By Gretchen Schuldt
A case involving the odor of marijuana that could have a significant impact on when police can search people and their vehicles will be heard this month by the state Supreme Court.
At issue is whether the smell alone is a legitimate basis for a police search when the smells of illegal cannabis and legal CBD are indistinguishable.
Such odor-based searches are fine as long as the smell can be linked to a person, the state argued in its brief seeking to overturn a Court of Appeals decision that found otherwise. Besides, "unmistakable" does not necessarily mean "can't be mistaken," the state said.
But lawyers for Quaheem O. Moore contend that those smell-based searches are not fine. "A well-established probable cause standard, even as it relates to the odor of THC, should not be lowered," they wrote in a brief. Moore is represented by Joshua Hargrove, Tracey A. Wood, and Teuta Jenozi.
The case is scheduled for argument April 19.
Moore's trip to the Supreme Court started with a traffic stop. Moore was driving a rented car he borrowed from his brother.
The officers said they could smell raw marijuana emanating from the car, but acknowledged after Moore got out of the car that they could not smell it on him personally. The officers also said they had seen Moore throw a liquid from the car while he was driving, which he denied. The liquid later was determined not to be alcohol and neither Moore nor the car smelled of booze.
Moore 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 told him they were going to search him more thoroughly based on the raw marijuana smell. They 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. His lawyer successfully sought to suppress the evidence in circuit court and the Court of Appeals upheld that decision. The officers did not, given the totality of the circumstances, including the odor, have probable cause to search Moore, the court said.
A 1999 SCOW ruling in State v. Secrist is key to Moore's case. The court, in upholding a search, said that "the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons."
At the time, all cannabis products were illegal. Some are legal now, however.
In the Moore case, Assistant Attorney General Jacob J. Wittwer argued in a brief, the appeals court's interpretation of Secrist is unreasonable because it "establishes a heightened standard of proof for search and arrest based on the odor of marijuana that is significantly more demanding than probable cause."
In addition, he said, "the Court of Appeals’ interpretation of the word 'unmistakable' is inconsistent with a commonly-accepted meaning of the term that is in full agreement with the Secrist decision."
While some dictionaries define "unmistakable" as meaning something that cannot be mistaken for something else, others are not so restrictive, Wittwer wrote. Other dictionaries define it as "very distinctive," "very easy to recognize," and "not likely to be confused with something else."
The Supreme Court should "reaffirm its holding in Secrist that the odor of marijuana may provide probable cause to arrest if it is unmistakable — that is, if it has marijuana’s very distinctive and recognizable smell such that it is unlikely to be something else — and is linked to the person or persons."
The smell also was linked to Moore because he was driving the car and was its only occupant, Wittwer said.
In contrast, Moore's attorneys argued that "By its definition, an unmistakable odor may not be mistaken for that of any other substance. ... The state cites to no authority for the assertion that the Court should use or has ever used a word while intending to give force to a tertiary or less common understanding of the word used."
The record is "devoid" of evidence linking Moore to the smell, they wrote. The officers could not smell cannabis on Moore, and it wasn't his car.
Help WJI advocate for justice in Wisconsin