2023 WI 50

SUPREME 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(2022 – unpublished)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 & 
2

Associates, Middleton. There was an oral argument by Joshua 

Hargrove. 
2023 WI 50

NOTICE

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,

 v.

Quaheem O. Moore,

 Defendant-Respondent.

FILED

JUN 20, 2023

Sheila T. Reiff

Clerk of Supreme Court

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 

 

1 The Honorable Nicholas J. Brazeau, Jr., of the Wood County 

Circuit Court presided.
No. 2021AP938-CR 

2

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).
No. 2021AP938-CR 

3

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, 

 

4 The liquid in vape pens often contains "nicotine and 

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/ecigarettes/pdfs/ecigarette-or-vaping-products-visual-dictionary508.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.

5 The officers never determined what this liquid was, but 

Officer Abel testified it was odorless.
No. 2021AP938-CR 

4

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 falsepocket 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.
No. 2021AP938-CR 

5

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 

 

7 See State v. Moore, No. 2021AP938-CR, unpublished slip op. 

(Wis. Ct. App. July 28, 2022).

8 The Wisconsin Constitution also provides, "The right of 

the people to be secure in their persons . . . against 

unreasonable searches and seizures shall not be 

violated . . . ." Wis. Const. art. I, § 11.
No. 2021AP938-CR 

6

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, 
No. 2021AP938-CR 

7

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. 
No. 2021AP938-CR 

8

¶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 
No. 2021AP938-CR 

9

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 
No. 2021AP938-CR 

10

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 
No. 2021AP938-CR 

11

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 
No. 2021AP938-CR 

12

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. 
No. 2021AP938-CR.rfd

1

¶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." 
No. 2021AP938-CR.rfd

2

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. 

 

1 The 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."
No. 2021AP938-CR.rfd

3

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. 
No. 2021AP938-CR.rfd

4

¶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

 

2 Cannabis 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. 
No. 2021AP938-CR.rfd

5

¶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 
No. 2021AP938-CR.rfd

6

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

 

3 See National Conference of State Legislatures, State 

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-beshearsdesk/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-cannabislegalization-recreational-marijuana/index.html.

4 See Agriculture Improvement Act of 2018, H.R. 2, 115th 

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.
No. 2021AP938-CR.rfd

7

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-farmscannabis.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).
No. 2021AP938-CR.rfd

8

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.
No. 2021AP938-CR.rfd

9

¶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 quartercentury 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 
No. 2021AP938-CR.rfd

10

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 

 

10 The Legislative Fiscal Bureau estimated that $36.1 

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).

11 For this reason, Secrist may be worth revisiting in a 

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)).
No. 2021AP938-CR.rfd

11

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.