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.

Wisconsin Justice Initiative today urged Milwaukee County voters to tell legislators what they think about marijuana legalization.

Milwaukee County voters will see a legalization referendum question on the November 8 ballot.

The question asks whether voters favor “allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana.”

At the press conference, WJI President Craig Johnson discussed criminal justice-based reasons for legalization, including the need to end sanctions that are enforced disproportionately against people of color. Current felony sanctions for possession cause lifelong harm by serving as a gateway into the criminal justice system, he said.

Johnson was joined by Wisconsin Justice Initiative Action President Joseph Czarnezki. Czarnezki summarized the benefits of taxing revenue from marijuana sales. “Our neighboring states, Michigan and Illinois, have legalized it. Why should we be sending all our tax dollars to those states?” he said.

Czarnezki noted that in a similar referendum in Milwaukee County four years ago, voters overwhelmingly voted “yes” for legalization. The current referendum is necessary because of the “need to keep the pressure on the state Legislature,” he said.

Milwaukee County Supervisor Ryan Clancy, who sponsored the resolution putting the referendum on the ballot, highlighted how criminalization hampers hiring and employment efforts. “These things are not just locking people up, it’s not just putting people back in jail and giving more work to our Milwaukee County employees, but it’s keeping people from getting jobs in the first place.”

Wisconsin Sen. Melissa Agard talked of the legislative bills she has sponsored for a decade. Those bills have been blocked or stuck in the Legislature, and voters need to tell legislators to get them moving, she said.

Cannabis educator and researcher Brad Rowe discussed how legalization and licensing of marijuana create safer usage and the opportunity for open discussion about marijuana use. For instance, someone using marijuana could call for medical help without the response of police officers as well, he noted. He described how current law impedes research into the medical benefits of cannabis for treatment of chronic pain, nausea, or other conditions.

Andrew Hysell of Forever Wisconsin served as emcee of the press conference.
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Similar referendums will be on the ballots in Dane and Eau Claire counties and in the cities of Stevens Point, Kenosha, Racine, Appleton, and Superior.

WJI supports the legalization of marijuana to avoid the disparate and severe impact on minority communities.

Listen to a recording of the press conference by clicking the arrow at the top of this story.

Resolutions point to the legalization of marijuana in some form in at least 37 states, including every state surrounding Wisconsin. The Dane County resolution points to Wisconsin “becoming an island of prohibition.”

The resolutions also point to anticipated tax revenue and business opportunities related to legalization. Eau Claire County’s resolution specifically references $600 million and $300 million in tax revenue collected by Illinois and Michigan, respectively.

Some resolutions note the use of marijuana for pain relief. The Superior resolution, for instance, notes that “marijuana use as an alternative to prescription pain killers has been shown to reduce opioid addiction, and 22% of U.S. military veterans report using medical marijuana to treat Post Traumatic Stress Disorder.”

Resolutions also reference how criminalization has failed to curb marijuana use, the potential for undercutting the illegal market and ensuring that marijuana use is regulated and safe, and a desire to divert law enforcement resources to more serious crimes.

Milwaukee County’s resolution points to criminal enforcement that “often results in charges disproportionately to people of color and young people.” Dane County’s resolution similarly points to disparities in arrests “with Black individuals over four times more likely to be arrested for marijuana offenses than white individuals in Wisconsin, according to 2019 data.”

Some of the approved referendum questions set the age of legal use at 21, while others refer simply to adult use. Superior Councilor Mark Johnson moved for the age-21 threshold in his city’s ballot question due to his concern about use by youth.

Johnson told WJI that he intends the Superior referendum to let city officials know where the community stands generally on the issue. Legalization is happening across the county, and his constituents may “agree that the house needs to be built” even if they disagree about specific details like the color of the cabinets, he said.

In Milwaukee County, where a legalization question appeared on the ballot in 2018, the resolution authorizing this year’s question states that it is important to ask voters “the same question again to better understand how people’s views are changing on the issue of marijuana legalization, and to help put a stop to the waste of public resources toward enforcement which unjustly affects people of color.”

Marquette Law School poll results released August 17, 2022, show that 69% of all respondents — including 51% of identified Republicans — believe marijuana should be legal in Wisconsin. Only 23% of respondents were opposed to legalization, while 8% said they were unsure.

Under current Wisconsin law, a first offense for marijuana possession is a misdemeanor punishable by up to six months in jail and a $1,000 fine. Second and subsequent possession offenses are felonies. A second offense may result in up to three and a half years in prison and a $10,000 fine.
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Dane County approved a second referendum question related to marijuana. Voters there will be asked whether all records of previous convictions for possession of small amounts of marijuana should be expunged.

By Gretchen Schuldt

​Penalties for second-offense marijuana possession, already a felony, would increase substantially if butane extraction was used in the production process, under a bill making its way through the Legislature.

Industry officials say that occasional users may have no clue how their product was processed, although frequent imbibers may be able to tell the difference by the taste.

The maximum penalty for second-offense (or greater) possession now is 3½ years in prison and a $10,000 fine. Under the bill, the penalties for second-offense (or greater) marijuana would increase depending on the amount of butane-extracted cannabis involved. The amounts and maximum penalties would be:

• Three grams or less, a maximum of six years in prison and a $10,000 fine;
• More than three and up to 10 grams, 10 years in prison and a $25,000 fine;
• More than 10 and up to 50 grams, 12½ years in prison and a $25,000 fine; and
• More than 50 grams, 15 years in prison and a $50,000 fine.

The bill also would significantly increase the penalty for manufacturing, delivering, or selling any amount of butane-extracted cannabis. Currently, marijuana manufacturing and dealing carries different sentences depending on the amount involved. Under the bill, those crimes, regardless of amount, would be punishable by up to 15 years in prison and a $50,000 fine. That means a person could go potentially to prison for a very long stretch for sharing a gummy bear with a friend.

Butane extraction is a common method of concentrating cannabis resin. Butane extraction can produce a THC concentration of up to 90%. The concentrate is used in a variety of products, including edibles and vaping juices. 

Commercial entities generally use a closed system of butane extraction, which is not considered an explosion hazard. Closed systems keep the butane from escaping into the atmosphere.

Some processors, including those running clandestine labs, use an "open blasting" system that allows the butane to escape into the atmosphere, creating a danger of explosions.

The pending bill does not differentiate between open and closed production methods used or whether any hazards are actually present.

"This is a very misguided effort," said Bryce Brisbin, director of technical sales at Luna Technologies, a cannabis extraction company. Closed-system butane cannabis extraction is safe and provides a high-quality product, he said.

"Open blasting should be banned, totally illegal," he said. "It's incredibly stupid." 

State Rep. Jesse James (R-Altoona), a sponsor of the legislation in the Assembly, said in prepared testimony last week that "The criminal elements and punishments of possessing, manufacturing, and delivery of BHO (butane honey oil) is the same as marijuana. I understand marijuana is needed to make BHO, but the process is making a totally different product, with a higher potency, which sells at a higher rate, putting the lives of those who manufacture it and others at risk."

He acknowledged that the closed-loop system was generally more "safer, controlled, and effective" than the open blasting system.

"The societal harms stemming from more prevalent and more potent cannabis is well-established in research exploring the effects on public safety and violent crime, traffic safety and the workforce," said State Sen. Duey Stroebel (R-Saukville), another sponsor. "The narrative surrounding the alleged medical benefits of cannabis tends to readily dismiss the aforementioned harms." 

There were 45,486 state court criminal convictions for marijuana possession from through 2010 through 2019.

​Check out the county-by-county breakdown, along with trends, here.

The data is from Wisconsin Circuit Court Access system via the Milwaukee County District Attorney's Office. Catch our earlier post here.

The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear.

"I suspect a lot of them are sent to municipal court," Chisholm said. 

Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters. 

Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report.

"In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only  31% of the Black population."

Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report. 

In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites.

In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000.

The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019. ​

By Gretchen Schuldt
March 26 update – The County Board approved the measure to reduce cannabis fines. The Milwaukee Journal Sentinel has a story here.
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The Milwaukee County penalty for marijuana possession would drop from up to $500 to $1, under a proposal introduced by a group of county supervisors.

"In achieving racial equity, disparities in the criminal justice system, including marijuana and paraphernalia possession laws, must be eradicated," the resolution said.

County Supervisor Joseph Czarnezki, who also is a WJI Board member, said Thursday that marijuana possession prosecutions disproportionately affect low-income and minority communities.

The state should fully legalize cannabis, he said.

"This is a step in that direction," he said.

Other sponsors include Supervisors Sylvia Ortiz-Velez, Ryan Clancy, Steven Shea, Sequanna Taylor, Willie Johnson, Jr., Liz Sumner and Marcelia Nicholson.

The existing county ordinance calls for forfeitures of $250 to $500 and the county usually levies a $275 penalty, according to the proposal. When additional fees are added in, however, the total jumps to about $484.

A $1 penalty would really cost $142.26 once fees and surcharges are included, according to a court official. The new penalty also would apply to possession of drug paraphernalia ordinance violations.

There were 187 county marijuana tickets issued in 2019, according to the resolution.

Under the existing ordinance, "some individuals may not be able to afford the fine and fees associated with a marijuana possession citation, which may result in their case being sent to collections or an increased charge, which is less likely to be collected by Milwaukee County and can affect an individual's financial situation, including their credit scores," the resolution said.

State law also mandates that information, including photographs and fingerprints, of people arrested for offenses – including minor ordinance violations – involving controlled substances be submitted to the State Department of Justice. The arrest information is available to anyone performing a criminal background check through the department.

The county ordinance applies to cases involving 25 grams or less of marijuana. Law enforcement can still issue state tickets, if necessary, for amounts larger than that, the ordinance said.

The proposal cites a 2020 ACLU report that found that Black people are 3.64 times more likely that Whites to be arrested for marijuana possession, despite similar usage rates. ACLU-Wisconsin found that Black Wisconsinites were 4.2 time more likely than White Wisconsinites to be arrested for possession than Whites and that Wisconsin ranks 14th in the country for the largest racial disparities in marijuana possession arrests. 

Wisconsin also was one of 17 states that saw a jump in cannabis possession arrests from 2010 to 2018 "despite an increasing shift in attitudes toward decriminalization and legalization of marijuana," the resolution said. 

WJI reported that Black people were defendants in 77% of marijuana possession cases in Milwaukee Municipal Court in 2019, despite making up just 39% of the city's population.