State v. Quaheem O. Moore , 2023 WI 50 ( 2023 )

2023 WI 50SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP938-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Quaheem O. Moore,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 510, 979 N.W.2d 813(2022 – unpublished)
OPINION FILED: June 20, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Wood
JUDGE: Nicholas J. Brazeau, Jr.
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY,
JJ., joined. DALLET, J., filed a dissenting opinion, in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Jacob J. Wittwer, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Jacob J. Wittwer, assistant attorney general.
For the defendant-respondent, there was a brief filed by
Joshua Hargrove, Tracey A. Wood, Teuta Jonuzi, and Tracey Wood &
Associates, Middleton. There was an oral argument by Joshua
Hargrove.
2
2023 WI 50NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP938-CR
(L.C. No. 2019CF711)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner, FILED
v. JUN 20, 2023
Quaheem O. Moore, Samuel A. Christensen
Clerk of Supreme Court
Defendant-Respondent.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY,
JJ., joined. DALLET, J., filed a dissenting opinion, in which
ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 BRIAN HAGEDORN, J. After he was pulled over for
speeding, officers searched Quaheem Moore based primarily on the
smell of marijuana emanating from his vehicle. The circuit
court1 suppressed the results of that search, and the court of
appeals affirmed. The State contends this was error. It argues
1The Honorable Nicholas J. Brazeau, Jr., of the Wood County
Circuit Court presided.
No. 2021AP938-CR
the officers had probable cause to arrest Moore, and thus, this
was a lawful search incident to arrest. We agree and reverse.
I. BACKGROUND
¶2 On November 17, 2019, City of Marshfield Police
Officer Libby Abel executed a traffic stop for speeding. While
attempting to make the stop, Officer Abel "observed some sort of
liquid fly out of the driver's window" and noticed the vehicle
hit a curb while turning onto a side street. Officer Abel
approached the vehicle, identified the driver and sole occupant
as Quaheem Moore, and questioned him about the speeding and the
liquid. During this initial contact, Officer Abel "detected an
odor of raw marijuana." She called for back-up, and Officer
Mack Scheppler arrived on the scene.
¶3 Both officers escorted Moore out the vehicle, in
between his vehicle and Officer Abel's squad car. Officer Abel
performed an initial safety pat-down for weapons.2 She did not
find any, but she did discover a vaping device.3 She asked Moore
2 During an investigative stop, officers are permitted to
search a person's outer clothing for weapons if they have
reasonable suspicion to believe that the person may be armed and
dangerous. State v. McGill, 2000 WI 38, ¶¶21-22, 234
Wis. 2d 560, 609 N.W.2d 795. Moore does not challenge this
search.
3 A vaping device, commonly known as a "vape pen" or "vape,"
is a device that works "by heating and aerosolizing a liquid
mixture" that "is inhaled as vapor." Big Time Vapes, Inc. v.
Food & Drug Admin., 963 F.3d 436, 439 n.11 (5th Cir. 2020).
2
No. 2021AP938-CR
if it was a THC (tetrahydrocannabinols) vape, and he responded
that it was a CBD (cannabidiol) vape pen.4
¶4 Officer Abel proceeded to question Moore. She first
asked about the liquid, which she said she could still see on
the side of the car and inside the window; but Moore denied
throwing anything out of the window.5 He explained that the
vehicle was his brother's rental, and that he had taken it to
the car wash earlier in the day. Officer Abel next asked Moore
if he had been drinking, which he also denied. Then, Officer
Abel told Moore that she smelled marijuana coming from the
vehicle, but he immediately expressed disbelief. Officer
Scheppler confirmed that he too smelled marijuana, and later
described the odor as overwhelming. Moore continued to express
his disbelief and insisted that the officers could not smell
marijuana on him. Officers Abel and Scheppler agreed,
The liquid in vape pens often contains "nicotine and
4
sometimes flavoring." Id. However, the liquid mixture can also
contain THC or CBD. Centers for Disease Control and Prevention,
E-Cigarette, or Vaping, Products Visual Dictionary, 17,
available at https://www.cdc.gov/tobacco/basic_information/e-
cigarettes/pdfs/ecigarette-or-vaping-products-visual-dictionary-
508.pdf. "THC is the main psychoactive chemical in marijuana."
Id. at 18. And "CBD is the main ingredient in hemp and the
second main ingredient in marijuana after THC," although it "is
not a psychoactive substance." Id. at 20. Possession of THC is
illegal; however, Wisconsin law permits possession of certain
CBD products. See Wis. Stat. §§ 961.41(3g)(e) (2021-22);
961.14(4)(t).
All subsequent references to the Wisconsin Statutes are to
the 2021-22 version.
The officers never determined what this liquid was, but
5
Officer Abel testified it was odorless.
3
No. 2021AP938-CR
indicating the smell was coming from the vehicle, not from
Moore.
¶5 Eventually, the officers told Moore that they were
going to search him based on the odor of marijuana. Officer
Scheppler found only cash at first. Officer Abel then stepped
away to search Moore's vehicle while Officer Scheppler and Moore
chatted.6 Several minutes later, Officer Scheppler noticed
Moore's "belt buckle was sitting a little higher on his pants"
and decided to examine the zipper area. Officer Scheppler
testified, "I looked behind the belt buckle, I noticed that he
had a bulge in his pants, and then in searching the zipper area,
I felt a material that wasn't consistent to the pants fabric."
He called Officer Abel back over, and she put Moore in
handcuffs. The officers then moved Moore closer to the squad
cars for privacy. Officer Scheppler ultimately found two
plastic baggies containing cocaine and fentanyl in a false-
pocket behind Moore's zipper.
¶6 The State charged Moore with two crimes: possession
with intent to deliver narcotics and possession with intent to
deliver more than one but less than five grams of cocaine——both
as second and subsequent offenses and as a repeater. Moore
moved to suppress evidence of the cocaine and fentanyl found by
Officer Scheppler, arguing the State lacked probable cause to
arrest and therefore to search him. The circuit court agreed
6 Moore does not challenge the search of the vehicle.
4
No. 2021AP938-CR
and granted the motion. The court of appeals affirmed,7 and we
granted the State's petition for review.
II. DISCUSSION
¶7 The United States Constitution provides: "The right
of the people to be secure in their persons . . . against
unreasonable searches and seizures, shall not be
violated . . . ."8 U.S. Const. amend. IV. "Warrantless searches
are presumed to be unconstitutional." State v. Denk, 2008
WI 130, ¶36, 315 Wis. 2d 5, 758 N.W.2d 775. But there are
exceptions, and the State bears the burden to prove an exception
applies. Id.¶8 One exception is a search incident to an arrest. Id.,
¶38; see also Wis. Stat. § 968.11. When conducting a search
incident to arrest, the officer is not required to formally
arrest before the search. State v. Sykes, 2005 WI 48, ¶15, 279
Wis. 2d 742, 695 N.W.2d 277. The "search may be incident to a
subsequent arrest if the officers have probable cause to arrest
before the search." Id. (quoting another source). "Probable
cause to arrest is the quantum of evidence within the arresting
officer's knowledge at the time of the arrest which would lead a
reasonable police officer to believe that the defendant probably
See State v. Moore, No. 2021AP938-CR, unpublished slip op.
7
(Wis. Ct. App. July 28, 2022).
The Wisconsin Constitution also provides, "The right of
8
the people to be secure in their persons . . . against
unreasonable searches and seizures shall not be
violated . . . ." Wis. Const. art. I, § 11.
5
No. 2021AP938-CR
committed or was committing a crime." State v. Secrist, 224
Wis. 2d 201, 212, 589 N.W.2d 387 (1999). This requires more
than a mere hunch or reasonable suspicion, but "does not require
proof 'beyond a reasonable doubt or even that guilt is more
likely than not.'" State v. Young, 2006 WI 98, ¶22, 294
Wis. 2d 1, 717 N.W.2d 729 (quoting another source). Probable
cause is an objective test that "requires an examination of the
totality of the circumstances." State v. Weber, 2016 WI 96,
¶20, 372 Wis. 2d 202, 887 N.W.2d 554. In analyzing this
question, we uphold the "circuit court's findings of fact unless
they are clearly erroneous" but independently review whether
there was probable cause to arrest. Secrist, 224 Wis. 2d at
207-08.
¶9 In a case similar to this, we observed that "when an
officer smells the odor of a controlled substance," the "common
sense conclusion" "is that a crime has probably been committed."
Id. at 218. In Secrist, the defendant pulled up to a police
officer with his window down to ask for directions. Id. at 204.
The defendant was the only person in the car. Id. The officer,
who had frequent contact with marijuana in his 23 years as a
police officer, "immediately smelled a strong odor of marijuana
coming from the automobile." Id. He asked the defendant to get
out of the vehicle and placed him under arrest for possession of
marijuana. Id. at 205.
¶10 The defendant argued before this court that the smell
of marijuana alone was not sufficient to establish probable
cause. Id. at 213. We disagreed. Id. at 218-19. We held,
6
No. 2021AP938-CR
the odor of a controlled substance may provide
probable cause to arrest when the odor is unmistakable
and may be linked to a specific person or persons
because of the particular circumstances in which it is
discovered or because other evidence at the scene or
elsewhere links the odor to the person or persons.
Id. at 217-18. We further explained, "The strong odor of
marijuana in an automobile will normally provide probable cause
to believe that the driver and sole occupant of the vehicle is
linked to the drug." Id. at 218.
¶11 Moore asks us to construe our holding in Secrist as
creating a three-part test that requires: (1) an unmistakable
smell (2) linked to the suspect and (3) smelled by a trained and
experienced officer who testifies accordingly. This effort to
establish bright-line rules and prerequisites misses the mark.
Secrist stressed——and we agree——that it was conducting a
"totality of the circumstances" analysis; it did not purport to
design new, higher standards to govern every case with factual
similarities. Id. Rather, Secrist acknowledged the rather
obvious connections necessary to establish probable cause in
this kind of circumstance. Was the odor sufficiently identified
as an illegal substance, most likely by someone (a law
enforcement officer) who could make such an identification? If
so, it was reasonable to believe that some illegal activity had
occurred or was occurring. And therefore, the question is
whether this illegal activity was sufficiently linked to the
suspect such that a reasonable law enforcement officer would
reasonably believe it was the suspect who was involved in the
illegal drug activity.
7
No. 2021AP938-CR
¶12 Thus, the issue presented here is, examining the
totality of the circumstances, whether a reasonable law
enforcement officer would believe Moore probably committed or
was committing a crime. The answer is yes. When Officer Abel
pulled Moore over, she watched his vehicle hit the curb and
observed a "liquid fly out the driver's window"; she later saw
the liquid on the side of the car as well. And when she first
approached the vehicle, she smelled raw marijuana. Officer
Scheppler smelled it too, and even called it overwhelming. The
circuit court found both officers' testimony regarding the smell
credible, stating multiple times in its decision that the
officers smelled a "strong" odor of marijuana. Moore does not
challenge this factual finding. Critically, Moore was the sole
occupant of the vehicle. And he was in possession of a vape
pen. Taken together, a reasonable officer would believe it was
Moore that was responsible for the overwhelming odor of a
prohibited substance emanating from a vehicle with no other
passengers. The officers need not know with certainty that
Moore was committing or had committed illegal activity, but they
had more than enough to meet the modest bar that it was probably
true. Therefore, the officers had probable cause to believe a
crime was or had been committed——at the very least, possession
of THC. See Wis. Stat. § 961.41(3g)(e).
¶13 Moore provides several counterarguments, none of which
are persuasive. First, he contends that the odor of marijuana
was not sufficiently linked to him because the officers did not
smell it on him, only in his vehicle. While Moore is correct
8
No. 2021AP938-CR
that the officers did not smell marijuana on his person, he was
the sole occupant of the vehicle that bore a strong and
overwhelming smell of marijuana. A reasonable law enforcement
officer would believe Moore was probably connected with the
illegal substance the officers identified. As we said in
Secrist, "The strong odor of marijuana in an automobile will
normally provide probable cause to believe that the driver and
sole occupant of the vehicle is linked to the drug." 224
Wis. 2d at 218.
¶14 That leads to Moore's second counterpoint: the
vehicle was not his, but his brother's rental. While this could
constitute an innocent explanation——albeit, a strained one——
Moore misses the legal standard. Who owned the title or signed
the rental lease does not change the analysis. See, e.g., State
v. Stewart, 2011 WI App 152, ¶¶8 & n.3, 27, 337 Wis. 2d 618, 807
N.W.2d 15 (upholding a search incident to arrest of the
defendant's daughter's car after police observed the defendant
throw a bag into the trunk). A reasonable law enforcement
officer would still likely conclude, absent other facts not in
the record, that the driver and sole occupant of the vehicle was
probably connected to the illegal substance whose odor the
officer clearly detected in the vehicle.
¶15 Third, Moore contends that the odor of marijuana
cannot be unmistakable when there are innocent explanations for
it——such as the odor of CBD, a legal substance that Moore stated
his vape pen was used for. The circuit court referenced this as
well: "The State notes that CBD and marijuana are
9
No. 2021AP938-CR
indistinguishable in their odor. The Court didn't note
testimony to that effect in the record, but it may exist there,
and this Court will assume that is true." The State responds
that this statement was taken out of context and is not a
factual concession. Regardless of what the State said in its
briefing to the circuit court, the circuit court found that the
officers noticed "a strong smell of marijuana emanating" from
the vehicle Moore was driving. While the officers might have
reasonably inferred that the smell from the vehicle was CBD,
that was not the only inference they could draw——they also could
infer (and they did) that the smell was THC. 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." State v. Nieves, 2007
WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d 125; see also State
v. Waldner, 206 Wis. 2d 51, 60, 556 N.W.2d 681 (1996).
Therefore, while an innocent explanation may exist, we still
conclude under the facts of this case, a reasonable law
enforcement officer would infer that Moore had probably
committed or was committing a crime.
¶16 Finally, Moore notes that neither Officer Abel nor
Officer Scheppler testified with respect to their training and
experience to detect the smell of marijuana. He asserts that
without this testimony, the State failed to establish the odor
was unmistakable. This argument, however, goes to the
credibility of the officers. And credibility of a witness is a
question left to the fact-finder. See State v. Burch, 2021
10
No. 2021AP938-CR
WI 68, ¶34, 398 Wis. 2d 1, 961 N.W.2d 314. The circuit court
acting as fact-finder here found the officers' testimony
credible and stated repeatedly that the officers noted the
"strong smell" and "strong odor" of marijuana coming from the
vehicle. It made this factual finding absent specific testimony
regarding the officers' training and experience. Moore does not
challenge this factual finding; nor do we conclude this finding
is clearly erroneous. Furthermore, the fact that the officers
testified to smelling marijuana suggests they know what
marijuana smells like. See United States v. Ludwig, 508
F.2d 140, 142 (10th Cir. 1974) ("[I]nherent in the officer's
statement that he smelled marihuana is the claim that he is
familiar with that substance's odor."). It could be that a
fact-finder will not believe an officer's identification of
marijuana absent an on-the-record statement of training and
experience. The changing legal status and ubiquity of marijuana
could make the lack of such evidence vulnerable to attack. But
again, we do not see why such testimony would be required. The
relevant question is whether the testimony is sufficient to
support a finding of fact. There was enough here without
testimony regarding the officers' training and expertise to
support a finding that they smelled illegal raw marijuana.
III. CONCLUSION
¶17 Examining the totality of the circumstances, we hold
that officers Abel and Scheppler had probable cause to arrest
Moore on the belief that he was committing or had committed a
11
No. 2021AP938-CR
crime. Therefore, the search incident to arrest did not violate
the Fourth Amendment. We reverse the court of appeals' decision
to the contrary and remand to the circuit court for further
proceedings consistent with this opinion.
By the Court.—The decision of the court of appeals is
reversed and the cause is remanded to the circuit court.
12
No. 2021AP938-CR.rfd
¶18 REBECCA FRANK DALLET, J. (dissenting). After
pulling Moore over for speeding, police officers removed him
from his car to conduct a pat-down search. They found no
evidence that a crime had been committed, so Moore should have
been free to go, perhaps with a speeding ticket. Instead, the
officers conducted a second, more thorough search of Moore and
found baggies containing cocaine and fentanyl concealed in his
pants. The majority concludes that this second search was
permissible because the officers had probable cause to arrest
Moore on the basis that the car he was driving smelled like
marijuana. I disagree; because the officers lacked probable
cause to arrest Moore, the evidence they found should be
suppressed.
I
¶19 On the night of November 17, 2019, Officer Libby Abel
pulled Quaheem Moore over for speeding on a residential street.
She called for backup. The sequence of events that followed was
captured on the bodycam video. The officers removed Moore from
the vehicle to conduct a pat-down search. While searching him,
Officer Abel asked Moore if he had been drinking. He said "no."
Officer Abel then told Moore she saw him throw something out of
the driver's side window while pulling over, "[s]ome sort of
beverage . . . . It's on the side of your car." Moore
expressed confusion and explained that it was his brother's car
and had been through a car wash earlier that day. Officer Abel
asked Moore again if he had been drinking and when the last time
was that he had an alcoholic drink. Moore replied, "yesterday."
1
No. 2021AP938-CR.rfd
He did not appear intoxicated and was not asked to take field
sobriety tests. The only item the officers found during the
pat-down search was a vape pen which Moore said was a "CBD
vape." There is nothing in the record to contradict this
statement.
¶20 Instead of letting Moore go with a speeding ticket,
Officer Abel briefly paused and said for the first time, "Okay,
okay, um . . . I also smelled mar——the odor of marijuana coming
from the car." The second officer chimed in that he could smell
it too. Later, at the suppression hearing, Officer Abel said
that she had smelled "raw marijuana." Moore expressed disbelief
and pulled his sweatshirt outwards exclaiming "You don't smell
that shit on me." Officer Abel admitted, "I can't smell it
right now."1
¶21 At this point, Officer Abel told Moore that the second
officer was going to search him. That officer stated, "Just
with the odor of marijuana, I'm going to be searching you." The
officer found nothing. Several minutes later, the officer said
that he had to search Moore's waistband. This time, the officer
found bags containing cocaine and fentanyl concealed behind
Moore's pants zipper. No marijuana was found on Moore and he
was never charged with possession of marijuana.
¶22 Moore contends that the officers lacked probable cause
to arrest him, and thus to conduct a search incident to arrest.
1The second officer seemingly agreed that Moore didn't
smell like marijuana. After Moore said "You don't smell it on
me," the officer responded, "But, but it's coming out of the
car."
2
No. 2021AP938-CR.rfd
An officer has probable cause to arrest when "[t]here are
reasonable grounds to believe that the person is committing or
has committed a crime." Wis. Stat. § 968.07(1)(d); see also
Illinois v. Rodriguez, 497 U.S. 177, 185 (1990) (explaining the
reasonableness requirement of the Fourth Amendment). This
standard demands "more than a possibility or suspicion that the
defendant committed an offense, but the evidence need not reach
the level of proof beyond a reasonable doubt or even that guilt
is more likely than not." State v. Secrist, 224 Wis. 2d 201,
212, 589 N.W.2d 387 (1999). Probable cause is an objective test
that "requires an examination of the totality of the
circumstances." State v. Weber, 2016 WI 96, ¶20, 372 Wis. 2d
202, 887 N.W.2d 554.
¶23 The majority concludes that under the totality of the
circumstances, "the officers had probable cause to believe a
crime was or had been committed——at the very least, possession
of THC." Majority op., ¶12. The circumstances the majority
cites for this conclusion are the following:
 While coming to a stop, Moore's vehicle hit the curb;
 Officer Abel saw an unknown liquid fly out of the driver's
window;
 Moore had a CBD vape pen; and
 Officer Abel and a second officer testified that they
smelled the "strong" odor of "raw marijuana" coming from
Moore's vehicle.
Id.3
No. 2021AP938-CR.rfd
¶24 Almost none of these circumstances "would lead a
reasonable police officer to believe" that Moore possessed THC.
Secrist, 224 Wis. 2d at 212. Hitting the curb while pulling
over might be evidence the driver was impaired, but Moore was
not arrested for operating while intoxicated and there is no
evidence of impairment from the bodycam footage or the officers'
reports. Officer Abel's testimony about a liquid spraying out
of the driver's side window is immaterial as well. There is
nothing in the record about what the liquid was or linking it in
any way to THC. Likewise there is nothing in the record that
suggests Moore's vape pen was used for anything other than CBD——
a legal substance.
¶25 That leaves only the smell of marijuana coming from
the car Moore was driving——a fact the majority all but admits is
the only support for probable cause to arrest Moore. See
majority op., ¶12. In concluding that the smell of marijuana
alone gave the officers probable cause to arrest Moore, the
majority relies primarily on one 24-year old case decided when
the use or possession of any amount of cannabis2 was illegal
nationwide. See Secrist, 224 Wis. 2d 201.
II
2Cannabis refers to a category of flowering plants which
produce both hemp and marijuana. Hemp is a type of cannabis
that contains low levels of the intoxicating chemical delta-9
tetrahydrocannabinol (THC). Marijuana is another type of
cannabis known for its much higher concentration of THC. In
1996, both hemp and marijuana were illegal. See Ryan LeCloux,
Regulating Wisconsin's Hemp Industry, Wisconsin Legislative
Reference Bureau, Wisconsin Policy Project, Vol. 2 No. 9, at 1-4
(Aug. 2019), https://docs.legis.wisconsin.gov/misc/lrb/wisconsin
_policy_project/wisconsin_policy_project_2_9.pdf.
4
No. 2021AP938-CR.rfd
¶26 On a summer day in 1996, Timothy Secrist rolled down
his window to ask a police officer for directions. See Secrist,
224 Wis. 2d at 204. The officer was immediately struck by the
strong odor of marijuana wafting from inside the vehicle. Id.Secrist was ordered to pull over and get out of the car and was
then placed under arrest. Id. at 205. We concluded that the
evidence seized after Secrist's arrest did not need to be
suppressed, holding that the officer had probable cause to
arrest Secrist because the officer identified the "unmistakable
odor of a controlled substance and [wa]s able to link that odor
to a specific person." Id. at 218. Applying Secrist to Moore's
case, I conclude that the officers lacked probable cause to
arrest, and therefore to search, Moore.
¶27 For starters, even if the officers smelled the
"unmistakable" odor of marijuana coming from the car Moore was
driving, the linkage between that smell and Moore was not
particularly strong. See id. (stating that probable cause to
arrest based on the "unmistakable" odor of marijuana must also
be linked to a specific person). As Secrist explained, the
likelihood that an occupant is linked to the smell of marijuana
in a vehicle "diminishes if the odor is not strong or recent, if
the source of the odor is not near the person, if there are
several people in the vehicle, or if a person offers a
reasonable explanation for the odor." Id. Here, it is true
that Moore was the sole occupant of the car, thus increasing the
probability that he was linked to the smell. But that linkage
is weaker than it initially appears, since neither officer
5
No. 2021AP938-CR.rfd
smelled marijuana on Moore once he was out of the car and
because Moore explained that he was driving a vehicle his
brother had rented——a fact the officers subsequently verified.
¶28 More fundamentally, however, legal developments in the
last 24 years may call into question a central premise of
Secrist, namely that the odor of marijuana is "unmistakabl[y
the] odor of a controlled substance." Id. Thirty-eight states
have legalized medical marijuana and twenty-three of those have
also legalized recreational marijuana.3 Additionally, Congress
modified the Controlled Substances Act in 2018 to remove hemp
and hemp-derived products from the definition of marijuana,
which legalized certain hemp products nationwide.4 This means
that virtually all adults can legally purchase hemp-derived
See National Conference of State Legislatures, State
3
Medical Cannabis Laws, tbl. 1,
https://www.ncsl.org/health/state-medical-cannabis-laws. See
also Joe Sonka, Kentucky Bill Legalizing Medical Marijuana
Signed Into Law, Louisville Courier Journal (Mar. 30, 2023),
https://www.courier-journal.com/story/news/politics/2023/03/30/m
edical-marijuana-bill-passes-in-kentucky-heads-to-beshears-
desk/70062316007/ (identifying Kentucky as the 38th state to
legalize medical marijuana); Shawna Mizelle & Sydney Kashiwagi,
Minnesota Becomes 23rd State to Legalize Recreational Marijuana,
CNN Politics (May 30, 2023),
https://www.cnn.com/2023/05/30/politics/minnesota-cannabis-
legalization-recreational-marijuana/index.html.
See Agriculture Improvement Act of 2018, H.R. 2, 115th
4
Cong. § 12619. The 2018 Farm Bill removed hemp from the legal
definition of marijuana in the Controlled Substances Act. This
made some hemp-derived products with less than 0.3% THC
federally legal.
6
No. 2021AP938-CR.rfd
products from local CBD stores.5 Hemp-derived products come in a
variety of processed forms like gummies, oils, and creams, as
well as in their unprocessed state as hemp flowers.6 And just
like marijuana, hemp flowers can be smoked, vaped, or eaten.7
Unlike marijuana, however, hemp contains only trace amounts of
the psychoactive compound THC——the main psychoactive ingredient
in marijuana.8
¶29 Experts indicate that hemp flowers and marijuana are
so similar in appearance and smell that even drug detection dogs
can't tell the difference.9 If true, this means that when a
police officer smells what they believe to be the distinctive
5 See Mike Sill, The Future of the CBD Industry in 2022 and
Beyond, Forbes Business Council (Oct. 21, 2021),
https://www.forbes.com/sites/forbesbusinesscouncil/2021/10/21/th
e-future-of-the-cbd-industry-in-2022-and-beyond (detailing the
exponential growth of the CBD industry).
6 See Elizabeth G. Dunn, They're Betting the Family Farm on
Weed, N.Y. Times (Feb. 17, 2023),
https://www.nytimes.com/2023/02/17/nyregion/hepworth-farms-
cannabis.html (explaining the process of growing hemp).
7 See Phil Dixon, Hemp or Marijuana?, UNC Sch. of Gov't:
N.C. Crim. L. Blog (May 21, 2019),
https://nccriminallaw.sog.unc.edu/hemp-or-marijuana.
8 See Elizabeth G. Dunn, supra note 6.
9 See North Carolina State Bureau of Investigation,
Industrial Hemp/CBD Issues, available at
https://www.sog.unc.edu/sites/default/files/doc_warehouse/NC%20S
BI%20-%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf ("Hemp and
marijuana look the same and have the same odor, both unburned
and burned. This makes it impossible for law enforcement to use
the appearance of marijuana or the odor of marijuana to develop
probable cause for arrest."); see also Cynthia Sherwood,
Alexander Mills, & Davis Griffin, Even Dogs Can’t Smell the
Difference: The Death of "Plain Smell," As Hemp Is Legalized, 55
Tenn. Bar J. 14 (Dec. 2019).
7
No. 2021AP938-CR.rfd
odor of either raw or burnt marijuana, they could just as easily
be smelling raw or burnt hemp. In light of the nationwide
legalization of hemp, this raises the question: Should the
smell of marijuana alone still justify a warrantless arrest?
¶30 Courts in jurisdictions that have legalized marijuana
for medical or recreational purposes have answered "no,"
rejecting their Secrist-like cases in the process.
Pennsylvania, for example, once had a rule that "where an
officer is justified in being where he is, his detection of the
odor of marijuana is sufficient to establish probable cause."
Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. Ct.
1984). In 2016, after Pennsylvania legalized the possession and
use of medical marijuana in limited circumstances, the
Pennsylvania Supreme Court concluded that change eliminated the
"main pillar" of the state's prior rule regarding the smell of
marijuana——that marijuana was illegal in all circumstances in
Pennsylvania. Commonwealth v. Barr, 266 A.3d 25, 41 (Pa. 2021).
Accordingly, the court held that "the smell of marijuana alone
cannot create probable cause to justify a search." Id.Nevertheless, the court acknowledged that possession or use of
marijuana remained illegal for those not qualified to possess
medical marijuana. Id. For that reason, the court explained
that "the smell of marijuana indisputably can still signal the
possibility of criminal activity" and thus "may be a factor, but
not a stand-alone one, in evaluating the totality of the
circumstances for purposes of determining whether police had
probable cause to conduct a warrantless search." Id.8
No. 2021AP938-CR.rfd
¶31 States that have decriminalized possession of small
quantities of marijuana have reached similar conclusions. For
example, the Maryland Court of Appeals held that a search
incident to arrest was invalid because "nothing in the record
suggest[ed] that possession of a joint and the odor of burnt
marijuana gave the police probable cause to believe [the
defendant] was in possession of a criminal amount of that
substance." Pacheco v. State, 214 A.3d 505, 518 (Md. 2019); see
also Lewis v. State, 233 A.3d 86, 99 (Md. 2020) (holding that
the odor of marijuana alone doesn't indicate possession of a
criminal amount of marijuana and police officers therefore
lacked probable cause to arrest). The Minnesota Supreme Court
likewise explained that although the odor of burnt marijuana
might provide probable cause to believe that a "non-criminal
amount" of marijuana is present, it cannot provide the basis for
probable cause to arrest because there is no reason to believe a
criminal amount of marijuana is present. State v. Ortega, 770
N.W.2d 145, 149 n.2 (Minn. 2009).
¶32 Although Wisconsin has not yet legalized medical or
recreational marijuana, or decriminalized possession or
consumption of marijuana, the reasoning in these cases
demonstrates that marijuana's once-unique odor may no longer
serve as the beacon of criminal activity it did a quarter-
century ago. As discussed above, Wisconsinites can legally
purchase, transport, and smoke or vape hemp products that
experts indicate are identical to marijuana in look and smell.
As such, officers who believe they smell marijuana coming from a
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No. 2021AP938-CR.rfd
vehicle may just as likely be smelling raw or smoked hemp, which
is not criminal activity. Moreover, in virtually all of
Wisconsin's neighboring states——Illinois, Michigan, and
Minnesota——recreational marijuana is now legal. With that,
Wisconsinites may travel to neighboring states and consume
marijuana without violating any state laws.10 And experience
teaches us that smells linger in cars, sometimes long after the
item responsible for the smell is gone. In sum, Secrist's
reliance on the smell of marijuana as an unmistakable indication
of illegal activity sufficient to justify a warrantless arrest
may no longer ring true.11
¶33 All things considered, the totality of the relevant
circumstances here do not add up to probable cause to arrest and
thus any evidence found during the search should be suppressed.
Other than the officers' testimony that they smelled raw
marijuana coming from the car Moore was driving, there was no
reason to believe that Moore possessed THC. The smell the
officers identified was not sufficiently linked to Moore under
The Legislative Fiscal Bureau estimated that $36.1
10
million of Illinois' cannabis tax revenues in fiscal year 2022
were attributable to sales of cannabis to Wisconsin residents.
Memorandum from Sydney Emmerich, Fiscal Analyst, Legislative
Fiscal Bureau, to Senator Melissa Agard, at 2 (Mar. 10, 2023).
For this reason, Secrist may be worth revisiting in a
11
future case. See State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d
195, 990 N.W.2d 174 (identifying several factors that we
consider when deciding whether to overturn precedent, including
when "the law has changed in a way that undermines the prior
decision's rationale" and when "there is a 'need to make a
decision correspond to newly ascertained facts'" (quoting
another source)).
10
No. 2021AP938-CR.rfd
the circumstances of this case. See Secrist, 224 Wis. 2d at
218. And if experts are correct that there is no distinction
between the odor of legal hemp products and marijuana, then a
central premise of Secrist is called into question and further
undermines probable cause. For all these reasons, I
respectfully dissent.
¶34 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this opinion.
11