Odor of Marijuana May Not Justify a Vehicle Search - Under Certain Circumstances

As the world slowly but surely progresses to an era when marijuana will be legalized by every State, the courts are lagging behind, as usual. The courts have always been slow in responding to the evolution of things, such as trying to figure out the legality of searches related to electronics. This same issue is happening with constitutional rights relating to searches when the presence of marijuana is suspected. For the longest time, Minnesota courts had authorized vehicle searches based solely on the odor of marijuana. The result, as you could probably guess, is that law enforcement took full advantage of this – especially when you consider there is no way to truly counter this allegation with an objective fact via reports or video – it’s an alleged odor! Recently, though, the Minnesota Court of Appeals signaled its first change to this and, hopefully, opened the doors on a new wave of litigation that is much needed. A recent ruling deemed that the odor of marijuana did not justify a vehicle search under the totality of the circumstance of that case. So, let’s take a look at the law and where this leaves us.

Let’s start with the basics. The Fourth Amendment protects individuals and their personal property from unreasonable searches and seizures. It is presumed that a warrant reviewed and signed by a judge is required in order to execute a search, unless the circumstances fall within one of the exceptions to this rule. It is the State’s obligation (i.e. the prosecutor) to prove to a reviewing court which exception applies. For our purposes, the most applicable exception is the “automobile exception,” which allows police officers to search a vehicle, including closed containers, when there are facts and circumstances sufficient to warrant a reasonably prudent person to believe that the vehicle contains contraband. This requires an objective inquiry that evaluates the totality of the circumstances. 

Using this legal background, Minnesota courts have routinely held that the odor of marijuana coming from a vehicle can establish probable cause to search the vehicle. The theory is – based on the officers training and experience (cue eye-roll), there was probable cause to believe the presence of narcotics to justify the search.

In the recent court of appeals case, though, the court of appeals upheld a district court order that said the odor of marijuana alone was not enough to justify the vehicle search, pointing to the legislature’s decision to decriminalize all marijuana in 1976. The district court order, overall, clearly points to a judge who has seen too much of the same old police tactics used to justify searches when the cops were merely fishing and get lucky. That judge had had enough. But, importantly, even though the court of appeals explicitly stated the order overall included facts and conclusions that were beyond the pale, it ultimately upheld the decision.

Unfortunately, the court of appeals decision also states that it did not reach the direct issue of whether marijuana alone was enough for probable cause, rather it upheld a determination that the search was unconstitutional based on the totality of the circumstances. So, what are those circumstances? You be the judge – the relevant facts, as laid out by the court of appeals: the stop was for an equipment violation; no traffic violations were noticed, such as driving erratic, weaving, etc.; no indicia of impairment, such as bloodshot eyes; no nervous behavior, or evasive or furtive gestures by the driver; no drugs, paraphernalia, or other evidence of illegal activity in plain sight; and an odor of burnt marijuana coming from inside the vehicle that was a 5 out of 10 when the cops testified to the strength of the smell. Essentially, the odor of marijuana – that’s it. Given these facts, “the officers did not have the requisite probable cause to believe that a search of the vehicle would reveal evidence of a crime or contraband” and the automobile exception did not save the warrantless search.

So, even though the court of appeals stated it was not reaching a decision on the issue of whether marijuana alone was enough for probable cause, the totality of the circumstances analysis it engaged in leaves the singular fact that could have justified the search was an odor of marijuana. Thus, under the totality of the circumstances where an odor of marijuana is present and no other illegal activity detected, the automobile exception does not apply and the search cannot be justified.

By trying to mince words, the courts of appeals is trying desperately to limit this ruling’s application to the real world and to not create a seismic shift. But, despite these efforts, talented Minnesota criminal defense attorneys know that this case offers new opportunities to argue the constitutionality of vehicle searches. And with more litigation that will undoubtedly ensue, the legal world may slowly start to catch up to the real world and ensure Fourth Amendment protections are up to date, so to speak.