Minnesota Supreme Court Affirms Marijuana Odor is Insufficient Cause for Searching Motor Vehicles

October 26, 2023 Don Pumphrey, Jr. Criminal Defense, Drug Charges, News & Announcements Social Share

A recent ruling made by the Minnesota Supreme Court eliminated the smell of marijuana coming from a motor vehicle as insufficient grounds for police to justify a warrantless search.

It is important to note that the Minnesota Supreme Court’s ruling does not change the legal standards in Florida for determining whether law enforcement may search a vehicle based on the smell of marijuana. However, the case highlights how other states are updating and changing their legislation regarding marijuana. As Florida continues to address its complexities surrounding medical marijuana, legalized hemp, and illegal cannabis, it is important to familiarize yourself with the current legislation and grounds police have to search your vehicle.

Minnesota’s Supreme Court Decision

In Minnesota v. Adam Torgerson, the Minnesota Supreme Court ruled that the smell of marijuana, on its own, is insufficient to establish probable cause to search a motor vehicle absent a warrant. Generally, probable cause is based on whether law enforcement, or another government actor, has a reasonable basis for believing that a crime has been committed.

The Minnesota Supreme Court decision occurred after two lower courts held that state prosecutors could not introduce evidence of various controlled substances found in the Defendant’s vehicle against him during trial. The lower courts also reasoned that law enforcement lacked probable cause to search the Defendant’s vehicle based on the smell of burnt marijuana alone.

In affirming the lower courts’ rulings, the Minnesota Supreme Court considered new legislation relating to the possession of marijuana in Minnesota. Because Minnesota legalized medicinal marijuana in 2014 and recreational marijuana in 2023, the Minnesota Supreme Court was concerned with creating a “bright-line rule” that would allow law enforcement to search an individual’s vehicle based on the smell of a legal substance. The Minnesota Supreme Court wrote:

“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. Our precedent, however, shows that we have shield 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… In the absence of any other evidence…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.”   

Minnesota is not alone in changing their legislation and search requirements. Both Delaware and Pennsylvania had similar rulings. In states like Connecticut and Virginia, they have created laws to prohibit police from the executive motor vehicle searches based on the smell of cannabis.

Can Florida Police Search My Vehicle Based on Odor?

With the legal changes in Minnesota and other states with similar marijuana legislation, Floridians may be left wondering: Can police search my car based on the smell of marijuana alone? The short answer is yes. The United States Supreme Court has not yet ruled on whether a police officer can use the smell of burnt marijuana from a vehicle as the sole basis for establishing probable cause. However, the Florida Supreme Court has stated that, in the view of a trained and experienced officer, this smell alone can justify the search of a person or vehicle.

With Florida’s introduction of legislation decriminalizing certain uses of cannabis and hemp, many question whether the smell of marijuana, on its own, should still be able to form probable cause for law enforcement to conduct a search. In 2019, Florida legalized the use of hemp, which is a substance like marijuana but has a THC level less than 0.03 percent. We have described the similarities and differences between marijuana and hemp in another blog post. Of particular note, hemp and marijuana smell and look almost identical. This can make it difficult for police to determine whether a substance they are smelling is illegal marijuana, medical marijuana, or legal hemp.

The Florida Department of Agriculture and Consumer Services Office of Agricultural Law Enforcement has since announced what is known as the “Odor Plus” standard. With the introduction of new legislation decriminalizing medical marijuana and hemp, police are now encouraged to find another indicator of illegal activity in addition to the smell of marijuana to meet the probable cause standard before searching a vehicle.

Florida defense attorneys have also advocated for a standard that does not allow law enforcement to search a vehicle based on the smell of marijuana alone. The Fourth Amendment provides that individuals are secure against unreasonable search and seizures. But is it reasonable to search someone based on the smell of something that could be legal?

Some of Florida’s lower courts have attempted to change the probable cause standard when the smell of marijuana is the only basis justifying a search. For example, in State v. Nord, Florida’s Twentieth Judicial Circuit Court held that the odor of marijuana alone cannot be established as the sole basis for a probable cause search. A year later, however, Florida’s Second District Court of Appeals reversed the lower court’s ruling in Nord. Specifically, the appellate court wrote that the smell of marijuana in connection with a traffic stop forms probable cause for a warrantless search because it implies the illegal use of marijuana.

The Court of Appeals also pointed to the opinion of Florida’s Ninth Judicial Circuit in State v. Ruise, adopting their stance that an officer who smelled the odor of cannabis during a traffic stop had probable cause for a warrantless search of their vehicle, even though the odor was found to be indistinguishable from the odor of hemp.

Finally, the appellate court’s response stated that, even if marijuana is legalized for recreational purposes in Florida, using it while driving would still support the offense of operating a car while under the influence. To read more about Hemp vs. Marijuana and the different methods for testing each substance, refer to our blog posts.

Tallahassee Marijuana Defense Attorney

If you’re not caught up on Florida’s current stance on marijuana, find our related pages. While medical marijuana is legalized for qualifying individuals, a person without a valid medical card can still be prosecuted if they are found in possession of illegal cannabis. Based on the available case law, Florida police can still attempt to search your vehicle if they smell the odor of marijuana.

If you or someone you know has been arrested due to the unlawful possession of cannabis, consider hiring a defense attorney to represent your case. An attorney with Pumphrey Law can provide guidance and knowledge while making sure your rights aren’t violated. To receive a free consultation, contact our office at (850) 681-7777 or leave us a message on our website.

Written by Karissa Key

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