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SCOW will address the application of the “unmistakable odor of marijuana” standard in State v. Secrist

State v. Quaheem O. Moore, 2021AP938-CR, petition for review of an unpublished court of appeals decision granted 12/21/22; reversed 2023 WI 50; case activity (including PFR, Response, and briefs)

Issues presented (from State’s PFR):

1. Did the court of appeals correctly read State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), to establish a standard of evidence for search and arrest based on the odor of a controlled substance that is more demanding than the constitutional standard of probable cause?

2. Did police have probable cause to search Moore incident to arrest under the totality of the circumstances, which included a “strong” odor of raw marijuana coming from the vehicle of which Moore was the sole occupant?

Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore and found cocaine and fentanyl. As described in more detail in our post on the decision, the court of appeals held that under Secrist, the odor of marijuana in this case, either by itself or when coupled with other information, didn’t provide probable cause to arrest Moore and search him incident to arrest.

Secrist held that the odor of marijuana alone may provide probable cause to to arrest if it is “unmistakeable” to an officer with relevant training or experience. The court of appeals read Secrist to require evidence that the officers had training or experience enabling them to reliably identify the odor of marijuana, and in Moore’s case there was no evidence the officers had the requisite training or experience. Also, Moore provided an innocent explanation for the odor—that he vaped CBD. Because it was undisputed that the odor of CBD is indistinguishable from that of marijuana, the odor wasn’t “unmistakeable” because the odor of CBD may be mistaken for the odor of marijuana.

The state’s petition for review complains that the court of appeals “overread” Secrist as establishing an evidentiary standard regarding the odor of marijuana that “is distinct from, and far more demanding than, the constitutional standard of probable cause.” (PFR at 14). Indeed, the PFR asserts, the court of appeals itself acknowledged there may be “tension” between Secrist‘s requirement that the odor of marijuana be “unmistakable” and the quantum of evidence normally required to establish probable cause. (Slip op. ¶31 n.11).

In particular, the state says the court of appeals improperly reached its own indepedent conclusion about whether the odor in this case was “unmistakeable,” as required by Secrist, because it ignored the circuit court’s finding of fact that the officers detected a “strong” odor, which was enough to establish probable cause (though the circuit court went on to conclude probable cause dissipated due to the officers’ subsequent inability to detect the odor on Moore himself). The state also argues the court of appeals improperly discounted the officers’ testimony about the odor of marijuana based on the possible innocent explanation that the odor was from CBD, not marijuana, as probable cause doesn’t depend on ruling out innocent explanations. (PFR at 18).

The supreme court’s clarification (or revision) of the Secrist rule will obviously be an important decision—in part because since Secrist was decided in 1999 there has been a sea-change in the regulation and availability of marijuana, which means that odor lingering after legal use in another state could lead to arrests and searches here in Wisconsin.

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  • Ryan January 3, 2023, 11:25 am

    The presence of cannabis leading to probable cause is wrong since hemp has been legal. That I should be concerned of being accosted by an officer for smoking/vaping/consuming hemp, a legal activity, is ridiculous much less being arrested and thrown into the criminal justice system. The tools used for smoking hemp are identical to that of marijuana. There is no sensory observation that can distinguish hemp from marijuana, therefore the presence of cannabis shouldn’t qualify as reasonable suspicion of illegal activity. Again, not to mention the refusal to reliably distinguish cannabis samples by the State Crime Lab, and the fact that hemp doesn’t necessarily contain CBD for the “CBD:THC” ratio test. The consequences of falsely accusing a citizen and violating their rights due to the presence of hemp vastly outweighs any positives of marijuana law enforcement. When the case enters a court room, mustn’t obvious innocent explanations be taken into account through Rule 702 Testimony by Expert Witnesses? Police officers themselves are claiming to be experts and offer their “training and expertise” in identifying marijuana while failing to take hemp’s existence into consideration. Further, Wisconsin does allow low levels of THC while driving to account for legitimate hemp/cbd product use. This argument police/law enforcement are still maintaining 4 years later is a bit absurd. I understand they might feel threatened that their favorite method to violate rights shouldn’t exist any longer.

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