Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.
The case: State of Wisconsin vs. Quaheem O. Moore
Majority: Justice Brian K. Hagedorn (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justices Patience Drake Roggensack and Rebecca Grassl Bradley
Dissent: Justice Rebecca Frank Dallet (11 pages), joined by Justices Ann Walsh Bradley and Jill J. Karofsky
After he was pulled over for speeding, officers searched Quaheem Moore based primarily on the smell of marijuana emanating from his vehicle. The circuit court suppressed the results of that search, and the court of appeals affirmed. 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.
On November 17, 2019, City of Marshfield Police Officer Libby Abel executed a traffic stop for speeding. While attempting to make the stop, Officer Abel "observed some sort of liquid fly out of the driver's window" and noticed the vehicle hit a curb while turning onto a side street. Officer Abel approached the vehicle, identified the driver and sole occupant as Quaheem Moore, and questioned him about the speeding and the liquid. During this initial contact, Officer Abel "detected an odor of raw marijuana." She called for back-up, and Officer Mack Scheppler arrived on the scene.
Both officers escorted Moore out the vehicle, in between his vehicle and Officer Abel's squad car. Officer Abel performed an initial safety pat-down for weapons. She did not find any, but she did discover a vaping device. She asked Moore if it was a THC (tetrahydrocannabinols) vape, and he responded that it was a CBD (cannabidiol) vape pen.
Officer Abel proceeded to question Moore. She first asked about the liquid, which she said she could still see on the side of the car and inside the window; but Moore denied throwing anything out of the window. He explained that the vehicle was his brother's rental, and that he had taken it to the car wash earlier in the day. Officer Abel next asked Moore if he had been drinking, which he also denied. Then, Officer Abel told Moore that she smelled marijuana coming from the vehicle, but he immediately expressed disbelief. Officer Scheppler confirmed that he too smelled marijuana, and later described the odor as overwhelming. Moore continued to express his disbelief and insisted that the officers could not smell marijuana on him. Officers Abel and Scheppler agreed, indicating the smell was coming from the vehicle, not from Moore.
Eventually, the officers told Moore that they were going to search him based on the odor of marijuana. Officer Scheppler found only cash at first. Officer Abel then stepped away to search Moore's vehicle while Officer Scheppler and Moore chatted. Several minutes later, Officer Scheppler noticed Moore's "belt buckle was sitting a little higher on his pants" and decided to examine the zipper area. . . . Officer Scheppler ultimately found two plastic baggies containing cocaine and fentanyl in a false-pocket behind Moore's zipper.
The State charged Moore with two crimes: possession with intent to deliver narcotics and possession with intent to deliver more than one but less than five grams of cocaine——both as second and subsequent offenses and as a repeater. Moore moved to suppress evidence of the cocaine and fentanyl found by Officer Scheppler, arguing the State lacked probable cause to arrest and therefore to search him. The circuit court agreed and granted the motion. The court of appeals affirmed, and we granted the State's petition for review.
The United States Constitution provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....” "Warrantless searches are presumed to be unconstitutional." But there are exceptions, and the State bears the burden to prove an exception applies.
One exception is a search incident to an arrest. When conducting a search incident to arrest, the officer is not required to formally arrest before the search. The "search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." "Probable cause to arrest is the quantum of evidence within the arresting officer's knowledge at the time of the arrest which would lead a reasonable police officer to believe that the defendant probably committed or was committing a crime." This requires more than a mere hunch or reasonable suspicion, but "does not require proof 'beyond a reasonable doubt or even that guilt is more likely than not.'" Probable cause is an objective test that "requires an examination of the totality of the circumstances."...
(T)he issue presented here is, examining the totality of the circumstances, whether a reasonable law enforcement officer would believe Moore probably committed or was committing a crime. The answer is yes. When Officer Abel pulled Moore over, she watched his vehicle hit the curb and observed a "liquid fly out the driver's window"; she later saw the liquid on the side of the car as well. And when she first approached the vehicle, she smelled raw marijuana. Officer Scheppler smelled it too, and even called it overwhelming. The circuit court found both officers' testimony regarding the smell credible, stating multiple times in its decision that the officers smelled a "strong" odor of marijuana. Moore does not challenge this factual finding. Critically, Moore was the sole occupant of the vehicle. And he was in possession of a vape pen. Taken together, a reasonable officer would believe it was Moore that was responsible for the overwhelming odor of a prohibited substance emanating from a vehicle with no other passengers. 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. Therefore, the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC.
Moore provides several counterarguments, none of which are persuasive. First, he contends that the odor of marijuana was not sufficiently linked to him because the officers did not smell it on him, only in his vehicle.... (However), “(t)he strong order of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug.”
That leads to Moore's second counterpoint: the vehicle was not his, but his brother's rental. While this could constitute an innocent explanation — albeit, a strained one — Moore misses the legal standard. Who owned the title or signed the rental lease does not change the analysis. A reasonable law enforcement officer would still likely conclude, absent other facts not in the record, that the driver and sole occupant of the vehicle was probably connected to the illegal substance whose odor the officer clearly detected in the vehicle.
Third, Moore contends that the odor of marijuana cannot be unmistakable when there are innocent explanations for it — such as the odor of CBD, a legal substance that Moore stated his vape pen was used for. The circuit court referenced this as well: "The State notes that CBD and marijuana are indistinguishable in their odor.”... While the officers might have reasonably inferred that the smell from the vehicle was CBD, that was not the only inference they could draw — they also could infer (and they did) that the smell was THC. It is black letter law that "an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause." Therefore, while an innocent explanation 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.
Finally, Moore notes that neither Officer Abel nor Officer Scheppler testified with respect to their training and experience to detect the smell of marijuana. He asserts that without this testimony, the State failed to establish the odor was unmistakable.... The circuit court acting as fact-finder here found the officers' testimony credible and stated repeatedly that the officers noted the "strong smell" and "strong odor" of marijuana coming from the vehicle. It made this factual finding absent specific testimony regarding the officers' training and experience. Moore does not challenge this factual finding; nor do we conclude this finding is clearly erroneous. Furthermore, the fact that the officers testified to smelling marijuana suggests they know what marijuana smells like. It could be that a fact-finder will not believe an officer's identification of marijuana absent an on-the-record statement of training and experience. The changing legal status and ubiquity of marijuana could make the lack of such evidence vulnerable to attack. But again, we do not see why such testimony would be required… There was enough here without testimony regarding the officers' training and expertise to support a finding that they smelled illegal raw marijuana.
After pulling Moore over for speeding, police officers removed him from his car to conduct a pat-down search. They found no evidence that a crime had been committed, so Moore should have been free to go, perhaps with a speeding ticket. Instead, the officers conducted a second, more thorough search of Moore and found baggies containing cocaine and fentanyl concealed in his pants. The majority concludes that this second search was permissible because the officers had probable cause to arrest Moore on the basis that the car he was driving smelled like marijuana. I disagree; because the officers lacked probable cause to arrest Moore, the evidence they found should be suppressed.
The majority concludes that under the totality of the circumstances, "the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC." The circumstances the majority cites for this conclusion are the following:
Almost none of these circumstances "would lead a reasonable police officer to believe" that Moore possessed THC. Hitting the curb while pulling over might be evidence the driver was impaired, but Moore was not arrested for operating while intoxicated and there is no evidence of impairment from the bodycam footage or the officers' reports. Officer Abel's testimony about a liquid spraying out of the driver's side window is immaterial as well. There is nothing in the record about what the liquid was or linking it in any way to THC. Likewise there is nothing in the record that suggests Moore's vape pen was used for anything other than CBD — a legal substance.
That leaves only the smell of marijuana coming from the car Moore was driving — a fact the majority all but admits is the only support for probable cause to arrest Moore. In concluding that the smell of marijuana alone gave the officers probable cause to arrest Moore, the majority relies primarily on one 24-year old case decided when the use or possession of any amount of cannabis was illegal nationwide.
For starters, even if the officers smelled the "unmistakeable" odor of marijuana coming from the car Moore was driving, the linkage between that smell and Moore was not particularly strong.... (T)he likelihood that an occupant is linked to the smell of marijuana in a vehicle "diminishes if the odor is not strong or recent, if the source of the odor is not near th eperson, if there are several people in the vehicle, or if a person offers a reasonable explanation for the odor." Here, it is true that Moore was the sole occupant of the car, thus increasing the probability that he was linked to the smell. But that linkage is weaker than it initially appears, since neither officer smelled marijuana on Moore once he was out of the car and because Moore explained that he was driving a vehicle his brother had rented — a fact the officers subsequently verified.
More fundamentally, however, legal developments in the last 24 years may call into question (whether) marijuana is "unmistakabl[y the] odor of a controlled substance." Thirty-eight states have legalized medical marijuana and twenty-three of those have also legalized recreational marijuana. Additionally, Congress modified the Controlled Substances Act in 2018 to remove hemp and hemp-derived products from the definition of marijuana, which legalized certain hemp products nationwide. This means that virtually all adults can legally purchase hemp-derived products from local CBD stores. Hemp-derived products come in a variety of processed forms like gummies, oils, and creams, as well as in their unprocessed state as hemp flowers. And just like marijuana, hemp flowers can be smoked, vaped, or eaten. Unlike marijuana, however, hemp contains only trace amounts of the psychoactive compound THC — the main psychoactive ingredient in marijuana.
Experts indicate that hemp flowers and marijuana are so similar in appearance and smell that even drug detection dogs can't tell the difference. If true, this means that when a police officer smells what they believe to be the distinctive odor of either raw or burnt marijuana, they could just as easily be smelling raw or burnt hemp. In light of the nationwide legalization of hemp, this raises the question: Should the smell of marijuana alone still justify a warrantless arrest?
Courts in jurisdictions that have legalized marijuana for medical or recreational purposes have answered "no" ....
Dallet then discusses cases from Pennsylvania, Maryland, and Minnesota.
Although Wisconsin has not yet legalized medical or recreational marijuana, or decriminalized possession or consumption of marijuana, the reasoning in these cases demonstrates that marijuana's once-unique odor may no longer serve as the beacon of criminal activity it did a quarter-century ago. ... Wisconsinites can legally purchase, transport, and smoke or vape hemp products that experts indicate are identical to marijuana in look and smell. As such, officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity. Moreover, in virtually all of Wisconsin's neighboring states — Illinois, Michigan, and Minnesota — recreational marijuana is now legal. With that, Wisconsinites may travel to neighboring states and consume marijuana without violating any state laws. And experience teaches us that smells linger in cars, sometimes long after the item responsible for the smell is gone. In sum, ... reliance on the smell of marijuana as an unmistakable indication of illegal activity sufficient to justify a warrantless arrest may no longer ring true.
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. 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…. For all these reasons, I respectfully dissent.
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