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COA upholds car search based on odor of marijuana, presence of digital scale

State v. Deangelo Tubbs, 2019AP644, 10/1/19, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Police stopped Tubbs’s car, which lacked a front license plate. The officer who approached the vehicle saw a firearm in the car and immediately opened the door and told Tubbs to show his hands. (Tubbs had a concealed-carry permit.) On opening the door, the officer said, he smelled unburned marijuana and noted a digital scale on the floorboard. The officer then searched the car and found a jar containing weed.

On appeal, Tubbs renews his challenge to the existence of probable cause based on the odor and the scale. At the suppression hearing, his lawyer had demonstrated that the officer was unable to smell vanilla-scented cleaner in a similar jar–even after the jar was opened. (¶10). Tubbs contends that the trial court found the officer’s testimony about smelling marijuana incredible and that this vitiated probable cause, distinguishing State v. Secrist, 224 Wis. 2d 201, 210, 589 N.W.2d 387 (1999), which held the “unmistakable” odor of marijuana good enough for probable cause to arrest.

The court of appeals disagrees that the circuit court made a finding of incredibility:

Moreover, this court does not read the trial court’s statement as does Tubbs. We conclude that the trial court did not find that [the officer’s] testimony that he smelled fresh marijuana was not credible. Instead, the trial court stated that, in concluding that probable cause existed for the search, it relied upon both the observation of the digital scale and the smell of marijuana. The trial court further stated that its probable cause determination relied more on the officer’s observation of the digital scale than on the fresh marijuana the officer smelled. In other words, as a basis for its probable cause finding, the trial court placed greater emphasis on the former than the latter.

(¶19).

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