Opinion
No. 1 CA-CR 15-0038
12-22-2015
STATE OF ARIZONA, Appellee, v. ALICIA MICHELLE RAMIREZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-107711-001
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined. CATTANI, Judge:
¶1 Alicia Michelle Ramirez appeals her misdemeanor convictions of one count of possession of marijuana and two counts of possession of drug paraphernalia. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Ramirez was pulled over after a Phoenix Police officer observed her speeding in a 40-mph zone. When the officer asked Ramirez if she knew why she had been pulled over, she said she might have been speeding, and she told the officer she was "a little buzzed." As the officer spoke with Ramirez, he noticed a strong odor of alcohol and marijuana.
¶3 While conducting field sobriety tests, the officer told Ramirez he could smell marijuana and asked if there were drugs in the vehicle. Ramirez admitted to smoking marijuana a few hours earlier, and she told the officer she thought there was some marijuana on the passenger side floorboard.
¶4 After arresting Ramirez for suspected driving under the influence, the officer found an open metal container on the passenger side floorboard of Ramirez's car. The container held a grinder, marijuana in a clear plastic bag, and a pipe. There was a second pipe in the car's center console.
¶5 Ramirez moved to suppress the evidence of marijuana and drug paraphernalia found in her car. She argued that the warrantless search of her vehicle was unconstitutional. The State responded that the odor of marijuana provided probable cause to search the vehicle under the "plain smell" doctrine, and that the search was valid as being incident to Ramirez's arrest for driving under the influence. At a subsequent evidentiary hearing, Ramirez asserted that because of the Arizona Medical Marijuana Act ("AMMA"), the plain smell doctrine cannot be applied to marijuana. The superior court rejected this argument and denied Ramirez's motion to suppress.
¶6 At a bench trial, Ramirez was found guilty on all three counts. She timely appealed, and we have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 13-4033(A)(1).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
¶7 Ramirez contends that the superior court erred by denying her motion to suppress, again asserting that the plain smell doctrine does not apply to the smell of marijuana, and that the officer thus did not have probable cause for a warrantless search. We review a denial of a motion to suppress for an abuse of discretion, viewing the facts in the light most favorable to sustaining the ruling, but reviewing de novo the court's legal conclusions. State v. Manuel, 229 Ariz. 1, 4, ¶ 11 (2011); State v. Cheatham, 237 Ariz. 502, 504, ¶ 6 (App. 2015).
¶8 To justify a warrantless search under the plain smell doctrine, "a police officer must lawfully be in a position to []smell the object, its incriminating character must be immediately apparent, and the officer must have a lawful right of access to the object." State v. Baggett, 232 Ariz. 424, 428, ¶ 16 (App. 2013).
¶9 Ramirez does not dispute the legality of the traffic stop or the officer's lawful right of access. She asserts only that, in light of the AMMA, the smell of marijuana did not justify the search.
¶10 In State v. Cheatham, this court recently rejected an argument similar to that raised by Ramirez relating to the AMMA and the plain smell doctrine. 237 Ariz. at 504, 506, ¶¶ 4, 13. In Cheatham, an officer noticed a strong odor of marijuana emanating from a vehicle that had been pulled over because the window tinting appeared to be too dark. Id. at 503, ¶ 2. During a warrantless search of the vehicle, the officer found marijuana and arrested the defendant for possession of marijuana. Id. at ¶ 3. The defendant argued unsuccessfully in a suppression hearing that in light of the AMMA, the plain smell of marijuana no longer gives rise to probable cause justifying a warrantless search. Id. at 504, ¶ 4. On appeal, this court reasoned that the AMMA does not decriminalize the possession or use of marijuana, but rather provides immunity from an otherwise criminal act. Id. at 504-05, ¶ 9. This court thus affirmed the superior court's finding that the plain smell of marijuana provided probable cause for a warrantless search. Cf. State v. Sisco, 238 Ariz. 229, 238, ¶ 26 (App. 2015) (noting that, even after the AMMA's passage, the odor of marijuana in an automobile "suggests a crime has occurred").
¶11 As in Cheatham, in the instant case, the plain smell of marijuana established probable cause sufficient to justify the warrantless search. Accordingly, we reject Ramirez's argument that the AMMA provides a basis for relief.
Because the plain smell of marijuana justified the search, we do not address Ramirez's other arguments in support of her motion to suppress. --------
¶12 Finally, we reject Ramirez's argument that the vehicle search was unlawful under Article 2, Section 8 of the Arizona Constitution. Ramirez did not raise this argument in the superior court, so it can only be considered in the context of a review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (holding that unobjected-to error is only reversible if it is "error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial."). But Ramirez has not asserted that her claim under the Arizona Constitution resulted in fundamental error, and she has thus waived the argument. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶ 17 (App. 2008).
¶13 Moreover, waiver notwithstanding, although Arizona courts have recognized that Article 2, Section 8 provides greater privacy protections than provided under the federal Constitution as to warrantless home entries, see State v. Juarez, 203 Ariz. 441, 444, ¶ 14 (App. 2002), those protections have not be extended to vehicle searches. See State v. Reyna, 205 Ariz. 374, 378 n.5, ¶ 14 (App. 2003) (noting that "we do not read the court's decisions concerning home searches as evidencing a state-law departure from Fourth Amendment principles governing vehicle searches."). Thus, Ramirez's argument under the Arizona Constitution is unavailing.
CONCLUSION
¶14 The convictions and sentences are affirmed.