Arizona Vehicle Searches: Marijuana Odor Is Not Suspicion

The operative language is in the chapeau of A.R.S. § 36-2852(A). Adult conduct that the section makes lawful is "not an offense under the laws of this state or any locality, may not constitute the basis for detention, search or arrest, and cannot serve as the sole basis for seizure or forfeiture of assets." Read the two halves separately, because they are not the same standard. For detention, search and arrest the protected conduct may not be the basis at all. For seizure and forfeiture it merely cannot be the sole basis. The protected conduct itself is defined in paragraphs 1 through 6: possessing, consuming, purchasing, processing or transporting one ounce or less of marijuana, of which no more than five grams may be concentrate; cultivating up to six plants at your primary residence under stated conditions; gratuitous transfers of that amount or of up to six plants to another adult twenty-one or over; and paraphernalia.

Subsection C is the piece most drivers are looking for. It says that "the odor of marijuana or burnt marijuana does not by itself constitute reasonable articulable suspicion of a crime." Note what that removes and what it leaves. Odor alone no longer gets an officer past the reasonable-suspicion threshold, so smell plus nothing else is not a lawful basis for prolonging a stop or searching a car. The second sentence of subsection C then carves out impaired driving: the rule "does not apply when a law enforcement officer is investigating whether a person has violated section 28-1381." In a DUI investigation the odor is back in play, and subsection B makes clear that metabolites or components of marijuana in the body make out a violation of § 28-1381(A)(3) only if the person is also impaired to the slightest degree.

These protections came from Proposition 207, the Smart and Safe Arizona Act, which Arizona voters approved in November 2020 and which created title 36, chapter 28.2. The official text of § 36-2852 carries the notation "(Caution: 1998 Prop. 105 applies)." That marker matters: under article IV, part 1, § 1(6)(C) of the Arizona Constitution the Legislature cannot amend a voter-approved measure unless the amending legislation furthers the purposes of the measure and at least three-fourths of the members of each house vote for it by roll call. A future Legislature cannot quietly repeal the odor rule the way it could an ordinary statute.

The protection has hard edges, and knowing them tells you when a search stays lawful. Possessing more than one ounce but not more than two and one-half ounces is a petty offense under A.R.S. § 36-2853(A). Smoking marijuana in a public place or open space is prohibited by A.R.S. § 36-2851(8)(a) and is a petty offense under § 36-2853(C). Most importantly for a vehicle stop, A.R.S. § 36-2851(8)(b) says the chapter does not allow any person to consume marijuana or marijuana products "while driving, operating or riding in the passenger seat or compartment of an operating motor vehicle." Conduct outside the protected list is not protected conduct, so an officer who observes it is not relying on odor alone.

Nothing in Proposition 207 turned into a consent-advisory statute. Arizona has no provision requiring an officer to tell a driver that a search may be refused, and no statutory duty to record whether consent was requested and given of the kind Texas and Illinois adopted. The stop authority itself is spare: A.R.S. § 28-1594 permits an officer or traffic enforcement agent to "stop and detain a person as is reasonably necessary to investigate an actual or suspected violation of this title." The backstop is constitutional rather than statutory. Article 2, § 8 of the Arizona Constitution provides that "No person shall be disturbed in his private affairs, or his home invaded, without authority of law," wording that is textually distinct from the Fourth Amendment.

One Arizona statute cuts the other way and is worth knowing before you assume that a bad search ends a case. A.R.S. § 13-3925(C) directs that a trial court "shall not suppress evidence that is otherwise admissible in a criminal proceeding if the court determines that the evidence was seized by a peace officer as a result of a good faith mistake or technical violation." Subsection F defines a good faith mistake as a reasonable judgmental error about facts that would have amounted to probable cause, and a technical violation as reasonable good faith reliance on a statute later ruled unconstitutional, a warrant later invalidated by a good faith mistake, or a controlling precedent later overruled. Subsection E exempts unlawful electronic eavesdropping and wiretapping from that rule, so the wiretap chapter keeps its own remedy.

§ 36-2852 are a limit on officers rather than an offense, so the penalties that matter are the ones that mark where the protection stops. § 36-2853(A). Smoking in a public place or open space is a petty offense under § 36-2853(C). A person under twenty-one who possesses, consumes, transports or transfers an ounce or less pays a civil penalty of up to $100 to the smart and safe Arizona fund for a first violation, commits a petty offense for a second, and commits a class 1 misdemeanor for a third or subsequent violation under § 36-2853(B).

Cultivating in public view or outside a locked enclosure is a petty offense first and a class 3 misdemeanor thereafter under § 36-2853(D). § 36-2851(3) preserves the state's power to penalise it.