It has been a sidebar conversation during the process to legalize marijuana for recreational use in Minnesota: Once cannabis is legal, can its distinctive odor be used by police as justification to detain adults and conduct searches?
House File 100 was silent on the issue, but legalization laws in some other states specifically say it can’t be used that way. Now, a Minnesota Supreme Court ruling appears to indicate police wouldn’t be able to solely cite marijuana odor as reason to search a vehicle.
Though last week’s ruling was based on pre-legalization laws, it will likely guide law enforcement in a post-legalization state.
“It’s a recognition of a big change in marijuana law,” said Tom Gallagher, a legalization advocate who has been a practicing defense attorney for 35 years. “In law school they talk about line-drawing, where do you draw the line type of problem? Now we know. We’ve drawn the line, finally.”
The 5-2 decision in State v. Torgerson appears to say that the smell of marijuana cannot give legal cover for police officers to conduct a warrantless search of an automobile. But what Justice Anne McKeig actually concluded is that the odor, alone, cannot justify a search.
Most searches by police require a judge’s OK, but there are exceptions that have long been endorsed by state and federal courts, with the so-called automobile exception being at issue in this latest ruling.
“Because we conclude that the odor of marijuana emanating from a vehicle, alone, is insufficient to create the requisite probable cause to search a vehicle under the automobile exception to the warrant requirement, we affirm,” McKeig wrote for the majority.
But the ruling also upheld case law that says odor can be one of several pieces of evidence that could support a search. It just can’t be the only piece of evidence.
“It’s fair to say that it’s limited,” Gallagher said. “But on the other hand it is still a huge change. There’s odor-alone and there’s odor-plus.”
Brad Colbert teaches criminal law at Mitchell Hamline School of Law. He said the historical context of the ruling is important to understand.
“Police have used this idea — ‘do you smell marijuana? I smell marijuana’ — as a pretext to search cars for a long period of time,” Colbert said. “That has been used forever.” Therefore, a finding that smell alone can no longer provide legal cover for searches that might find evidence of other crimes is significant. “Odor is not sufficient to believe that you committed a crime,” Colbert said.
The case began as a traffic stop in Litchfield in Meeker County in July, 2021. Adam Lloyd Torgerson was driving a car that an officer determined might have an equipment violation, in this case a light bar on its grill with more lights than are permitted by state law.
Once at the driver’s side window, the officer said he smelled marijuana and asked Torgerson if there was any reason for the odor. Torgerson said there was not. A second officer arrived and was asked by the first officer to check out the smell. He did and concluded the same thing: that the smell of what was then an illegal drug was coming from the car.
A subsequent search found methamphetamine and drug paraphernalia, and Torgerson was arrested and charged.
But the facts of the case provided a clean way to test the legal boundaries of smell-based searches. The officers testified that there was no other evidence of drug use or possession observed before the search. In addition, neither reported signs of impairment, either by Torgerson after the stop or in his driving behavior.
Both the district court and the Minnesota Court of Appeals ruled that the evidence found in the search could not be presented in court because there was no probable cause for the search. The McKeig-led majority on the state Supreme Court agreed that the gathered evidence of illegal drug possession was inadmissible. “… the district court determined the items found in the search of Torgerson’s vehicle were fruit of the poisonous tree because they were seized during an illegal search and, therefore, should be suppressed,” the ruling stated.
The Supreme Court majority seemed to anticipate the reaction to the decision from both prosecutors and defense lawyers.
“The state essentially asks us to create a bright-line rule by holding that the odor of marijuana emanating from a vehicle, on its own, will always create the requisite probable cause to search a vehicle,” the ruling states. “Our precedent, however, shows that we have shied away from bright-line rules regarding probable cause and we have never held that odor or marijuana (or any other substance), alone, is sufficient to create the requisite probable cause to search a vehicle.”
But the ruling also rebuffs hopes that the court would draw a bright-line rule in the other direction, “that probable cause cannot exist if there is any legal explanation for the marijuana odor” such as hemp or medical marijuana.
“Instead, consistent with our precedent, the probable cause analysis calls for the odor of marijuana to be one of the circumstances considered as part of the totality of the circumstances in assessing whether there is a fair probability that contraband or evidence of a crime will be found in a particular place,” the ruling states.
There was a dissent from state Supreme Court Justice Lorie Gildea that was signed onto by Justice Barry Anderson.
“The majority agrees that the odor of marijuana may be considered in determining whether there is a fair probability that contraband or evidence of a crime will be found in a motor vehicle,” Gildea wrote. “But according to the majority, such an odor by itself fails to establish a fair probability that contraband or evidence of a crime will be found in the vehicle. I disagree.”
“In sum, the smell of burnt marijuana suggests that someone smoked marijuana in the car,” Gildea concluded. “Common sense tells us that when a person has recently smoked marijuana in their car, there is a fair chance that more marijuana for personal use will be in the car.”
An instructive Colorado case
While the traffic stop in Litchfield happened in July of 2021, well before the state legalized the possession and use of marijuana, does the ruling have anything to say about a post-legalization world? McKeig was careful to say it doesn’t, noting in a footnote that the law was not in effect at the time of Torgerson’s arrest.
However, McKeig’s citing of an example from another state where marijuana was already legal has led legal observers to conclude the court would view searches for marijuana alone in the same light both pre- and post-legalization, especially because Minnesota’s new law clearly bars the use of marijuana for those under 21 and for anyone in a motor vehicle when it is on a street or highway.
In addition, adults 21 or older can only possess 2 ounces or less in public and even those amounts can’t be transported in a vehicle on a street or highway unless in original sealed packaging and out-of-reach of the driver or passengers, such as in the trunk.
Odor, therefore, could still indicate the possibility that any of these offenses are occurring.
Such was the case in People v. Zuniga in Colorado, where the court there found that the odor of marijuana from a car with Iowa plates was an allowable contribution to a probable cause search. The driver and passenger were “overly nervous, sweating, and had delayed response times when answering questions. The men also gave inconsistent stories about why they were in Colorado,” McKeig noted in her ruling.
Possessing small amounts of marijuana is legal in Colorado but not larger amounts.
“Consequently, similar to the law in Minnesota, ‘Colorado law ma[de] certain marijuana-related activities lawful and others unlawful,’” the justice wrote. “The Colorado Supreme Court explained that the odor of marijuana is properly included in the circumstances analysis ‘and the possibility of an innocent justification merely affects a fact’s weight and persuasiveness, not its inclusion in the analysis.’
“We find the Colorado Supreme Court’s analysis persuasive and in line with our precedent,” the Torgerson majority concluded. “Specifically, the odor of marijuana is one of the circumstances in the totality of circumstances analysis that should be considered in determining if there is a ‘fair probability’ that contraband or evidence of a crime will be found in the location searched.”
Colbert said he thinks McKeig wanted to give some indication of how the court might look at post-legality cases with similar facts.
“I can’t believe that she wasn’t contemplating the changing nature of the legality,” he said.
In the days before use and possession of marijuana became legal in Minnesota on Aug. 1, State Patrol chief, Col. Matt Langer, said troopers were already considering odor as just one element of their decision-making about warrantless searches of vehicles.
“A lot of the correlations are drawn between cannabis and alcohol,” Langer said then. “If someone stops a vehicle and they either smell alcohol — which can happen if there’s an open bottle and its spilling in the center console or the floor — or someone smells of alcohol because they’ve been drinking, it piques the trooper’s interest to look further into that situation to see if there is a violation of the open container law or an impairment problem with the driver — or both.
“… if troopers encounter a vehicle and it smells like the occupants have been smoking marijuana, you can bet the trooper will be looking further into that situation to see if there is a violation,” Langer said.
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