State v. Michael Wilson, 229 Wis.2d 256, 600 N.W.2d 14 (Ct. App. 1999)
For Wilson: Martha A. Askins, SPD, Madison Appellate.
Ison lacked probable cause to arrest Wilson when he refused to allow Wilson to use the bathroom because at that time, Ison could not identify Wilson as the source of the marijuana odor emanating from the basement. The Wisconsin Supreme Court recently held 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.”State v. Secrist, 224 Wis.2d 201, 204, 589 N.W.2d 387, 389 (1999). Although Ison had identified the odor of marijuana, he acknowledged that several people could be heard in the basement. There was no greater basis to believe that Wilson was the source of the odor than any of the other individuals present in the basement. Applying Secrist, because there was no way Ison could identify the source of the odor from among those individuals in the basement, he was without probable cause to arrest Wilson when Wilson was detained. Consequently, because Ison was unlawfully arrested prior to the search, the search cannot be justified as contemporaneous to the arrest. Swanson, 164 Wis.2d at 450-51, 475 N.W.2d at 155.
UPDATE: The Supreme Court has since ruled that the police have probable cause to arrestall occupants when contraband is found hidden in the car. Maryland v. Pringle, 02-809, 12/15/03; decision below: State v. Pringle, 370 Md. 525 (Md. Ct. App. 2002). Under the facts of that case, the police had probable to cause to believe that all the car’s occupants had dominion and control over the jointly accessible contraband. But the situation is at least arguably different when dealing with odor (which makes applying the concept of dominion and control fragile to the breaking point) emanating from a residence (rather than a car which contrastingly suggests both ready accessibility of secreted items and lessened expectation of privacy).