Minnesota’s Top Court The Latest To Say The Smell Of (Legal) Marijuana Can’t Justify A Warrantless Search
from the looks-a-whole-lot-like-olfactory-perjury-here,-folks dept
Marijuana has been legalized pretty much everywhere in the United States. Even the DEA seems somewhat willing to move this source of easy busts off its drug schedule. At this point, there are only four states that have yet to legalize (or decriminalize) marijuana possession.
So, how is it that cops still think the “odor of marijuana” allows them to search vehicles? At best, it means they’re tossing cars because they observed a misdemeanor offense. At worst, they’re tossing cars because someone possessed an entirely legal substance.
Sure, cops can still go after impaired drivers. But the odor of marijuana is rarely indicative of anything, especially when it’s pretty much legal pretty much everywhere.
This legalization has led to cops complaining about having to put down their now-useless drug dogs, who apparently aren’t even worth keeping around as pets. And, in recent years, it’s led to courts telling cops that the odor of marijuana — something that can’t be objectively verified by judges or corroborated by body cam/dash cam recordings — is no longer the probable cause they continue to insist it is.
The state of Minnesota recently legalized recreational marijuana use/possession. Though the state won’t be moving forward with recreational weed sales until 2025, medical marijuana has been legal since 2014. This legalization of marijuana — even on a limited scale — means the “odor of marijuana” is no more indicative of illegal activity than, say, the “odor of gasoline” when it comes to traffic stops. (h/t West Central Tribune)
The ruling [PDF] issued by the state’s top court (one that affirms the rulings handed down by the previous two courts handling this case) says what everyone but cops are thinking: the odor of a legal substance does not allow cops to engage in warrantless searches of vehicles.
A Litchfield (MN) police officer pulled over Adam Togerson because he believed a light bar mounted on the grill of Torgerson’s car was “too bright.” Already we’re wading deep into subjective waters. And, of course, it wasn’t the real reason for the stop. The real reason was to try to find some reason to search the car.
The officer stated that he smelled marijuana and asked Torgerson if there was any reason for the odor. Torgerson answered no, stated he did not have marijuana on him, and denied ever having marijuana in the vehicle.
The officer and Torgerson spoke briefly about the vehicle’s light bar before the officer returned to his squad car with Torgerson’s license and registration. While the officer verified Torgerson’s license and registration, a second officer arrived on the scene. The first officer explained to the second officer that he thought he smelled marijuana coming from the vehicle and that Torgerson denied possessing marijuana. The second officer approached the vehicle and spoke briefly with Torgerson and his wife before asking if there was marijuana in the vehicle, noting that he and his partner could both smell marijuana coming from inside the vehicle. The couple, again, denied possessing marijuana, but Torgerson admitted to smoking marijuana in the distant past. The second officer stated that the marijuana odor gave them probable cause to search the vehicle and directed everyone to exit the vehicle.
Despite both officers claiming they smelled marijuana (and swearing in court they smelled marijuana), no marijuana was found during the warrantless search.
The first officer searched the vehicle and found a film cannister, three pipes, and a small plastic bag in the center console. The plastic bag contained a powdery, white substance, and the film cannister contained a brown crystal-like substance. A field test of the brown crystal-like substance tested positive for methamphetamine. The officers arrested Torgerson for possession of a controlled substance after he admitted ownership of the contraband.
To be clear, meth (whether smoked or not) does not smell like marijuana. These officers simply claimed they smelled marijuana and claimed that was all the permission they needed (either from Torgerson or the US Constitution) to search the car.
Both cops testified (vaguely) they could smell weed when they approached the car that contained no weed. Neither officer was able to recall whether they noted any signs of impairment in Torgerson.
The trial court suppressed the evidence from the warrantless car search and dismissed the charges. The state appealed. The state appellate court took a look at the case and arrived at the same conclusion. The state appealed again.
Three strikes. You’re out.
It is undisputed that the only indication that evidence of a crime or contraband may be found in Torgerson’s vehicle was the odor of marijuana emanating from the vehicle. The first officer testified that he “could smell a strong odor of burnt marijuana” emanating from the vehicle, that he could not smell the odor before approaching the vehicle, and that the odor’s strength ranked as a five on a scale of one to ten. The second officer testified that he “could immediately [smell] the odor of marijuana coming from inside the vehicle,” the odor “was strong enough that [he] immediately recognized it when [he] got to the window,” and that the odor “definitely wasn’t the faintest” marijuana odor he had ever smelled, but “it definitely wasn’t the strongest.” Neither officer articulated any other circumstance contributing to their probable cause analysis.
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. 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.
The evidence that was rejected two decisions ago is rejected yet again. And now it appears the only valid criminal act is these officers’ violations of Torgerson’s Fourth Amendment rights.
Where weed is legal, it’s ridiculous to assume the odor of a legal substance — without any other evidence of criminal activity — is probable cause. At some point, no cop will be able to use this convenient excuse to engage in constitutional violations. Let’s hope that point is sooner, rather than later.