State v. Mitchell

In State v. Mitchell, 167 Wis. 2d 672, 482 N.W.2d 364 (Wis. 1992) the defendant and his companion were in a parked car. When the police officer asked them if there was a problem, he smelled burned marijuana and saw smoke in the vehicle. He arrested both men for possession of marijuana. The court concluded that "based on the presence of both the odor of marijuana and the smoke, Officer Smith had reason to believe that defendant, his passenger, or both had been smoking marijuana, and thus possessing, marijuana. The fact that there were two occupants in the vehicle is not fatal to a finding of probable cause to arrest defendant because probable cause does not mandate that it is more likely than not that the defendant committed the offense." The officer was not required to know with certainty at the arrest stage which of the two people possessed the marijuana; he had probable cause to arrest both of them for that offense.