Scent Like Cannabis Is Reason Enough For A Legal Police Search, Wisconsin Supreme Court Rules

Wisconsin Supreme Court ruled Tuesday that when a vehicle smells like cannabis, it is a reason enough for police to legally search the passengers in it, reported The Associated Press.

Why did this warrant a judge’s ruling when cannabis is still illegal in Wisconsin?

The problem arose with the legalization of hemp with the 2018 Farm Bill, signed during the Trump administration. When hemp became legal on the federal level it opened the door to CBD - one of at least 100 non-psychoactive chemical compounds in the marijuana plant and hemp plants. Therefore, products containing CBD derived from hemp are legal, and wildly popular for its myriad medical and wellness benefits, including reducing pain and inflammation, helping with certain cancer-related symptoms, possible neuroprotective qualities, and as a sleep aid.

The issue is CBD products smell just like marijuana.

With this in mind, people have started arguing that the smell of cannabis should not be enough of a legal reason to warrant a police search. And one case reached the state Supreme Court.

In 2019, two police who stopped Quaheem Moore for speeding said his car smelled like cannabis. Moore told the officers that his vaping device contained CBD and that the car was not his. Though the police didn’t smell cannabis on Moore, who was alone in the car,  a search revealed cocaine and fentanyl in his pocket, which led to charges.

Moore tried to argue in court that the cops didn’t have enough evidence to presume he was committing a crime and therefore they had no legal right to conduct a search. When an illegal search is conducted, the results are not admissible in court. This was the argument Moore was using, that there was no legal basis to justify the search.

Moore won his case in a lower circuit court where judges agreed that it was an illegal search, but the Supreme Court overturned the ruling Tuesday in a 4-3 vote.

Outdated Or Reasonable?

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

The new ruling referenced a 1999 Supreme Court decision that police were justified to arrest a driver because they linked the cannabis odor from his vehicle to him. In that opinion, the “unmistakable” smell of illegal substances is evidence that a crime has occurred.

The three liberal judges did not agree; they argued that the ruling was outdated, specifically because there was no legal hemp back then. “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.

Even states where cannabis is legal are dealing with the same problem, which is why the Illinois Senate recently approved a measure that would once and for all clarify what is justified and what is not. In March, the Illinois Senate passed legislation removing marijuana smell as cause for searching a motor vehicle.

Cannabis In Wisconsin

The Wisconsin Supreme Court ruling comes about eight weeks after state GOP lawmakers slashed more than 500 provisions from Governor Tony Evers’ (D) budget proposal, which included a cannabis legalization measure, proposals for paid family leave, raising the minim wage, free school lunches and funding to renovate the Milwaukee Brewers’ stadium.

Meanwhile, state Senator Melissa Agard (D) continues to push for cannabis reform. She recently stopped in Eau Claire on her Grass Routes Tour to talk about the harms of marijuana prohibition. In previous appearances, she called Wisconsin an "island of prohibition."

Recently, Kenosha substantially reduced fines for marijuana possession.

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