Justice Brian Hagedorn, who issued Tuesday’s opinion on behalf of the court’s conservative majority, 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.”
Tuesday’s ruling referenced a 1999 Supreme Court decision that said officers were justified in arresting a driver because they linked the smell of marijuana from his vehicle to him. That opinion said that the “unmistakable” smell of a controlled substance was evidence that a crime had been committed.
But the court’s three liberal justices called that ruling into question, saying it was outdated and did not account for the subsequent legalization of substances that smell like marijuana. They also said officers did not have strong evidence that Moore had caused the odor in the car he was driving. “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.The ruling comes as Democrats and Republicans in Wisconsin continue to fight over legalizing marijuana.
Republicans who control the Legislature have rejected Democratic Gov. Tony Evers’ attempts to legalize recreational and medical marijuana. But GOP Assembly Speaker Robin Vos said in April he was working on legislation to legalize medical marijuana as soon as this fall.
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