State of Arizona v. Ronald James Sisco II

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

RONALD JAMES SISCO II,

Appellant.

No. CR-15-0265-PR

Filed July 11, 2016

Appeal from the Superior Court in Pima County

The Honorable Howard J. Fell, Judge Pro Tempore

No. CR20131500-001

AFFIRMED IN PART

Opinion of the Court of Appeals, Division Two

238 Ariz. 229, 359 P.3d 1 (App. 2015)

VACATED AND REMANDED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor

General, Joseph T. Maziarz, Section Chief Counsel, Criminal Appeals

Section, Jonathan Bass (argued), Assistant Attorney General, Tucson,

Attorneys for State of Arizona

Steven R. Sonenberg, Pima County Public Defender, David J. Euchner

(argued), Assistant Public Defender, Tucson, Attorneys for Ronald James

Sisco II

Amy P. Knight (argued), Kuykendall & Associates, Tucson; and Kathleen

E. Brody, Jana L. Sutton, Osborn Maledon, P.A., Phoenix, Attorneys for

Amicus Curiae Arizona Attorneys for Criminal Justice

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE

CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and

BOLICK joined.

STATE V. SISCO

Opinion of the Court

CHIEF JUSTICE BALES, opinion of the Court:

¶1 Here we consider whether the odor of marijuana suffices to

establish probable cause for issuance of a search warrant, given the

adoption of the Arizona Medical Marijuana Act (“AMMA”), A.R.S. §§ 36-

2801 through 2819. We hold that it does, unless other facts would cause a

reasonable person to believe the marijuana use or possession is authorized

by AMMA, thereby dispelling the probable cause that otherwise would

exist.

I.

¶2 In March 2013, Tucson police officers responded to a tip that

“a strong odor of fresh marijuana” was emanating from a storage

warehouse at 18 West 35th Street. This address is for Unit 18 in a complex

of four similar buildings. When the officers approached the complex in

their patrol car, they could smell an “overpowering odor of fresh

marijuana.” After they walked on the sidewalk around the complex’s

perimeter, the officers believed the odor was emanating from Unit 18.

¶3 Based on the odor of marijuana, the officers sought a

telephonic warrant to search Unit 18. The magistrate issued the warrant,

but when the officers searched this unit, they found it vacant. The police

then applied for an amended warrant to search Unit 20, which was

separated from Unit 18 by a wall and locked gate. The officers avowed that

after entering Unit 18 they could better identify the source of the odor. The

magistrate issued an amended warrant. When the officers entered Unit 20,

they found it was being used as a residence and a marijuana growing

operation. In the ensuing search, officers seized marijuana growing

equipment, marijuana paraphernalia, and hundreds of marijuana plants.

¶4 As a result of the search, Ronald James Sisco II was identified

as an occupant of Unit 20. He was charged with child abuse, possession of

drug paraphernalia, possession of marijuana for sale, and production of

marijuana. Sisco moved to suppress evidence found in the search, arguing

among other things that the odor of marijuana no longer suffices to

establish probable cause in light of AMMA. After an evidentiary hearing

the trial court denied the motion, finding that AMMA does not impact the

probable cause determination. Sisco was convicted of all charges and the

court imposed concurrent prison terms, the longest of which was three and

one-half years.

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Opinion of the Court

¶5 The court of appeals, in a split decision, reversed the trial

court’s ruling on Sisco’s suppression motion and vacated his convictions

and sentences. State v. Sisco, 238 Ariz. 229, 246 ¶ 57, 359 P.3d 1, 18 (App.

2015). The majority held that after AMMA, the scent of marijuana, in itself,

is insufficient evidence of criminal activity to supply probable cause, and

there were no “additional, commonly evident facts or contextual

information suggesting a marijuana-related offense.” Id. at 232 ¶ 2, 359 P.3d

at 4. The dissent argued that the odor of marijuana still suffices to establish

probable cause after AMMA and, even if it does not, the facts suggested the

possession here was not in compliance with AMMA and thus supported

the warrant. Id. at 249 ¶ 68, 359 P.3d at 21 (Espinosa, J., dissenting).

¶6 We granted review because whether AMMA affects the

determination of probable cause based on the odor of marijuana is a

recurring issue of statewide importance. We have jurisdiction pursuant to

Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶7 Prohibiting “unreasonable searches and seizures,” the Fourth

Amendment to the United States Constitution provides that “no warrants

shall issue, but upon probable cause.” See also Ariz. Const. art. 2, § 8; A.R.S.

§ 13-3913. Whether a magistrate’s probable cause determination comports

with the Fourth Amendment is a mixed question of law and fact that we

review de novo. State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009).

¶8 Probable cause exists when the facts known to a police officer

“would warrant a person of reasonable caution in the belief that contraband

or evidence of a crime is present.” Florida v. Harris, 133 S. Ct. 1050, 1055

(2013) (internal quotation marks and citations omitted). The facts need not

show it is more likely than not that contraband or evidence of a crime will

be found. “Finely tuned standards such as proof beyond a reasonable

doubt or by a preponderance of the evidence . . . have no place in the

[probable-cause] decision.” Id. (quoting Illinois v. Gates, 462 U.S. 213, 235

(1983)). Instead, all that is “required is the kind of ‘fair probability’ on

which ‘reasonable and prudent [people,] not legal technicians, act.’” Id.

(quoting Gates, 462 U.S. at 238). This “practical and common-sense”

standard depends on the totality of the circumstances. Id.

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Opinion of the Court

A.

¶9 An officer can rely on his or her senses, including the sense of

smell, to establish probable cause if doing so would lead a reasonable

person to believe that contraband or evidence of a crime is present. E.g.,

State v. Decker, 119 Ariz. 195, 197, 580 P.2d 333, 335 (1978). Accordingly,

Arizona decisions predating AMMA held that an officer detecting the odor

of marijuana was itself sufficient to establish probable cause, as the

possession or use of marijuana was per se illegal. See id. (holding that odor

of burning marijuana emanating from hotel room afforded probable cause

to believe crime had been or was being committed); see also State v. Harrison,

111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975) (holding that odor of

marijuana afforded probable cause to believe automobile contained

contraband); State v. Mahoney, 106 Ariz. 297, 301–02, 475 P.2d 479, 483–84

(1970) (holding that probable cause was established by odor of marijuana

emanating from suitcase).

¶10 The parties have used the phrase “plain smell doctrine” to

refer to the proposition that marijuana’s odor can alone provide probable

cause. This terminology, however, is imprecise, partly reflecting that court

opinions have used the phrase “plain smell” in different contexts. The

phrase has sometimes been used to describe circumstances when no

“search” has occurred because detecting an odor does not invade an

expectation of privacy. See, e.g., State v. Morrow, 128 Ariz. 309, 312, 625 P.2d

898, 901 (1981) (holding that dog’s sniffing a bag at an airport is not a search

and stating that “plain smell” doctrine is akin to “plain view” doctrine).

Whether detecting an odor constitutes a search is, of course, a different issue

than whether an odor affords probable cause.

¶11 Equating the “plain smell” or “plain view” doctrines with

relying on one’s senses to establish probable cause is also potentially

confusing because the United States Supreme Court has used the plain view

doctrine to identify circumstances when a police officer may lawfully seize

items without a warrant. See Horton v. California, 496 U.S. 128, 133–34 (1990).

The doctrine allows police to seize an object “if they are lawfully in a

position to view it, if its incriminating character is immediately apparent,

and if they have a lawful right of access to it.” Minnesota v. Dickerson, 508

U.S. 366, 374–75 (1993); see also Horton, 496 U.S. at 133–34; Arizona v. Hicks,

480 U.S. 321, 326–27 (1987); Mazen v. Seidel, 189 Ariz. 195, 197, 940 P.2d 923,

925 (1997).

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STATE V. SISCO

Opinion of the Court

¶12 By requiring that an object’s “incriminating character” be

“immediately apparent” for purposes of the plain view doctrine, the United

States Supreme Court has not adopted a standard more stringent than

probable cause. Although the phrase “immediately apparent” might

suggest “near certainty,” Texas v. Brown, 460 U.S. 730, 741 (1983), the Court

has rejected such “an unduly high degree of certainty as to the

incriminatory character of evidence” for application of the plain view

doctrine, id., clarifying that police need only have probable cause to

associate the object with criminal activity. See Horton, 496 U.S. at 142 (noting

that police had probable cause to believe objects seized were incriminating

evidence); Hicks, 480 U.S. at 326–27 (recognizing plain view doctrine can

apply when officer has probable cause to believe object is contraband);

Brown, 460 U.S. at 741–42; see also State v. Apelt, 176 Ariz. 349, 363, 861 P.2d

634, 648 (1993) (noting that plain view doctrine justified seizure if apparent

evidentiary value of items established probable cause).

¶13 This case does not concern whether a search occurred when

police detected the odor of marijuana or whether the plain view (or “plain

smell”) doctrine authorized a warrantless seizure. Instead, we must decide

whether, in light of AMMA, the officers’ detection of an “overpowering

odor” of marijuana afforded probable cause; that is, whether a reasonable

person would conclude there was a “fair probability” the storage unit

contained contraband or evidence of a crime.

B.

¶14 AMMA has made the use of marijuana lawful for medicinal

purposes under the terms and conditions set forth in that Act. Reed-Kaliher

v. Hoggatt, 237 Ariz. 119, 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40 (2015); State

ex rel. Montgomery v. Harris, 234 Ariz. 343, 345 ¶ 16, 322 P.3d 160, 162 (2014).

Thus, although marijuana possession or use remains illegal under federal

law, the odor of marijuana no longer necessarily reflects criminal activity

under Arizona law.

¶15 Probable cause, however, does not turn on the “innocence” or

“guilt” of particular conduct, but instead on the “degree of suspicion that

attaches to particular types of non-criminal acts.” Gates, 462 U.S. at 243 n.13.

“[P]robable cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity. . . . [T]herefore,

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STATE V. SISCO

Opinion of the Court

innocent behavior frequently will provide the basis for a showing of

probable cause.” Id.

¶16 Notwithstanding AMMA, the odor of marijuana in most

circumstances will warrant a reasonable person believing there is a fair

probability that contraband or evidence of a crime is present. This

conclusion reflects that AMMA did not decriminalize the possession or use

of marijuana generally. A.R.S. § 13-3405(A) (criminalizing marijuana

possession and use in Arizona); A.R.S. § 36-2802(E) (limiting immunity

from civil, criminal, or other penalties for using marijuana to instances

where “authorized under [AMMA]”). If AMMA had done so, or if Arizona

eventually decriminalizes marijuana, our analysis and conclusion in this

context might well be different. Cf. Commonwealth v. Cruz, 945 N.E.2d 899,

908–09 (Mass. 2011) (no reasonable suspicion, let alone probable cause, of

criminal activity based on “faint odor” of marijuana because possession of

up to one ounce of marijuana is not criminal but rather a civil offense); State

v. Crocker, 97 P.3d 93, 96–98 (Alaska Ct. App. 2004) (no probable cause to

believe “strong odor” of marijuana coming from inside residence, without

more, indicated unlawful activity where state constitution authorizes all

citizens to grow marijuana for personal use, up to four ounces).

¶17 Instead, AMMA makes marijuana legal in only limited

circumstances. Possession of any amount of marijuana by persons other

than a registered qualifying patient, designated caregiver, or medical

marijuana dispensary agent is still unlawful, and even those subject to

AMMA must strictly comply with its provisions to trigger its protections

and immunities. See A.R.S. §§ 13-3405(A)(1), 36-2802(E). Thus, when an

officer detects marijuana by sight or smell, the “degree of suspicion that

attaches” remains high, notwithstanding AMMA. See Gates, 462 U.S. at 243

n.13. A reasonable officer is therefore justified in concluding that such sight

or smell is indicative of criminal activity, and thus probable cause exists.

See id.

¶18 This does not mean, however, that AMMA has no effect on an

officer’s probable cause determination. Because probable cause is

determined by the totality of the circumstances, Gates, 462 U.S. at 238, and

marijuana possession or use is lawful when pursuant to AMMA, Reed-

Kaliher, 237 Ariz. at 122–23 ¶¶ 7, 17, 347 P.3d 136, 139–40, a reasonable

officer cannot ignore indicia of AMMA-compliant marijuana possession or

use that could dispel probable cause. See, e.g., State v. Buccini, 167 Ariz. 550,

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STATE V. SISCO

Opinion of the Court

556–58, 810 P.2d 178, 184–86 (1991) (holding probable cause absent when

officer ignores information material to distinction between criminal and

non-criminal activity). Moreover, we have consistently held that police

must include exculpatory facts that are known to them and material to the

probable cause determination in any affidavit in support of a search

warrant. Id. at 554–55, 557–58, 810 P.2d at 182–83, 185–86 (noting that

“omissions are material where there is a substantial possibility that the

omitted facts would have altered a reasonable magistrate’s probable cause

determination”) (internal quotation marks and citations omitted)); see also

State v. Carter, 145 Ariz. 101, 109–10, 700 P.2d 488, 496–97 (1985). We

reaffirm those principles here, giving effect to the interplay between

Arizona’s general proscription of marijuana and AMMA.

¶19 For instance, AMMA requires qualifying patients to register

with the Arizona Department of Health Services (“DHS”) and apply for a

registry identification card in order to lawfully possess and use medical

marijuana. A.R.S. § 36-2811(B) (limiting immunity from arrest, prosecution,

or penalty for marijuana offenses to the medical use of marijuana for a

“registered qualifying patient[]” (emphasis added)); A.R.S. § 36-2801(9)

(defining “medical use” of marijuana as “possession . . . [or] use” of

marijuana for treatment of a “registered qualifying patient’s debilitating

medical condition”) (emphasis added). If the qualifying patient satisfies all

statutory and regulatory requirements to possess and use medical

marijuana, DHS issues the patient a registry identification card. A.R.S.

§§ 36-2804.05(A),-2804.04(A), -2804.03(A).

¶20 Presentation of a valid AMMA registry identification card,

therefore, could indicate that marijuana is being lawfully possessed or used.

Such information could effectively dispel the probable cause resulting from

the officer’s detection of marijuana by sight or smell, unless of course other

facts suggest the use or possession is not pursuant to AMMA. See A.R.S.

§ 36-2811(H) (providing that possession of registration card does not

provide probable cause but also does not preclude existence of probable

cause on other grounds). The ultimate inquiry, as in other probable cause

determinations, turns on a “practical, common-sense” consideration of the

totality of the circumstances. Harris, 133 S. Ct. at 1055.

¶21 Sisco argues that AMMA has elevated the standard of

probable cause with respect to marijuana, either in general or at least with

respect to registered qualifying patients. Under that view, no person in

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STATE V. SISCO

Opinion of the Court

Arizona would be subject to search or seizure by state or local police officers

based only on an officer seeing or smelling marijuana. Instead, officers

would need something more to conclude criminal activity is occurring or

has occurred – what might be termed an “odor (or sight) plus” standard.

¶22 We disagree. AMMA does not broadly alter the legal status

of marijuana in Arizona but instead specifies particular rights, immunities,

and obligations for qualifying patients and others, such as designated

caregivers. See A.R.S. §§ 36-2801(13) (defining “qualifying patient” as those

diagnosed by a physician as having a debilitating medical condition); 36-

2811(B) (limiting AMMA’s protections only to those qualifying patients

registered with DHS and complying with AMMA’s limitations); 36-2802(E)

(reiterating marijuana possession and use remains unlawful in Arizona

“except as authorized under [AMMA]”).

¶23 Nor does AMMA’s broad immunity provision, § 36-2811(B),

or its subsection relating to probable cause, § 36-2811(H), suggest that

AMMA patients have greater protections from searches or increased

expectations of privacy than those enjoyed by the general public.

Subsection (B) affords immunities for specified conduct under AMMA;

subsection (H) provides that possession of a registry card does not itself

constitute probable cause, but also does not preclude the existence of

probable cause on other grounds. AMMA expressly does not prevent the

imposition of criminal or other penalties for using marijuana except as

permitted by the statute. § 36-2802(E). Taken together, these provisions

suggest that registered qualifying patients, and others covered by the Act,

are not generally afforded greater protections from searches than is the

general public, but instead enjoy such protections as AMMA specifically

provides. E.g., §§ 36-2811(E), (F) (affording certain protections against

searches of registered nonprofit medical marijuana dispensaries and their

agents).

¶24 Sisco also argues that allowing searches based merely on the

odor of marijuana would deny registered patients their right to privacy

protected by the Fourth Amendment and Article 2, Section 8 of the Arizona

Constitution. Denying this right, Sisco contends, would in turn violate

AMMA’s provision stating that a registered qualifying patient is not

“subject to . . . denial of any right or privilege” for the patient’s medical use

of marijuana. § 36-2811(B). But the right to privacy protected by the Fourth

Amendment and Article 2, Section 8 is not a guarantee against all

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STATE V. SISCO

Opinion of the Court

government searches and seizures, only unreasonable ones. U.S. Const.

amend. IV; United States v. Sharpe, 470 U.S. 675, 682 (1985); State v. Ault, 150

Ariz. 459, 463, 724 P.2d 545, 549 (1986). A search properly executed

pursuant to a valid warrant supported by probable cause generally

comports with that guarantee. See Gates, 462 U.S. at 262–63 (White, J.,

concurring); see also Ault, 150 Ariz. at 463, 724 P.2d at 549.

¶25 Given Arizona’s general prohibition against marijuana

possession and use, it is reasonable for officers to conclude that criminal

activity is occurring when they see or smell marijuana, thereby satisfying

probable cause. In this respect, registered qualifying patients are not

denied Fourth Amendment rights or privileges based on their medical

marijuana use; they are simply treated like the broader public. Moreover,

as we have explained, probable cause can be dispelled by indicia of AMMA-

compliant marijuana possession and use. Under the standard we adopt,

registered qualifying patients are not denied Fourth Amendment rights or

privileges, nor are they “subject to arrest, prosecution or penalty in any

manner,” for their medical use of marijuana. § 36-2811(B)(1).

¶26 We reject the “odor (or sight) plus” standard adopted by the

court of appeals and urged by Sisco. Instead, the general proscription of

marijuana in Arizona and AMMA’s limited exceptions thereto support

finding probable cause based on the smell or sight of marijuana alone

unless, under the totality of the circumstances, other facts would suggest to

a reasonable person that the marijuana use or possession complies with

AMMA. This “odor (or sight) unless” standard comports with the Fourth

Amendment standard prescribed in Gates and gives effect to AMMA’s

exceptions by precluding officers or magistrates from ignoring indicia of

AMMA-compliant marijuana use or possession when assessing probable

cause.

C.

¶27 Applying the “odor unless” standard, we hold that probable

cause existed to support issuance of the search warrant in this case. The

odor of marijuana suggested illegality, even if after AMMA it did not

conclusively establish a crime was occurring. Nothing in the record

suggests that the police, in seeking a warrant, disregarded any indicia that

marijuana was being used or possessed in compliance with AMMA. Sisco

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STATE V. SISCO

Opinion of the Court

is not a registered qualifying patient, nor is he otherwise authorized by

AMMA to cultivate or possess marijuana.

¶28 Here the police detected an “overpowering odor” of

marijuana emanating from a cinderblock warehouse complex. The mere

fact that AMMA authorizes use, possession, or cultivation of marijuana in

certain circumstances does not dispel the probable cause established by the

odor. Under AMMA, registered qualifying patients are generally

authorized to possess up to two and one-half ounces of useable marijuana,

while those patients that live more than twenty-five miles from the nearest

dispensary may be authorized to cultivate up to twelve marijuana plants.

§ 36-2801(1)(a); § 36-2804.02(A)(3)(f). A designated caregiver may also

cultivate up to sixty plants, but only if the caregiver cares for five patients,

all five patients are authorized to cultivate marijuana, and each patient

designates the caregiver to cultivate on their behalf. §§ 36-2801(1)(b)(ii), (5);

§ 36-2804.02(A)(3)(f). AMMA also authorizes dispensary cultivation sites

in certain locations. See A.R.S. § 36-2804(B)(1)(b)(ii). Nothing suggests the

police here had reason to believe they had detected marijuana authorized

by any of these provisions.

¶29 In sum, under the totality of the circumstances presented

here, the odor of marijuana established probable cause. We have no

occasion to assess how, in other circumstances, probable cause might be

dispelled by such facts as a person’s presentation of a valid registration

card.

III.

¶30 We affirm the trial court’s ruling denying the motion to

suppress, vacate the court of appeals’ opinion, and remand to the court of

appeals so it may consider Sisco’s argument that the evidence was

insufficient to support his conviction for child abuse and any other issues

he properly preserved in his appeal from his convictions and sentences.

10