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In a recent ruling, the Wisconsin Supreme Court has determined that the smell of marijuana alone is sufficient probable cause for police officers to conduct a search, even if substances legal in the state, such as CBD, emit the same odor.
The court’s conservative majority, in a 4–3 decision, overturned previous rulings and stated that Marshfield police had reasonable grounds to search the driver of a vehicle that emitted the scent of marijuana.
The ruling has raised concerns about the potential infringement on individuals’ rights and the reliability of scent-based searches.
The case in question involved Quaheem Moore, who was pulled over for speeding in Marshfield back in 2019. When the officers approached Moore’s vehicle, they detected a strong smell of burnt cannabis.
Although Moore mentioned possessing a CBD vaping device and explained that the car was rented by his brother, the officers proceeded to search both Moore and the vehicle. During the search, they discovered a hidden pocket in Moore’s pants containing packets of fentanyl and cocaine. Moore’s lawyers argued that the officers lacked probable cause for the search since they did not directly smell marijuana on Moore, and the scents of CBD and hemp are indistinguishable from marijuana.
Initially, a circuit court judge and an appeals court ruled that the evidence obtained from the search was inadmissible. However, prosecutors appealed these decisions, claiming that the lower courts had erred.
Ultimately, the Wisconsin Supreme Court sided with the prosecutors, overturning the previous rulings. Justice Brian Hagedorn, writing the majority opinion, stated that because Moore was the sole occupant of the vehicle, it was reasonable for the police to connect him to the “illegal substance” they had identified based on the odor.
The majority opinion rested on a 1999 Supreme Court decision, which held that the unmistakable smell of a controlled substance was sufficient evidence of a crime and justified arresting a driver.
However, the liberal minority on the Wisconsin Supreme Court challenged the relevance of the 1999 ruling to Moore’s case. They argued that the officers did not possess strong evidence that the marijuana odor emanated from Moore, and they emphasized the outdated nature of the ruling, failing to account for the subsequent legalization of hemp and CBD.
Justice Rebecca Frank Dallet was one of the dissenting judges.
“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,” she argued.
The dissenting justices warned about the potential for unjustified searches and expressed concern that unreliable conclusions by law enforcement would go unchallenged in court.
Moore’s attorney, Joshua Hargrove, expressed his apprehension regarding the implications of the ruling.
“This opinion could subject more citizens engaged in lawful behavior to arrest,” he stated, raising concerns about the lack of accountability for law enforcement when searches are based on unreliable conclusions.
The ruling comes at a time when the legalization of marijuana remains a contentious issue in Wisconsin.
Democratic Governor Tony Evers has made multiple attempts to legalize recreational and medical marijuana, but his proposals have been rejected by the Republican-controlled Legislature.
However, GOP Assembly Speaker Robin Vos announced in April that he was working on legislation to legalize medical marijuana, potentially as early as this fall.
Wisconsin’s neighboring states, Michigan and Illinois, have already legalized marijuana, while Minnesota is set to do so in August.
On the east coast in Maryland, legislation was passed earlier this year that prohibited traffic stops and searches based on the smell of cannabis alone without any additional factors to warrant probable cause.
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