Breaking news: Pot smell can still subject you to search, SCOW rules

The state Supreme Court ruled Tuesday, 4-3, that police can base a search primarily on the smell of marijuana, even though the legalization of CBD and hemp means the smell could be from a perfectly legitimate source.

Justice Brian Hagedorn wrote the opinion, joined by Chief Justice Annette K. Ziegler and Justices Rebecca Grassl Bradley and Patience D. Roggensack. Justice Rebecca F. Dallet dissented, joined by Justices Ann Walsh Bradley and Jill J. Karofsky.

Quaheem Moore was pulled over for speeding. Police searched him based largely on the smell of marijuana coming from the car he was driving, which he borrowed from his brother.

"The circuit court suppressed the results of that search, and the court of appeals affirmed," Hagedorn wrote. "The state contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse." 

"While an innocent explanation (for the smell) may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime," he wrote.

"All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed," Dallet wrote in her dissent. "Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case. "

Look for more on the case in an upcoming "SCOW docket," where we cut Supreme Court decisions down to size and hit the highlights.