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Arrest – Probable Cause – “Unmistakable” Drug Odor, Single-Occupant Automobile

State v. Timothy M. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387, cert. denied, __ U.S. __ (1999), reversing218 Wis.2d 508, 582 N.W.2d 37 (Ct. App. 1998)
For Secrist: Patrick M. Donnelly, SPD, Madison Appellate.


The issue presented to the court is whether the odor of a controlled substance may provide probable cause to arrest, and, if so, when. We conclude 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. In this case, a police officer detected the strong odor of marijuana coming from the direction of the defendant inside an automobile. The defendant was the operator and sole occupant of the automobile. In these circumstances, the strong odor of marijuana provided probable cause to arrest the defendant. Accordingly, we reverse the court of appeals.

Court stresses that it “is imperative …  that the officer be able to link the unmistakable odor of marijuana or some other controlled substance to a specific person or persons. The linkage must be reasonable and capable of articulation.”


Note that the odor was “unmistakable”; where the state neglects to show that the officer “is qualified by training or experience to detect the odor of raw marijuana,” the search is unsupported, State v. Holley, Ind App No. 02A03-0808-CR-406, 12/23/08.The Supreme Court has ruled that police have probable cause to arrest all 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). Pringle is, however, fact-specific; most importantly: the contraband (large amount of cash and cocaine) was “accessible to all three men,” and none of them admitted possession. And, of course, “a relatively small auotmobile” rather than public place was involved. Under this circumstance it was reasonable to infer “that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.” It remains to be seen whether this logic would apply equally to presence of mere odor of contraband. For one thing, it’s not clear that the presence of an odor implies joint accessibility (so to speak) or, therefore joint dominion and control. As a result, there is no reason to think that Pringle necessarily invalidatesSecrist. Variant, suggesting that Pringle is best read as fact-specific: State v. Morales, 2008 NCMA 102, 5/15/08 (passenger’s mere presence in car from which drugs were sold earlier insufficient under “mere propinquity” rule of Di Re and Ybarra).

Secrist followed, State v. Guzman, 2008 VT 118, ¶¶13-16 (single-occupant car; Pringle, oddly, unmentioned). U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004) (also followed by Guzman):

While the odor of marijuana provides probable cause to believe that marijuana is present, the presence of marijuana does not of itself authorize the police either to search any place or to arrest any person in the vicinity. Additional factors must be present to localize the presence of marijuana such that its placement will justify either the search or the arrest. In the case of a search, when the odor emanates from a confined location such as an automobile or an apartment, we have held that officers may draw the conclusion that marijuana is present in the automobile or the apartment. See Scheetz, 293 F.3d at 184; Cephas, 254 F.3d at 495. But probable cause to believe that marijuana is located in an automobile or an apartment may not automatically constitute probable cause to arrest all persons in the automobile or apartment; some additional factors would generally have to be present, indicating to the officer that those persons possessed the contraband. See Pringle, 124 S. Ct. at 800-01 (holding that the presence of cocaine and a roll of money in the passenger area of an automobile gave officers probable cause to believe that the automobile’s occupants jointly committed the crime of possession of cocaine). Thus, if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.

But see Wilson v. State, MD. Ct. Spec. App. No. 2185, 5/2/07 (odor of burnt marijuana alone enough to trigger “automobile exception and therefore permit search of vehicle’s trunk; split in authority cataloged); State v. Gonzales, 2009-Ohio-168, ¶18 (smell of marijuana alone supports search), and ¶¶21-22 (distinguishing between odor raw and burnt marijuana: latter supports only search of passenger compartment while former allows search of trunk).See also U.S. v. Ramos, 3rd Cir No. 05-1169, 4/5/06 (smell of marijuana alone may establish probable cause to believe marijuana is present); State v. Jennings, Fl App 4D06-3618, 11/21/07 (“smell of marijuana coming from an occupied vehicle provides probable cause” to search vehicle and its occupants); Dunn v. Commonwealth, KY App No. 2005-CA-000468-MR, 3/31/06, and cases cited n. 6 (smell of mariuana provides probable cause to search both car and occupant); Johnson v. State, Tex App. No. 06-04-00027-CR, 9/9/04 (smell of marijuana coming from single-occupant car, coupled with officer’s knowledge that driver “had been involved with illegal drugs for some time, gave the officer probable cause to search Johnson”); nonetheless, court’s stress on fact of single occupant, along with effort to distinguish multiple-occupant (residence) case of State v. Steelman, 93 S.W.3d 102 (Tex.Cr.App. 2002), especially as explained by Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05 (“In other words, just because the officers in the Steelman case smelled marijuana, without any other evidence, they did not have probable cause to suspect that the defendant, one of four people in the house, was committing the offense of possession of marijuana in their presence so that they could arrest him without a warrant”), suggests single occupancy as fault line.

For an interesting variation on this theme, see State v. Gibson, 141 Idaho 277, 108 P.3d 424 (no link available) (“The alert of a drug dog on a car seat where an occupant had previously been seated does not, standing alone, give police probable cause to believe that the occupant had drugs on his or her person.”); like effect: State v. Harris, TN Cr App 2/6/08 (probable cause to search car, based on drug-dog sniff, “did not in and of itself justify” search of driver’s person; court stresses, though, that passenger was in seat near door where dog reacted).

Seemingly different situation where drugs merely found on passenger, State v. Patterson, 2006-NMCA-037, ¶28 (“no facts beyond Defendant Patterson’s mere presence that could justify individualized suspicion of possession of contraband”); But compare, State v. Funderburg, NMSC No. 30,180, 4/15/08 (lawful seizure of drug paraphernalia from passenger authorized officer to question driver about possible presence of drugs in car).

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