Pubdate: Thu, 02 Apr 1998 Source: St Paul Pioneer Press Author: Andrew Blasko, Associated Press Contact: http://www.pioneerplanet.com/ 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,"