Marijuana ruling is a win for civil liberties

Opinion editor's note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom. This editorial was written on behalf of the board by Star Tribune Opinion intern Noor Adwan, a 2023 graduate of the University of Minnesota.

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In a decision celebrated by civil libertarians, the Minnesota Supreme Court ruled Wednesday that marijuana odor on its own is not enough to establish probable cause for police officers to search a vehicle.

Justice Anne McKeig wrote the majority opinion, disagreeing with the state's assertion that Minnesota Supreme Court precedent supported using marijuana odor as sole justification for a vehicle search. Instead, she argued previous cases included other factors in addition to marijuana odor that contributed to probable cause, including illegal parking, erratic driving and underage drinking.

She turned instead to State v. Burbach for guidance. That 2005 Minnesota case established that an alcohol odor coming from a vehicle is not enough on its own to establish even reasonable suspicion, which has a less demanding standard than probable cause.

"Our precedent ... 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," McKeig wrote in the opinion.

The vote was 5-2, with outgoing Chief Justice Lorie Gildea and Justice Barry Anderson dissenting. Gildea argued in the dissent that, because possession of any amount of nonmedical marijuana was prohibited by statute at the time, a marijuana odor coming from a vehicle could reasonably lead an officer to believe there will be contraband in the vehicle, which would establish probable cause.

But times have since changed, and this week's ruling is especially prudent now that recreational marijuana is legal in Minnesota, Teresa Nelson, legal director of the ACLU in Minnesota, told an editorial writer.

While it isn't legal to smoke and drive, "a passenger could smoke cannabis, get in a vehicle, and the smell of that cannabis is going to be in that vehicle," she explained.

The ruling also has the potential to mitigate racial inequities. Racial and criminal justice advocates have long warned that allowing officers to conduct searches solely on the basis of smelling marijuana exacerbates racial disparities in traffic and drug enforcement, as Black and brown individuals are disproportionately represented in both traffic stops by police and arrests related to marijuana.

"The idea that the smell of burnt cannabis is enough to justify search of a vehicle in general is troubling because it is very subjective," Nelson said.

Thousands of Minnesotans possess and use marijuana in Minnesota legally — and this was the case even before recreational marijuana use became legal. In 2022, about 40,000 Minnesotans were licensed to possess medical marijuana, which has been legal to smoke since 2021. And hemp-derived products like CBD cigarettes, which also produce a marijuana odor, have been legal for adult use since 2020.

Because a marijuana odor can originate from both legal and illegal activity, "the odor of burnt cannabis alone allows police little more than a guess as to which kind of user a person may be," ACLU-MN wrote in a friend-of-the-court brief.

And guessing creates problems. "When you take this very subjective criteria and it becomes carte blanche to search a vehicle, that is going to lead to even more racial disparities," Nelson said. ACLU-MN's brief argues that allowing searches based on marijuana odor alone incentivizes pretextual stops and racial profiling.

This week's ruling stems from a 2021 traffic stop for an equipment violation during which two Litchfield police officers noted a "medium-strength" marijuana odor coming from a car. The driver, Adam Torgerson, denied having marijuana in the car. Officers later testified they did not see any indication Torgerson was impaired, and the search was based solely on the marijuana odor.

One of the officers informed Torgerson the odor gave them probable cause to search the car and ordered him, his wife and his child out of it. The officers found a small amount of methamphetamine and three pipes.

The state charged Torgerson with fifth-degree possession of a controlled substance and possession of methamphetamine paraphernalia in the presence of a minor. But Torgerson moved to dismiss the complaint, arguing that the officers conducted the search without probable cause. The District Court agreed.

The state appealed, but the Court of Appeals affirmed the District Court's decision. The state then brought it to the Minnesota Supreme Court for further review, bringing us to this week's ruling. Melvin Welch, Torgerson's attorney, praised ACLU-MN, the state public defender's office and the Minnesota Association of Criminal Defense Lawyers for their support on the case.

The high court's decision is a needed response to changing times. It's also a step toward mitigating racial inequities in Minnesota traffic stops and drug enforcement.

"Our hope is that this will have a positive impact on those disparities," Nelson said.