PHOENIX -- Just days after three judges one division of the Court of Appeals said the smell of marijuana is not enough for a search, a second panel in another division have reached a contrary conclusion.
The judges on Thursday upheld the actions by police officers who searched a vehicle they had stopped after detecting the smell of burnt marijuana. That search yielded what police said was a "marble size'' quantity of the unburnt drug.
An attorney for Ian H. Cheatham argued that once voters approved the Arizona Medical Marijuana Act, the smell of burnt marijuana, absent more, is no longer evidence that a crime is being committed. And that, he argued, made the search illegal.
Judge Samuel Thumma, writing for the unanimous three-judge panel, acknowledged that 2010 law specifically allows those with a doctor's recommendation and state-issued card to possess up to 2 1/2 ounces of marijuana.
But Thumma said he does not read the law as making the possession of the drug legal. Instead, he wrote, it simply immunizes those who have an ID card issued under the law from prosecution.
What all that means, he said, is police remain free to search based on smell alone, with the only issue being whether someone can be prosecuted if they turn up marijuana. And in this case, he said, Cheatham was not an authorized marijuana user.
Thursday's ruling in the Maricopa County case appears in direct conflict with a decision from another three-judge panel which ruled just days earlier that the smell of marijuana alone is not enough in Arizona for police to get a warrant or, by extension, conduct a search where a warrant is unnecessary. That conflict likely means the Arizona Supreme Court will have to review the issue and decide, once and for all, what is the law for the entire state.
Officers said they stopped Cheatham's car because the tinting on the windshield appeared to be darker than permitted by law. While speaking with Cheatham, one officer said he smelled a strong odor of burnt marijuana and asked Cheatham to step out of the car so the officer could search it.
A prescription pill bottle yielded the smell of unburnt marijuana. Officers eventually found some drugs under the seat and arrested Cheatham.
In arguing the search that led to the arrest and conviction was illegal, Cheatham's attorney said no one ever asked his client whether he was authorized to use the drug under the 2010 law. And that law says registered patients are "not subject to arrest, prosecution or penalty in any manner.''
But Thumma said none of that made the search illegal.
"The AMMA does not decriminalize marijuana possession or use,'' he wrote, but instead only provides immunity.
More to the point, he said it is up to someone who is authorized to use the drug to claim and prove that his or her actions fall within the scope of immunity. He said Cheatham did not do that.
"Cheatham never claimed he was a registered qualifying patient with an AMMA registry identification card when he was pulled over, when the marijuana was seized, when he was arrested or at any other relevant time,'' the judge wrote. In fact, Thumma said, Cheatham has conceded he is not a registered patient.
What all that means, the judge said, is that police who stop a vehicle are entitled to rely on "plain smell'' to search a vehicle without a warrant.
"The fact that a registered patient under the AMMA with a valid registry identification card can affirmatively claim immunity from arrest, prosecution or penalty for possession of use of marijuana .... does not eliminate the significance of the smell of marijuana as an indicator of criminal activity in this case,'' Thumma said.