State v. Caprice S. Barksdale, Jr. ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 18, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP1528-CR Cir. Ct. No. 2019CF2704
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
CAPRICE S. BARKSDALE, JR.,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Milwaukee County:
DANIELLE L. SHELTON, Judge. Reversed and cause remanded.
Before Donald, P.J., Dugan and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1528-CR
¶1 PER CURIAM. The State of Wisconsin appeals from an order of
the circuit court granting a motion to suppress that was filed by the defendant,
Caprice S. Barksdale, Jr. On appeal, the State argues that the circuit court
erroneously granted Barksdale’s motion to suppress because the circuit court
applied the incorrect probable cause standard and made erroneous factual findings
related to the officer’s testimony about the basis for the search. Upon review, we
agree with the State, and we reverse the circuit court’s order and remand for
further proceedings.
BACKGROUND
¶2 Following a traffic stop during which officers uncovered heroin,
cocaine, and other items related to drug activity, the State charged Barksdale with
one count of possession of heroin with intent to deliver and one count of
possession of cocaine with intent to deliver.
¶3 Barksdale filed a motion to suppress, arguing that the officers who
stopped him lacked probable cause to search his vehicle.1 In particular, Barksdale
argued that the officers searched his vehicle based on a “strong odor of burnt
marijuana,” but the officers failed to recover any marijuana or any paraphernalia
typically associated with marijuana. Thus, Barksdale argued that the officers
lacked probable cause to search his vehicle when nothing related to the reason for
the search—i.e., the odor of burnt marijuana—was recovered. The circuit court
held a hearing on the motion at which both officers that stopped Barksdale
testified and one of the officer’s body camera footage was played.
1
Barksdale has not challenged that the officers had a legal basis to stop his vehicle, and
his argument below and on appeal focuses on the search of his vehicle conducted during the stop.
2
No. 2021AP1528-CR
¶4 At the hearing, Officer Rolando Franco testified that he stopped a
Honda Accord on March 21, 2018, after he observed that the vehicle had
excessively dark tinted windows, a defective brake light, and a tinted rear license
plate cover.2 Officer Franco testified that he approached the driver’s side, and as
he was talking to the driver, he “detected the strong odor of burnt marijuana
emanating from the vehicle.” Consequently, Officer Franco ordered the driver—
who was the sole occupant—out of the vehicle. The officer stated that, at that
time, Barksdale was “detained.” Officer Franco searched the vehicle, and the
search uncovered a digital scale, an empty sandwich bag underneath the scale, four
cell phones, four empty sandwich bags with the corners removed from two, an off-
white substance suspected to be cocaine base, and a brown substance that was later
determined to be a mix of heroin and fentanyl.
¶5 Officer Franco acknowledged that no marijuana was recovered
during the search even though he detected the odor of marijuana. However, he
testified that “[i]t happens quite often” because “[t]he occupant of the vehicle …
could have discarded the marijuana,” or “[i]t could’ve been smoked earlier, and,
since marijuana has a pungent odor, it sticks to fabric, such as clothing, or the
interior of cars, for an extended period of time.” He additionally explained that he
has “personally had several incidents where [he] stopped a vehicle, and it did …
smell like burnt marijuana, and the individual had either discarded it, sometimes
ate it, sometimes concealed it within clothing, and so on.”
2
The tint on the windows was tested during the stop and determined to be illegally
tinted.
3
No. 2021AP1528-CR
¶6 He further testified that he had been trained in detecting the odor of
marijuana as part of his police academy training with the Milwaukee Police
Department, and he estimated that, in his nine years as a police officer, he had
conducted “several hundred” traffic stops involving marijuana and had
participated in “a couple thousand drug investigations” involving marijuana.
Overall, he testified that he was “confident” in his ability to detect the odor of both
fresh and burnt marijuana.
¶7 Officer Matthew Vandrisse also testified that he was on patrol with
Officer Franco when they stopped a Honda Accord for suspicion of illegally tinted
windows, a defective brake light, and a tinted rear license plate cover. He stated
that he approached the passenger’s side of the vehicle, while Officer Franco
approached the driver’s side and talked to the driver. Officer Vandrisse further
testified that Officer Franco asked the driver to exit the vehicle, and around the
same time, Officer Franco told him about the odor of marijuana coming from the
vehicle. However, Officer Vandrisse testified that he did not personally detect any
marijuana because he “was getting over a cold, and [he] didn’t have [his]
sinuses.”3 Additionally, Officer Vandrisse testified that Barksdale denied having
smoked marijuana when he asked Barksdale if he had been smoking marijuana.
¶8 The circuit court granted Barksdale’s motion. In a written order, the
circuit court recognized that the odor of marijuana is sufficient to establish
probable cause to search a vehicle and that Officer Franco received training in
detecting the odor of marijuana, had “conducted several hundred traffic stops,”
and participated in a “couple thousand drug investigations.” However, the court
3
We assume that he meant that he did not have his sense of smell at that time.
4
No. 2021AP1528-CR
went on to find that “there is no indication that the odor was unmistakable or
linked to Mr. Barksdale or Mr. Barksdale’s area inside the vehicle; furthermore,
the [c]ourt is not certain Officer Franco could differentiate the odor of burnt or
fresh marijuana from any other odor, although the officer said he could.” The
circuit court further found that the existence of probable cause was “diminished”
because “no marijuana or marijuana paraphernalia [was] recovered, one of the two
arresting officers [did] not detect the odor of marijuana, and the subject of the
search denie[d] smoking marijuana.”
¶9 The State now appeals.
DISCUSSION
¶10 On appeal, the State argues that the circuit court erroneously granted
Barksdale’s motion to suppress. We review a circuit court’s decision on a motion
to suppress evidence using a two-step standard. State v. Lonkoski, 2013 WI 30,
¶21, 346 Wis. 2d 523, 828 N.W.2d 552. We will uphold the circuit court’s
findings of fact unless they are clearly erroneous, and we review independently the
application of the facts to the constitutional principles. Id. “A circuit court’s
findings of fact are clearly erroneous when the finding is against the great weight
and clear preponderance of the evidence.” Royster-Clark, Inc. v. Olsen’s
Mill, Inc., 2006 WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530.
¶11 In this case, the State argues that the circuit court applied the
incorrect probable cause standard and made an erroneous factual finding that
Officer Franco could not, in fact, identify the odor of marijuana coming from
Barksdale’s vehicle. We agree, and we address each of the State’s arguments
below.
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No. 2021AP1528-CR
¶12 “Under an analysis of probable cause to search, the relevant inquiry
is whether evidence of a crime will be found.” State v. Secrist, 224 Wis. 2d 201,
209, 589 N.W.2d 387 (1999). “The unmistakable odor of marijuana coming from
an automobile provides probable cause for an officer to believe that the
automobile contains evidence of a crime.” Id. at 210. By contrast, “[u]nder an
analysis of probable cause to arrest, the inquiry is whether the person to be
arrested has committed a crime.” Id. at 209. Therefore, “the odor of a controlled
substance provides probable cause to arrest when the odor is unmistakable and
may be linked to a specific person or persons because of the circumstances in
which the odor is discovered or because other evidence links the odor to the
person or persons.” Id. at 204. Applying these standards, in Secrist, our supreme
court concluded that there was probable cause to arrest the driver and sole
occupant of a vehicle when an officer detected “the strong odor of marijuana
coming from the direction of the defendant inside an automobile.” Id. (emphasis
added).
¶13 In this case, Officer Franco testified that he “detected the strong odor
of burnt marijuana emanating from the vehicle” when he approached the driver’s
side of Barksdale’s vehicle and then decided to search the vehicle. He stated that
Barksdale was simply “detained”—not arrested—at the time he was asked to exit
the vehicle.
¶14 The circuit court stated that “there is no indication that the odor was
unmistakable or linked to Mr. Barksdale or Mr. Barksdale’s area inside the
vehicle.” Under Secrist, however, Officer Franco’s detection of a “strong” odor of
burnt marijuana was sufficient to establish probable cause to search Barksdale’s
vehicle. There is no requirement, as the circuit court found, for the odor to be
linked to Barksdale when the odor is used only as the basis to search Barksdale’s
6
No. 2021AP1528-CR
vehicle, rather than as a basis to arrest him. There is also no requirement that the
officer use the word “unmistakable” in describing the odor. Indeed, in Secrist, our
supreme court repeatedly describes the odor of marijuana as “strong.” See Secrist,
224 Wis. 2d at 204, 218. Consequently, we agree with the State that the circuit
court applied the incorrect standard when it found that “there is no indication that
the odor was unmistakable or linked to Mr. Barksdale or Mr. Barksdale’s area
inside the vehicle.” Rather, all that was needed to search Barksdale’s vehicle was
precisely what Officer Franco described in his testimony, namely a strong odor of
marijuana coming from the vehicle.4
¶15 Nevertheless, it is worth noting that Barksdale was the driver and
sole occupant of the vehicle at the time of the stop, and Officer Franco testified
that the odor of burnt marijuana was so strong that he estimated it had been burnt
just minutes before the stop. As our supreme court recognized in Secrist, this fact
pattern is sufficient to link the odor of marijuana to a specific person. See Secrist,
224 Wis. 2d at 204. Thus, even applying the more exacting standard of probable
cause for arrest, the record demonstrates that the odor was linked to Barksdale and
nonetheless sufficient to establish probable cause. Having established the
appropriate probable cause standard to apply, we turn to the circuit court’s
assessment of Officer Franco’s testimony in support of probable cause to search
Barksdale’s vehicle.
¶16 Addressing this issue, the State argues that the circuit court
erroneously discredited Officer Franco’s testimony and found that Officer Franco
4
Barksdale further recognizes that the circuit court was incorrect when it stated that the
odor of marijuana needed to be connected to Barksdale.
7
No. 2021AP1528-CR
could not “differentiate the odor of burnt or fresh marijuana from any other odor,
although the officer said he could.” We conclude that the circuit court’s finding in
this regard is clearly erroneous, and we agree with the State that the finding is
inconsistent with the record and the circuit court’s other findings noted in its
written decision.
¶17 Officer Franco testified that he had been trained in detecting the odor
of marijuana, he had conducted “several hundred” traffic stops involving
marijuana, and he had participated in “a couple thousand drug investigations”
involving marijuana. He further testified that he was “confident” in his ability to
detect the odor of both fresh and burnt marijuana. In its written decision, the
circuit court recognized Officer Franco’s training and experience, finding that
Officer Franco received training in detecting the odor of marijuana, has
“conducted several hundred traffic stops,” and participated in a “couple thousand
drug investigations” in his nine years as a police officer. However, the circuit
court continued on to find that “the [c]ourt is not certain Officer Franco could
differentiate the odor of burnt or fresh marijuana from any other odor, although the
officer said he could.”
¶18 The circuit court’s finding in this regard is inconsistent with the
training and experience to which Officer Franco testified and the circuit court
recognized in its written decision. Accordingly, we conclude that the circuit
court’s finding is clearly erroneous because it is unsupported by the record. See
Royster-Clark, Inc., 290 Wis. 2d 264, ¶11 (“[T]his court defers to the circuit
court’s findings of fact unless they are unsupported by the record and are,
therefore, clearly erroneous.”). Despite recognizing Officer Franco’s training and
experience—and Officer Franco’s testimony stating that he could recognize the
odor of marijuana—the circuit court simply found, without further explanation,
8
No. 2021AP1528-CR
that Officer Franco could not differentiate the odor of marijuana. Such a finding is
clearly erroneous because it is not supported by Officer Franco’s testimony, nor is
it supported by the circuit court’s recognition of Officer Franco’s training and
experience in detecting the odor of marijuana.
¶19 The State additionally argues that the circuit court erroneously found
that Officer Franco lacked recent or particular training on detecting the odor of
marijuana when the circuit court further stated:
When the officer that claims to have observed the odor of
marijuana does not link the odor to a particular person or
persons and has not had any recent or particular training on
distinguishing marijuana from any other substance,
credibility is also diminished and this [c]ourt is not
convinced that Officer Franco detected the odor of burnt
marijuana prior to the search.
¶20 “The extent of the officer’s training and experience bears on the
officer’s credibility in identifying the odor as well as its strength, its recency, and
its source.” Secrist, 224 Wis. 2d at 216 (emphasis added). Here, the circuit court
faulted Officer Franco for not having recent or particular training in identifying the
odor of marijuana. We acknowledge that Officer Franco did testify that his
training in identifying the odor of marijuana occurred during his training at the
police academy; however, we note that he also testified that, since the time of that
training, he has gained extensive experience over the course of nine years in
identifying the odor of marijuana by participating in other traffic stops and drug
investigations. Because the circuit court’s finding focuses solely on Officer
Franco’s training from the police academy and fails to include the nine years of
experience with marijuana to which Officer Franco testified, we conclude that the
circuit court’s finding is also clearly erroneous in this respect. In Secrist, our
9
No. 2021AP1528-CR
supreme court stated that both an officer’s training and experience are a necessary
part of the equation. See id.¶21 Next, we turn to the circuit court’s reliance on the lack of
corroboration from the items discovered during the search, Officer Vandrisse’s
testimony that he did not detect an odor of marijuana, and Barksdale’s denial that
he had smoked marijuana. As the State argues, the circuit court erroneously
discredited Officer Franco’s testimony due to a lack of corroboration. We agree.
¶22 “[C]orroboration can be helpful in firming up the reasonableness of
the officer’s judgments.” Secrist, 224 Wis. 2d at 216. Importantly, however,
“[c]orroboration by another officer is not required[.]” Id.¶23 At the hearing, Officer Franco explained that no marijuana or
associated drug paraphernalia was found during the search, and he testified that
this was not the first time the odor of marijuana has been detected without
marijuana also being found. As he explained during his testimony, such an
instance can be easily explained because, for example, marijuana has a pungent
odor that remains after it has been smoked, the individual could have discarded the
marijuana, or the individual could have even eaten the marijuana. Thus, any lack
of corroboration from the items recovered during the search was explained during
the hearing, and it was clearly erroneous for the circuit court to disregard this
explanation contained in the record.
¶24 Moreover, Secrist specifically addressed the issue of corroboration
“by another officer” and held that “[c]orroboration by another officer is not
required[.]” Id. Thus, it was not necessary for Officer Vandrisse to corroborate
Officer Franco’s testimony that he smelled a strong odor of burnt marijuana.
Furthermore, Officer Vandrisse explained why he did not smell the odor of
10
No. 2021AP1528-CR
marijuana. He testified that he was on the passenger’s side of the vehicle, Officer
Franco was the one who spoke to Barksdale at the driver’s side window, and
Officer Vandrisse was unable to detect any odors because of an illness that was
affecting his sinuses.
¶25 Furthermore, any lack of corroboration from Barksdale’s denial of
smoking any marijuana is not persuasive given that it would have required
Barksdale to admit to criminal behavior.
¶26 Consequently, we conclude that the circuit court’s treatment of
Officer Franco’s training and experience as a reason to discredit his testimony and
the circuit court’s emphasis on what it deemed a lack of corroboration made its
finding clearly erroneous. The circuit court’s dismissal of Officer Franco’s
training and experience is not supported by the record. Moreover, not only is
corroboration not required, but in this case, there was an explanation provided for
each alleged point of lack of corroboration.
¶27 Last, Barksdale takes issue with the lack of detail provided by the
State about Officer Franco’s training and experience, and he argues that the circuit
court’s finding was appropriate given the general details provided about Officer
Franco’s training and experience. We disagree with Barksdale that the amount of
detail about Officer Franco’s training and experience identified by Barksdale is
required.
¶28 In Secrist, our supreme court concluded that the officer’s training
and experience was sufficient when it noted that the officer “recognized the odor
from his police training and his frequent contact with marijuana over 23 years
experience as a police officer.” Secrist, 224 Wis. 2d at 204. Officer Franco’s
testimony in this case provides the same amount of detail, if not more. Thus, we
11
No. 2021AP1528-CR
conclude Officer Franco’s testimony on his training and experience in detecting
the odor of marijuana was sufficient, and it should not be disregarded for a lack of
detail that was provided about his training or experience.
CONCLUSION
¶29 In sum, we conclude that the circuit court erroneously granted
Barksdale’s motion to suppress. The circuit court applied an incorrect standard
when reviewing the motion and its finding that Officer Franco could not detect the
odor of burnt marijuana was clearly erroneous. Consequently, we reverse the
circuit court’s order and remand for further proceedings.
By the Court.—Order reversed and cause remanded for further
proceedings.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2021-22).
12