Issues presented (from State’s PFR):
1. Did the court of appeals correctly read State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), to establish a standard of evidence for search and arrest based on the odor of a controlled substance that is more demanding than the constitutional standard of probable cause?
2. Did police have probable cause to search Moore incident to arrest under the totality of the circumstances, which included a “strong” odor of raw marijuana coming from the vehicle of which Moore was the sole occupant?
Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore and found cocaine and fentanyl. As described in more detail in our post on the decision, the court of appeals held that under Secrist, the odor of marijuana in this case, either by itself or when coupled with other information, didn’t provide probable cause to arrest Moore and search him incident to arrest.
Secrist held that the odor of marijuana alone may provide probable cause to to arrest if it is “unmistakeable” to an officer with relevant training or experience. The court of appeals read Secrist to require evidence that the officers had training or experience enabling them to reliably identify the odor of marijuana, and in Moore’s case there was no evidence the officers had the requisite training or experience. Also, Moore provided an innocent explanation for the odor—that he vaped CBD. Because it was undisputed that the odor of CBD is indistinguishable from that of marijuana, the odor wasn’t “unmistakeable” because the odor of CBD may be mistaken for the odor of marijuana.
The state’s petition for review complains that the court of appeals “overread” Secrist as establishing an evidentiary standard regarding the odor of marijuana that “is distinct from, and far more demanding than, the constitutional standard of probable cause.” (PFR at 14). Indeed, the PFR asserts, the court of appeals itself acknowledged there may be “tension” between Secrist‘s requirement that the odor of marijuana be “unmistakable” and the quantum of evidence normally required to establish probable cause. (Slip op. ¶31 n.11).
In particular, the state says the court of appeals improperly reached its own indepedent conclusion about whether the odor in this case was “unmistakeable,” as required by Secrist, because it ignored the circuit court’s finding of fact that the officers detected a “strong” odor, which was enough to establish probable cause (though the circuit court went on to conclude probable cause dissipated due to the officers’ subsequent inability to detect the odor on Moore himself). The state also argues the court of appeals improperly discounted the officers’ testimony about the odor of marijuana based on the possible innocent explanation that the odor was from CBD, not marijuana, as probable cause doesn’t depend on ruling out innocent explanations. (PFR at 18).
The supreme court’s clarification (or revision) of the Secrist rule will obviously be an important decision—in part because since Secrist was decided in 1999 there has been a sea-change in the regulation and availability of marijuana, which means that odor lingering after legal use in another state could lead to arrests and searches here in Wisconsin.