Defense win: Odor of marijuana didn’t provide probable cause to arrest

State v. Quaheem O. Moore, 2021AP938-CR, District 4, 7/28/22 (not recommended for publication), state’s petition for review granted 12/21/22; reversed 2023 WI 50; case activity (including briefs)

Police stopped Moore for speeding and, after detecting the odor of what the officer believed to be marijuana, searched Moore. (¶¶2-9). Distinguishing State v. Secrist, 224 Wis. 2d 201, 589 N.W.2d 387 (1999), the court of appeals affirms the circuit court’s suppression order, holding that the odor of marijuana, by itself or coupled with other information, did not provide probable cause to arrest Moore and search him incident to arrest.

Both parties agree that Secrist governs here. In that case, the supreme court held that the odor of marijuana  alone may provide probable cause to to arrest when the odor is “unmistakeable” to an officer with relevant training or experience and the odor can be linked to a specific person. 224 Wis. 2d at 210, 216-18. The first part of this standard isn’t met in this case because there was no evidence the officers had training or experience that enabled them to reliably identify the odor of marijuana:

¶29     …[B]oth officers testified that they detected the odor of marijuana coming from Moore’s vehicle. That both identified the odor as marijuana, as opposed to just one of them, in itself strengthens the identification. …. Critically, however, the State did not elicit testimony or any other evidence that either officer had any training or experience relating to the odor of marijuana. Although the State elicited testimony that both officers had conducted at least one traffic stop prior to the traffic stop in question, neither officer was asked about their training or experience in identifying the odor of marijuana, whether raw, burnt, or in liquid form; in identifying the strength, recency, or source of marijuana; or, in distinguishing the odor of marijuana from other odors, including CBD. The State elicited no testimony that either officer had even smelled the odor of marijuana prior to stopping Moore. …. Secrist directs that such testimony is required when determining whether the unmistakable odor of marijuana alone provides probable cause to arrest.

In addition, Moore provided an innocent explanation for the odor—that he vaped CBD. (¶5). The court accepts the state’s claim that the odor of CBD is indistinguishable from that of marijuana, which means the officers were confronted with two possible explanations for the odor: legal CBD or illegal marijuana. True, police are permitted to draw an inference favoring guilt when faced with two competing inferences. (¶31). But the odor of marijuana alone provides probable cause only if it’s “unmistakable,” and the odor isn’t “unmistakeable” if police can’t rule out an innocent explanation for it: “If CBD, which is legal, produces an odor that is indistinguishable from THC, which is illegal, then the odor of CBD may be ‘mistaken’ for the odor of marijuana.” (¶30).

Finally, other information the officers learned during the stop didn’t fill the void in probable cause left by the lack of an “unmistakable” odor of marijuana. The state cites Moore’s admission he vaped CDB; the fact that he hit the curb when he pulled over, suggesting impairment; and that he appeared to toss some liquid out the driver’s side window. (¶¶3, 5-6, 33).

There’s no evidence supporting an inference that vaping CDB makes it more likely the person also vapes THC and no evidence linking the vaping device itself to THC. (¶¶34-35). Hitting the curb was an isolated event, not part of a course of conduct that suggested impairment; indeed, the officers testified to no other indicia of impairment. (¶37). As to the liquid, an argument about why this fact supported reasonable inferences of marijuana use or possession wasn’t adequately made in the circuit court, so it’s forfeited. (¶¶39-41).