                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                        IAN HARVEY CHEATHAM,
                              Appellant.

                          No. CR-15-0286-PR
                          Filed July 11, 2016

          Appeal from the Superior Court in Maricopa County
               The Honorable Jeanne M. Garcia, Judge
                         No. CR2013-424212
                             AFFIRMED

             Opinion of the Court of Appeals, Division One
                237 Ariz. 502, 353 P.3d 382 (App. 2015)
                              VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Myles A. Braccio (argued), Assistant Attorney General, Phoenix, Attorneys
for State of Arizona

Maricopa County Public Defender, Carlos Daniel Carrion (argued), Deputy
Public Defender, Phoenix, Attorneys for Ian Harvey Cheatham

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1           We here consider whether, after passage of the Arizona
Medical Marijuana Act (“AMMA”), A.R.S. §§ 36-2801 through 2819, the
odor of marijuana emanating from a vehicle establishes probable cause to
                           STATE V. CHEATHAM
                            Opinion of the Court

believe the vehicle contains contraband or evidence of a crime. Consistent
with our concurrently issued opinion in State v. Sisco, CR–15–0265–PR, slip
op. at ___ ¶ 26 (Ariz. July __, 2016), we hold that the odor of marijuana
sufficed to establish probable cause, and the ensuing search was therefore
authorized by the automobile exception to the warrant requirement.

                                       I.

¶2             In May 2013, two police officers stopped Ian Cheatham’s car
on the suspicion that its window tinting violated Arizona law. After
approaching the driver’s window and speaking with Cheatham, one officer
noticed a “pretty strong” odor of burnt marijuana from inside the vehicle.
Based on the odor, the officer asked Cheatham to exit the vehicle and then
searched the car. During the search, the officer found a small amount –
described as the “size of a marble” – of unburnt marijuana under the
driver’s seat. The officer seized the marijuana and arrested Cheatham.

¶3             Before his trial for possession or use of marijuana, Cheatham
filed a motion to suppress. He argued that, after AMMA, the odor of
marijuana alone no longer provides probable cause, and therefore the
search of his vehicle was not authorized by the automobile exception to the
warrant requirement. The trial court denied the motion. After a bench trial,
the court found Cheatham guilty and placed him on supervised probation
for one year.

¶4             The court of appeals affirmed and held that, notwithstanding
AMMA, “the odor of marijuana provided sufficient probable cause that
marijuana was present and that a crime was being or had been committed.”
State v. Cheatham, 237 Ariz. 502, 506 ¶ 14, 353 P.3d 382, 386 (App. 2015).
Distinguishing State v. Sisco, 238 Ariz. 229, 359 P.3d 1 (App. 2015), which
had not involved a vehicle, the court also stated that it disagreed with Sisco
to the extent its analysis could be read to “direct a different result” here. Id.
at 506 ¶ 13 n.5, 353 P.3d at 386.

¶5             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.



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                          STATE V. CHEATHAM
                           Opinion of the Court

                                      II.

¶6             We review the denial of a motion to suppress evidence for an
abuse of discretion. State v. Wilson, 237 Ariz. 296, 298 ¶ 7, 350 P.3d 800, 802
(2015). An error of law constitutes an abuse of discretion. State v. Bernstein,
237 Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). Whether the probable cause
determination here 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).

¶7            The Fourth Amendment to the United States Constitution
prohibits “unreasonable searches and seizures.” Warrantless searches and
seizures are generally unreasonable, subject to a “few specifically
established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S.
385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One
such exception allows the warrantless search of an automobile, including
containers within, provided an officer has probable cause to believe
contraband or evidence will be found. E.g., Arizona v. Gant, 556 U.S. 332,
343–44 (2009); California v. Acevedo, 500 U.S. 565, 579–80 (1991).

¶8            Before AMMA was adopted in 2010, marijuana possession or
use was per se illegal in Arizona. Thus, Arizona cases predating AMMA
held that the smell of marijuana alone provides probable cause to believe
criminal activity is occurring or has occurred and that contraband is
present. E.g., State v. Decker, 119 Ariz. 195, 197–98, 580 P.2d 333, 335–36
(1978). We have also applied that standard to the odor of marijuana
emanating from a vehicle, thereby justifying a warrantless search pursuant
to the automobile exception. State v. Harrison, 111 Ariz. 508, 509, 533 P.2d
1143, 1144 (1975).

¶9            AMMA has made the possession and 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). Thus, the smell of marijuana no longer necessarily reflects criminal
activity under Arizona law. Cheatham argues that after AMMA the odor
of marijuana alone cannot establish probable cause because officers must
consider the “possibility that a person is not guilty of any offense.”

¶10          We disagree. As discussed in Sisco, probable cause does not
evaluate the “innocence” or “guilt” of particular conduct, but rather the

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                          STATE V. CHEATHAM
                           Opinion of the Court

“degree of suspicion that attaches to particular types of non-criminal
conduct.” Sisco, CR–15–0265–PR, slip op. at ___ ¶ 15 (quoting Illinois v.
Gates, 462 U.S. 213, 243 n.13 (1983) (also explaining that “probable cause
requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity,” and thus “innocent behavior will
frequently provide the basis” for probable cause)).

¶11           We held in Sisco that even after AMMA, the odor of
marijuana, without more, provides probable cause that a crime has
occurred or is occurring. See Sisco, CR–15–0265–PR, slip op. at ___ ¶ 26.
Thus, when the officer here smelled burnt marijuana emanating from
Cheatham’s vehicle, he had probable cause to believe the vehicle contained
contraband or evidence of criminal activity. See also Harrison, 111 Ariz. at
509, 533 P.2d at 1144 (odor of marijuana emanating from vehicle provided
probable cause to believe contraband would be found within).

¶12           To be sure, under the “odor unless” standard adopted in Sisco,
an officer would be required to consider any indicia of AMMA-compliant
possession or use, and such facts – as part of the totality of the
circumstances – might dispel probable cause that otherwise exists based on
odor alone. We need not address here the scope of AMMA’s provisions
stating that the Act does not authorize smoking marijuana in any public
place or on any means of public transportation. Cheatham was not a
registered qualifying patient, and no other facts known to the officer would
have suggested to a reasonable person that the odor of burnt marijuana
reflected use permitted by AMMA. Cf. A.R.S. § 36-2802(E) (immunizing
from prosecution the use of marijuana “only as permitted” by AMMA).

¶13          Because the officer had probable cause, the automobile
exception authorized him to search all areas of Cheatham’s vehicle,
including containers found within, that could have contained marijuana or
evidence of marijuana possession. Gant, 556 U.S. at 343–44; Acevedo, 500
U.S. at 579–80; see also State v. Reyna, 205 Ariz. 374 ¶ 1, 71 P.3d 366 (App.
2003).

                                     III.

¶14          We affirm Cheatham’s conviction and probationary term and
vacate the opinion of the court of appeals.


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