As many surrounding states continue to legalize marijuana–and with the explosion of CBD and other legal hemp-derived products throughout Wisconsin–some observers have questioned the continued viability of Fourth Amendment rules permitting intrusive law enforcement action when officers smell what they believe to be THC. However, because THC remains illegal under Wisconsin law, these arguments fail in light of well-settled Fourth Amendment principles.
In 2017, advocates for the legalization of marijuana in Wisconsin had a minor success when CBD and other related products became legal. A 2018 federal law contributed yet more incremental progress when it permitted the sale of Delta-8 (or “weed light”). The intervening years have resulted in boom times for the sellers of cannabis-adjacent products throughout Wisconsin. As we noted in our post regarding the petition for review, these legal developments have an impact on SCOW’s Fourth Amendment jurisprudence, which appears to impose a requirement that the odor of THC must be “unmistakable” in order to warrant intrusive law enforcement conduct such as a search or an arrest.
Enter Moore, who was stopped for speeding. (¶2). In the process of seizing Moore, the officer saw a mystery liquid “fly” out of the driver’s side window. (Id.) The car also hit the curb. (Id.) Upon speaking to Moore, the officer claimed to smell an odor of “raw” marijuana. (Id.) Moore was “escorted” from his vehicle and patted down, revealing a “vape pen” that Moore claimed was for CBD. (¶3). Moore was questioned about the odor of marijuana emanating from the car (and not from his person); he expressed “disbelief.” (¶4). Police ultimately discovered illegal drugs, but no “raw” marijuana in a “false pocket” on Moore’s pants. (¶5)
Moore moved to suppress that evidence, and the circuit court granted his motion. (¶6) The court of appeals affirmed. (Id.) Crucial to the court of appeals’ holding was its reading of SCOW’s prior decision in State v. Secrist, wherein SCOW appeared to hold that, for an odor of marijuana to provide probable cause to arrest, the odor must be “unmistakable.” Given the potential innocent explanation here–that the odor was CBD, as Moore claimed–COA held that the State did not “unmistakably prove” that the odor was marijuana. In a footnote, it acknowledged a tension between the “unmistakable” language from Secrist and general Fourth Amendment jurisprudence.
The conservative majority, led by Justice Hagedorn, resolves this “tension” and rejects a reading of Secrist categorically requiring special rules when the odor of marijuana is at issue. The majority instead hews to what it believes to be well-settled Fourth Amendment principles in reversing the court of appeals. Under Wisconsin law, police were not “required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause.” (¶15). Applying a “totality of the circumstances” analysis, the majority concludes there was probable cause to arrest Moore and, hence, to conduct a search incident to arrest, because of the “overwhelming” odor of marijuana emanating from a car in which Moore was the only occupant as well as his possession of a vape pen and the (somewhat less obviously connected) throwing of a liquid from the car and hitting the curb. (¶12).
A dissent authored by Justice Dallet and joined by A.W. Bradley and Karofsky, discerns a lack of probable cause. (¶18). The dissent zeroes in on some of the more ambiguous evidence–like the mystery liquid also referenced in the majority opinion.(¶24). As to the odor of marijuana, the dissent also denies a strong linkage between that odor and Moore given that it was not Moore’s car.(¶27). And, with respect to Secrist, the dissent also believes the precedential strength of that case has been weakened by subsequent legal developments, including the legalization of CBD and other hemp-derived products in Wisconsin. (¶32).
This case is a must-read for attorneys litigating suppression issues involving an odor of THC. While SCOW does not explicitly overrule Secrist, its neutralizing reading of Secrist’s “unmistakable odor” requirement considerably impairs that potential defense in future cases. However, there is one silver lining, and that is Justice Hagedorn’s discussion of officer credibility in CBD/THC cases. While the majority does not require testimony about training and experience in order for odor evidence to be relevant and believable at a suppression hearing, the opinion nevertheless includes helpful language conceding that “[t]he changing legal status and ubiquity of marijuana could make the lack of such evidence vulnerable to attack.” (¶16).