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WISCONSIN


SCENT LIKE MARIJUANA ENOUGH TO WARRANT POLICE SEARCH, WISCONSIN SUPREME COURT
RULES

Associated Press


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MADISON — A car smelling like marijuana is enough for police in Wisconsin to
justify searching a person in the vehicle, even though substances legal in the
state can smell the same, the state Supreme Court said on Tuesday.

The court’s conservative majority ruled 4-3 that Marshfield police had grounds
to search the driver of a vehicle that smelled like marijuana, overturning lower
court rulings that said officers couldn’t be sure that what they smelled was
not CBD, a legal, marijuana-derived substance. The scents of CBD and marijuana
are indistinguishable.

Two officers searched Quaheem Moore in 2019, who was alone in a vehicle that
smelled like marijuana when he was pulled over for speeding. Moore told police
that a vaping device he had contained CBD and that the car was a rental
belonging to his brother. Police did not smell marijuana on Moore.



Moore argued in court that police had no reason to believe he was responsible
for the smell.

To justify searching someone, police need enough evidence to believe that person
has likely committed a crime. When they obtain more evidence through an illegal
search, it’s not allowed to be used in court.

Moore was never charged with possessing marijuana, but officers charged him with
possessing narcotics when they discovered small bags of cocaine and fentanyl in
his pocket during their search.



A circuit court judge and an appeals court had previously moved to disqualify
the drugs that police found, saying the search wasn’t legal.

Justice Brian Hagedorn, who issued Tuesday’s opinion on behalf of the court’s
conservative majority, wrote that because Moore was the only person in the car,
police could reasonably assume he “was probably connected with the illegal
substance the officers identified.”



Tuesday’s ruling referenced a 1999 Supreme Court decision that said officers
were justified in arresting a driver because they linked the smell of marijuana
from his vehicle to him. That opinion said that the “unmistakable” smell of a
controlled substance was evidence that a crime had been committed.

But the court’s three liberal justices called that ruling into question, saying
it was outdated and did not account for the subsequent legalization of
substances that smell like marijuana. They also said officers did not have
strong evidence that Moore had caused the odor in the car he was driving.



“Officers who believe they smell marijuana coming from a vehicle may just as
likely be smelling raw or smoked hemp, which is not criminal activity,” Justice
Rebecca Frank Dallet wrote in a dissenting opinion.

Moore’s attorney, Joshua Hargrove, warned that the ruling could allow police to
base searches on unreliable conclusions and never be held accountable in court.
“This opinion could subject more citizens engaged in lawful behavior to arrest,”
he said.

The ruling comes as Democrats and Republicans in Wisconsin continue to fight
over legalizing marijuana. 

Republicans who control the Legislature have rejected Democratic Gov. Tony
Evers’ attempts to legalize recreational and medical marijuana. But GOP Assembly
Speaker Robin Vos said in April he was working on legislation to legalize
medical marijuana as soon as this fall.

Marijuana has been legal in neighboring Michigan and Illinois for years and will
become legal in Minnesota in August under legislation passed last month.







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