Following Minnesota’s recent legalization of recreational cannabis, the Minnesota Supreme Court released a well-timed decision answering an important question: can police search a vehicle solely based on the odor of marijuana? The Court had previously determined that the smell of alcohol alone is not sufficient to warrant a vehicle search,[1] and that protection has now been extended to the “odor of marijuana.”[2]
Prior to the Court’s recent decision, no bright line rule on the issue existed. They had never said, explicitly, that the odor of any particular substance alone is sufficient to create the requisite probable cause to search a vehicle. However, aside from alcohol, they had also not affirmatively ruled that odor is insufficient. While this issue was previously in limbo, it has now definitively been ruled that the odor of marijuana is not sufficient probable cause to warrant a vehicle search.
This does not mean, however, that Minnesotans have a free pass to smoke and drive. The odor of marijuana is still considered as part of the probable cause analysis. This means that even though odor alone cannot justify a search, odor with other factors can. If the odor is paired with erratic behavior or other signs of impairment, for example, it could very well mean that the police will be able to find probable cause to search a vehicle.[3]
[1] State v. Burbach, 706 N.W.2d 484 (Minn. 2005).
[2] State of Minnesota v. Torgerson, No. A22-0425, 2023 WL 3728373 (Minn. 2023).
[3] Research and drafting assistance provided by Jacob Bourgalt, law clerk at Eckland & Blando.
