Can the Smell of Marijuana Satisfy Probable Cause to Search?

Under the Fourth Amendment of the U.S. Constitution, police officers must have probable cause to make an arrest. But because probable cause is somewhat subjective and difficult to define, a judge ultimately decides whether probable cause exists based on the specifics of the case. Is the odor of marijuana sufficient probable cause to arrest and search a suspect?

This question is the primary focus of the recently decided case Wisconsin v. Moore.

In November of 2019, Quaheem O. Moore was pulled over for speeding. While making the traffic stop, the police officer detected an aroma that the officer believed to be marijuana emanating from the defendant’s vehicle. The police officer called for back-up and when backup arrived, the two officers searched Moore based on the strong presence of an odor of marijuana. During the search, the officers found two bags containing cocaine and fentanyl on Moore’s body. 

Moore was charged with 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 filed a motion to suppress the evidence of the cocaine and fentanyl, arguing that the officers lacked probable cause to arrest and search him. The circuit court granted the motion and suppressed the results of that search. The Wisconsin Court of Appeals affirmed that decision.

Upon review, the Supreme Court of Wisconsin reversed that decision, holding that the officers had probable cause to arrest Moore on the belief that he was committing or had committed a crime. Therefore, the Supreme Court found, the underlying search was a lawful search incident to arrest and there was no violation of Moore’s Fourth Amendment rights.

Probable cause can be murky. If you are charged with a crime, contact an experienced criminal defense attorney at the Cohen Law Offices at 715-382-9447 or online.