The Odor of Marijuana Alone May Not Justify Vehicle Search

The Supreme Court recently issued a critical decision that will have wide-ranging impact that coincides with the new legalization of marijuana. As outlined previously in this blog, the Court of Appeals ruled that the mere odor of marijuana – without any other circumstances to point to possible criminal activity – may not justify the search of a vehicle. The court tried to state that it’s holding was NOT odor alone is insufficient for the search, but rather the totality of the circumstances were insufficient. Those circumstances, though, pointed to the singular conclusion – odor alone is insufficient to authorize a vehicle search. Predictably, the Supreme Court took this case up for further review.

New Updates to Minnesota Law

The Minnesota Supreme Court issued the following rulings in its Torgerson decision:

  1. An odor of marijuana is but one circumstance when assessing the totality of circumstances in determining whether fair probability exists that contraband or evidence of a crime will be found in the vehicle; and
  2. Applying that, the odor of marijuana alone does not rise to the level of fair probability that the search would lead to the discovery of contraband or evidence of a crime.

In so holding, the Court upheld the suppression of all evidence seized by the unconstitutional vehicle search, leading to a dismissal of the case. It should also be noted that the officers testified the odor of the marijuana smell was ‘medium-strength.’ 

The basis for this ruling is that there are many legal means by which a person may possess marijuana and now use marijuana which would lead to the odor of it in the vehicle. The Court pointed out three circumstances under which marijuana was not illegal: industrial hemp, medical cannabis, and small of amount of marijuana (which was only a petty misdemeanor – which is not a crime – at the time of the offense). Because of these three identifiable circumstances under which the driver could have lawfully possessed marijuana in the vehicle, the mere odor of marijuana could not justify a full search of the vehicle.

It should be noted the facts the Court analyzed pre-dated the legalization of marijuana. Nonetheless, the recent legalization only makes the holding more sound and important going forward. For instance, marijuana may be possessed in a motor vehicle so long as it is sealed in the original packaging or stored in the trunk. This is akin to the open bottle law – i.e. you may transport alcohol, but you cannot have the bottle or beer can open. With that being said, the small amount of marijuana petty misdemeanor outlined in the previous paragraph has been removed from the new marijuana legalization law.

So what does this mean? Well, law enforcement is going to have to point to specific other facts to justify the search. Because there are innocent explanations for why there may be the odor of marijuana – including having just smoked it or been around it being smoked at a lawful place (such as a residence) – cops will likely start asking why there is the odor? This is a trap! Even if you give a reason that is 100% legal, they will either ignore it or twist it around to be a fact for why further inquiry or the search is justified. For example, if you admit to having just smoked it, they will likely pursue a DWI investigation. Instead of answering, respectfully tell them that you do not have to answer and will not. Additionally, law enforcement has “training and experience” that they will likely include in their reports for further bases as to why a search was justified. These are often made-up, or just complete and utter BS that need to be fought in court.

Contact a Marijuana DUI Attorney For More Information

This new case will lead to a lot of litigation going forward. Because of this, getting a firm that truly understands the nuances of the new legalization of marijuana law and how it interplays with criminal defense work is critical. Here at North Star Law, we have that expertise due to our separate cannabis law and criminal defense practice groups with attorneys well-known and respected in both fields. So when it comes time for your defense, you’ve come to the right place to ensure your rights are being upheld. Contact us today to get started.