In a significant 4-3 decision, the Wisconsin Supreme Court, in 2023, ruled that the smell of marijuana alone can provide probable cause for police to conduct a warrantless search. As criminal defense attorneys, we’re concerned about the implications this ruling has for Wisconsin residents’ Fourth Amendment rights.
Understanding State v. Moore
The case, State v. Moore, involved a routine traffic stop where officers claimed they smelled marijuana coming from the defendant’s vehicle. Despite finding no marijuana during an initial pat-down search, officers conducted a more thorough search based solely on the reported smell, ultimately discovering other controlled substances.
The Court’s Decision and Its Impact
The majority opinion held that:
– Officers can conduct a warrantless search based primarily on marijuana odor
– The smell alone can provide probable cause for arrest
– This applies even when no marijuana is found on the person
– The fact that someone is driving a borrowed or rental vehicle doesn’t change the analysis
Why This Decision Raises Concerns
The dissenting opinion, joined by three justices, raised several crucial points that deserve attention:
- The Changing Legal Landscape: With 38 states now allowing medical marijuana and 23 permitting recreational use, the mere smell of marijuana may no longer reliably indicate criminal activity.
- Hemp vs. Marijuana: Since the 2018 federal legalization of hemp, many legal CBD and hemp products are indistinguishable from marijuana by smell alone. Even drug-detection dogs cannot tell the difference.
- Cross-Border Considerations: With neighboring states Illinois, Michigan, and Minnesota all legalizing recreational marijuana, residual odors in vehicles may come from legal activity in those jurisdictions.
Protecting Your Rights
This ruling makes it more important than ever to understand and assert your rights during police encounters. If you’re stopped by law enforcement:
– Remain calm and courteous
– Don’t consent to searches
– Clearly state that you’re exercising your right to remain silent
– Request to speak with an attorney before answering questions
The Importance of Experienced Legal Representation
Cases involving vehicle searches require careful analysis of:
– The circumstances leading to the stop
– Officer conduct during the encounter
– The scope and justification for any searches
– Potential constitutional violations
Contact DK Anderson, S.C. for Expert Defense
If you’ve been subjected to a vehicle search or arrested based on similar circumstances, it’s crucial to have experienced legal representation. Our criminal defense team at DK Anderson, S.C. understands the complexities of Wisconsin search and seizure law and will fight to protect your constitutional rights. Contact us today for a confidential consultation to discuss your case and explore your legal option