By Gretchen Schuldt
Police did not have probable cause to search a man driving a car that smelled like marijuana when the man himself did not, the state Court of Appeals has ruled.
The decision also revolved partly around the issue of whether the smell of illegal marijuana can be differentiated from that of legal CBD.
Quaheem O. Moore told two officers after a traffic stop that he was driving a borrowed car. The officers, who said they could smell marijuana emanating from the car, acknowledged that they could not smell it on Moore himself, the District IV appeals panel said in upholding a ruling by Wood County Circuit Judge Nicholas Brazeau Jr.
Moore also told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin.
"The officers...informed Moore that they were going to conduct a search of his person based on 'the odor of marijuana' coming from the vehicle," Appellate Judge Rachel A. Graham said in her decision for the three-judge panel. She was joined by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The officers at first found nothing, but eventually found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants.
He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater.
Moore, represented by attorney Eric Sheets, moved to suppress the evidence.
Judge Brazeau acknowledged that "the odor of marijuana in a vehicle, alone, may give officers probable cause to arrest the driver, but...concluded that the officers in this case failed to link the odor to Moore and Moore offered innocent explanations for the odor," Graham wrote.
Moore hit the curb with his car when he was pulled over, but Brazeau also said that was largely irrelevant because the officers did not emphasize any signs of intoxication. The officers also had contended they saw Moore throw a liquid from a car, but Brazeau said that, too, was largely irrelevant.
The state appealed.
Graham, in her opinion, said the state did not even show that the odor was "unmistakably" that of marijuana, as required by state Supreme Court precedent.
Graham also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana.
The Supreme Court had directed courts to consider officers' testimony regarding their training and experience in identifying the odor of marijuana, as well as its strength, recency, and source, she said.
"First, the State did not offer any evidence at the suppression hearing that the officers had training or experience that enabled them to reliably identify the odor of marijuana," she wrote.
The state "did not elicit testimony or any other evidence that either officer had any training or experience relating to the odor of marijuana," Graham said. "Although the state elicited testimony that both officers had conducted at least one traffic stop prior to the traffic stop in question, neither officer was asked about their training or experience in identifying the odor of marijuana, whether raw, burnt, or in liquid form; in identifying the strength, recency, or source of marijuana; or, in distinguishing the odor of marijuana from other odors, including CBD. The state elicited no testimony that either officer had even smelled the odor of marijuana prior to stopping Moore."
The state also said the smell of legal CBD is indistinguishable from that of illegal marijuana and Brazeau accepted that as fact.
"Thus, the officers were confronted with two possible explanations for the odor: legal CBD or illegal marijuana," Graham wrote. "If CBD, which is legal, produces an odor that is indistinguishable from THC, which is illegal, then the odor of CBD may be 'mistaken' for the odor of marijuana."
Still, officers were not required to accept Moore's explanation that he vaped CBD, she said.
"However, with no discernible ability to identify the odor of marijuana or distinguish it from CBD, the officers could not rule out CBD, or even meaningfully undermine it, as the source of the odor. ... The odor cannot be unmistakably that of marijuana if officers are unable to rule out an innocent explanation for the odor," Graham wrote.
The state also failed to link Moore's vaping device to marijuana, Graham said. She also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana.
"Neither officer testified to having knowledge, based on their training and experience, that people who consume CBD are more likely to consume THC, and the State has not explained why it would be reasonable to draw that inference regardless of the lack of factual support," she said.
"We conclude the officers lacked probable cause to arrest Moore. ...Therefore, the search of Moore was not a lawful search incident to arrest," Graham wrote.
Moore was represented on appeal by attorneys Tracey A. Wood and Joshua Hargrove. The state was represented by Assistant Attorney General Jacob J. Wittwer and Wood County Assistant District Attorney David Knaapen.
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