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Court of appeals upholds extension of traffic stop based on strong odor of perfume and cigarettes

State v. Jasetta Smith, 2017AP1807-CR, 5/23/18, District 2, (1-judge opinion; ineligible for publication); case activity (including briefs)

Better go easy on the perfume or cologne. An officer ran the license plates on the car Smith was driving at 1:08 a.m. one night. He saw that the registered owner’s license was suspended, stopped the car, learned that Smith was not the owner, and smelled the overpowering odor of perfume and cigarettes. In his experience, strong perfume indicates an attempt to mask the odor of drugs.

He also observed that Smith and her passenger did not want to look at him. When Smith spoke to him, he saw that her eyes were glassy and bloodshot. Smith couldn’t find her proof of insurance so the officer returned to his car to issue a compliance order and called for back up. A second officer arrived, not based on the call. But then the back up officer also arrived. About 7 minutes into the stop, the 1st officer learned that Smith had been arrested before for OWI. He asked the other two officers to conduct a dog sniff. At 1:21 the dog alerted on the vehicle. Smith admitted to smoking marijuana earlier that day, and the officers found roaches in the car.

Smith was charged with possession of THC and operating a motor vehicle while under the influence of a restricted controlled substance. She moved for suppression arguing that the dog sniff unreasonably extended the stop. The court of appeals disagreed and affirmed the denial of suppression.

¶18 Smith’s eyes were glassy and bloodshot, an indication that Smith may be under the influence of some type of drug or alcohol.  She and her passenger evaded direct eye contact with the officer—behavior that indicates something to hide.  When [the 1st officer] checked, he found that Smith had a recent prior drug-related arrest.  The strong odor of perfume and cigarettes indicated a possible attempt to cover up the smell of drugs.  While Smith points to other facts indicating that there was no issue, the facts known to the police at the time the dog sniff was conducted, and the reasonable inferences drawn from the facts, provided reasonable suspicion of criminal activity and supported the extension of the stop to continue the investigation with the dog sniff.

¶19 Officers need an objectively reasonable inference of wrongful conduct to support a finding of reasonable suspicion.  We agree with the circuit court that the officers’ decision to conduct a canine sniff was reasonable under the totality of the circumstances.  The main goal of an investigative stop is to quickly resolve ambiguity associated with suspicious conduct.  That is exactly what the officers did here.  Given our decision, we need not reach the State’s argument that, even absent reasonable suspicion, the dog sniff itself did not unreasonably extend the stop as it was performed contemporaneously and within the reasonable period of time it took for the officer to write up the traffic citation.

Have you ever been stuck in an elevator with a person wearing too much perfume? Some people just like it strong (or maybe have subpar olfactory lobes). One take away from this decision is: allergies plus a few extra spritzes of your favorite perfume or cologne can, in the right circumstances, amount to reasonable suspicion to search your car for drugs. Along these lines, consider SCOW’s decision in State v. Floyd, the air freshener case last term.

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