On July 20, 2015, the Arizona Court of Appeals decided State v. Sisco, 2CA-CR 2014-0181 (Ariz.App. 7-20-2015). This case is a significant decision in the continuing battle to legalize marijuana. The decision essentially holds that the mere odor of marijuana is insufficient to constitute probable cause for either arrest or search. This holding is a massive departure from longstanding Arizona case law to the contrary.
Prior to this case, law enforcement officers were justified in searching cars and homes based solely on the odor of marijuana. Post Sisco, law enforcement officers will be required to articulate facts in addition to mere odor of marijuana which suggest illegal activity to justify such searches. Whether the mere odor of marijuana is sufficient to justify a brief investigative detention remains unanswered.
The Court's analysis made clear that circumstances such as the odor or burnt marijuana in public remain sufficient to establish probable cause for arrest or search given that the Arizona Medical Marijuana Act prohibits the use of marijuana in public. Throughout its decision, the Court analogized the issue of medical marijuana to that of a prescription only drug. Such treatment is entirely consistent with the spirit and meaning of the Arizona Medical Marijuana Act. Supporters of freedom ought to be proud of this decision. It is important to note that this decision is likely to be appealed to the Arizona Supreme Court.