In State v. Martin, a (thankfully) unpublished opinion released on September 30, 2015, the Wisconsin Court of Appeals ruled that police are justified in seizing and investigating people who have the smell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Since 2009, in Wisconsin, unpublished decisions can be cited for their "persuasive" value.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.