Marijuana Odor Probable Cause for Search Warrant in Arizona

Arizona Supreme Court Adopts “Odor-Unless” Standard: What it means for Arizona and AMMA qualified users

The Arizona Supreme Court recently considered a case involving the question of whether or not the smell of marijuana was enough to establish probable cause to issue a search warrant.

The Court  needed to evaluate this issue in light of the Arizona Medical Marijuana Act (AMMA).

The AZ Supreme Court ruled that Marijuana odor can establish probable cause, unless there are other facts that would cause a reasonable person to believe that the suspect’s activities were compliant under the AMMA.

Before this case the standard for probable cause involving marijuana odor recognized by an Arizona Appeals Court was something the Arizona Supreme Court described as “odor plus”.

By odor plus, it meant that the odor of Marijuana did not necessarily denote criminal activity, and that it was insufficient by itself to provide probable cause for a search warrant.

Other circumstances needed to exist beyond the mere smell of marijuana to find probable cause.

But with the case we will be outlining here, the Arizona Supreme Court has reversed the Appeals Court’s Decision.

The Arizona Supreme Court adopted what they referred to as the “odor unless” standard.

By this, the Court means that Marijuana odor itself justifies probable cause unless there is indication that the suspect’s activities are compliant with AMMA guidelines.

We will take a closer look at the case and its impacts on Arizona by featuring the following topics:

  • Overview of Arizona Supreme Court Case;
  • Impact of Ruling on Arizona;
  • Questions & Answers;
  • Criminal Defense Topics related to Marijuana Charges


The case arose when police officers responded to a tip about the smell of marijuana coming from a warehouse.

When officers walked up to the complex, they could smell marijuana.

They believed the smell was coming from Unit 18.

Police obtained a telephonic warrant to search the unit, but found it was vacant.

Then, they applied to amend the warrant to search Unit 20, which was next door to Unit 18.

An an amended warrant was issued.  Upon entry, the officers discovered that unit 20 was being used to conduct marijuana growing operations.

The officers seized plants, growing equipment, and paraphernalia. The defendant was identified as the occupant of the unit.

Officers charged the suspect with possession, production of marijuana, and child abuse.

At trial, the defendant filed a motion to suppress the evidence, arguing that the smell of marijuana by itself cannot establish probable cause due to the AMMA.

The trial court denied the motion, ruling that AMMA didn’t affect an analysis of probable cause.

The defendant was convicted and sentenced to concurrent prison terms with the longest of the terms 3.9 years.

The defendant appealed the conviction.  An Arizona Appeals Court reversed the ruling and vacated the convictions and sentences.

It ruled that after AMMA, the odor of marijuana was insufficient evidence of criminal activity to support probable cause.

The dissent in that case argued that the smell should still be used to establish probable cause.  But even if it weren’t, the possession here was not within the scope of the AMMA. Thus the warrant was justified.

The State appealed to the Arizona Supreme Court.  The Court explained probable cause exists if facts known to a police officer warrant the belief in someone of reasonable caution, that contraband or evidence of a crime is present.

The court added that the facts did not have to show that more likely than not, criminal evidence will be found.

Instead, what is required is a fair probability based on the totality of the circumstances, including those arrived at as a result of the officer’s sense of smell.

Citing State v. Decker 1978, the Court held that officers are allowed to use all their senses in making a probable cause determination.

Thus, before AMMA, the odor of marijuana alone was enough to establish probable cause.

The Court explained that probable cause doesn’t hinge on the innocence or guilt of a particular act, but on the degree of suspicion attached to specific types of non-criminal acts, citing Gates v. U.S. 2013.

The court clarified that Probable cause requires only a showing that criminal conduct is probable, rather than a showing that actual criminal conduct took place.

That is why innocent behavior often provides a basis to establish probable cause.

The Court reasoned that despite the AMMA, the smell of marijuana in most cases warrants a reasonable person believing there’s a fair probability of criminal activity.

Thus, the court held that an officer would be justified in concluding that probable cause exists if they detect the odor of Marijuana.

The court noted that the State of Arizona didn’t decriminalize use or possession in general, outside the scope of the AMMA.

The AMMA made medical marijuana legal only in limited situations, rather than in general.

Those who are registered are subject to compliance of the AMMA’s strict provisions, and limitations to assure protections against prosecution.

Therefore, in spite of the AMMA the degree of suspicion attached to sight or smell of marijuana remains high.

The Court noted, however, that a reasonable officer should not ignore signs of AMMA-compliant use or possession, which consequently, serves to eradicate probable cause.

Police are required to include any material and exculpatory facts that would excuse the activities by those who are AMMA compliant, that would otherwise constitute probable cause in their affidavits to support search warrants.

This includes evidence supplied by suspects which indicates that they are qualified card holders.

It would also include operations taking place in buildings used as medical marijuana dispensaries under the AMMA guidelines.

The Court concluded that simply because the AMMA legalizes medical marijuana under specified circumstances, it does not dismiss probable cause, produced by the odor.

The Court noted that there was no indication that the police officers disregarded indications of the suspects being AMMA compliant.

The Arizona Supreme Court denied the defendant’s motion to suppress the evidence.

Impact of Ruling on Arizona

This ruling presents some challenges for those using or possessing marijuana in their homes or elsewhere in compliance with AMMA.

The Court held that the AMMA does not provide a broad immunity from searches where probable cause exists.

Further, the court emphasized that the AMMA does not offer more protection or expectation of privacy that that of the general public.

The Arizona Supreme Court ruling sets precedent which allows police to obtain search warrants, based on odor of Marijuana.

However, police cannot disregard indication that the suspect’s Marijuana related activities were AMMA compliant.

The Court ruled that in light of the AMMA, patients, healthcare professionals, and dispensaries, are still not immune from probable cause which police are obligated to investigate further.

However, probable cause resulting from the Marijuana odor can be dismissed by showing indication of their AMMA qualified compliance.

Q. & A. 

Q. Do qualified AMMA patients have greater protections from being searched for marijuana related crimes, than the general public?

A.  No. The Arizona Supreme Court made it clear in Arizona v. Sisco II, 2016, qualified users are not afforded greater protections related to probable cause for search warrants, than the general public. The court held that the AMMA affords limited protections and immunities for those who qualify for AMMA.  Further, those registered under AMMA may still be subject to search for probable cause based on other grounds that exceed the scope of AMMA provisions.       


Q.  Can police obtain a search warrant if they smell marijuana outside a building or vehicle in Arizona with no other evidence that suggests criminal activity?

A.  Yes. In State of Arizona v. Sisco II, 2016, The Arizona Supreme Court adopted the marijuana “odor unless” standard.

Q. What is the marijuana “odor unless” standard?

A. The marijuana “odor unless” standard that refers to probable cause in the context of AMMA. It means that the odor of marijuana is sufficient to establish probable cause, unless the suspect is able to provide indication their activities are within compliance of the AMMA.

Q. If the police obtain a warrant to search after smelling marijuana, do the police need to stop their investigation, if the suspect shows their medical marijuana card?

A. Not necessarily. Rather, it means that police can’t disregard the fact that a suspect is a qualified medical marijuana user under AMMA.  In that event, police are required to document this for the incident record, and consider this factor in their investigation.

Q.  If AMMA provides immunity from arrest and prosecution, why would police continue to investigate after valid proof of AMMA qualification is shown?

A.  The AMMA provides limited immunity to the extent they are complying with its strict provisions and limitations. If based on totality of the circumstances, police had probable cause to believe a person was in violation of the AMMA guidelines, they may lawfully continue their investigation.


Q.  To obtain a warrant for probable cause do police have to show that the suspect was actually engaging in criminal activity?

A.   No. Probable cause simply requires a “probability” or “substantial chance” that criminal activity is taking place or has occurred.

Q.  Does mere possession of a qualified AMMA card constitute probable cause to search?

A.   No. Mere possession of registered AMMA card by a qualified patient does not constitute probable cause to obtain a search warrant as provided by A.R.S. 36- 2811.

Criminal Defense for Marijuana Charges in Phoenix – East Valley, AZ

Since Marijuana is still unlawful for use in Arizona outside the scope of the AMMA, users are at risk for arrest and prosecution.

The criminal penalties for violating AMMA guidelines are the same as they would be for non-qualified users.

Marijuana charges in Arizona are classified as felonies.  All felony charges in Arizona expose a person to prison sentencing if convicted.

Even a charges of non-dangerous possession of a small amount for personal use is a Class 6 felony which calls for a minimum of 6 months to 1.5 maximum prison terms

Your future and freedom are in jeopardy if you face any kind of Marijuana charges.  For this reason it is important to retain an experienced drug crimes attorney to defend your charges and protect your rights.

If you are charged with a marijuana possession, consult James E. Novak, a drug crime attorney in Tempe, Arizona.

James Novak is a former prosecutor and an experienced trial lawyer. If retained,  James Novak, will provide you with a strong defense for your charges.

Depending on the circumstances, there may be defenses that will apply to your case that can lead to a favorable outcome.

Favorable outcomes include, but are not limited to qualifying for a diversion program to avoid incarceration; lowering the classification of charges; charges dismissed or acquitted.

James Novak, offers a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

Call (480) 413-1499 or contact James Novak, of the Law Office of James Novak today to discuss your matter and options for defending your charges.

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