Arizona police can search based on pot smell, despite legal uses: court

By David Schwartz

PHOENIX (Reuters) – Police in Arizona may legally search an individual’s home or vehicle based solely on the smell of marijuana, even though the drug is legal for medical use, the state Supreme Court ruled Monday.

In two unanimous opinions, the state’s highest court said the smell of marijuana can be used as probable cause to obtain a search warrant despite the fact that Arizona allows its use for medical purposes.

“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,” wrote Chief Justice Scott Bales.

The court rejected claims that a 2010 law legalizing the medical use of marijuana in the state means the smell test could no longer be used.

The ruling came amid liberalizing attitudes toward marijuana among many in the country. Arizona is one of several states, including California and Nevada, where advocates are pushing ballot initiatives to legalize the drug for use by adults.

A spokeswoman for the state attorney general’s Office could not immediately be reached for comment.

Mason Tvert, spokesman for the Marijuana Policy Project, said the ruling leaves intact the medical marijuana law in Arizona, one of 25 states along with the District of Columbia that allows such usage.

“It can present a burden for some patients but it is not going to affect those qualified patients from losing any of their rights,” Tvert said.

Under Arizona’s Medical Marijuana Act, registered users can obtain 2-1/2 ounces of the drug every two weeks with a doctor’s consent and patients living more than 25 miles from a dispensary can grow up to 12 plants. The law also allows registered caregivers to cultivate up to 60 plants.

The twin rulings stem from searches conducted by police in 2013.

In one, police in Tucson were called to a storage warehouse after a tip that there was “strong odor” of marijuana coming from the complex. Arriving officers encountered the same smell.

Officers were able to get a magistrate to issue a search warrant based on the finding and discovered a large marijuana growing operation inside one of the units that also was being used as a residence.

The second case involved police smelling a “pretty strong” odor of burned marijuana coming from a vehicle stopped on suspicion that its window tinting violated state law.

Officers found a small amount of marijuana under the driver’s seat.