Pot smell not enough for search

The mere smell of marijuana is not enough to establish probable cause to conduct a warrantless search of a vehicle. In State of Minnesota v. Adam Lloyd Torgerson, filed on Sept. 13, the Minnesota Supreme Court held that the odor of marijuana is just one circumstance that must be considered alongside others in the totality of the circumstances analysis.

On July 5, 2021, Adam Torgerson was stopped by a Litchfield police officer because the light bar mounted on his car’s grill violated Minnesota law. The officer approached the vehicle and noticed that it smelled like marijuana; however, when the officer asked Torgerson if he had marijuana on him, he denied it. A second officer arrived on the scene and again asked Torgerson if there was marijuana in the car. Torgerson claimed he did not have marijuana in the car, but he said he smoked some in the past.

In 2021, at the time of the traffic stop, it was a crime for certain people to possess certain amounts of marijuana in Minnesota. The second officer told Torgerson that the marijuana odor gave them probable cause to search the car. During the search, the officers found a film canister, three pipes, and a plastic bag full of methamphetamine. Torgerson was charged with possession of methamphetamine paraphernalia in the presence of a minor and fifth-degree possession of a controlled substance.

Torgerson filed a motion to suppress the evidence that was found during the search. He argued that the officers illegally turned the traffic stop into a search without having the necessary probable cause to do so.

The district court granted the motion, suppressing the evidence and dismissing the complaint. It pointed out that Minnesota case law did not permit vehicle searches just because adult passengers smell like alcohol. By analogy, the court found that the same analysis should apply in the case of marijuana because possession, at the time of Torgerson’s traffic stop, was a non-criminal petty misdemeanor.

On appeal, the Minnesota Court of Appeals affirmed the district court. While the court did not reach the issue of whether the odor alone established probable cause, it did raise the facts that the police did not witness Torgerson engaging in unsafe or erratic driving, did not see drug paraphernalia in plain view, and did not witness Torgerson engaging in nervous or evasive behavior.

The question before the court was whether the odor of marijuana was enough to establish probable cause or whether it was one factor that must be considered alongside others.

Melvin Welch, attorney at Welch Law Firm, who represented Torgerson, admitted that the smell of marijuana might cause officers to have reasonable suspicion.

“That may very well support law enforcement’s ability to inquire further,” stated Welch. “That does not necessarily support law enforcement’s ability to circumvent the search warrant requirement.”

Travis Smith, special assistant county attorney, countered, “I don’t think it undermines the totality of the circumstances because there may be one fact amongst a totality of circumstances that is so overwhelming in its probative value that its presence tips the scale.”

Welch argued, “Here there’s one totality of the circumstance — there’s one factor. The State is submitting that the odor alone is enough to get in there.”

The court declined to create a bright-line rule that the smell of marijuana always creates the requisite probable cause to do a vehicle search.

“There was nothing in Torgerson’s actions to give suspicion that he was under the influence while driving, no drug paraphernalia or other evidence to indicate that the marijuana was being used in a manner, or was of such a quantity, so as to be criminally illegal, and no evidence showing that any use was not for legal medicinal purposes,” the court wrote. “In the absence of any other evidence as part of the totality of the circumstances analysis, the evidence of the medium-strength odor of marijuana, on its own, is insufficient to establish a fair probability that the search would yield evidence of criminally illegal drug-related contraband or conduct.”

Chief Justice Lorie Gildea authored the dissent, which Justice G. Barry Anderson joined. Gildea stressed that there was not a high standard to show there was probable cause. Citing precedent that stated that it did not require certainty or a preponderance of the evidence, Gildea maintained that the standard was one of common sense.

“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,” Gildea opined. “[T]he inquiry is not whether it was more likely than not that Torgerson had illegal marijuana in his vehicle, the inquiry is whether—after noticing the smell of marijuana coming from the vehicle on both the driver’s and passenger’s sides—a reasonable person would conclude that there was a fair probability that there was an illegal amount of marijuana in the vehicle.”

The law in Minnesota regarding marijuana for personal use has changed in 2023. While it is now legal to possess it for recreational use, there are still restrictions. Adults 21 years and older are permitted to travel with 2 ounces of cannabis flower, 8 grams of concentrate, and 900 milligrams of edibles containing THC. At home, Minnesotans are permitted to have two pounds of cannabis flower. Marijuana is also still prohibited in Chippewa and Superior National Forest lands.

Gildea argued that police officers were not required to know with certainty that a driver possessed more than is permitted by statute.

“[T]he Fourth Amendment does not require a police officer to know with certainty that the vehicle contains an illegal amount of marijuana,” Gildea wrote. “Instead, it simply requires a fair probability that the car contains an illegal amount of marijuana.”