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Odor of raw marijuana didn’t justify search of driver’s wallet

State v. Ashley L. Eirich, 2014AP1901-CR, District 2, 11/26/14 (1-judge decision; ineligible for publication); case activity

Saying that “[t]raining and experience do not turn police officers into drug-detection canines,” the court of appeals holds that probable cause to search a vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of the driver’s wallet.

After lawfully stopping Eirich’s car, the officer noticed an “odor of raw marijuana” coming from the vehicle. He had Eirich and her passenger step out of the car, and directed Eirich to leave her purse in the car. He first searched Eirich’s purse, though he did not smell any odor of marijuana coming from the purse. He didn’t find marijuana in the purse, but he did find her wallet, so he searched that, going through the various compartments thoroughly. Behind the credit card slots, in a compartment “just large enough to fit a … dollar bill,” he found some receipts and a cellophane wrapper. He removed the cellophane wrapper from the wallet and saw a strip inside of it. He pulled the strip out of the wrapper and later confirmed that it was a Suboxone pill in the form of a cellophane strip. (¶¶2-5). A further search of the car found no marijuana. (¶6).

The court of appeals affirms the circuit court’s suppression order, holding that the scope of the probable cause to search for raw marijuana didn’t extend to the compartment inside of Eirich’s wallet where the Suboxone was found because there was an insufficient likelihood that raw marijuana would be found in that compartment. The standard is whether there is “more than a possibility, but not a probability,” that the object will more likely than not be found in the searched location (¶10, quoting State v. Tompkins, 144 Wis. 2d 116, 125, 423 N.W.2d 823 (1988)), and that standard isn’t met here:

¶13      The State’s argument fails to refute the commonsense inference … that an odor of raw marijuana strong enough to emanate from the vehicle was unlikely to be found in a wallet inside of a purse. The State cites to documented instances of law enforcement officers finding marijuana within the bill compartment of a wallet, but none of the cases the State cites concerns a warrantless automobile search based on probable cause.[3]  We are not holding that marijuana never could be found in the bill compartment of a wallet. We are upholding the circuit court’s determination that under the facts of this case it was not “more than a possibility” that the evidence of the crime that was the object of the search—an amount of raw marijuana sufficient to be smelled while speaking to the passenger of a vehicle—could be located in the interior compartment of a closed wallet that was itself enclosed inside of the driver’s purse.

¶14      The State also cites the officer’s training and experience, but it does not explain what training or experience would enable an officer to smell an amount of raw marijuana small enough to fit inside of the bill compartment, even when it was hidden away inside of a wallet inside of a purse. Training and experience do not turn police officers into drug-detection canines. The State argues that the smell of raw marijuana created sufficient suspicion to justify a warrantless search of any “potential hiding places for small quantities of marijuana such as joints, leaves, ‘shake,’ or seeds,” but offers no authority that has ever so held. We decline to extend the rule in this case.

The court distinguishes State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), where the odor of marijuana coming from a car with a single occupant gave police probable cause to arrest that occupant. Here there were two occupants, and no claim of probable cause to arrest either occupant; instead, the officer decided to search for evidence. “Since this was a warrantless search based on probable cause, rather than a search incident to arrest, the question is whether there was ‘more than a possibility, but not a probability’ that the raw marijuana was more likely than not located within the bill compartment of the wallet inside the driver’s purse.” (¶12).

The court also says that “[i]n a different case, under different circumstances, there could be probable cause to search for a rolled marijuana joint in a wallet. For instance, if an officer detected an odor of burnt marijuana that might indicate that a recently-smoked joint had been tucked away somewhere. Or if an officer saw what appeared to be residue from a rolled joint in the car.” (¶15). Listen for these refinements to the script at your next suppression hearing.

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