State of Arizona v. Ronald James Sisco II

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
RONALD JAMES SISCO II,
Appellant.
No. 2 CA-CR 2014-0181
Filed July 20, 2015
Appeal from the Superior Court in Pima County
No. CR20131500001
The Honorable Howard Fell, Judge Pro Tempore
REVERSED AND REMANDED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Interim Pima County Public Defender
By David J. Euchner and Walter I. Gonçalves, Jr., Assistant Public
Defenders, Tucson
Counsel for Appellant
STATE v. SISCO
Opinion of the Court
OPINION
Chief Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Miller concurred and Judge Espinosa dissented.
E C K E R S T R O M, Chief Judge:
¶1 Following a bench trial, appellant Ronald Sisco II was
convicted of child abuse, possession of drug paraphernalia,
possession of marijuana for sale, and production of marijuana. The
trial court imposed concurrent prison terms, the longest of which are
3.5 years. On appeal, Sisco challenges the denial of his motion to
suppress and the sufficiency of the evidence supporting his
conviction for child abuse.
¶2 We address here the effect of the Arizona Medical
Marijuana Act (AMMA), A.R.S. §§ 36-2801 through 36-2819, on
determinations of probable cause. That Act renders possession,
cultivation, and use of marijuana lawful under some circumstances.
Accordingly, those circumstances—not the mere possession itself—
now determine whether such activity is criminal or permitted under
state law. For this reason, and for the reasons stated below, we hold
that the scent of marijuana, standing alone, is insufficient evidence
of criminal activity to supply probable cause for a search warrant.
We emphasize this holding is a limited one. Probable cause can
arise when the scent of marijuana is coupled with additional,
commonly evident facts or contextual information suggesting a
marijuana-related offense. However, no such information was
presented here. We therefore reverse the denial of Sisco’s
suppression motion and remand the case to the trial court. Our
disposition makes it unnecessary to address the evidence supporting
his conviction of child abuse.
Factual and Procedural Background
¶3 When a search warrant is challenged based on a lack of
probable cause, we consider only the evidence presented to the
magistrate at the time the search warrant was issued. See State v.
2
STATE v. SISCO
Opinion of the Court
Jung, 19 Ariz. App. 257, 258-59, 506 P.2d 648, 649-50 (1973); see also
State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App. 2002). The
initial search warrant affidavit stated that three police officers had
smelled, from a street and sidewalk, an “overpowering” or “strong
odor of fresh marijuana” coming from one particular warehouse in a
four-unit complex: Unit 18. Based on this information, the
magistrate concluded there was probable cause of unlawful
possession of marijuana and issued a warrant. When the officers
entered the building, they found it was vacant and contained no
marijuana.
¶4 The same police officer who had applied for the first
search warrant then applied for a second warrant for a nearby
building, Unit 20, which was separated by a wall and locked gate.
He avowed that after he and other officers had entered the property
of Unit 18 they had been able to “narrow . . . down” the source of the
odor and exclude other potential sources. The magistrate issued an
amended warrant for Unit 20, again based only on information
about the scent. Inside that warehouse, officers discovered growing
equipment and dozens of marijuana plants. In a separate portion of
the building that served as a residence, they also found several items
indicating that a young child lived there.
¶5 Personal property found in Unit 20 established that
Sisco was one of its occupants, and he subsequently was charged
with several criminal offenses noted above. He filed a suppression
motion challenging the search warrant on numerous grounds,
among them that the scent of marijuana failed to establish probable
cause of criminal activity. After an evidentiary hearing, the trial
court denied the motion, finding the AMMA had no impact on the
probable-cause determination in this case. This appeal followed
Sisco’s convictions and sentences.
Discussion
¶6 As he did below, Sisco challenges the suppression
ruling because it was based on case law that has been abrogated by
the AMMA. The state maintains the trial court did not abuse its
discretion because the odor of marijuana is still sufficient to support
a finding of probable cause under all circumstances.
3
STATE v. SISCO
Opinion of the Court
¶7 Absent exceptions not applicable here, a search warrant
supported by probable cause is required by the Fourth Amendment
of the United States Constitution and article II, § 8 of the Arizona
Constitution. See State v. Hyde, 186 Ariz. 252, 268, 921 P.2d 655, 671
(1996); State v. Adamson, 136 Ariz. 250, 257, 665 P.2d 972, 979 (1983).
Once issued, a search warrant is presumed to be valid, and a
defendant challenging it for lack of probable cause carries the
burden of going forward below. Hyde, 186 Ariz. at 268, 270, 921 P.2d
at 671, 673. A magistrate’s finding of probable cause will be upheld
when there is a substantial basis for it. Id. at 272, 921 P.2d at 675;
State v. Ballinger, 19 Ariz. App. 32, 34-35, 504 P.2d 955, 957-58 (1973);
State v. McMann, 3 Ariz. App. 111, 112-13, 412 P.2d 286, 287-88
(1966). We will not disturb a trial court’s ruling on a motion to
suppress unless the court clearly has abused its discretion. State v.
Stanley, 167 Ariz. 519, 525, 809 P.2d 944, 950 (1991). However, an
error of law made in the process of making a discretionary
determination constitutes an abuse of discretion. State v. Simon, 229
Ariz. 60, ¶ 7, 270 P.3d 887, 889 (App. 2012); State v. Noceo, 223 Ariz.
222, ¶ 3, 221 P.3d 1036, 1038 (App. 2009). And, whether officers
presented information legally sufficient to establish probable cause
is a question of law that we review de novo. See State v. Blackmore,
186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996); Frimmel v. Sanders, 236
Ariz. 232, ¶ 25, 338 P.3d 972, 978 (App. 2014).
A. Constitutional Analysis
1. Probable Cause
¶8 “Probable cause to conduct a search exists when ‘a
reasonably prudent person, based upon the facts known by the
officer, would be justified in concluding that the items sought are
connected with criminal activity and that they would be found at the
place to be searched.’” State v. Spears, 184 Ariz. 277, 285, 908 P.2d
1062, 1070 (1996), quoting State v. Carter, 145 Ariz. 101, 110, 700 P.2d
488, 497 (1985); accord State v. Prince, 160 Ariz. 268, 272, 772 P.2d
1121, 1125 (1989). This is the test by which we determine whether a
“fair probability” of criminal activity exists under the Fourth
Amendment standard articulated in Illinois v. Gates, 462 U.S. 213, 238
(1983). State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991).
Although probable cause is a fluid, nontechnical concept, id. at 186,
4
STATE v. SISCO
Opinion of the Court
810 P.2d at 558; State v. Emery, 131 Ariz. 493, 505-06, 642 P.2d 838,
850-51 (1982), it is not without limits. Our case law establishes
boundaries between circumstances that support a justified belief in
criminal activity, on the one hand, and those that provide mere
suspicion or reasonable grounds for further investigation, on the
other. See State v. Dupuy, 116 Ariz. 151, 155, 568 P.2d 1049, 1053
(1977); see also Buccini, 167 Ariz. at 557, 810 P.2d at 185.
¶9 When assessing probable cause, comparison to the
reasonable-suspicion standard is instructive. Reasonable suspicion
for traffic stops cannot rest solely on “circumstances or factors that
do not reliably distinguish between suspect and innocent behaviors
. . . because they may cast too wide a net and subject all travelers to
‘virtually random seizures.’” State v. Sweeney, 224 Ariz. 107, ¶ 22,
227 P.3d 868, 874 (App. 2010), quoting Reid v. Georgia, 448 U.S. 438,
441 (1980) (per curiam). The facts must be “specific, distinct, or
‘particular’ to the suspect” so as to “reduce the risk of sweeping in a
substantial number of innocent travelers.” State v. Evans, 237 Ariz.
231, ¶¶ 10, 17, 349 P.3d 205, 208, 209 (2015). A description of
“entirely ordinary” activity does not give rise to a reasonable,
particularized suspicion. Id. ¶ 12. Probable cause is a higher
standard than reasonable suspicion. Florida v. J.L., 529 U.S. 266, 272
(2000); State v. O’Meara, 198 Ariz. 294, ¶ 10, 9 P.3d 325, 327 (2000). It
therefore follows that when a description of circumstances “fits any
number of other individuals not engaged in criminal activity,” it
fails to establish probable cause. State v. Swanson, 172 Ariz. 579, 586,
838 P.2d 1340, 1347 (App. 1992).
¶10 Our supreme court has recognized this principle. In
Drury v. Burr, the court announced that “[w]here there is more than
one inference equally reasonable[,] then probable cause does not
exist, but where one inference is more reasonable than another and
is on the side of guilt, then probable cause may be said to exist.” 107
Ariz. 124, 125, 483 P.2d 539, 540 (1971). 1 Similarly, in Maricopa
1Although Drury involved a preliminary hearing testing
whether there was probable cause for an arrest, “[g]enerally
probable cause to arrest and probable cause to search are
synonymous.” State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138, 1144
5
STATE v. SISCO
Opinion of the Court
County Juvenile Action No. J-84984, the court held that “probable
cause requires a reasonably prudent person to find more probably
than not the existence of the contested fact.” 138 Ariz. 282, 284, 674
P.2d 836, 838 (1983). On several other occasions, our high court has
indicated that probable cause is lacking unless the facts suggest that
criminal activity is “more probable than not.” State v. Will, 138 Ariz.
46, 49, 672 P.2d 1316, 1319 (1983); State v. Million, 120 Ariz. 10, 15, 583
P.2d 897, 902 (1978); State v. Sardo, 112 Ariz. 509, 515, 543 P.2d 1138,
1144 (1975).2
¶11 The common law developed the concept of probable
cause “‘[l]ong before the law of probabilities was articulated as
such.’” State v. Espinosa-Gamez, 139 Ariz. 415, 417, 678 P.2d 1379,
1381 (1984), quoting Gates, 462 U.S. at 231. Yet the “‘reasonable,’”
Will, 138 Ariz. at 49, 672 P.2d at 1319, quoting State v. Heberly, 120
Ariz. 541, 544, 587 P.2d 260, 263 (App. 1978), “responsible,” State v.
Superior Court, 149 Ariz. 269, 275, 718 P.2d 171, 177 (1986),
“‘prudent,’” Spears, 184 Ariz. at 285, 908 P.2d at 1070, quoting Carter,
145 Ariz. at 110, 700 P.2d at 497, and “‘cautio[us],’” State v.
Summerlin, 138 Ariz. 426, 431, 675 P.2d 686, 691 (1983), quoting United
States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970), person employed
in the analysis is necessarily someone who is concerned not only
with the potential inferences of criminal activity that might be
drawn from certain facts, but also with the need to safeguard
personal rights and minimize false-positives. See State v. Gunter, 100
Ariz. 356, 361, 414 P.2d 734, 738 (1966) (recognizing standard’s role
(1975), citing State v. Raymond, 21 Ariz. App. 116, 119, 516 P.2d 58, 61
(1973).
2We recognize that this is not the exclusive formulation for the
definition of probable cause. See State v. Wolfe, 137 Ariz. 133, 134,
669 P.2d 111, 112 (App. 1983) (noting multiplicity of formulations);
see also Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (emphasizing
probable cause cannot be reduced to precise formulation such as
preponderance of evidence); Ornelas v. United States, 517 U.S. 690,
695 (1996) (“Articulating precisely what ‘reasonable suspicion’ and
‘probable cause’ mean is not possible.”). But all such formulations
attempt to distinguish lawful and unlawful activity.
6
STATE v. SISCO
Opinion of the Court
in balancing “the individual interest in immunity from police
interference and the community’s interest in law enforcement”).
Accordingly, our supreme court has emphasized that more intrusive
investigative measures such as detentions or searches cannot be
used to dispel police suspicions aroused by apparently lawful
behavior. See State v. Richcreek, 187 Ariz. 501, 504, 930 P.2d 1304,
1307 (1997) (disapproving prior jurisprudence which had stated that
police officers who confront “‘strange or unusual activities . . .
should satisfy [themselves] as to the innocence of the activity by all
reasonable, lawful means’”), quoting State v. Jarzab, 123 Ariz. 308,
311, 599 P.2d 761, 764 (1979).
¶12 Although the probable-cause standard might
occasionally disturb the innocent, Gates, 462 U.S. at 243 n.13, it is not
designed to do so as a matter of course, turning a blind eye to lawful
activities and seeing instead only potential crimes. Our state has
long recognized that the standard is not met when “slight reflection”
would suggest to an ordinarily cautious and prudent person that
those suspected of an offense “might have been peaceable and
respectable people.” Wiley v. State, 19 Ariz. 346, 354, 170 P. 869, 873
(1918); see, e.g., Ex parte Beaver, 23 Ariz. 24, 26, 201 P. 94, 95 (1921)
(finding no probable cause for arrest when noncriminal explanations
for facts were reasonable assumptions, and evidence failed to show
any crime had been committed).
¶13 When mistakes are made, “‘the mistakes must be those
of reasonable [people], acting on facts leading sensibly to their
conclusions of probability.’” State v. Pederson, 102 Ariz. 60, 66, 424
P.2d 810, 816 (1967), quoting Brinegar v. United States, 338 U.S. 160,
176 (1949). In other words, the circumstances should be
“‘sufficiently strong in themselves to warrant a cautious [person] in
believing the accused guilty.’” State v. Dixon, 153 Ariz. 151, 153, 735
P.2d 761, 763 (1987), quoting Monroe v. Pape, 221 F. Supp. 635, 642-43
(N.D. Ill. 1963) (emphasis added). For this reason, we must
distinguish “[f]acts that would cause the officer to investigate the
matter further . . . from facts that support a finding of probable
cause.” Buccini, 167 Ariz. at 559, 810 P.2d at 187 (Cameron, J.,
specially concurring).
7
STATE v. SISCO
Opinion of the Court
2. Effect of AMMA
¶14 In State v. Baggett, we declined to address whether the
AMMA had altered the “‘plain smell’ standard” establishing
probable cause for a search based on the scent of marijuana. 232
Ariz. 424, ¶ 16, n.10, 306 P.3d 81, 84, 85 n.10 (App. 2013). Here, with
the issue fully argued below and on appeal, we resolve the question
with reference to fundamental and longstanding principles of the
law of search and seizure.
¶15 For many decades, Arizona law strictly criminalized all
possession of marijuana. See 1987 Ariz. Sess. Laws, ch. 307, § 18;
1981 Ariz. Sess. Laws, ch. 264, § 8 (former A.R.S. § 13-3405). Our
courts therefore repeatedly held that the scent of marijuana
provided probable cause to believe a criminal offense had been
committed. E.g., State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335
(1978); State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144
(1975); State v. Mahoney, 106 Ariz. 297, 301-02, 475 P.2d 479, 483-84
(1970); State v. Raymond, 21 Ariz. App. 116, 119, 516 P.2d 58, 61
(1973); State v. McGuire, 13 Ariz. App. 539, 541, 479 P.2d 187, 189
(1971). Given the substance’s “distinctive odor,” Raymond, 21 Ariz.
App. at 119, 516 P.2d at 61, a person familiar with it would recognize
it as such and thereby know that a crime involving marijuana had
occurred. McGuire, 13 Ariz. App. at 540-41, 479 P.2d at 188-89. In
this way, the scent of marijuana had the same evidentiary impact as
an item of contraband falling under the plain-view or plain-feel
doctrines: with “its incriminating character . . . immediately
apparent” to a trained law enforcement officer, perception alone
provided probable cause for a search, so long as the officer also was
in a lawful position to perceive and access the item. Baggett, 232
Ariz. 424, ¶ 16, 306 P.3d at 85; see State v. Morrow, 128 Ariz. 309, 312,
625 P.2d 898, 901 (1981); State v. Ahumada, 225 Ariz. 544, ¶ 15, 241
P.3d 908 (App. 2010).
¶16 With the 2010 passage of the AMMA, this rationale no
longer applies. “Medical marijuana use pursuant to AMMA is
lawful under Arizona law.” Reed-Kaliher v. Hoggatt, 237 Ariz. 119,
¶ 17, 347 P.3d 136, 140 (2015). The possession of marijuana is not
illegal per se, State ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 16,
322 P.3d 160, 162 (2014), and therefore its scent alone does not
8
STATE v. SISCO
Opinion of the Court
disclose whether a crime has occurred. Medical marijuana
dispensaries may now grow an unspecified number of marijuana
plants in an off-site facility. See §§ 36-2804(B)(1)(b)(ii), 36-2806(E). A
designated caregiver may cultivate up to twelve plants for each
patient and may serve up to five patients, for a total of sixty plants.
§ 36-2801(1)(b)(ii), (5)(d). A qualifying patient likewise is authorized
to possess 2.5 ounces of marijuana and might also be allowed to
grow up to twelve marijuana plants. §§ 36-2801(1)(a), 36-
2804.02(A)(3)(f). Indeed, thousands of Arizonans have acquired the
authorization to possess marijuana in one or more of these ways. See
Arizona Department of Health Services, Arizona Medical Marijuana
Act (AMMA) End of Year Report (2014) (noting 63,417 active
cardholders, with nearly 2,000 patients and designated caregivers
authorized to cultivate).3
¶17 Despite these developments, the state maintains the
odor of marijuana still supplies probable cause to suspect that an
offense has been committed under § 13-3405, both as a general
matter of law and under the facts of this particular case. 4 We
disagree on both points.
3The department is required to furnish this annual report to
the legislature pursuant to § 36-2809.
4Possession of marijuana remains unlawful under federal law.
21 U.S.C. §§ 812 sched. I(c)(10), 844(a). Herein, we address only the
effect of the AMMA on investigations of crimes under Arizona law
by state officials. Cf. Commonwealth v. Craan, 13 N.E.3d 569, 577
(Mass. 2014) (declining to allow state actors to circumvent voter
initiative by claiming enforcement of federal law). We also
emphasize that this case does not present the question of whether
the scent of marijuana provides reasonable suspicion to suspect a
criminal offense and perform an investigatory detention under Terry
v. Ohio, 392 U.S. 1 (1968), and we do not purport to decide that issue
here. We do observe, however, that the AMMA does not authorize
the use of marijuana in public, § 36-2802(C)(2), and therefore its
smoke emanating from a public area would still provide probable
cause for arrest and reasonable suspicion for an investigatory
detention.
9
STATE v. SISCO
Opinion of the Court
a. General Effect
¶18 When a law enforcement officer is aware of certain
items in a place to be searched but is unsure about their legal status,
“the critical question is whether such items [are] connected with . . .
criminal activity.” Buccini, 167 Ariz. at 556, 810 P.2d at 184. Unless
the items are “‘inherently criminal,’” the absence of any additional
facts suggesting a criminal connection renders the discovery of those
items insufficient to support a finding of probable cause. Id. at 557,
810 P.2d at 185.
¶19 The purpose of the AMMA is to “make a distinction
between the medical and nonmedical uses of marijuana.” Initiative
Measure, Prop. 203, § 2(G) (2010). In passing the Act, Arizona voters
intended to grant marijuana a status comparable to that of
prescription drugs: legal when possessed for medical purposes, in
accordance with therapeutic directives and the law, and otherwise
prohibited. As our supreme court has recently observed, “voters
established as public policy that qualified patients cannot be
penalized or denied any privilege as a consequence of their AMMA-
compliant marijuana possession or use.” State ex rel. Polk v. Hancock,
237 Ariz. 125, ¶ 9, 347 P.3d 142, 146 (2015).
¶20 Under our current statutory regime, the odor of
marijuana does indicate the presence of a substance that might be
possessed illegally. However, a reasonable, prudent, and cautious
person could not, in the absence of further information, form a well-
founded belief that a criminal offense was committed. Just as the
possession of a prescription drug does not provide probable cause to
suspect a drug offense under A.R.S. § 13-3406(A)(1), the mere scent
of marijuana does not provide probable cause to suspect a crime
under § 13-3405. A contrary conclusion would erase the distinction
between lawful and unlawful marijuana at the heart of the AMMA,
and it would authorize dragnet police practices that would capture
“any number of . . . individuals not engaged in criminal activity.”
Swanson, 172 Ariz. at 586, 838 P.2d at 1347.5
5 The AMMA anticipates that cardholders will carry their
identification cards with them in order to enjoy a presumption of
10
STATE v. SISCO
Opinion of the Court
¶21 The state nevertheless insists that scent alone suggests
criminal activity because the odds remain “overwhelming” that
marijuana is possessed illegally. But the state presented no evidence
either to the magistrate or the trial court supporting this intuition in
the era of the AMMA. In the absence of such data, and given that
hundreds of Arizonans and scores of dispensaries now have
permission to lawfully cultivate or store marijuana, the magistrate
had no basis to assume that most warehouses currently containing
marijuana in Arizona do so illegally. The state supports its intuition
about the likelihood of marijuana being possessed illegally by
dividing the number of AMMA cardholders by the entire
population of Arizona. But not all residents of Arizona are users of
marijuana. The correct comparison would be between the number
of people who use marijuana illegally and the number of people
who use marijuana pursuant to the AMMA. The state provided no
information below that would shed light on that more relevant
proportion.
¶22 Assuming arguendo that the state could compile data
demonstrating that marijuana still is most often possessed illegally,
this would not necessarily resolve the probable-cause question we
face here. Although Gates requires a “fair probability that
contraband or evidence of a crime will be found in a particular
place,” this standard simply “reaffirm[s] the totality-of-the-
circumstances analysis that traditionally has informed probable
cause determinations.” 462 U.S. at 238. Among those circumstances
legal use, see § 36-2811(A)(1), that law enforcement officers will use a
web-based verification system to confirm cardholders’ status once
that card is presented, see §§ 36-2801(16), 36-2807(A), (B), and that
dialogue between officers and members of the public will often
involve the AMMA. See § 36-2816(E) (providing civil penalty for
false statements about medical marijuana “to avoid arrest or
prosecution”). As we previously indicated, however, this case does
not present the question of whether the scent of marijuana provides
reasonable suspicion to suspect a criminal offense and perform an
investigatory stop.
11
STATE v. SISCO
Opinion of the Court
that must be considered in Arizona are: (1) that marijuana is not
necessarily contraband, and (2) those who possess it consistent with
the AMMA are granted broad statutory protections against the loss
of “any right or privilege” for permissible activity. § 36-2811(B).6 As
Gates emphasized, the relevant inquiry in a probable-cause analysis
is “the degree of suspicion that attaches” to a particular type of
activity. 462 U.S. at 243 n.13.
¶23 In Arizona, the degree of suspicion that now attaches to
the possession of a potentially legal plant, much like the possession
of a potentially legal pill, is comparatively modest in the absence of
any information about the status of the person or entity possessing
it. That conclusion is not altered by the fact that marijuana has
hitherto been illegal under all circumstances and that law
enforcement officers may therefore have understandably developed
practices in accord with that now-outdated assumption. As our own
supreme court made clear in Richcreek, law enforcement officers are
not entitled to search everyone they deem suspicious in order to
confirm the lawfulness of that person’s conduct. 187 Ariz. at 504,
930 P.2d at 1307. Rather, officers must be able to make some
particularized showing that distinguishes a mere possibility that a
person may have committed a crime from a “fair probability” that
the search will provide evidence of criminal activity. Gates, 462 U.S.
at 238.
¶24 “‘[T]he ultimate touchstone of the Fourth Amendment
is “reasonableness.”’” Kentucky v. King, 131 S. Ct. 1849, 1856 (2011),
quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
Reasonableness depends on balancing the public interest, or the
legitimate needs of law enforcement, and the individual’s right to
privacy and freedom from official interference. See United States v.
Knights, 534 U.S. 112, 118-19 (2001); Jarzab, 123 Ariz. at 311, 599 P.2d
at 764.
6Inour discussion in Section B, infra, we separately analyze
the AMMA’s specific provisions that preclude a finding of probable
cause based on factors that fail to distinguish lawful from unlawful
marijuana-related conduct.
12
STATE v. SISCO
Opinion of the Court
¶25 Demanding some circumstantial evidence of criminal
activity beyond the mere scent of marijuana strikes that reasonable
balance. It preserves all individuals’ rights to privacy under
article II, § 8 of our state constitution; it protects the rights of those
who choose to use medical marijuana in accord with the AMMA, as
specifically required by the provisions of that statutory scheme; it
protects the medical privacy, generally, of AMMA cardholders; and
it also preserves the privacy rights of those whose property might be
located nearby or occasionally host those who use medical
marijuana, see § 36-2811(D)(2).
¶26 At the same time, requiring such additional evidence of
criminality does little to impair the important competing interest of
law enforcement in interdicting criminal activity. Our state officers
are trained to identify and skillfully investigate circumstances that
would readily support a reasonable belief that marijuana is not
likely to be lawfully possessed. See Gates, 462 U.S. at 243 n.13; State
v. Hutton, 110 Ariz. 339, 341, 519 P.2d 38, 40 (1974). For instance,
even with the AMMA’s passage, the odor of burnt marijuana in
public or in an automobile still suggests a crime has occurred. See
§ 36-2802(C)(2), (D). And police can easily develop facts about
places where marijuana is being grown or stored that suggest the
activity there is criminal, whether from their own observations,
consensual encounters, or information supplied by informants. E.g.,
State v. Castilleja, 192 P.3d 1283, 1292 (Or. 2008). In short, an odor-
plus standard for probable cause is a manageable way to distinguish
probable criminal behavior from noncriminal activity, and making
this distinction is necessary to uphold the integrity of our
constitutional and statutory rights.
¶27 By contrast, were probable cause established by odor
alone, then law enforcement officers could invade properties
haphazardly, without collecting—and even disregarding—facts
bearing on whether possession of the marijuana in question is
permitted. See, e.g., People v. Fisher, 117 Cal. Rptr. 2d 838, 839, 841
(Ct. App. 2002) (holding search warrant authorized search of
residence, even though officers had seen permissible amount of
marijuana and resident produced medical marijuana certificate
before search was executed). Indeed, the record before us confirms
13
STATE v. SISCO
Opinion of the Court
at least one instance where police entered a building only to find the
activity there was lawful under the AMMA. “[I]t has happened,” as
an officer admitted. A sergeant with the Tucson Police Department
further acknowledged that, although it is incumbent on officers to
collect some additional facts bearing on whether marijuana-related
activity is allowed by the AMMA, the department’s “protocol” is to
make those determinations “post facto,” after obtaining and
executing a search warrant.
¶28 Were we to adopt the state’s suggestion that scent alone
furnishes probable cause of a crime, medical marijuana patients
would become second-class citizens, losing their rights to privacy
and security, including privacy within their own homes. 7 Any
patient with a detectable amount of marijuana would be subject to a
search. We therefore hold that the odor of marijuana, whether burnt
or unburnt, is insufficient by itself to establish probable cause of a
crime under Arizona law or a substantial basis for a search warrant
sought for a violation of such.
¶29 This holding accords with well-reasoned jurisprudence
from several other jurisdictions. See, e.g., State v. Crocker, 97 P.3d 93,
96 (Alaska Ct. App. 2004) (“[T]he search warrant application can not
rely solely on the fact that someone is in possession of marijuana . . .
[but] must provide an affirmative reason to conclude that the
possession is illegal . . . .”); Commonwealth v. Canning, 28 N.E.3d 1156,
1165 (Mass. 2015) (“[A] search warrant affidavit setting out facts that
simply establish probable cause to believe the owner is growing
marijuana on the property in question, without more, is insufficient
to establish probable cause to believe that the suspected cultivation
is a crime.”); Castilleja, 192 P.3d at 1291 (“[I]ssue . . . is not whether
there was probable cause to believe that any marijuana would be
7Although the record here was unclear whether police were
aware of the dual use of the warehouse as a residence, its residential
character does not affect our analysis of probable cause. We do not
address whether the residential portion of the building was entitled
to greater privacy protection under article II, § 8 of our state
constitution. See State v. Bolt, 142 Ariz. 260, 263-65, 689 P.2d 519, 522-
24 (1984).
14
STATE v. SISCO
Opinion of the Court
found in defendant’s house but, rather, whether . . . an unlawful
amount of marijuana . . . would be found there.”).
¶30 In the context of warrant practice, a substantial basis for
a warrant is lacking when “the magistrate’s procedures in
determining whether there was probable cause d[o] not adequately
safeguard the defendant’s constitutional rights.” Hyde, 186 Ariz. at
269, 921 P.2d at 672. When a magistrate makes no effort to
discriminate between lawful and unlawful marijuana possession, as
occurred here, an individual’s constitutional rights to privacy are
not adequately safeguarded. See Canning, 28 N.E.3d at 1166 n.16
(affirming suppression when “the affidavit reads as though the
[medical marijuana] act did not exist”). Accordingly, although Sisco
himself does not fall within the AMMA, the exclusionary rule
nonetheless operates in his favor to preserve the constitutional rights
of all law-abiding people. “Evidence obtained by police officers in
violation of the Fourth Amendment is excluded at trial in the hope
that the frequency of future violations will decrease.” Stone v.
Powell, 428 U.S. 465, 492 (1976).
b. Case-Specific Facts
¶31 The state and our dissenting colleague further contend
that the probable-cause determination here did not rest exclusively
on the scent of marijuana. The state points out that the search
warrant affidavit described a large marijuana-growing operation in
a commercial or industrial warehouse, and the illegality of the
activity therefore could have been inferred from these contextual
facts. The affidavit, however, posited marijuana growing in a
warehouse that is indistinguishable from the type of “enclosed,
locked facility” that could serve as a cultivation site for a medical
marijuana dispensary. § 36-2806(E). Thus, the contextual
information here, like the information about marijuana odors, did
not make it more probable than not that a state crime had occurred,
see Maricopa Cnty. No. J-84984, 138 Ariz. at 284, 674 P.2d at 838, nor
15
STATE v. SISCO
Opinion of the Court
did it shed any light on whether the possession of the substance was
illegal.8
¶32 Although neither party discusses this point specifically
in their briefs, dispensary cultivation sites are discreet locations due
to the heightened risk of robbery they face. The AMMA authorizes
the department of health services to enact rules governing marijuana
dispensaries. § 36-2803(A)(4). By law, those rules must “protect[]
against diversion and theft without imposing an undue burden” on
the dispensaries and must specify “[m]inimum security
requirements” for dispensaries in order to protect each location.
§ 36-2803(A)(4)(d). According to the rules, each dispensary and
cultivation site is required to install an alarm system, video
surveillance and recording system, and panic button. Ariz. Admin.
Code R9-17-318(G)(1). Access to a dispensary cultivation site is
limited to the dispensary’s principal officers, board members, and
authorized dispensary agents. Ariz. Admin. Code R9-17-318(A).
Dispensaries are required to adopt policies and procedures to
prevent unauthorized access to their cultivation sites. Ariz. Admin.
Code R9-17-318(G)(2)(a). And when a dispensary agent transports
marijuana, he or she must “[u]se a vehicle without any medical
marijuana identification.” Ariz. Admin. Code R9-17-318(D)(2).
Cultivation sites, therefore, are not necessarily places that announce
their presence as such.
¶33 The AMMA does not require dispensaries to post
visible notices or otherwise alert law enforcement officers to their
presence in order to receive the protections afforded by the Act. To
the contrary, the AMMA preserves the confidentiality of dispensary
locations and related cultivation sites. §§ 36-2804(B)(1)(b)(ii), 36-
2810(A)(2). Section 36-2811(E), in turn, forbids searches of
dispensaries and cultivation sites except by the department of health
8 Although the dissent emphasizes that the issue of
dispensaries was not raised on appeal, the law concerning
dispensaries was in fact utilized to justify the trial court’s ruling
below. And this court must address the issue of dispensaries in
order to correctly resolve the arguments the state presents on
appeal.
16
STATE v. SISCO
Opinion of the Court
services. It therefore follows that a police officer’s discovery of an
enclosed, locked facility in which marijuana is growing—which is all
the record establishes here—cannot provide probable cause for a
search, as this describes any lawful dispensary cultivation site that is
protected from searches by the express terms of the AMMA.
¶34 Notwithstanding these confidentiality provisions, law
enforcement officers may easily note factors that suggest a
cultivation site or stash house is illegal and does not fall within the
AMMA. For example, a site might be accessed by unauthorized
individuals, see Ariz. Admin. Code R9-17-318(A), it might have
deficient exterior lighting, see Ariz. Admin. Code R9-17-318(G)(1)(b),
or it may be located too close to a school, § 36-2804(B)(1)(b)(ii), or in
an area prohibited by local zoning. See § 36-2806.01. Although the
dissent suggests in hindsight that such circumstances may have
existed had the officers conducted further investigation, 9 no such
9 The dissent observes that there was only one working
dispensary in Tucson, suggesting that there may have been fewer
AMMA-authorized storage facilities or growing operations in the
area. The dissent also emphasizes that the warehouse here may not
have had the external lighting and equipment required of an
AMMA storage or growing facility. These are indeed factors a
magistrate could consider, coupled with the aroma of raw
marijuana, in evaluating whether officers had probable cause to
search a premises. But, such information was not presented in
support of the warrant request here and therefore is not relevant to
our consideration of the probable-cause question before us. See State
v. Greenleaf, 11 Ariz. App. 273, 274, 464 P.2d 344, 345 (1970). That the
dissent can so quickly conjure such factors underscores how readily
officers can augment their probable-cause showing beyond mere
observations about aroma, and thereby honor the privacy interests
of those engaged in lawful behavior. While the search warrant
affidavit indicated there were residences nearby the warehouse, this
in no way suggests the warehouse was located outside a commercial
or industrial district, as the dissent presumes, any more than it
suggests the residences themselves were improperly located in an
area zoned for nonresidential uses.
17
STATE v. SISCO
Opinion of the Court
factors suggesting any criminal operation were contemporaneously
presented to the magistrate in the search warrant affidavit. See State
v. Greenleaf, 11 Ariz. App. 273, 274, 464 P.2d 344, 345 (1970); see also
Beck v. Ohio, 379 U.S. 89, 96 (1964) (search warrants are based on
“objective predetermination of probable cause” instead of “far less
reliable procedure o[f] an after-the-event justification for the . . .
search, too likely to be subtly influenced by the familiar
shortcomings of hindsight judgment”).
¶35 The state emphasizes that the scent in this case was
described as a “strong odor of fresh marijuana” in the affidavit,
which might indicate the presence of an unlawful amount. But the
AMMA authorizes marijuana dispensaries to cultivate large
amounts of marijuana in off-site facilities. Moreover, the record here
underscores the fallibility of such sensory impressions. Police
officers initially were mistaken about the location of the marijuana
based on its odor, and they consequently deployed a SWAT team to
the wrong building. Nothing in the record suggests that the officers
had any more expertise in estimating the amount of marijuana than
its location. Thus, to the extent that the nature and strength of the
aroma of unburnt marijuana could provide additional circumstantial
evidence of unlawful possession beyond the mere presence of the
recognizable scent, the state presented no such evidence on the
record before us.
¶36 As one appellate court has observed, “[a]lthough the
odor of unburnt, rather than burnt, marijuana could be more
consistent with the presence of larger quantities, it does not follow
that such an odor reliably predicts the presence of a criminal amount
of the substance, . . . as would be necessary to constitute probable
cause.” Commonwealth v. Overmyer, 11 N.E.3d 1054, 1058 (Mass.
2014) (citations omitted). Probable cause is determined by an
objective standard that should allow a judicial officer to gauge the
reliability of the information reported and the inferences drawn
from it. See id. at 1059; see also Beck, 379 U.S. at 96 (“[S]afeguards
[are] provided by an objective predetermination of probable cause
. . . .”); Emery, 131 Ariz. at 506, 642 P.2d at 851 (requiring that
“information [be] sufficient to substantiate an independent finding
of probable cause”). Accordingly, absent evidence of some
18
STATE v. SISCO
Opinion of the Court
specialized and effective training that would allow an officer
“reliably to discern, by odor, not only the presence and identity of a
controlled substance, but also its weight” or amount, subjective
characterizations of the strength of an odor do not furnish probable
cause. Overmyer, 11 N.E.3d at 1059. And assuming arguendo that a
stronger aroma of raw marijuana could reliably indicate a larger
amount, the AMMA authorizes both the storage depots and
growing operations that could lawfully contain comparatively large
amounts of marijuana.
¶37 The dissent notes that the vast majority of AMMA
cardholders now live within twenty-five miles of a medical
marijuana dispensary, and the dissent concludes from this fact that
the probability of an individual operating a lawful urban marijuana
cultivation site is “almost nonexistent.” Yet this conclusion is
speculative and rests on a faulty implicit premise. It is true that a
qualifying patient or designated caregiver becomes authorized to
cultivate marijuana based on the proximity of the qualifying
patient’s home to a medical marijuana dispensary. See § 36-
2804.02(A)(3)(f). However, the AMMA places no geographic
restrictions on where an individual with authorization may cultivate
marijuana. Cultivation could occur in a nonresidential area and
within twenty-five miles of a dispensary site. As long as the
cultivation occurs in an “enclosed, locked facility,” § 36-
2801(1)(a)(ii), (b)(ii), it is potentially lawful under the AMMA.
B. Statutory Analysis
¶38 A statutory analysis of the AMMA further supports our
conclusion that the mere scent of marijuana does not supply
probable cause or a substantial basis for a search. We are not
persuaded by the state’s arguments to the contrary, and we reject the
trial court’s construction of these laws.
1. AMMA Provisions
¶39 We interpret voter-enacted laws such as the AMMA de
novo and strive to give effect to the voters’ intent. Ariz. Citizens
Clean Elec. Comm’n v. Brain, 234 Ariz. 322, ¶ 11, 322 P.3d 139, 141-42
(2014). We look first to the language of the AMMA as the best
19
STATE v. SISCO
Opinion of the Court
indicator of that intent. Dobson v. McClennen, 236 Ariz. 203, ¶ 10, 337
P.3d 568, 572 (2014). If its terms are clear and susceptible to only one
reasonable interpretation, we must apply the law as written without
resorting to other methods of construction. Id.; State v. Fields, 232
Ariz. 265, ¶ 12, 304 P.3d 1088, 1092 (App. 2013). If the law is
ambiguous, “[w]e consider secondary principles of statutory
interpretation, such as ‘the context of the statute, the language used,
the subject matter, its historical background, its effects and
consequences, and its spirit and purpose.’” Brain, 234 Ariz. 322,
¶ 11, 322 P.3d at 142, quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284,
806 P.2d 870, 873 (1991).
¶40 The plain language of the immunity provisions within
the AMMA resolves the question of whether the odor of marijuana
gives probable cause to suspect someone of a crime. Section 36-
2811(B)(1) provides that “[a] registered qualifying patient or
registered designated caregiver is not subject to arrest, prosecution or
penalty in any manner, or denial of any right or privilege” for the use
and possession of an allowable amount of marijuana under the
AMMA. (Emphasis added.) The Act also states more broadly in
§ 36-2811(D)(2) that “[n]o person may be subject to arrest,
prosecution or penalty in any manner, or denied any right or privilege
. . . for . . . [b]eing in the presence or vicinity of the medical use of
marijuana authorized under this chapter.” (Emphasis added.)
¶41 The right to not be disturbed in one’s private affairs
under article II, § 8 is a substantial constitutional right that would be
denied to AMMA patients, as well as numerous other citizens
sharing homes with them, if simply being in the presence or vicinity
of medical marijuana odors gave police probable cause to suspect an
offense, invade homes, and make searches, seizures, or arrests. By
their terms, these subsections of § 36-2811 uphold privacy rights and
alter our prior search-and-seizure jurisprudence concerning
marijuana.
¶42 Apparently overlooking the express provisions of
subsection (D), the trial court focused exclusively on the “arrest,
prosecution or penalty” clause in § 36-2811(B) to uphold the search
here. That reading would require us to conclude that patients and
caregivers are necessarily subject to seizure and search for their
20
STATE v. SISCO
Opinion of the Court
possession of marijuana under the AMMA, notwithstanding the
lawfulness of their actions. Such a conclusion cannot coexist with
statutory language that expressly immunizes lawful users of medical
marijuana from arrest or the denial of any privilege enjoyed by any
other citizen. § 36-2811(B), (D). This broad language creates a
“sweeping grant of immunity” subject only to narrow exceptions
that do not apply here. Reed-Kaliher, 237 Ariz. 119, ¶ 8, 347 P.3d at
139.10
¶43 That odor alone does not provide probable cause is
evident from other provisions of the AMMA as well. The purpose
of the Act is to “make a distinction between the medical and
nonmedical uses of marijuana.” Initiative Measure, Prop. 203, § 2(G)
(2010). The Act specifies that “[m]ere possession of, or application
for, a registry identification card may not constitute probable cause
or reasonable suspicion, nor may it be used to support the search of
the person or property of the person possessing or applying for the
registry identification card.” § 36-2811(H). The law generally
ensures the confidentiality of cardholders’ information, see § 36-2810,
and criminalizes any unauthorized disclosure thereof. § 36-2816(D);
see also § 36-2803(A)(4). The AMMA also anticipates that law
enforcement officers will avail themselves of the web-based
cardholder verification system to confirm whether individuals
possess valid registry identification cards. See §§ 36-2801(16), 36-
2807(A), (B). And even that system preserves the confidentiality of
cardholders’ addresses. § 36-2807(C)(1).
10 The trial court’s analysis also was internally inconsistent
insofar as it maintained “the AMMA did not change existing case
law regarding the smell of fresh marijuana or its use as probable
cause,” yet the court implicitly conceded that, in light of the arrest
clause, the odor of the substance alone is insufficient for an arrest.
See Raymond, 21 Ariz. App. at 119, 516 P.2d at 61 (probable cause for
arrest and search generally equivalent); see also State v. Hoskins, 199
Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000) (“A police officer has
probable cause when reasonably trustworthy information and
circumstance would lead a person of reasonable caution to believe
that a suspect has committed an offense.”).
21
STATE v. SISCO
Opinion of the Court
¶44 Together, these provisions illustrate that voters
intended for the law in Arizona to recognize and maintain a
distinction between medical and nonmedical marijuana; they
intended to preserve and protect the confidentiality and privacy
rights of those authorized to use medical marijuana, much like
patients using any other therapeutic drug; and the voters would not
view it as reasonable for law enforcement officers or magistrates to
regard everyone possessing marijuana as a criminal. See Richcreek,
187 Ariz. at 504, 930 P.2d at 1307 (emphasizing police officers may
not use any available means to satisfy themselves about innocence of
unusual activity).
¶45 Just as voters did not intend to allow searches based on
the possession of registry identification cards alone, they did not
wish to allow searches based on the possession or use of marijuana
authorized by such cards, unless “probable cause exists on other
grounds.” § 36-2811(H). Indeed, it would be absurd to suggest that
AMMA voters would welcome SWAT teams or other officers into
the dwellings of people suffering from debilitating medical
conditions such as cancer or Alzheimer’s disease simply to
investigate whether the use of marijuana there was medicinal. See
§ 36-2801(3); Harris, 234 Ariz. 343, ¶¶ 13-14, 322 P.3d at 162 (courts
consider policy behind statute and evil it was designed to remedy,
and seek to avoid absurd results).
¶46 The state and trial court also misconstrue certain
provisions in § 36-2811 that are aimed at protecting the privacy
rights of some as instead abrogating the rights of others.
Subsections (E) and (F) of the statute expressly include immunities
from searches among the protections given to medical marijuana
dispensaries and dispensary agents engaged in lawful activity under
the AMMA. 11 The trial court concluded that the absence of this
11Section 36-2811 provides:
E. A registered nonprofit medical
marijuana dispensary is not subject to
prosecution; search or inspection, except by
the department pursuant to § 36-2806,
subsection H; seizure or penalty in any
22
STATE v. SISCO
Opinion of the Court
express protection in other parts of the statute means that only these
commercial actors, rather than individual patients or caregivers,
receive such protection. But this analysis overlooks the broad
manner and may not be denied any right or
privilege, including civil penalty or
disciplinary action by a court or business
licensing board or entity, for acting
pursuant to this chapter and department
regulations to acquire, possess, cultivate,
manufacture, deliver, transfer, transport,
supply, sell or dispense marijuana or
related supplies and educational materials
to registered qualifying patients, to
registered designated caregivers on behalf
of registered qualifying patients or to other
registered nonprofit medical marijuana
dispensaries.
F. A registered nonprofit medical
marijuana dispensary agent is not subject
to arrest, prosecution, search, seizure or
penalty in any manner and may not be
denied any right or privilege, including
civil penalty or disciplinary action by a
court or occupational or professional
licensing board or entity, for working or
volunteering for a registered nonprofit
medical marijuana dispensary pursuant to
this chapter and department regulations to
acquire, possess, cultivate, manufacture,
deliver, transfer, transport, supply, sell or
dispense marijuana or related supplies and
educational materials to registered
qualifying patients, to registered
designated caregivers on behalf of
registered qualifying patients or to other
registered nonprofit medical marijuana
dispensaries.
23
STATE v. SISCO
Opinion of the Court
protections against infringement of “any right” enjoyed by an
individual in subsections (B) and (D). See Reed-Kaliher, 237 Ariz. 119,
¶ 8, 347 P.3d at 139. And we think it implausible that voters would
grant more privacy to businesses than residences, especially when
homes receive heightened protection under our state constitution.
See State v. Bolt, 142 Ariz. 260, 264-65, 689 P.2d 519, 523-24 (1984).
¶47 Instead, the voters included specific protections against
searches or inspections of medical marijuana dispensaries because
the AMMA in fact authorizes an administrative inspection regime
for dispensaries. See § 36-2806(H). Voters intended this
administrative inspection program, which is carried out by the
department of health services rather than a law enforcement agency,
see § 36-2801(4), to ensure adequate compliance with the AMMA,
absent any evidence of law-breaking, see § 36-2810(E), and to
supplant the provision in our general warrant statute that would
otherwise allow searches and inspections “in the interest of the
public health, safety or welfare.” A.R.S. § 13-3912(5). Section 36-
2811(F), in turn, clarifies that dispensary agents retain their rights to
be free from personal searches or seizures in their workplaces,
notwithstanding the aforementioned dispensary-inspection
program, and despite their forfeiture of other privacy rights in the
course of becoming agents, such as undergoing criminal background
checks, § 36-2804.01(E), and fingerprinting, § 36-2819. In sum, the
enumeration in § 36-2811(E) and (F) is an extra precaution to protect
members of the commercial class from searches and uphold their
privacy rights; it was not intended to diminish an individual’s right
of privacy by implication.
2. Statutory Defense
¶48 The state further contends that the lawful possession of
marijuana is a statutory defense to be shown by a patient or
caregiver who is accused or suspected of a crime; it is not a factor
relevant to a probable-cause determination. Although similar
arguments have been accepted in other states with various medical
marijuana laws, see, e.g., People v. Clark, 178 Cal. Rptr. 3d 649, 656 (Ct.
App. 2014); People v. Brown, 825 N.W.2d 91, 94-95 (Mich. Ct. App.
2012) (per curiam); State v. Senna, 79 A.3d 45, ¶¶ 10-16 (Vt. 2013);
24
STATE v. SISCO
Opinion of the Court
State v. Fry, 228 P.3d 1, ¶ 22 (Wash. 2010), we find fault with this
view in two significant respects.
¶49 First, it misunderstands the nature of the right at issue.
The requirement of a search warrant exists to protect a person’s
privacy interests, Hyde, 186 Ariz. at 268, 921 P.2d at 671, and those
interests receive no protection once someone’s privacy has been
invaded. A subsequent legal defense to a criminal conviction
provides no relief from an invasion of the privacy that the Fourth
Amendment protects. For that reason, as we explained above, the
likelihood that a person is not guilty of any offense necessarily has a
place in a probable-cause determination. See Crocker, 97 P.3d at 96.
An ex parte warrant hearing affords no opportunity to assert a
defense, prevent a search, and preserve one’s constitutional right to
privacy. See A.R.S. §§ 13-3914, 13-3915; Frimmel, 236 Ariz. 232, ¶ 26,
338 P.3d at 979. Accordingly, “[t]he law requires the judgment of a
judicial officer,” before trial or the appointment of counsel, to
determine “when the right to privacy must yield to the right of
search.” Hutton, 110 Ariz. at 341-42, 519 P.2d at 40-41.
¶50 Second, the statutory-defense argument simply proves
too much. Marijuana possession is broadly criminalized, except as
authorized under the AMMA, § 36-2802(E), but so too is the
possession of prescription-only drugs. See A.R.S. §§ 13-3406(A)(1),
13-3412(B). We have long recognized that having a prescription is a
defense to a drug-possession charge, see State v. Armstrong, 176 Ariz.
470, 475, 862 P.2d 230, 235 (App. 1993), with “[t]he burden of
proving one is within a protected category” placed on the
defendant. State v. Cramer, 174 Ariz. 522, 524, 851 P.2d 147, 149
(App. 1992). 12 Does it therefore follow that everyone taking a
12 Thisdid not change with the 2001 amendment of § 13-
3406(A)(1), which added the proviso concerning valid prescriptions.
2001 Ariz. Sess. Laws, ch. 334, § 13. “A defendant ‘who relies upon
an exception to a criminal statute made by a proviso or distinct
clause has the burden of establishing and showing that she comes
within the exception.’” State v. Bayardi, 230 Ariz. 195, ¶ 22, 281 P.3d
1063, 1068-69 (App. 2012), quoting In re Maricopa Cnty. Juv. Action No.
JT9065297, 181 Ariz. 69, 82, 887 P.2d 599, 612 (App. 1994); accord State
25
STATE v. SISCO
Opinion of the Court
prescription medication is a suspected criminal who is subject to a
home search and arrest? The answer is obviously no, because the
bare fact of possessing a prescription drug does not cause a
reasonable person to suspect a criminal offense. Questions naturally
arise about the actor’s status and the circumstances of the possession
or use—in a word, about context—before any prudent person would
form a belief about the activity being criminal. The mere fact that a
prescription drug is possessed, like the fact that marijuana is
possessed, is not a sufficiently strong circumstance in itself to allow
a cautious person to believe someone guilty. See Dixon, 153 Ariz. at
153, 753 P.2d at 763.
¶51 Although these general points render the
aforementioned cases unpersuasive, specific provisions within the
AMMA provide an additional reason for not applying this case law
to Arizona. Notably, the AMMA contained an interim provision,
A.R.S. § 36-2812, that created an “[a]ffirmative defense” for
marijuana charges. Initiative Measure, Prop. 203, §§ 3, 5 (2010).
That provision expired when the department of health services
began issuing registry identification cards on April 14, 2011. The
fact that the AMMA created an interim affirmative defense, using
that precise language, strongly indicates that the permanent
protections in § 36-2811, which are not designated as “defenses,” are
not to be treated as defenses for all purposes, and especially not for
determining probable cause for search warrants. Rather, the AMMA
“provides immunity for charges of violating § 13-3405, which would
otherwise subject a person to criminal prosecution for marijuana
use.” Reed-Kaliher, 237 Ariz. 119, ¶ 16, 347 P.3d at 140.
¶52 To broadly suggest that the lawfulness of marijuana
possession is a mere defense to be asserted after arrest is the
antithesis of reasonableness. Unfortunately, some states have
accepted this view. The state of Washington, for example, which
v. Kelly, 210 Ariz. 460, ¶ 11, 112 P.3d 682, 685 (App. 2005); see also
Jung, 19 Ariz. App. at 262, 506 P.2d at 653 (“[T]he state is not
required to [prove] negative statutory exceptions—such exception is
a matter of defense where it is not an ingredient of the offense.”).
26
STATE v. SISCO
Opinion of the Court
often supplies persuasive authority given our identical
constitutional provisions on privacy, see Clouse ex rel. Clouse v. State,
199 Ariz. 196, ¶ 17, 16 P.3d 757, 761 (2001); Bolt, 142 Ariz. at 265 n.5,
689 P.2d at 524 n.5, has held that police officers retain discretion to
arrest medical marijuana users despite proof of their compliance
with medical marijuana laws. Fry, 228 P.3d 1, ¶¶ 17, 21-22. In our
view, such unchecked police discretion undermines the rule of law
and due process, with “‘the risk of arbitrary and abusive practices
exceed[ing] all tolerable limits.’” State v. Mullen, 171 Ariz. 38, 39, 827
P.2d 1133, 1134 (App. 1992) (Gerber, J., specially concurring), quoting
Brown v. Texas, 443 U.S. 47, 52 (1979). Under Washington precedent,
marijuana users can be subjected to repeated arrests and trials for
perfectly lawful use of marijuana. Fry, 228 P.3d 1, ¶ 22. This should
be recognized as the absurdity it is. Id. ¶ 50 (Sanders, J., dissenting).
And this practice is supported, among other questionable
propositions, by the false premise that police could not lawfully
enforce criminal marijuana laws if the rule were otherwise, see id.
¶ 20—that “disorder and confusion” would be the alternative. Clark,
178 Cal. Rptr. 3d at 657.
¶53 The effect of the AMMA on law enforcement practice is
not nearly so dramatic. We emphasize that our holding today is
limited and that Arizona law enforcement officers retain the ability
to investigate suspected marijuana crimes based on the odor of
marijuana. We further emphasize that officers are not required to
disprove the possibility of legal use. They simply need to provide
additional contextual information that suggests the possession of
marijuana is unlawful, rather than permitted by the AMMA, to
establish probable cause that will authorize searches and arrests. As
we indicated above, such facts may be readily obtained by
traditional, effective investigatory techniques. But the privacy
protections guaranteed by article II, § 8 of our state constitution, as
well as the Fourth Amendment to the United States Constitution,
require officials to make some effort to differentiate lawful from
criminal activity. Those constitutional protections do not tolerate
the guess-and-check system on display here. 13 In sum, now that
13Our holding in this case does not apply to the special context
of border checkpoints, and we do not resolve whether the odor of
27
STATE v. SISCO
Opinion of the Court
marijuana may be possessed legally under Arizona law, facts
demonstrating nothing more than such possession cannot, standing
alone, be probable cause to believe a crime has been committed.
C. Dissent
¶54 Finally, the dissent maintains that we need not address
the probable-cause question at all because we can hold here that the
officers relied in good faith on the validity of the warrant. But,
although the state plausibly argued below that the officers’ reliance
on the warrant was reasonable and that the good-faith exception
should therefore apply, the state neither secured a ruling from the
trial court on that question nor raised this argument in its answering
brief. The state has therefore abandoned that argument on appeal.
See State v. Hendrix, 165 Ariz. 580, 582, 799 P.2d 1354, 1356 (App.
1990); see also State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028
(1988).
¶55 Although our dissenting colleague is correct that we
may uphold a trial court’s ruling on any ground, we do not
customarily do so on grounds neither raised nor briefed on appeal.
Cf. State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002)
(addressing issues identified in state’s brief); State v. Boteo-Flores, 230
Ariz. 551, ¶¶ 6-9, 288 P.3d 111, 113-14 (App. 2012) (reaching good-
faith question when argument squarely raised on appeal).
Moreover, it is the state’s burden to establish the applicability of the
good-faith exception. Crowley, 202 Ariz. 80, ¶ 32, 41 P.3d at 629; see
Hyde, 186 Ariz. at 266, 921 P.2d at 669 (emphasizing state carries
burden of persuasion under Rule 16.2(b), Ariz. R. Crim. P., when
defendant makes prima facie case for suppression). That inquiry can
include factual questions and assessments of the credibility of
witnesses. Our court is ill-equipped to address such mixed
marijuana provides reasonable suspicion for an investigatory stop.
We also emphasize that police retain the discretion to engage in
consensual encounters and that marijuana smoke in public
continues to provide grounds for suspecting criminal activity, as
public use of marijuana remains illegal even under the AMMA. See
§ 36-2802(C)(2).
28
STATE v. SISCO
Opinion of the Court
questions of law and fact when no determinations of fact have been
rendered at the trial court level.
¶56 As appellate judges, we have a duty to be fair and
impartial in rendering our decisions. See Rule 2.2, Ariz. Code of Jud.
Conduct, Ariz. R. Sup. Ct. 81. If the state intended to argue for the
good-faith exception on appeal, it was the state’s duty to raise the
issue in its answering brief and thereby provide Sisco the
opportunity to respond in his reply brief through our normal
appellate procedures. The state’s abandonment of the issue may be
fairly interpreted as a tactical decision aimed at generating a ruling
on the state’s argument that the plain-smell doctrine has not been
affected by the AMMA. If our court were to now deviate from our
normal appellate procedures and either give the state another
opportunity to discharge its burden or relieve the state of its burden
entirely by deciding the issue of good faith sua sponte, we would
risk appearing asymmetrical in our treatment of the parties. As
illustrated by State v. Moreno-Medrano, 218 Ariz. 349, ¶¶ 16-17, 185
P.3d 135, 140 (App. 2008), our court holds criminal defendants
strictly responsible for discharging their appellate burdens, and it is
only fitting that we hold the state to the same standard.
Disposition
¶57 Because the search warrant in this case was issued
without probable cause of criminal activity or a substantial basis to
conclude that probable cause existed, the trial court erred in denying
Sisco’s motion to suppress the evidence resulting from the search.
We reverse the trial court’s ruling, vacate the convictions and
sentences, and remand for further proceedings consistent with this
decision.
E S P I N O S A, Judge, dissenting:
¶58 My colleagues today fashion a new and broad incursion
into the doctrine of probable cause that is neither necessary to decide
this case, nor warranted by its facts. In doing so, they engage in
some innovative reasoning to dispense with applicable precedent,
discount persuasive guidance from other states with identical or
similar medical marijuana laws, and, in my view, depart from good
29
STATE v. SISCO
Opinion of the Court
precepts of wise jurisprudence. Because such judicial engineering is
not necessary here, imposes an undue burden on law enforcement
and public safety, and is unsupported by the record before us, I
must respectfully dissent.
¶59 At the outset, it is telling that my colleagues attempt to
portray their holding as “a limited one,” but that is a latent
mischaracterization in light of the actual facts of this case, which
involve far more than the mere “scent of marijuana.” In a wide-
ranging discourse, the majority nevertheless repeats the phrase,
“mere scent of marijuana,” or some variation of it, approximately
twenty-five times. That mantra, upon which much of the majority
analysis relies, has no basis here. My colleagues also refer to
“dwelling[s],” “residence[s],” and “large categories of innocent
people”—additional factors not pertinent to the issue before us.
Such a scenario might exist if this matter involved police officers
strolling down a residential street and catching a whiff of burnt14
14My colleagues gloss over distinctions between the smell of
fresh and burnt marijuana. But, setting aside the topic of
dispensaries for the moment, which was not raised on appeal, the
probability that any amount of growing or recently harvested
marijuana would be lawful is almost nonexistent. The AMMA
restricts qualified patients from cultivating any plants at all if they
reside within twenty-five miles of a dispensary, A.R.S.
§ 36-2804.02(A)(3)(f), and limits these patients to 2.5 ounces of the
dried flowers of the plant, A.R.S. § 36-2801(1)(a)(i), (15). Currently
97.2 percent of Arizonans live within twenty-five miles of an
operating dispensary, with the remainder living in rural areas.
AMMA End of Year Report, app. C (2014). Thus, while there may be
“hundreds of Arizonans” who can lawfully cultivate, they cannot do
so if they reside in Tucson. My colleagues, however, label this a
“faulty premise” because a qualified patient with a “debilitating
medical condition[] such as cancer or Alzheimer’s disease” living in
a remote part of the state could opt to cultivate her twelve marijuana
plants in a residential area of South Tucson. That imaginative
scenario appears absurd and certainly not relevant to police and
judicial officers in the context of probable cause. But even if she did,
common sense dictates twelve plants would not produce the
30
STATE v. SISCO
Opinion of the Court
marijuana emanating from a home. But that is simply not this case.
Thus my colleagues’ foreboding suggestions that police could
“invade homes” of “numerous . . . citizens” based on “simply being
in the presence or vicinity of medical marijuana odors,” and “SWAT
teams . . . [entering] the dwellings of people suffering from
debilitating medical conditions such as cancer or Alzheimer’s
disease,” only serve to raise alarmist fears not relevant here.15
¶60 What should instead be undertaken is a straightforward
application of existing law to straightforward facts. Tucson police
were called by a South Tucson patrol officer after he smelled a
“strong odor” of “fresh marijuana” that appeared to be emanating
from a row of four storage units in South Tucson. The smell was
“overpowering,” even inside a vehicle on the street more than sixty
or seventy feet away. There was no indication that the buildings
were anything other than commercial storage units. My colleagues,
however, construe this as a situation that “fits any number” of other
scenarios in which individuals are not engaged in criminal activity.
Indeed, they characterize maintaining a large warehouse full of
marijuana plants and baled marijuana as an “entirely ordinary
activity.” The majority also effectively insists that the officers who
sought the search warrant were required to disprove a negative
before the warrant could properly issue: that the premises and
property owner, who could not be located at the time, did not fall
under the protection of the AMMA. My colleagues unrealistically
“overpowering” odor of 357 plants and fifty-three pounds of
cultivated marijuana.
15 Infact, such situations are nearly inconceivable given the
strictures of the AMMA. As already noted, nearly all qualified
patients and caregivers are limited to 2.5 ounces of dried marijuana
flowers. It is highly implausible that the odor of such a relatively
tiny quantity of marijuana would be detectable in the street by
passing officers. Indeed, Sisco’s expert on “the senses of taste and
smell” testified that the “marijuana-like smell” is produced by
mature, budding plants, and opined that you could have a lot of
plants “in a pretty tight building” and “not have much odor on the
outside” depending on the plants’ budding stages.
31
STATE v. SISCO
Opinion of the Court
suggest this would be an easy task, 16 while ignoring that there
should first be some reason to do so, other than an exceedingly slim
chance that the compelling scenario faced here would be so
protected. But proof of such a negative is not a requirement for
probable cause. See Gates, 462 U.S. at 238 (only “fair probability” of
criminal activity required); cf. Evans, 237 Ariz. 231, ¶ 13, 349 P.3d at
209 (reasonableness standard does not demand officers rule out
possible alternative, innocent explanations for actions observed
before effecting investigative stop).
¶61 My colleagues, while paying lip-service to the concept,
lose sight of the fact that probable cause is a fluid and practical
concept, and a magistrate’s finding of such will be upheld when it
has a substantial basis. See Hyde, 186 Ariz. at 272, 921 P.2d at 675.
“When assessing whether probable cause exists, ‘we deal with
probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.’” Dixon, 153 Ariz. at 153, 735
P.2d at 763, quoting Brinegar, 338 U.S. at 175. Probable cause is
determined from the totality of the circumstances, and the
information upon which it is based may be “viewed in light of the
police officers’ knowledge and past experience.” Million, 120 Ariz.
at 15, 583 P.2d at 902.
16As the state noted at oral argument, and not denied by the
majority, law enforcement officers are generally unable to access
information about registered cardholders. See § 36-2810(A)(3). My
colleagues assert that “police can easily develop facts about places
where marijuana is being grown or stored that suggest the activity
there is criminal, whether from their own observations, consensual
encounters, or information supplied by informants.” But the trial
court accurately observed that in the case of “stash houses,”
marijuana may be moved quickly, for example, “within two hours.”
Furthermore, the AMMA requires that qualified patients and
caregivers carry identification cards which they must produce “to
enjoy a presumption of legal use.” The Act does not express or
imply any intent to impose greater burdens on officers investigating
marijuana-related crimes and thereby diminish public safety.
32
STATE v. SISCO
Opinion of the Court
¶62 The majority goes on to propose, and indeed would
require, an “odor-plus” standard, while ignoring that that is
precisely what the issuing judge here was presented with. The
surrounding circumstances are all-important and should not be
brushed aside, yet it is not until page fifteen of a twenty-nine page
decision that my colleagues acknowledge the “contextual facts,”
albeit discounting them out of hand. But it is not a “mere scent”
situation when officers are confronted by an “overpowering odor”
of “fresh marijuana,” emanating from commercial storage units and
detectable even inside a vehicle on the street, some sixty to seventy
feet away.
¶63 To rationalize reversal of the trial court’s decision, my
colleagues, after implicitly conceding that residential concerns do
not actually apply, go beyond the factual record and arguments of
the parties on appeal to posit that the storage facility here
conceivably could have been an authorized marijuana dispensary.
But that is a highly unlikely scenario not raised by Sisco or the state
before this court, and no such evidence was introduced below. 17
Notwithstanding, after acknowledging that registered dispensary
locations are confidential, the majority suggests that police might
nevertheless identify an illegal cultivation site by signs of
noncompliance with regulatory requirements, such as a lack of
restricted access, lack of video surveillance and alarm systems, lack
of exterior lighting, or violation of zoning requirements. But that
was exactly the situation the officers encountered here. Indeed, the
search warrant affidavit noted nearby residences, whereas
17 My colleagues acknowledge this issue was not raised on
appeal but assert “the law concerning dispensaries” was “utilized to
justify the trial court’s ruling below.” The record reflects, however,
that neither party cited any cases, statutes, or regulations on this
topic, nor was any evidence adduced at the hearing that the storage
unit exhibited any signs of being an authorized dispensary. The
court merely opined that had the warehouse been a dispensary,
“that would absolutely be a defense to the crime, and, presumably,
the County Attorney’s office wouldn’t have even issued [the] case.”
33
STATE v. SISCO
Opinion of the Court
cultivation sites must be in commercial or industrial districts, 18 and
testimony at the hearing indicated that the building had none of the
external hallmarks of a regulated cultivation site, that is, restricted
access and sufficient exterior lighting, and the officers made no
mention of video surveillance cameras on the building, as would be
the case for an authorized cultivation site. It is notable that as of
December 2012, there was only one operating dispensary in
Tucson,19 and that the storage facility here was located in a known
high crime area, as pointed out by co-defense counsel at the hearing.
Given this context, it is difficult to imagine that the trial court
nevertheless abused its discretion in concluding that the
overpowering odor of fresh marijuana, detected sixty to seventy feet
away from several commercial storage units that did not exhibit any
indicia of a dispensary cultivation site, indicated “a fair probability”
of criminal activity. See Gates, 462 U.S. at 238.
¶64 My colleagues complain, however, that the lack of
external factors that might indicate an authorized storage or
cultivation site was not reported to the issuing magistrate. But law
enforcement officers cannot be expected to be “legal technicians,”
Dixon, 153 Ariz. at 153, 735 P.2d at 763, versed in the detailed
regulatory requirements for authorized dispensaries, particularly in
early 2013 when there was only one such facility in the entire city.
More importantly, there was no reason for the officers to report
what they did not see; to hold otherwise is to require police to
imagine and negate every possibility of innocent conduct, something
18 See City of Tucson Fact Sheet, Medical Marijuana
Dispensaries and Cultivation Locations, available at
http://www.tucsonaz.gov/files/pdsd/forms/Medical_Marijuana_
Fact_Sheet.pdf. Puzzlingly, the majority disagrees that the presence
of nearby homes suggests an illegal location for a marijuana storage
facility, positing that it is just as likely the homes were illegally sited.
This well illustrates merely another example of rationalizing away,
with far-fetched scenarios, salient contextual factors the magistrate
could properly consider in assessing probable cause.
19See Will Humble, Dispensary Zoning Case, Ariz. Dep’t of Health
Servs. Dir.’s Blog (Dec. 13, 2012), http://directorsblog.health.azdhs.gov.
34
STATE v. SISCO
Opinion of the Court
that has never been required in assessing probable cause. See
Crowley, 202 Ariz. 80, ¶ 26, 41 P.3d at 627 (“probable cause to issue
[search] warrant not negated by fact there may be innocent
explanation consistent with facts alleged in warrant request”), citing
United States v. Burke, 718 F. Supp. 1130, 1136 (S.D.N.Y. 1989);
Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009)
(under totality-of-circumstances test, while police may not disregard
facts tending to dissipate probable cause, “‘law enforcement officers
do not have to rule out the possibility of innocent behavior.’”),
quoting United States v. Thomas, 863 F.2d 622, 627 (9th Cir. 1988).
Finally, even viewing this as a close question, our supreme court has
instructed that such “should be resolved by giving preference to the
validity of warrants.” Hyde, 186 Ariz. at 272, 921 P.2d at 675.
¶65 My colleagues also rely on Arizona’s relatively new
medical marijuana act, but readily dispense with relevant precedent
from states with marijuana laws similar to Arizona’s. Unlike the
three states, Alaska, Massachusetts, and Oregon, whose caselaw the
majority cites with approval, in Arizona, the use and possession of
marijuana remains a crime. See §§ 13-3405, 36-2802(E); Reed-Kaliher,
237 Ariz. 119, ¶ 7, 347 P.3d at 139. And, under the AMMA, even
qualified patients and caregivers are subject to prosecution under §
13-3405, if they possess more than the permitted amount of
marijuana. See A.R.S. § 36-2811(A) (presumption of medical use if
amount of marijuana possessed does not exceed that allowable
under Act). This court has stated, in the analogous context of a
grand jury probable cause proceeding, that: “In claiming protection
under th[e] statutory immunity [of the AMMA], it is a defendant’s
burden to ‘plead and prove,’ by a preponderance of the evidence,
that his or her actions fall within the range of immune action.”
Fields, 232 Ariz. 265, ¶ 15, 304 P.3d at 1092 (evaluating grand jury
instructions in light of AMMA), quoting Fid. Sec. Life Ins. Co. v. Ariz.
Dep’t of Ins., 191 Ariz. 222, ¶ 9, 954 P.2d 580, 583 (1998).
¶66 Arizona is far more similar to states that maintain
criminal prohibitions against marijuana but allow for registration
and exemption from prosecution pursuant to a narrowly tailored
medical marijuana act. See Brown, 825 N.W.2d at 94 (Michigan’s
medical marijuana act “does not abrogate state criminal prohibitions
35
STATE v. SISCO
Opinion of the Court
related to marijuana,” it rather “constitutes a ‘very limited, highly
restricted exception to the statutory proscription against the
manufacture and use of marijuana.’”), quoting People v. King, 804
N.W.2d 911, 915 (Mich. Ct. App. 2011); Senna, 79 A.3d at 49
(“Vermont’s ‘medical marijuana’ law does not purport to
decriminalize the possession of marijuana; it merely exempts from
prosecution a small number of individuals who comply with rigid
requirements for possession or cultivation. In that sense, the law
creates a defense to prosecution.”) (citation omitted); see also State v.
Ellis, 327 P.3d 1247, 1250 (Wash. Ct. App. 2014) (Washington’s
medical marijuana act “created a potential medical use exception to
. . . general rule criminalizing marijuana manufacturing”).
¶67 In such states, courts have concluded that probable
cause does not require officers to provide facts showing the state’s
medical marijuana exception to be inapplicable. See Brown, 825
N.W.2d at 95 (because possession and manufacture of marijuana
remains illegal under Michigan law, “to establish probable cause, a
search-warrant affidavit need not provide facts from which a
magistrate could conclude that a suspect’s marijuana-related
activities are specifically not legal under the MMMA”); see also Ellis,
327 P.3d at 1250 (“medical use affirmative defense did not vitiate
probable cause supporting a search warrant”; “affidavit need not . . .
show [medical marijuana act] exception’s inapplicability”); c.f. Clark,
178 Cal. Rptr. 3d at 656 (California’s medical marijuana act provides
a defense to prosecution and therefore “cannot be interpreted to
impose an affirmative duty on law enforcement officers to
investigate a suspect’s status as a qualified patient or primary
caregiver under the Act prior to seeking a search warrant.”).
¶68 Thus, because marijuana remains illegal in Arizona and
the AMMA provides only a narrow exception to arrest and
prosecution,20 I disagree with my colleagues that the Act has altered
20 My colleagues analogize to prescription-only drugs and
imply that to find probable cause here would mean “everyone
taking a prescription medication [would be] a suspected criminal
who is subject to a home search and arrest[.]” But that Orwellian
scenario has no traction under the facts at hand. A true analogy
36
STATE v. SISCO
Opinion of the Court
the nature of evidence required to support issuance of a search
warrant. More importantly, this case does not present a situation in
which we need reach any conclusion about the AMMA and
probable-cause requirements, as the majority’s own “odor-plus” test
is well satisfied on the facts before us.
¶69 Finally, even assuming arguendo that the warrant here
somehow fell short of establishing probable cause, the good-faith
exception to the exclusionary rule would unquestionably apply. My
colleagues avoid this principle on the ground the state “abandoned
that argument” by not raising it on appeal,21 and “we would risk
appearing asymmetrical in our treatment of the parties.” But at oral
argument, the state urged that this court had an obligation to
address the good-faith doctrine, citing applicable caselaw. And,
contrary to the majority’s implication that the state thereby sought
some tactical advantage, it explained it had not advanced the issue
would require similar “circumstances of the possession,” i.e., a
storage unit filled with enough prescription drugs to be detectable
by a powerful odor in the street. If, for example, fifty-three pounds
and the equivalent of 357 plants (the amount of marijuana found
here) of Oxycontin produced a distinctive, “overpowering” odor
flowing from a nondescript storage unit in South Tucson, and given
the well-known abuse and black market for such drugs, the same
probable cause for a search would arise as here.
21 The good-faith exception was clearly raised below by the
state in its response to Sisco’s motion to suppress, and both sides
were aware of the argument when developing the record. After
taking evidence and hearing the state’s fully cross-examined
witnesses, the trial court did not reach the good-faith argument
because it upheld the issuing judge’s finding of probable cause.
Thus, there was no reason for the state “to secure a ruling” on this
issue. My colleagues nevertheless decline to reach it because Sisco
has not had “the opportunity to respond.” But he in fact had every
opportunity to do so below, as well as before this court after the
topic was broached during the state’s argument; there is no reason
to now skirt the issue when the record is well developed and
sufficient.
37
STATE v. SISCO
Opinion of the Court
in its answering brief only because it had believed the search
warrant at issue was “solid.”
¶70 Most importantly, what the majority casts as unfair
asymmetry is the well-established rule that the trial court’s decision
should be upheld on any valid legal ground supported by the
record. See Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d at 582 (although
certain issues deemed abandoned by state for lack of authority or
argument, “we are obliged to uphold the trial court’s ruling if legally
correct for any reason”) (emphasis added); Boteo-Flores, 230 Ariz. 551,
¶ 8, 288 P.3d at 113 (appellate court “required” to affirm trial court’s
ruling for any legally correct reason); State v. Kinney, 225 Ariz. 550,
n.2, 241 P.3d 914, 918 n.2 (App. 2010) (court of appeals will address
waived issue when upholding trial court’s ruling). It is notable that
my colleagues decline to apply this principle, while citing facts
outside the record and arguments not briefed on appeal to reverse
the trial court. Cf. Boteo-Flores, 230 Ariz. 551, ¶ 9, 288 P.3d at 113-14
(while appropriate for appellate court to consider waived argument
when presented to uphold trial court’s ruling, not so when
argument attacks ruling). My colleagues justify their position by
asserting “we do not customarily [uphold trial courts] on grounds
neither raised nor briefed on appeal.” But, as borne out by our
precedents, that is exactly what justice requires when the law and
the facts clearly support a court’s ruling, as is the case here. See
Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d at 582; State v. Lopez, 217 Ariz. 433,
n.4, 175 P.3d 682, 687 n.4 (App. 2008) (addressing argument waived
for being raised only in reply brief); Mitchell v. Gamble, 207 Ariz. 364,
¶ 16, 86 P.3d 944, 950 (App. 2004) (considering argument raised for
first time at oral argument); Barlage v. Valentine, 210 Ariz. 270, n.7,
110 P.3d 371, 377 n.7 (App. 2005) (same); see also Decola v. Freyer, 198
Ariz. 28, ¶ 8, 6 P.3d 333, 336 (App. 2000) (“where the parties have
failed to address completely the correct rule of law governing the
issues, we are not precluded from doing so”).
¶71 The exclusionary rule is triggered when police
misconduct is “sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence
is worth the price paid by the justice system.” Herring v. United
States, 555 U.S. 135, 144 (2009); see also Hudson v. Michigan, 547 U.S.
38STATE v. SISCO
Opinion of the Court
586, 591 (2006) (suppression of evidence remedy of “last resort”
because of “‘substantial social costs’”), quoting United States v. Leon,
468 U.S. 897, 907 (1984). Under the good-faith exception, the
exclusionary rule does not bar evidence seized in reasonable, good-
faith reliance on a search warrant that is later found defective for
lack of probable cause. See Leon, 468 U.S. at 920-21. To qualify for
the exception, the officers’ reliance on the warrant must be
“objectively reasonable.” Id. at 922; see also A.R.S. § 13–3925(C)
(codifying good-faith exception). Determining whether that
standard is met turns on “whether a reasonably well trained officer
would have known that the search was illegal despite the
magistrate's authorization.” Leon, 468 U.S. at 922 n.23. As a result,
the exclusionary rule “remains an appropriate remedy if”: (1) a
warrant is issued based on a deliberately or recklessly false affidavit;
(2) a judicial officer fails to act in a neutral manner in issuing a
warrant; (3) a warrant is based on an affidavit “‘so lacking in indicia
of probable cause as to render official belief in its existence entirely
unreasonable’”; or (4) a warrant is so facially deficient that no officer
could believe it to be valid. See id. at 922–23, quoting Brown v. Illinois,
422 U.S. 590, 610-11 (1975).
¶72 When questioned about the good-faith exception at oral
argument before this court, Sisco did not contend there was
evidence the judge issuing the warrant was misled by false
information, 22 that she abandoned her judicial role, or that the
22Sisco has not asserted that either warrant was issued on the
basis of false or reckless statements. He did, in a different context,
claim the officers “recklessly with[e]ld[] information about wind
conditions when calling for the first warrant.” But that allegation, if
relevant at all, only went to identifying which unit was the likely
source of the marijuana. And our supreme court has “decline[d] to
interpret the first Leon exception to include an affirmative duty for
police officers to volunteer information that a magistrate does not
request.” Hyde, 186 Ariz. at 274, 921 P.2d at 677 (good-faith
exception not affected by claim detective was “not candid” for
failing to volunteer information to commissioner, “even if she did
not inquire,” because no evidence detective provided false
information).
39
STATE v. SISCO
Opinion of the Court
warrant was “so facially deficient . . . that the executing officers
[could not] reasonably presume it to be valid.” Id. at 923. Rather, he
asserted the affidavit lacked any indicia of probable cause. The
threshold for establishing this contention “is a high one.”
Messerschmidt v. Millender, ___ U.S. ___, ___, 132 S. Ct. 1235, 1245
(2012). Officers are not required to make a “deep inquiry” into the
reasonableness of a warrant, and “[i]n the ordinary case, an officer
cannot be expected to question the magistrate’s probable-cause
determination.” Leon, 468 U.S. at 921–22, quoting Gates, 462 U.S. at
267; see also Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986) (sound
presumption magistrate more qualified than police officer to make
probable cause determination, “and it goes without saying that
where a magistrate acts mistakenly in issuing a warrant but within
the range of professional competence of a magistrate, the officer who
requested the warrant cannot be held liable”).
¶73 Here, it was not unreasonable for the officers to rely
upon a search warrant based on the “overpowering” smell of
“fresh” marijuana detectable at a significant distance from a
commercial storage unit. Notably, both before and after the issuance
of the warrant in this case, this court has held that the odor of
marijuana provides probable cause for a search. See State v. Decker,
119 Ariz. 195, 197, 580 P.2d 333, 335 (1978) (odor of burned
marijuana afforded probable cause to believe hotel room contained
marijuana); Baggett, 232 Ariz. 424, ¶ 20, 306 P.3d at 85 (when officers
smelled marijuana they had probable cause to believe backpack
contained contraband and “had a lawful right to search”). Here,
there was more than mere scent alone, meeting the “odor-plus”
standard referred to by my colleagues. And that the duly issued
warrant did not include a litany of facts disproving the unlikely
possibility the storage unit was a registered medical marijuana
dispensary or cultivation site did not make the officers’ reliance
upon the warrant “‘entirely unreasonable,’” Leon, 468 U.S. at 901,
923, quoting Brown, 422 U.S. at 610-11, requiring the remedy of “last
resort,” Hudson, 547 U.S. at 591. Thus, the good-faith execution of
the warrant obviates the necessity of deciding this case on other,
broader grounds and reversing the trial court by way of new,
unprecedented interpretations of the AMMA and Fourth
40
STATE v. SISCO
Opinion of the Court
Amendment requirements. 23 See Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988) (“fundamental and
longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of
deciding them”); cf. Mountain States Tel. & Tel. Co. v. Ariz. Corp.
Comm’n, 160 Ariz. 350, 354, 773 P.2d 455, 459 (1989) (“jurisprudential
considerations require us to decide the case on the narrowest
grounds possible”).
¶74 In sum, because under the facts and circumstances of
this case any reasonable person would conclude there was a “fair
probability that contraband or evidence of a crime w[ould] be
found” in the storage unit, Gates, 462 U.S. at 238, and because the
investigating officers executed the search in good-faith reliance on a
neutral magistrate’s warrant, see Leon, 468 U.S. at 920, it is
unnecessary to interpret Arizona’s Medical Marijuana Act, apply
out-of-state precedents from jurisdictions in which marijuana has
been decriminalized, and burden law enforcement and public safety
with a broad new probable cause requirement not invoked by the
23 Given the uncontested facts, it is unclear what “factual
questions” and “credibility” determinations the majority believes
would need to be resolved, but if that were actually the case, we
should remand to allow the trial court to make such findings and
decide the question of good faith. See State v. Caraveo, 222 Ariz. 228,
¶¶ 8, 23, 213 P.3d 377, 379, 382 (App. 2009) (remanding for
determination whether search permissible based on different legal
argument made below but not addressed by trial court); State v.
Branham, 191 Ariz. 94, 98, 952 P.2d 332, 336 (App. 1997) (remanding
for reconsideration where “trial court’s basis for denying the motion
to suppress was incorrect” and it had not ruled on question whether
consent justified search). “Remand . . . is proper when the trial court
is found to have based its ruling on an improper standard.” State v.
Herrera, 232 Ariz. 536, ¶¶ 13-14, 307 P.3d 103, 110 (App. 2013)
(limited remand appropriate to permit trial court to consider
evidentiary issue and allow this court to determine on review
whether ruling was legally correct), citing Boteo–Flores, 230 Ariz. 551,
¶ 7, 288 P.3d at 113.
41
STATE v. SISCO
Opinion of the Court
situation they faced here. Accordingly, I respectfully dissent and
would affirm the trial court’s denial of the motion to suppress.
42