Possession of a Potentially Legal Plant In Arizona

In Arizona, the degree of suspicion that now attaches to the possession of a potentially legal plant, much like the possession of a potentially legal pill, is comparatively modest in the absence of any information about the status of the person or entity possessing it. That conclusion is not altered by the fact that marijuana has hitherto been illegal under all circumstances and that law enforcement officers may therefore have understandably developed practices in accord with that now-outdated assumption. As the supreme court of Arizona made clear in State v. Richcreek, 187 Ariz. 501, 504, 930 P.2d 1304, 1307 (1997), law enforcement officers are not entitled to search everyone they deem suspicious in order to confirm the lawfulness of that person's conduct. 187 Ariz. at 504, 930 P.2d at 1307. Rather, officers must be able to make some particularized showing that distinguishes a mere possibility that a person may have committed a crime from a "fair probability" that the search will provide evidence of criminal activity. Gates, 462 U.S. at 238.