Smell of Marijuana Alone Can Justify an Arrest, Even After Legalization of Hemp, Says Wisconsin Supreme Court

In State v. Moore,[1] decided on June 20, 2023, the Wisconsin Supreme Court faced a question puzzling many courts and police officers around the country: Does the smell of marijuana constitute probable cause when the smell could actually be evidence of hemp, a similar—but legal—product? And what if marijuana itself is legal in a nearby jurisdiction and the smell could be the result of its legal use there? The court ruled 4-3 in favor of the state in this case, and the question likely will keep arising given the patchwork of legal status for cannabis products in today’s United States.

The case concerned the prosecution of Quaheem Moore. Moore was driving in Marshfield, Wisconsin, in November 2019 when an officer pulled him over for speeding.[2] The officer later testified that as she was making the stop, Moore’s vehicle hit a curb, and some form of liquid flew out of the driver’s window.[3] She also testified that once she spoke to Moore she smelled “raw marijuana.”[4] After a back-up officer arrived, the police patted down Moore and found a vaping device.[5] The first officer asked Moore if it was a THC vape, but Moore responded that it was a CBD vape.[6] Each uses a cannabis product, but some CBD products (CBD is a derivative of hemp) are legal in Wisconsin, while THC is illegal.[7] Moore was asked about the liquid going out the window, but he denied throwing anything.[8] He also said it was his brother’s rental car.[9] The officers asked about a strong marijuana smell, which they claimed came from the vehicle itself, and Moore asserted he did not smell it.[10] The officers agreed with Moore that his person did not smell of marijuana.[11] They also did not seem to think he was intoxicated as they did not proceed with any sobriety tests.

Based on the marijuana odor, the officers then searched Moore’s person and vehicle.[12] After not finding anything other than cash on his person, several minutes later they searched him again and found something unnaturally bulging near his belt buckle.[13] A further search found two baggies that later were found to contain cocaine and fentanyl.[14] The state charged him with two crimes involving intent to deliver illegal drugs.[15]

Moore moved to suppress evidence of the cocaine and fentanyl based on the lack of probable cause at the time of the search. The trial court granted the motion, and the state appellate court affirmed. The state supreme court then agreed to hear the case.[16]

The supreme court’s majority opinion, written by Justice Brian Hagedorn, noted that the search was lawful if it was incident to an arrest, and that the arrest did not have to have been formally made at the time of the search.[17] The state only had to show that there was probable cause for the arrest when the search occurred.

The majority looked to its own 1999 precedent State v. Secrist, which also involved a solo driver in a vehicle.[18] There, a car pulled up to an officer to ask for directions, and the officer smelled marijuana emanating from the driver’s open window.[19] Based on that smell, the officer arrested the driver for possession of the drug.[20] The Wisconsin Supreme Court concluded that the arrest was lawful and that a “strong odor of marijuana in an automobile will normally provide probable cause . . . .”[21] Applying Secrist, the majority concluded that the officers’ testimony that there was a strong smell of marijuana—which the trial court found credible—was enough to constitute probable cause to believe Moore possessed marijuana, or at least THC.[22]

Moore made a number of counterarguments, but all of them failed. He argued that since the smell was from the vehicle, not him, and since it was his brother’s rental car, the smell could not be tied back to him personally. However, the majority said these facts did not help Moore given that he was the driver and sole occupant at the time of the stop.[23]

Moore also argued there were innocent explanations for the odor, which would not have been possible in 1999 in Secrist. Those included the legality of CBD, which Moore told the officers he used. In response, the majority asserted that “it is black letter law that ‘an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause.’”[24] In other words, the tie does not go to the suspect.

Finally, Moore argued that the officers did not testify about their training and experience in detecting the smell of marijuana. The majority pushed that objection aside by explaining that this omission goes to credibility, which is left to the fact finder to determine, and that the trial court had found the officers’ testimony credible in spite of this objection.[25]

Justice Rebecca Frank Dallet, joined by Justices Ann Walsh Bradley and Jill J. Karofsky, dissented. The dissent argued that Moore should have been free to go, with a speeding ticket at most, after his initial pat down.[26]

The dissent emphasized that there was no evidence Moore had been drinking other than the ambiguous evidence of liquid going out the window and no evidence contradicting his statement that the vape pen was legal CBD.[27] Thus, the only fact left that could provide probable cause for an arrest, the dissent continued, was the smell of marijuana.[28] The dissent found it curious that the officers claimed to smell marijuana in the vehicle but not on Moore’s person.

Applying Secrist, but also noting nationwide changes to marijuana laws since 1999, the dissent concluded that the fact that the officers did not smell marijuana on Moore himself meant there was no probable cause to arrest him.[29] In particular, it noted that hemp and hemp products are legal under both Wisconsin law and federal law and that they have a smell indistinguishable from that of marijuana.[30] Further, the dissent pointed out that medical marijuana is now legal in 38 states, while recreational marijuana is legal in 23, including most of Wisconsin’s neighbors, making it easy for Wisconsin drivers to cross state lines, consume marijuana, and drive back without violating any Wisconsin laws.[31] Putting all of these considerations together, concluded the dissent, the underpinnings of Secrist were no longer valid, and there was no probable cause to arrest Moore.[32]

Moore is emblematic of the patchwork of cannabis laws, and the police tactics made in response to that patchwork, that we now see across the country. Expect many more fact-intensive suppression motions like the one in this case as long as the use—and smell—of cannabis products remain in a state of semi-legalization.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].