July 11, 2023 – Police officers who detected an odor of marijuana coming from a vehicle but not specifically from its driver had probable cause to arrest and search the driver, the Wisconsin Supreme Court has ruled (4-3) in State v. Moore, 2023 WI 50 (June 20, 2023).
Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Bradley. Justice Rebecca Dallet dissented, joined by Justices Ann Walsh Bradley and Jill Karofsky.
In November 2019, a City of Marshfield police officer pulled Quaheem Moore over for speeding.
While she was pulling Moore over, the officer, Libby Abel, saw a liquid fly out of the driver’s side window and saw the vehicle bump a curb while it was turning down a side street.
When Abel approached Moore’s vehicle and questioned him, she smelled “raw marijuana.”
When Officer Mark Scheppler arrived, he and Abel escorted Moore out of his vehicle. Abel patted Moore down and found a vaping device.
Abel asked Moore if the vaping device was for THC. Moore told her that the vaping device was for CBD.
The Smell of Marijuana
When Abel asked Moore about the liquid she saw fly out of the vehicle, Moore denied throwing anything out the window.
Abel asked Moore if he’d been drinking; he said he hadn’t. When Abel said she smelled marijuana coming from the vehicle, Moore disagreed.
Both officers said the marijuana smell was coming from the vehicle. Abel and Moore then said they were going to search Moore, based on the odor of marijuana.
Drugs Hidden Behind Zipper
The first time Scheppler searched Moore, he found only cash. But Scheppler noticed that Moore’s belt buckle was riding up on his pants, so he decided to examine the area around Moore’s zipper.
When Scheppler looked behind Moore’s belt buckle, he saw a bulge in Moore’s pants. When Scheppler searched the area of Moore’s zipper, he felt fabric that was different from the pants’ material.
Scheppler searched Moore again and discovered two plastic baggies in a false pocket behind Moore’s zipper. The baggies contained fentanyl and cocaine.
Motion to Suppress Granted
The Wood County District Attorney charged Moore with two counts: 1) possession with intent to deliver narcotics; and 2) possession with intent to deliver more than one but less than five grams of cocaine.
Moore moved to suppress the evidence; he argued that the police officers lacked probable cause to arrest and search him.
The Wood County Circuit Court granted the motion. The state appealed, and the Wisconsin Court of Appeals affirmed.
The state appealed to the Wisconsin Supreme Court.
The Nose Knows
Justice Hagedorn began his opinion for the majority by explaining that a search incident to arrest is one exception to the Fourth Amendment’s warrant requirement.
Under both U.S. Supreme Court and Wisconsin Supreme Court caselaw, Hagedorn pointed out, the police must have probable cause that a crime has been committed before conducting a warrantless search incident to arrest.
He also noted that the Wisconsin Supreme Court held in State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), that when a police officer smells a controlled substance, common sense dictates that a crime has probably been committed.
Under Secrist, Justice Hagedorn wrote, “the question is whether this illegal activity was sufficiently linked to the suspect such that a reasonable law enforcement officer would reasonably believe it was the suspect who was involved in the illegal drug activity.”
Hagedorn reasoned that, given the totality of the circumstances, it was reasonable for the officers to believe Moore was responsible for the smell of marijuana coming from the vehicle.
“The officers need not know with certainty that Moore was committing or had committed illegal activity, but they had more than enough to meet the modest bar that it was probably true,” Justice Hagedorn wrote.
Inference Trumps Innocent Explanation
Moore argued that the smell of marijuana could have come from the CBD vaping device, which is legal.
But Justice Hagedorn pointed out that under supreme court caselaw, the officers were not required to make a reasonable inference in favor of Moore’s innocence.
“While an innocent explanation may exist, we still conclude that under the facts of this case, a reasonable law enforcement office would infer that Moore had probably committed or was committing a crime,” Hagedorn wrote.
Dissent: Time to Revisit Secrist
In her dissent, Justice Dallet argued that the officers did not have probable cause to arrest Moore and that therefore the search that yielded the drugs was illegal.
Dallet argued that the fact that Abel saw liquid fly from Moore’s vehicle and saw him hit a curb might be evidence that Moore was driving while impaired, but the police didn’t arrest him for that.
“There is nothing in the record about what the liquid was or linking it in any way to THC,” Justice Dallet wrote. “Likewise, there is nothing in the record that suggests that Moore’s vape pen was used for anything other than CBD – a legal substance.”
Dallet also argued that the supreme court should revisit its precedents that support warrantless arrests based on the smell of marijuana, given the widespread legalization of hemp products since those precedents were handed down.
Justice Dallet noted that in Maryland, Pennsylvania, and Minnesota – where possession of at least small amounts of marijuana is now legal – appellate courts have rejected decisions similar to Secrist, which held that the odor of drugs can provide probable cause to arrest.
“Although Wisconsin has not yet legalized medical or recreational marijuana, or de-criminalized the possession or consumption of marijuana, the reasoning in these cases demonstrates that marijuana’s once-unique odor my no longer serve as the beacon of criminal activity it did a quarter-century ago,” Dallet wrote.