Wisconsin Supreme Court: Cannabis Odor Enough to Justify Vehicle Search

Wisconsin’s Supreme Court on Tuesday ruled 4-3 that the odor of cannabis is enough to justify police searches of vehicles, even though substances legal in the state can smell like illegal cannabis, the Associated Press reports. The decision overturns lower court rulings that said police officers could not be sure what they smelled was not a CBD product and, therefore, could not use the odor of cannabis as a reason to search a vehicle. 

Wisconsin has not legalized cannabis for adult use.   

The ruling focused on the case of Quaheem Moore, who in 2019 was pulled over alone for speeding and officers searched the vehicle he was driving based on the odor of cannabis. Moore told officers he was using a CBD vape pen and that the car was a rental that belonged to his brother. Police did not smell cannabis on Moore but upon searching him found cocaine and fentanyl. A circuit court judge and an appeals court had previously moved to disqualify the drugs that police found, saying the search wasn’t legal because cannabis odor was no justification for the search.

Justice Brian Hagedorn, who issued Tuesday’s opinion on behalf of the court’s conservative majority which disagreed with the lower courts, 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.” The ruling referenced a 1999 U.S. Supreme Court decision that found officers were justified in arresting a driver because they linked cannabis odor in the vehicle to him and that the “unmistakable” smell of a controlled substance was evidence that a crime had been committed. 

The Wisconsin Supreme Court’s three liberal justices dissented, saying the 1999 ruling cited by the majority was outdated and that in Moore’s case, the officers didn’t have strong evidence the cannabis odor was caused by Moore. 

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

Other state courts have determined that, in the wake of federal hemp legalization, cannabis odor is not enough to justify the search of a vehicle or arrest of the driver. Maryland’s Supreme Court in 2022 ruled that officers can search vehicles based on cannabis odor but could no longer arrest a driver based on cannabis odor alone. In 2021, the Delaware Supreme Court made a similar decision. That same year a judge in Illinois ruled that raw cannabis odor was not enough to justify a search.