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Minnesota Supreme Court Announces Odor of Marijuana Alone Emanating From Vehicle Insufficient for Probable Cause to Search Under Automobile Exception

by Anthony W. Accurso 

The Supreme Court of Minnesota ruled that the standard for probable cause to conduct a warrantless search of a vehicle requires more than the mere odor of marijuana.

Adam Lloyd Torgerson was stopped by Litchfield Police on the evening of July 5, 2021, because his “vehicle’s grill had more auxiliary driving lights than permitted by Minnesota statute.” Torgerson’s wife and child were in the vehicle when the officer remarked that the vehicle smelled like burnt marijuana. Torgerson denied possessing or using any cannabis products in the recent past. Additionally, he did not exhibit any signs of impairment.

While the first officer was processing the ticket for the lights violation, a second officer arrived, remarked about the smell of burnt cannabis, and ordered the family out of the car to conduct a search. During the search, the officers located some pipes and small containers that had a brown crystal-like substance, which a field kit tested positive for methamphetamine.

The State charged Torgerson with one count of possession of meth paraphernalia (Minn. Stat. § 152.137, subd. 2(a)(4) (2022)) and fifth-degree possession of a controlled substance (Minn. Stat. § 152.025, subd. 2(1) (2022)). Prior to disposition, he moved to suppress the evidence, arguing that the officers lacked probable cause to search his vehicle based solely on the alleged odor of marijuana emanating from his vehicle.

The officers testified that they would rank the “strength of the odor as a five on a scale from one to ten.” The trial court, noting that possession of small amounts of cannabis are legal in the state for even recreational use, granted the motion to suppress. The court of appeals, finding no error in the ruling, upheld the suppression.

On appeal by the State, the Court noted that the Constitution permits police to “search a car without a warrant, including closed containers in that car, if there is probable cause to believe the search will result in a discovery of evidence of contraband.” State v. Lester, 874 N.W.2d 768 (Minn. 2016); United States v. Ross, 456 U.S. 798 (1982).

Hoping to establish a bright-line rule that the odor of marijuana, burnt or unburnt, alone is sufficient to justify a search for contraband, the State cited cases like State v. Schinzing, 342 N.W.2d 105 (Minn. 1983); City of St. Paul v. Moody, 244 N.W.2d 43 (Minn. 1976); and State v. Schulz, 271 N.W.2d 836 (Minn. 1978), to support its position. However, the Court rejected the State’s argument, in part because the cited cases involved marijuana possession when it was entirely illegal and because the cases mostly featured defendants who were also behaving in other ways that contributed to a finding of probable cause.

The Court noted that under Minnesota law, marijuana is not deemed a Schedule I controlled substance (and thus not a crime to possess) in three situations: (1) the marijuana constitutes industrial hemp, as defined by statute, (2) the marijuana is medical cannabis under the state’s cannabis registry program, and (3) marijuana possession of under 1.4 grams in a vehicle—but even an amount over 1.4 grams in a vehicle is a petty misdemeanor which, while prohibited by statute, “does not constitute a crime.” Minn. Stat. § 609.02, subd. 4a (2022). The Court explained that possession of marijuana in the state is not always a crime, and thus, the odor of marijuana alone could not constitute probable cause for a warrantless vehicle search.

The Court then noted that a long line of cases established that probable cause determinations have long been assessed under the “totality of the circumstances” review, of which marijuana odor can only be “considered as part.”

Ultimately, the Court decided that the totality of the circumstances most closely matched State v. Burbach, 706 N.W.2d 484 (Minn. 2005). Burbach was stopped for speeding and the officer claimed to smell alcohol, though “the driver did not smell of alcohol or show any other signs of intoxication.” Claiming a possible open container violation, the officer searched the vehicle and found contraband. On review, the Burbach Court ruled that “reasonable suspicion—which requires a lesser showing than probable cause—did not exist when the only evidence of wrongdoing was the odor of alcohol.”

Analogizing the odor of alcohol to the odor of marijuana, the Court concluded that the same principle applies to the odor of marijuana and that the odor alone is insufficient to establish probable cause to conduct a warrantless search under the vehicle exception to the warrant requirement.

In Torgerson’s case, the Court stated that “the officers relied solely on the medium-strength odor of marijuana when determining there was a fair probability that contraband or evidence of a crime would be found in Torgerson’s vehicle.” Thus, the Court ruled that the officers did not have the requisite probable cause to search Torgerson’s vehicle.

Accordingly, the Court affirmed the decision of the court of appeals to suppress the evidence obtained as a result of searching Torgerson’s vehicle. See: State v. Torgerson, 995 N.W.2d 164 (Minn. 2023).  

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Related legal case

State v. Torgerson

 

 

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