate the convictions.

(2) In the second case the Appeals Court rejected the idea that the AMMA impacted the “Plain Smell Doctrine” when determining probable cause for search; and that the Arizona Medical Marijuana Act does not immunize suspects from being subject to “Plain Smell” of Marijuana being sufficient for probable cause to search.  It only provides protections from arrest prosecution and any penalties.

Further, the source of the Marijuana smell was a vehicle, reinforcing their decision affirm the convictions since use in a vehicle is prohibited under AMMA;  Arizona Statute; and is still suggestive of criminal activity.

Marijuana smoke on a public road to still constitute reasonable suspicion or probable cause in the context of a vehicle search.  There are still some points that may need clarification.

The fundamental circumstances in the two cases are different, meaning it is unlikely that any changes in police policy related to Marijuana odor evidence at this point.

If in the first case, the odor of the marijuana had originated from an automobile, or while the suspect was in public, then a conflict in verdicts would have existed in Arizona case law.

It seems only a matter of time before these or other cases involving Probable Cause for Search based on Plain Smell of Marijuana cases end up in the Arizona Supreme Court.

Arizona and all other states progressing in Marijuana passage in some form, can expect repetitive ad continuing disputes that impact them at a state-wide level.

The state will continue to progress in setting forth laws or precedent guidelines that address the impacts the AMMA will have on reasonable suspicion or probable cause determinations in the future.

Considering the fact that the Federal laws still prohibit Marijuana under the Federal Controlled Substances Act, it is unlikely that they would agree to hear State Court disputes involving Marijuana.

So for now and unless the cases are heard in the Arizona Supreme Court, the Appeals Court decisions will be looked to as precedent cases.   And each case will need to be reviewed on a case by case basis.

Criminal Defense for Marijuana Crimes in Mesa AZ  

Marijuana and other Drug crimes in Arizona are very serious.  Even if a person is a qualified Medical Marijuana user, they may also be exposed to criminal charges if they are accused of violating the AMMA laws.

If you face Marijuana or any of drug charges it is crucial that you consult a criminal defense attorney to discuss your defense options and retain them for your charges. There may be defenses that can be used to challenge the charges.

In the cases above challenges were raised in the following areas:

1) Constitutional – Fourth Amendment Rights Violations for unlawful search and seizure;

2) Evidentiary –  Motions to dismiss evidence based on no probable cause for search; and

3) Statutory Challenges – Effect of AMMA on “Plain Smell” of Marijuana Doctrine to determine probable cause.

To protect your rights, and avoid self-incrimination, you should not make any statements to police regarding the charges until you speak with an experienced criminal defense attorney.

James E. Novak, Drug Crimes Defense Attorney, is a former prosecutor, experience trial lawyer, and dedicated drug defense attorney.  If retained he will provide you with a strong defense for your charges.

James Novak, of The Law Office of James provides a free consultation for active criminal charges and serves Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale Arizona.  Call today for a confidential and free consultation at (480) 413-1499.

Additional Resources

A.R.S. § 36-2801 (Arizona Medical Marijuana Act)

Arizona 13-3925

Requirements and Exceptions to Lawful Search Warrants in Arizona

Other Articles of Interest

Violations of “Search and Seizure” Laws: How they Impact Prosecution, July 23, 2013

U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested, June 9, 2013

Yes, You Have Constitutional Rights At An Arizona Checkpoint, July 5, 2014 Continue reading

Your Guide to Understanding Consequences of DUI with Accidents; and Unforeseen Parental Liability Actions

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In a tragic turn of events, Phoenix police reported that a 14-year-old boy, driving a mid-size sedan, allegedly under the influence, sped through a red light signal and crashed into an SUV.

The SUV was carrying three people, a man, his girlfriend and his girlfriend’s three-year-old daughter.

The toddler was thrown from the SUV and sustained life threatening injuries.  The man suffered head and lung injuries.

The man’s girlfriend, a passenger in the SUV is listed in stable condition but still in the hospital late last week.

The 14-year-old driver of the sedan that ran the red light signal, and his 17- year-old passenger whom the police report were under the influence of alcohol both suffered minor injuries.

It is unclear who owned the sedan driven by the 14-year-old was driving.

The driver was later taken to the Juvenile Court Center.  The 17-year-old passenger was released to his family.

The 14-year-old has reportedly since been charged as an adult, and faces 4 counts of aggravated assault with a deadly weapon.

According to Maricopa County Prosecutor and Court records, the decision to prosecute the youth as an adult was based on the severity of the accident and victim’s injuries.

A secured release bond was ordered by the judge for $100,000.00, and the next court date set.

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Police officers are not exempt from search warrant requirements, in order to perform community caretaking duties.

Unlawful Home Search Under the Fourth Amendment of the U.S. Constitution and the Arizona Constitution, you have a right to be free from unreasonable searches and seizures.
This means that in most cases, a warrant is required to search your home, with few exceptions.

The exceptions include situations where “exigent circumstances” exist.

This allows police to make a warrantless entry when they have probable cause to arrest a suspect who has fled, or to stop the imminent destruction of evidence.

Another exception is that the police may make a protective sweep incident to a lawful arrest.

Still another exception is an entry due to an objectively reasonable basis for believing someone within the house needs immediate aid.

Recently, the Arizona Supreme Court limited warrantless searches in connection with the “Community Caretaking Exception,” which is the topic of this discussion.

The Incident

In this case, police officers and paramedics went to the defendant’s residence after receiving calls from neighbors, complaining that the defendant was behaving erratically.

When police and paramedics arrived, the defendant told them that he and his family had been handling up to seven pounds of mercury inside the home, which was being kept in the home in a glass jar.

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Overview of new law: Qualified first responders and training; Liability & Immunities; Good Samaritan Laws; Criminal Penalties & Defense

Overview of AZ HB 2489: Combatting Heroin Overdoses
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A bill we have been following closely, AZ HB 2489 was passed on April 10, 2015. The expected  effective date is July 3, 2015. Arizona now joins 26 other US states that have passed similar legislation.

First responder’s administration of opiate reversal injections, have been credited with saving over 10,000 lives in the USA where overdoses were reversed.

According to the National Centers for Disease Control (CDC), accidental overdose is now the number one cause of death in the USA, exceeding even automobile accidents for people among the age of 25 and 64.

Earlier this year, the CDC reported that heroin overdose deaths nearly quadrupled between 2000 and 2013.  An increasing number of Arizona residents have been overdosing on heroin and opiate-based painkillers like Codeine.  Arizona is now the sixth-highest state for heroin overdose fatalities.

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Case analysis; Impacts of Ruling on Arizona; Your 4th Amendment Rights at a Stop: Arizona Criminal Defense

Police cannot prolong stop’s duration beyond its initial purpose, without reasonable suspicion.

The United States Supreme Court recently decided an important case  that tilted in favor of 4th Amendment protections against unlawful detention, search and seizures.

Police dog

The case arose when a K-9 police officer pulled over the defendant for moving traffic violation.  The driver was in driving on a highway shoulder, in violation of state law.  The officer took the driver’s and passenger’s driver’s licenses, registration and proof of insurance.

The officer returned to his patrol car and began a records check of the driver.  The officer then returned to the suspect’s vehicle, and began questioning both the driver and passenger about where they were coming from and their destination.

After conversing with the driver and passenger the officer returned to his patrol car, and finished the records check.    Following the completion of the records check, the officer called for backup.

While waiting for back-up, the officer began writing a warning ticket to issue to the driver for the traffic violation.  For the third time, the officer returned to the suspect’s vehicle where he issued the warning ticket to the driver.

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Your Rights at a Stop; 10 Defenses for Drug Charges; Mitigating Sentencing; Drug Trafficking Laws; Penalties.

Police Stop Arizona

This is Part 2 of our Case Study on a recent Arizona Court of Appeals ruling involving Marijuana Trafficking charges.

If you’re just joining us, here’s a quick summary of the case: Recently, an Arizona Superior Court granted suppression of the Marijuana evidence that led to the State’s dismissal of the charges. The State promptly appealed arguing that the lower court erred in dismissing the Marijuana evidence found in the vehicle the suspect was driving.   The state argued on Appeal that the detention of the suspect for 40 minutes while awaiting the drug K-9 unit was not unreasonable.

The Appeals Court agreed, and overturned the lower court’s ruling, based on totality of the circumstances at the time.   The factors that the Appellate Court considered were the police officers extensive knowledge and experience in drug trafficking detection; prior drug crimes history of the suspect; voluntary statements made by the suspect at the time of the stop; and the suspect’s consent to search the vehicle he was driving.

In this discussion we focus on criminal rights at a stop, common defenses for drug crimes, laws, and drug trafficking penalties in Arizona.

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Suspect’s 40 minute detention, while awaiting drug K-9 unit was not unreasonable.

Arizona Drug K-9 UnitIn a case decided earlier this month, an Arizona Appeals Court ruled that an officer had enough “reasonable suspicion” to detain a suspect 40 minutes while awaiting the drug K-9 unit.

The court considered the “Totality of Circumstances” or “the whole picture”, to conclude that the detention was not unreasonable.

Case Facts

The suspect was pulled over, after the police officer observed the driver swerving and traveling at varied rates of speed.

The officer approached the vehicle, and requested the driver’s license, and registration.  The driver complied as well as providing the rental car agreement.

The officer asked the driver where he was going, at which point the driver provided several answers. The officer reported that the answers were inconsistent, “confusing” and “perplexing”.   The officer reported that the responses raised the officer’s suspicions.

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Overview of the Ruling; Strategies for Defense and Prevention of Repeat DUI Arrests

mountain-road-1424189-m-1 Approximately 37 million people visit Arizona each year, and 16 million of those visit the Phoenix Metro   area.   Whether they are here to vacation, attend school or sporting events, or to see the attractions our State has to offer, many will be driving.

Unfortunately, some will be arrested for impaired driving.  Suddenly, what was supposed to be a fun and enjoyable trip turns into a nightmare.

One of the most common questions a person asks after being arrested for a repeat offense, if they are visiting or a new resident to Arizona is “How will my prior DUI received in another state, impact my current DUI charges?”      

Recently, an Arizona Appeals court addressed prior DUI charges involving out-of-state DUI convictions.  The Appellate court considered whether a prior out-of-state DUI conviction would be used to reclassify charges to a felony for a third DUI conviction.

In this case  the defendant had been charged with two counts of aggravated DUI, two counts of aggravated driving with a BAC of .08 or more and aggravated assault on a peace officer.

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video-camera-1412649-mA Tragic Video Confession

You might remember the viral video of an Arizona man, 22 year old Matthew Cordle, who caused a fatal drunk driving accident. He provided a confession in a four-minute online video that went viral with 2.3 million views last September.

Cordle began his chilling confession with “My name is Matthew Cordle and on June 22, 2013, I hit and killed Vincent Canzani. This video will act as my confession.”

Vincent Canzani 61, was the father of two daughters, and a former USA Naval Submarine Veteran. He was pronounced dead at the scene of the accident.

Immediately following the crash, Cordle was taken to the hospital for his injuries. But at that time he denied being intoxicated, driving impaired, or causing the fatal accident.

Cordle confessed in the video, that he was driving the wrong way on an interstate, and crashed into Vincent Canzani vehicle.

In the video was the blurred face of man, Cordle, admitting to barhopping, blacking out and driving home drunk. Cordle explained that he had been drinking heavily before getting behind the wheel, and blacked out just before losing control of his vehicle.

Cordle had not yet been charged at the time the video was made, but was expecting the charges to be brought based on the DUI blood test results.

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Maricopa County Arizona DUI Task Force Van


“The best way to deal with a DUI checkpoint is to be prepared for it. Lack of preparation or knowledge of your rights can lead to a false arrest, and violations of your rights.”

A Case of False Arrest at a DUI Checkpoint

One spring evening, 61 year old, Michael Wilhelm found himself in a DUI Checkpoint Line-up operated by Cape Coral Police. He was not driving impaired or under the influence of any alcohol or drugs. He asked to take a breath or blood test because instead of Field Sobriety Roadside tests (FSTs), because he was recovering from opened heart surgery. But the officers instead administered the field sobriety tests. Michael Wilhelm was arrested following the FST roadside test even before a breath test was taken. Police finally decided to do a breath test, while Wilhelm was still placed under arrest. Then while the police were preparing for the breath tests, Wilhelm began complaining of severe chest pains. He was taken to the hospital. There he requested the blood test to prove that he was not under the influence of drugs or alcohol. The hospital complied with his request. The DUI blood tests were all negative. The criminal charges were finally dismissed. He filed suit against the city and police and spent the next two years of his life in civil litigation. The case was finally settled for a meager $18,750.00 in Wilhelm’s favor. This was one of two DUI checkpoint cases for false arrests that ran concurrently against the city at that time over false arrests that took place at DUI Checkpoints.

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