Onalaska-Law.com
  • HOME Page
  • OWI/DWI/DUI Defense
  • Car Accidents and Personal Injury
  • Criminal Charges
  • ACTUAL CRIMINAL & OWI/DWI RESULTS
  • Motorcycle Accidents
  • Attorney Info
  • Contact Us
  • Onalaska-Law Blog
  • Map of Location in Onalaska
  • Court Directory & Legal Resources

MJ USER ALERT: DRUG-SNIFFING POLICEMAN

10/2/2015

 
Warning:  Reading this article may cause The Cranberries song, "Linger", to play in your head all day.

In State v. Martin, a (thankfully) unpublished opinion released on September 30, 2015, the Wisconsin Court of Appeals ruled that police are justified in seizing and investigating people who have the smell of "raw" marijuana connected to them.  In Martin, the police entered a tavern during an unrelated investigation.  Officer Franklin was outside the tavern's bathroom when Martin exited it and walked past.   At some point, Franklin entered the bathroom to look for someone else.  He reportedly smelled the odor of "raw" marijuana in the bathroom.  He searched the bathroom for evidence of marijuana and found nothing.  The smell of raw marijuana was reportedly "confirmed" by "several" other officers, including Officer Pierce. Franklin did not observe anyone else exit the the bathroom after Martin.  He confronted Martin at the bar, and Martin eventually confessed to possessing marijuana.  A search of his person produced marijuana, cocaine, and paraphernalia. 

Martin challenged the officer's actions on the grounds that he lacked a reasonable suspicion to detain him for an investigation.  Both the trial court and the Court of Appeals ruled that Franklin, in light of the totality of the circumstances, had a reasonable suspicion to detain Martin.  The Court of Appeals wrote, "Applying the law to the instant matter, the police had reasonable suspicion so as to justify the brief detention of Martin.  [Officer] Franklin’s detection of the odor of marijuana in the bathroom, which [Officer] Pierce confirmed, gave the police reasonable suspicion to believe that a crime had been or was being committed."

Since 2009, in Wisconsin, unpublished decisions can be cited for their "persuasive" value.  Wis. Stat. § (Rule) 809.23(3).  This decision strikes me as particularly dangerous precedent.  It also leaves me with number of "lingering" questions:  First, if the odor of "raw" marijuana is so strong that it can linger in a restroom long enough for "several" officers to confirm it, could it not have also lingered long enough to belong to some other user of the bathroom?  Therefore, is everyone at the tavern a suspect?  Second, if the odor of "raw" marijuana is so strong as to linger so long, would not the officer have smelled it on Martin when he was speaking directly with him, especially since he has such a remarkable nose?  Lastly, why do the Oshkosh Police have so much time on their hands?   

This case is proof that if you truly want to avoid a criminal conviction, don't ever have MJ on your person.  Great, now I'll have The Cranberries song, "Linger" playing in my mind all day.






Comments are closed.

    Author

    Christopher W. Dyer, a Wisconsin and Minnesota Trial Lawyer, serving La Crosse and surrounding counties.

    Archives

    January 2018
    December 2016
    October 2016
    August 2016
    June 2016
    February 2016
    December 2015
    October 2015
    July 2015
    May 2015
    April 2015
    December 2014
    October 2014
    August 2014
    June 2014
    May 2014
    April 2014
    February 2014
    January 2014
    December 2013
    October 2013
    September 2013
    August 2013
    June 2013
    May 2013
    April 2013

    Categories

    All
    Blood Testing
    Breath Testing
    Car Accidents
    Domestic Charges
    Forfeiture Cases
    Going To Court
    How To Choose A Good Lawyer
    Implied Consent
    In The News
    Minnesota Dwi
    Owi 1st
    Repeat Owi
    Traffic Court
    Urine Testing.

    RSS Feed