The Minnesota Supreme Court ruled last week that the odor of cannabis alone doesn’t constitute probable cause for a search of a vehicle by law enforcement. In a 5-2 decision, the court ruled that a 2021 search based on the odor of cannabis violated the 4th Amendment to the US Constitution, upholding a district court’s ruling that evidence obtained from the search was inadmissible.
“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,” Justice Anne McKeig wrote for the majority.
Traffic Stop Led to Search
The Supreme Court handed down the decision in the case of Adam Torgeson, a man stopped for a traffic violation in 2021 in Meeker County, MN. After stopping Torgeson’s vehicle for having too many auxiliary lights on the grill, the officer said he smelled cannabis coming from the open window of the vehicle. Torgeson, who was driving the car with his wife and a child as passengers, told the police officer that there was no marijuana in the vehicle. A second police officer approached the vehicle and agreed that he also smelled marijuana coming from inside. The officers then ordered the occupants to exit the vehicle and conducted a search. Although no cannabis was found, the officers discovered a small amount of methamphetamine and drug paraphernalia and arrested Torgeson.
At trial, it was established that Torgeson wasn’t driving erratically and that the officers hadn’t observed any signs of impairment. Additionally, the police officers who conducted the search admitted that there was no visible evidence that a crime had been committed. Both a district court and the Minnesota Court of Appeals ruled that the evidence confiscated in the search couldn’t be used in court because there was no probable cause for the search, a ruling that was appealed by prosecutors. The Supreme Court majority agreed with the lower courts, writing that the district court had properly “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,” according to the ruling.
McKeig noted in the majority decision that the court has previously ruled that the smell of alcohol alone is not sufficient cause to search a vehicle and a similar standard should apply to other legal substances. Since cannabis was legal in some circumstances at the time of the search (the medical use of cannabis was legalized in Minnesota in 2014), the “odor of marijuana should be considered along with the totality of any other circumstances to determine whether there is a fair probability that a search will yield contraband or other evidence,” McKeig wrote.
In a dissenting opinion, outgoing Chief Justice Laurie Gildea wrote that “because marijuana is contraband in Minnesota, the smell of marijuana coming from inside a car would lead a reasonable and prudent person… to conclude that there likely will be marijuana in the car.”
“The majority agrees that the odor of marijuana may be considered in determining whether there’s 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’s a fair chance that more marijuana for personal use will be in the car.”
Cannabis Odor and Searches in Other States
The issue of whether the odor of cannabis is sufficient probable cause to search a vehicle has also been addressed in other states that have legalized cannabis. The Minnesota Supreme Court’s ruling cited a case in Colorado, where the state Supreme Court decided in 2003 that the odor of cannabis could not be the only reason for a search but could be a factor when other evidence is present. In Pennsylvania, where the medical use of marijuana was legalized in 2016, the state Supreme Court ruled in 2021 that the odor of marijuana alone is not sufficient probable cause, although law enforcement officers can consider the aroma as a factor in a decision to search a vehicle.
“The odor of marijuana alone doesn’t amount to probable cause to conduct a warrantless search of the vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,” Chief Justice Max Baer wrote in the majority decision.
In New York, lawmakers considered the common law enforcement practice of conducting searches based on the odor of cannabis as the state’s marijuana legalization bill was being drafted. The final version of the legislation, the Marijuana Regulation and Taxation Act, included protections against such searches when it was passed in 2021.
“I don’t think any other state was as clear-cut in removing marijuana very clearly from the universe of things that law enforcement can use, and certainly the odor of marijuana, as a reason to search a vehicle,” Melissa Moore, New York state director for the Drug Policy Alliance, said at the time.