War on Drugs

Minnesota's Top Court Rebukes Cops Who Searched a Car After Claiming To Smell Pot That Wasn't There

In light of the state's marijuana reforms, the court says, the odor of weed is not enough to establish probable cause.


On a Monday night in July 2021, a Litchfield, Minnesota, police officer pulled over Adam Torgerson for violating a state law that limits the number of "auxiliary driving lamps" a car is allowed to have. Because the officer and a colleague who arrived later both claimed to smell the odor of burnt marijuana emanating from Torgerson's vehicle, they ordered him, his wife, and their child out of the car, which they searched. They did not find any marijuana. But they did find three pipes and a film canister that contained methamphetamine, which resulted in two criminal charges against Torgerson: fifth-degree possession of a controlled substance and possession of methamphetamine paraphernalia in the presence of a minor.

That car search, the Minnesota Supreme Court recently ruled, was unconstitutional because it was based on nothing but the purported smell of marijuana, which was not enough to establish probable cause. The unanimous decision is a welcome limit on the alarmingly broad authority to search cars during routine traffic stops. Had the court ruled otherwise, Minnesota cops would have been free to search any car on the road by claiming to smell marijuana after stopping the driver for breaking any of the myriad rules governing the maintenance and operation of motor vehicles—rules so numerous, arcane, vague, subjective, and picayune that it is nearly impossible to drive without violating one or more of them.

The sole basis for stopping Torgerson was the light bar attached to the grill of his car. Under Section 169.56 of the Minnesota Statutes, "any motor vehicle may be equipped with not to exceed two auxiliary driving lamps mounted on the front at a height not less than 16 inches nor more than 42 inches above the level surface upon which the vehicle stands." The officer who pulled Torgerson over thought his light bar had more than two lamps. But although the officer and Torgerson "spoke briefly about the vehicle's light bar," the record does not mention any citation. Instead of writing a ticket, the officer used the stop as an excuse for an unrelated criminal investigation, as cops routinely do, with the U.S. Supreme Court's blessing.

"While the officer verified Torgerson's license and registration, a second officer arrived on the scene," Minnesota Supreme Court Justice Anne K. McKeig notes in State v. Torgerson. "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."

The officer was wrong about that, the court concluded, upholding the judgments of the trial court, which excluded the evidence against Torgerson, and the Minnesota Court of Appeals, which last year agreed that the search was inconsistent with the Fourth Amendment's prohibition of "unreasonable searches and seizures" and a similar provision of Minnesota's constitution. Although the longstanding "vehicle exception" allows police to search cars without a warrant, they still need enough evidence to establish a "fair probability" that a search will discover contraband or other evidence of a crime. By itself, all three courts agreed, the alleged pot smell in this case did not meet that test.

The cops said they suspected Torgerson was driving under the influence of marijuana. But Torgerson was not stopped because of erratic or unsafe driving; he was stopped because of a trivial equipment violation. And as McKeig emphasizes, "neither officer could recall seeing any indicia that Torgerson was impaired." Nor did they see "any contraband or substances in plain view."

In 1976, McKeig notes, Minnesota made marijuana possession involving no more than 42.5 grams (about 1.5 ounces) a "petty misdemeanor," meaning it was "prohibited by law" and could result in a maximum fine of $200 but did not "constitute a crime." Minnesota has allowed medical use of marijuana since 2014, and this year it legalized recreational use, including public possession of two ounces or less as of August 1.

That last reform is not relevant in this case because it did not take effect until two years after Torgerson's allegedly noncompliant light bar resulted in the search that triggered his prosecution. But even in July 2021, the suspected presence of marijuana did not necessarily indicate that Torgerson had committed a crime. Assuming there was marijuana in the car (which, again, there wasn't), possessing it could have been legal (if Torgerson was a state-approved patient) or a petty misdemeanor (if the amount was 42.5 grams or less) and therefore not a criminal offense.

The state cited several Minnesota Supreme Court cases that it claimed supported a finding of probable cause based on nothing more than the odor of marijuana. The court saw those precedents as inapposite because they did not squarely address the issue. McKeig says a 2005 case, State v. Burbach, is "more instructive than the cases relied on by the State." In Burbach, the court held that "the odor of alcohol emanating from an adult passenger at a traffic stop did not provide reasonable suspicion of an open-container violation that would allow expansion of a traffic stop."

The state "essentially asks us to create a bright-line rule by holding that the odor of marijuana emanating from a vehicle, on its own, will always create the requisite
probable cause to search a vehicle," McKeig writes. "Our precedent, however, shows that we have shied away from bright-line rules regarding probable cause and we have never held that the odor of marijuana (or any other substance), alone, is sufficient to create the requisite probable cause to search a vehicle." Instead, "the probable cause analysis calls for the odor of marijuana to be one of the circumstances considered as part of the totality of the circumstances in assessing whether there is a fair probability that contraband or evidence of a crime will be found in a particular place."

McKeig notes a 2016 decision in which the Colorado Supreme Court ruled that a police dog's "alert" to a car did not justify a search, because it could have indicated conduct that was legal at the time in that state: possessing an ounce or less or marijuana. "We find the Colorado Supreme Court's analysis persuasive and in line with our precedent," she says, meaning the odor of marijuana can be considered as one factor in a probable cause analysis but is not decisive without additional evidence.

"It is undisputed that the only indication that evidence of a crime or contraband [might]
be found in Torgerson's vehicle was the odor of marijuana emanating from the vehicle," McKeig writes. "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."

It is worth repeating that, despite the officers' claims about what their noses detected, there was no marijuana in the car. Torgerson denied that he had consumed cannabis anytime recently. Maybe he was lying. Maybe he smoked pot earlier that day in the same clothes he was wearing when he was stopped, and maybe the cops detected a lingering odor emanating from those clothes. Or maybe, in their eagerness to search Torgerson's car, the cops invented or imagined the odor. (Notably, the second officer did not claim to smell pot until after the first officer said "he thought he smelled marijuana.") The history of wildly implausible claims about police officers' olfactory abilities suggests the second explanation is at least as likely as the first.

In recent years, the issue of how cannabis reform affects the role of marijuana odors in justifying searches has come up repeatedly in states such as Colorado, Maryland, Massachusetts, and Illinois. Although cops may resent judicial or legislative limits on their authority to conduct searches, it would be illogical to pretend that decriminalizaton and legalization have no impact on the factors that can be used to establish probable cause. This reevaluation provides some much-needed privacy protection and gives motorists a little more freedom to go about their business without police harassment.