COURT SAYS MAN CAN'T BE ARRESTED BECAUSE OF MARIJUANA ODOR IN HIS CAR

A MADISON, WIS. police officer's nose can't tell if a man smoked marijuana,
even if the man's ear reeked of pot when he pulled over and asked the
officer for directions, an appeals court ruled Wednesday.

The officer did not have enough probable cause to arrest Timothy Secrist
because a whiff of pot odor from Secrist’s car does not necessarily mean he
smoked it, the 2nd District Court of Appeals ruled.

"Smells linger, and, especially in an automobile, a persistent odor may be
strong and appear recent even though it has lingered for hours or even
days," Judge Richard Brown wrote for the court.

The court overturned Waukesha County Circuit Judge Donald Hassin's ruling,
which said the New Berlin police officer did have probable cause and
convicted Secrist.

District Attorney Paul Bucher of Waukesha County said the ruling may confuse
law enforcement officers when they pull over cars and notice something
suspicious. "What do they want us to tell to our police officers?" Bucher
said. "My understanding of the Fourth Amendment is that you must be
reasonable, not always correct,"

Secrist's attorney, Patrick Donnelly, said the officer probably could have
arrested his client legally had he done more investigation.

"He just jumped the gun a bit here, I think," Donnelly said. "It's really
not an earth-shattering decision."

Secrist, of West Allis, stopped in his car to ask for directions from a New
Berlin police officer, who was directing traffic for a 1996 Fourth of July
parade, court records say, The officer smelled marijuana odor coming from
Secrist's car and arrested him for possessing the drug. The officer then
searched the car and found a marijuana cigarette and a clip used to hold it,
according to court records. Secrist, 24, asked a judge to throw out the
evidence because it was seized after an illegal arrest. The trial court
denied his motion, The appeals court overturned the lower court's ruling
because the officer did not see Secrist actually smoke marijuana.

The ruling noted that the officer did not see any smoke come from the car,
or notice that Secrist's balance or speech was impaired. "The smell of
marijuana lingers, and thus it could have been smoked five minutes ago or
several hours ago," Brown wrote, "There was no indication as to when the
marijuana had been smoked or by whom,"