"Pot Odor Alone Doesn't Warrant Car Search" Minnesota Supreme Court

Minnesota police officers can rely on the smell of marijuana as one of a number of factors to justify searching a vehicle during a traffic stop, but the odor can't be the sole consideration they lean on, the state's high court ruled in a split decision.

By itself, a whiff of cannabis coming from a vehicle cannot support the "reasonable suspicion" that a search will turn up contraband or other criminal activity, the Minnesota Supreme Court said Wednesday in a 26-page opinion that upheld a trial court's decision to toss as evidence illicit items Litchfield police allegedly found in the vehicle of Adam Lloyd Torgerson.

However, officers can still search a vehicle they claim reeks of marijuana, provided they can point to other factors that would establish probable cause, the justices said.

"Our precedent shows that we have shied away from bright-line rules regarding probable cause and we have never held that the odor of marijuana (or any other substance), alone, is sufficient to create the requisite probable cause to search a vehicle," the high court's opinion said. "Instead, 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."

However, Chief Justice Lorie Skjerven Gildea wrote in her dissent that the majority's ruling was contrary to "common sense," saying the "medium-strength" odor the officers picked up should have been enough for them to assume that a search would turn up an illegal amount of marijuana.

"The smell of burnt marijuana suggests that someone smoked marijuana in the car," Justice Gildea said. "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."

Her dissent was joined by Justice Barry Anderson. They are the only two of the seven justices who were appointed by a Republican governor.

The majority's opinion rested heavily on the high court's 2005 ruling in State v. Burbach , which said the smell of alcohol rising out of a vehicle alone can not support a vehicle search.

The opinion came at an unusual time, months after Minnesota legalized the possession and sale of recreational cannabis. The ruling is therefore based on laws that were in effect at the time of Torgerson's July 5, 2021, arrest, which offered fewer reasons why a person would have marijuana in their car and allowed them to carry just 42.5 grams or less in public. The new laws allow for up to 3 ounces in public.

According to the court record, police pulled over Torgerson, who was driving with his wife and child, for an infraction involving his vehicle's front-facing lights. One officer said he could smell what he would later describe as "a strong odor of burnt marijuana" coming from the vehicle, but Torgerson denied ever having pot in the automobile. The second officer asked both Torgerson and his wife if they had marijuana, as he, too, said he could smell it. Again, they insisted there was none in the vehicle, with Torgerson saying he had used it in the distant past, according to the court record.

The first officer would later claim that he was trained to smell the difference between burnt and unburnt marijuana, as the former has a "skunkier smell," and he ranked the smell as a five out of 10 in strength, according to the court record.

"The record does not describe the training the officers received on detecting the odors of marijuana," the justices note in their opinion.

Body camera footage would show that the police told Torgerson the odor gave them probable cause to search the vehicle, according to the court record. The officers claimed to have found a "brown crystal-like substance" which they said was methamphetamine.

Torgerson was arrested and later charged with possession of methamphetamine paraphernalia in the presence of a minor and fifth-degree possession of a controlled substance.

On the trial court level, Torgerson moved to suppress the evidence obtained during the search, arguing the police could offer as their justification only the smell of marijuana. The lower court agreed.

The state's appeal leaned on the high court's 1983 ruling in State v. Schinzing , where an officer smelled alcohol emanating from a passenger and used that as the justification for executing a search of the vehicle.

But the justices noted that the officer in the Schinzing case saw the vehicle being driven recklessly, the passenger admitted to drinking alcohol, and both the driver and passenger were underage. All of this means the officer did not rely on just an odor to execute a search.

Representatives for Torgerson and the state did not immediately respond to requests for comment.

Minnesota is represented by Keith Ellison of the state attorney general's office, Brandi L. Schiefelbein and John P. Fitzgerald of the Meeker County Attorney's Office, Travis J. Smith and William C. Lundy.

Torgerson is represented by Cathryn Middlebrook of the Office of the State Public Defender and Melvin R. Welch of Welch Law Firm LLC.

The case is Minnesota v. Adam Lloyd Torgerson, case number A22-0425, in the Supreme Court of the State of Minnesota.