State v. Secrist
| Decision Date | 02 March 1999 |
| Docket Number | No. 97-2476-CR,97-2476-CR |
| Citation | 589 N.W.2d 387,224 Wis.2d 201 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Timothy M. SECRIST, Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
For the defendant-appellant there was a brief and oral argument by Patrick M. Donnelly, assistant state public defender.
¶1
The State of Wisconsin (State) seeks review of a published decision of the court of appeals reversing a judgment of the Waukesha County Circuit Court, Donald J. Hassin, Jr., Judge. 1 The defendant, Timothy M. Secrist, was convicted of unlawfully possessing tetrahydrocannabinol (THC), a controlled substance which is the active ingredient in marijuana. Before accepting the defendant's plea, the circuit court denied the defendant's motion to suppress physical evidence of the ¶2 The issue presented to the court is whether the odor of a controlled substance may provide probable cause to arrest, and, if so, when. We conclude that the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons. In this case, a police officer detected the strong odor of marijuana coming from the direction of the defendant inside an automobile. The defendant was the operator and sole occupant of the automobile. In these circumstances, the strong odor of marijuana provided probable cause to arrest the defendant. Accordingly, we reverse the court of appeals.
substance as well as accompanying paraphernalia, ruling that the evidence had been seized incident to a lawful arrest. The court of appeals reversed, concluding that the arrest had not been supported by probable cause, and the subsequent seizure was therefore invalid.
¶3 On the Fourth of July, 1996, Andrew J. Szczerba, a city of New Berlin police officer, was directing traffic at the intersection of Moorland Road and Coffee Road in New Berlin, during an Independence Day parade. Officer Szczerba was wearing his police uniform. Between 2:00 and 2:15 p.m., the defendant drove up to the officer in a tan 1977 Chevrolet Impala to ask directions. The driver's window was open. The defendant was alone in his car. The defendant was two to three feet from Officer Szczerba when he began asking directions. The officer immediately smelled a strong odor of marijuana coming from the automobile. He recognized the odor from his police training and his frequent contact with marijuana over 23 years experience as a police officer.
¶4 After detecting the strong odor, Officer Szczerba directed the defendant to pull his car over to the side of the road. The defendant complied. Officer Szczerba approached the vehicle and told the defendant to get out of his car. Officer Szczerba then placed the defendant under arrest for possession of marijuana.
¶5 Soon thereafter, several other officers arrived at the scene. Officer Douglas Johnson conducted a search of the automobile and found a marijuana cigarette with an attached "roach clip" in the ashtray next to the driver's seat.
¶6 On September 16, 1996, the State of Wisconsin filed a criminal complaint charging the defendant with one count of possession of a controlled substance (THC) in violation of Wis. Stat. § 161.41(3r) (1993-94) 2 and one count of possession of drug paraphernalia contrary to Wis. Stat. § 161.573(1). 3 The defendant moved to suppress the physical evidence seized following his arrest on grounds that the arrest was illegal. The court conducted an evidentiary hearing at which only Officer Szczerba testified. 4 The testimony included the following exchange between an Assistant District Attorney and Officer Szczerba:
Q Was the window down when you were speaking to the subject?
A Yes, it was.
Q And as you were speaking to the subject, how far away were you from him approximately?
A Probably within two - or probably within two feet of the subject, two or three feet.
Q Okay. And in speaking to him did you make any physical observations about him?
A About him personally, not really.
Q Okay. Did you detect any type of odor at all?
A Yes, I did. I detected a strong odor of marijuana.
...
Q Officer, was there anything else other than the odor of what you believed to be marijuana that lead [sic] you to believe he may be under the influence of marijuana or some type of drug?
A Like I said previously after I got him out of the car his balance might have been a little bit off, perhaps his speech was not slurred but maybe a little bit haulting [sic], but I hadn't met him before, so I'm not really sure what his normal pattern is.
Q When you are talking about his speech, that was after you removed him from the car or when you first had contact with him?
A I would say both.
¶7 At the conclusion of the evidentiary hearing, the court asked the parties for their positions in writing. At a later hearing, the court denied the motion to suppress. The court found that Officer Szczerba smelled a strong odor of marijuana, that this odor was coming directly from the area where the defendant was seated in the automobile, and that the defendant was the only occupant of the vehicle. Consequently, the court concluded that probable cause existed to arrest the defendant, and the subsequent search of defendant's automobile was conducted incident to a lawful arrest.
¶8 On March 17, 1997, pursuant to a plea agreement, the defendant pleaded no contest to the charge of possession of a controlled substance. The drug paraphernalia charge was dismissed and read in by the State.
¶9 On appeal, the court of appeals reversed the circuit court's decision, adopting the rationale in People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978), a case in which the Michigan Supreme Court held that while the odor of burned marijuana gives reason to believe that a crime has been committed, marijuana odor coming from a car is not enough to establish that its occupant was the person who smoked the marijuana. The court of appeals found that as in Hilber, one element of probable cause to arrest was missing: namely, that it was the defendant who probably committed the possession crime. The court of appeals therefore concluded that the odor of marijuana emanating from an automobile with a sole occupant does not establish probable cause to arrest.
¶10 This court granted the State's petition for review on the issue of whether the odor of a controlled substance such as marijuana may provide probable cause to arrest.
¶11 We turn first to the standards of review to be applied in this case. In reviewing an order granting or denying a motion to suppress evidence, this court will uphold a circuit court's findings of fact unless they are clearly erroneous. Wis. Stat. § 805.17(2); State v. Richardson, 156 Wis.2d 128, 137, 456 N.W.2d 830 (1990). Nonetheless, the question whether the odor of marijuana constitutes probable cause to arrest "is a question of constitutional fact involving the application of federal constitutional principles which this court reviews independently of the conclusions of the circuit court." State v. Mitchell, 167 Wis.2d 672, 684, 482 N.W.2d 364 (1992). See also State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759 (1987). It is thus subject to independent review and requires an independent application of the constitutional principles involved to the facts as found by the circuit court. See State v. Turner, 136 Wis.2d 333, 344, 401 N.W.2d 827 (1987).
¶12 The Fourth Amendment to the United States Constitution and Article I, § 11 of the Wisconsin Constitution establish the right of persons to be secure from unreasonable searches and seizures. 5 This court traditionally ¶13 It may be helpful at the beginning of our analysis to note the distinction between probable cause to search and probable cause to arrest. 6 Generally, the same quantum of evidence is required whether one is concerned with probable cause to search or probable cause to arrest. State v. Kiper, 193 Wis.2d 69, 82, 532 N.W.2d 698 (1995) (citing 1 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(b), at 544 (2d ed.1987)). However, while the two determinations are measured by similar objective standards, the two determinations require different inquiries. Under an analysis of probable cause to search, the relevant inquiry is whether evidence of a crime will be found. See 2 LaFave, Search and Seizure, § 3.1(b), at 7-8 (3rd ed.1996). Under an analysis of probable cause to arrest, the inquiry is whether the person to be arrested has committed a crime. See id.
interprets the two constitutional provisions in concert. As a result, the development of search and seizure law in Wisconsin parallels the development of search and seizure law by the United States Supreme Court. State v. Andrews, 201 Wis.2d 383, 389, 549 N.W.2d 210 (1996). Under both the Fourth Amendment and Article I, § 11 of the Wisconsin Constitution, probable cause must exist to justify an arrest.
¶14 This case involves both an arrest and a search incident to that arrest. The primary focus must be on the lawfulness of the arrest.
¶15 Had Officer Szczerba started out by conducting a search of the defendant's automobile after smelling the strong odor of marijuana coming from the vehicle and then had used the evidence seized as the foundation for defendant's arrest, we would have an easier case in which probable cause for both the search and subsequent arrest would have been evident.
¶16 This court has recognized that the warrantless search of an automobile is justified when a police...
To continue reading
Request your trial
-
In re D.D.
......The most recent of these cases, Lewis v. State , 470 Md. 1, 233 A.3d 86 (2020), involved a search incident to an arrest, where the probable cause for the arrest was based solely on the fact that ... See Bailey v. State , 412 Md. 349, 379, 987 A.2d 72 (2010) (noting marijuana's "readily identifiable, distinctive odor"); State v. Secrist , 224 Wis.2d 201, 589 N.W.2d 387, 391 (1999) (referring to the "unmistakable odor of marijuana"). We agree with the State that accepting D.D.’s ......
-
State v. Beaver Dam Area Development Corp.
...to counsel); State v. Lindell, 2001 WI 108, ¶ 41, 245 Wis.2d 689, 629 N.W.2d 223 (right to an unbiased jury); State v. Secrist, 224 Wis.2d 201, 218, 589 N.W.2d 387 (1999) (right that arrest be made only with probable cause). Applying a totality of circumstances test in this context is no mo......
-
State v. Kutz
...the evidence. II. Discussion [1-3] ¶ 11. In order to be lawful, an arrest must be based on probable cause. State v. Secrist, 224 Wis. 2d 201, 212, 589 N.W.2d 387 (1999). Probable cause for arrest exists when the totality of the circumstances within the arresting officer's knowledge would le......
-
State v. Pallone
...of the United States Supreme Court when it construes the search and seizure provisions of both constitutions. State v. Secrist, 224 Wis. 2d 201, 208-09, 589 N.W.2d 387 (1999). By interpreting these provisions in a manner that is consistent with the precedent established by the Supreme Court......
-
Probable cause and reasonable suspicion: arrests, seizures, stops and frisks
...because of the circumstances in which the odor is discovered, or other evidence links the odor to the person(s). State v. Secrist , 589 N.W.2d 387(Wis. 1999); United States v. Humphries , 372 F.2d 653 (4th Cir. 2004); People v. Vigil , 489 P.2d 593 (Colo. 1971). This analysis applies in sev......
-
Motor Vehicle Searches
...is illegal, courts hold there is probable cause to search a vehicle when police stop the vehicle and smell marijuana. State v. Secrist , 589 N.W.2d 387, 391-92 (Wis. 1999). The Secrist case contains a long list of state and federal jurisdictions that have found such searches lawful. Id . In......
-
Probable Cause and Reasonable Suspicion: Arrests, Seizures, Stops and Frisks
...because of the circumstances in which the odor is discovered, or other evidence links the odor to the person(s). State v. Secrist , 589 N.W.2d 387(Wis. 1999); United States v. Humphries , 372 F.2d 653 (4th Cir. 2004); People v. Vigil , 489 P.2d 593 (Colo. 1971). However, police may not arre......
-
Probable Cause and Reasonable Suspicion: Arrests, Seizures, Stops and Frisks
...because of the circumstances in which the odor is discovered, or other evidence links the odor to the person(s). State v. Secrist , 589 N.W.2d 387(Wis. 1999); United States v. Humphries , 372 F.2d 653 (4th Cir. 2004); People v. Vigil , 489 P.2d 593 (Colo. 1971). However, police may not arre......