“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.”
By Christopher Ingraham, Minnesota Reformer
The Minnesota Supreme Court has ruled that the odor of marijuana, on its own, does not establish probable cause for police officers to search a car.
The ruling came in the case of a 2021 traffic stop in Meeker County where Adam Torgerson was pulled over by Litchfield police for having too many auxiliary lights on his vehicle’s grill. The officer claimed he smelled marijuana coming out of the open vehicle window. Torgerson, who was driving with his wife and a child, denied there was weed in the car.
A second officer approached and said he, too, smelled weed. The officers ordered everyone out of the vehicle and searched it, finding a small amount of methamphetamine and some paraphernalia.
Torgerson was not driving erratically, nor was there any evidence of a crime in open view when the officers approached the car. They based their probable cause finding solely on the marijuana odor.
A district court subsequently ruled that the evidence obtained from the search was inadmissible. Even in 2021, there were certain circumstances in which possession of marijuana was legal. Medical marijuana patients could possess it, for instance, and industrial hemp (which looks and smells a lot like regular marijuana) was also legal. The possession of small quantities of pot had also been decriminalized by that point—still prohibited by statute, but not in itself a crime.
The state of Minnesota appealed this decision to the appeals court and lost, and subsequently brought it before the Supreme Court, which today affirmed the lower courts’ decisions.
Writing for the majority, Justice Anne McKeig noted that the court previously ruled that the smell of alcohol, alone, wasn’t sufficient cause for a vehicle search. And because marijuana was also legal in some circumstances in 2021, “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.
Outgoing Chief Justice Laurie Gildea dissented from the majority, writing 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 ruling brings Minnesota law in line with Colorado’s, where since 2016 marijuana odor alone has not been enough to establish probable cause for a vehicle search.
Notably, however, the Minnesota ruling does not make any reference to changing circumstances following the statewide legalization of low-dose THC edibles in 2022 and personal use marijuana this year.
Regardless, the ruling is a victory for civil libertarians and racial justice advocates, who have long argued marijuana odor has been frequently used to conduct unconstitutional searches in violation of the Fourth Amendment.
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