SCOW grants review to address whether odor of cannabis alone establishes probable cause
State v. Ayanna Chuntel McAfee, 2024AP1635-CR, petition for review of a summary disposition order of the court of appeals, granted 8/18/26; case activity
SCOW grants Ayanna McAfee’s petition for review to address whether the odor of cannabis alone provides probable cause to search a car.
In her petition for review, McAfee presents the following issue:
A police detective stopped Ms. McAfee’s car. He searched the car based only on the “distinct and unmistakable odor of marijuana” he detected coming from within. At the hearing on Ms. McAfee’s suppression motion, an expert testified that it is impossible to distinguish between the odor of illegal marijuana and the odor of CBD products that are now legal. The circuit court found this testimony credible and adopted it. Was the odor the detective observed the unmistakable odor of a controlled substance, such that it alone provided probable cause to search?
We did not post on COA’s opinion in this case, as it was a summary disposition and cannot be cited. McAfee’s petition, however, explains that this case is a slight deviation from the situation SCOW addressed in Moore, which relied on Secrist. See our post on Moore here. Secrist is a 1999 opinion in which SCOW held 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.”