AZ: The smell of burnt marijuana in a car may be PC; burden on def to show MMJ card

Arizona’s First District Court of Appeals distinguishes Sisco from the Second District from four days earlier: The smell of burnt marijuana in a car is different, and the burden is on the defendant to show he’s a MMJ user. State v. Cheatham, 2015 Ariz. App. LEXIS 124 (July 23, 2015):

5 Although adopting a different analysis, the majority in State v. Sisco, No. 2 CA-CR 2014-0181, 2015 WL 4429575 (Ariz. App. July 20, 2015) (2-1 decision) does not direct a different result. As applied to the facts of this case, the Sisco majority stated that “even with the AMMA’s passage, the odor of burnt marijuana in public or in an automobile still suggests a crime has occurred.” Id. at *7 ¶ 26 (emphasis added). Moreover, Sisco involved “[a]n ex parte search warrant hearing” that “afford[ed] no opportunity to assert a defense” under the AMMA, id. at *13 ¶ 49, unlike Cheatham’s interaction with police where, had he been a registered qualifying patient, he could have asserted immunity under the AMMA by presenting his registry identification card to the officers when he was stopped. Finally, to the extent the analysis of the Sisco majority could be read to apply here to direct a different result, this court would respectfully disagree using, instead, the analysis set forth in this opinion.