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.

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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.

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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,

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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

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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.

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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).

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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

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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.

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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

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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.

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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.

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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

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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

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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).

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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

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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

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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.

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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.

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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.”

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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.

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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

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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

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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.

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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.

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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).

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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

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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.

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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.

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