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Arrest — Probable Cause — Drug Odor: “raw” marijuana — Search of Passenger.

State v. Mata, 230 Wis.2d 567, 602 N.W.2d 158 (Ct. App. 1999)
For Mata: Daniel P. Murray.

Issue: Whether the police had probable cause to search the passenger of a stopped car, based on the odor of “raw” marijuana.

Holding: The odor of marijuana was sufficiently linked to the passenger to justify the search.

The police stopped a car because it didn’t have a front plate. There were three occupants. A strong odor of “raw” marijuana was detected. The driver was frisked when it appeared he didn’t have a driver’s license; no marijuana. One passenger was arrested on an outstanding warrant and searched; same result. A search of Mata then produced marijuana. This case arguably falls at the intersection of State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, cert. denied, __ U.S. __ (1999) (probable cause if odor of marijuana in car linked to “specific” person(s)); and State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (1992) (fact of multiple passengers not fatal to probable cause based on odor of marijuana and smoke in car). The court of appeals determines that it need not resolve the potential conflict between these holdings, because elimination of the other two occupants provided the necessary linkage to Mata. This was not, the court stresses, merely a frisk, but a full-blown search properly supported by probable cause, but alternatively, a frisk would have been permissible – the officer felt a hard object (block of marijuana) while patting Mata down; Mata gave a palpably false explanation about the object; it was a high-crime area; the police reasonably feared for their safety. State v. Ford, 211 Wis. 2d 741, 565 N.W.2d 286 (Ct. App. 1997) and State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991) distinguished.

Note: The court declines to decide whether “the mere odor of raw marijuana [suffices] to establish probable cause.” But also note that where the state neglects to adduce evidence of the officer’s training and experience with respect to identifying marijuana, probable cause isn’t supported. State v. Bradley, 2003-Ohio-5419. See, however, State v. Reha, 12 Neb. App. 767, 8/24/04 (odor of burnt marijuana provides probable cause to search not only car but both driver and passenger, at least given that both possessed cigarette lighters; Pringle followed, essentially).

 

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