State v. Torgerson

995 N.W.2d 164

STATE of Minnesota, Appellant, v. Adam Lloyd TORGERSON, Respondent.

A22-0425

Supreme Court of Minnesota.

Filed: September 13, 2023

Keith Ellison, Attorney General, St. Paul, Minnesota; and Brandi L. Schiefelbein, Meeker County Attorney, John P. Fitzgerald, Assistant County Attorney, Travis J. Smith, William C. Lundy, Special Assistant County Attorneys, Slayton, Minnesota, for appellant.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota; and Melvin R. Welch, Welch Law Firm, LLC, Minneapolis, Minnesota, for respondent.

Teresa Nelson, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota; and Julian Clark, American Civil Liberties Union Foundation, New York, New York, for amici curiae American Civil Liberties Union Foundation and American Civil Liberties Union of Minnesota.

Shauna Faye Kieffer, Jay M. Wong, Minnesota Association of Criminal Defense Lawyers, Roseville, Minnesota, for amicus curiae Minnesota Association of Criminal Defense Lawyers.

Robert Small, Executive Director, Bill Lemons, Traffic Safety Resource Prosecutor, Minnesota County Attorneys Association, Saint Paul, Minnesota;

Tyler Kenefick, Assistant St. Louis County Attorney, Hibbing, Minnesota; and Kevin A. Hill, Assistant Carver County Attorney, Chaska, Minnesota, for amicus curiae Minnesota County Attorneys Association.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for amici curiae Restore the Fourth, Inc., Restore the Fourth Minnesota, and Sensible Minnesota.

OPINION

McKEIG, Justice.

Appellant State of Minnesota charged respondent Adam Lloyd Torgerson with possession of methamphetamine paraphernalia in the presence of a minor and fifth-degree possession of a controlled substance after a traffic stop and subsequent search of Torgerson's vehicle. This search was justified only by the odor of marijuana emanating from the vehicle. Torgerson moved to suppress the evidence found during the search, arguing that the odor of marijuana, alone, is insufficient to create the requisite probable cause to search a vehicle under the automobile exception to the warrant requirement. The district court granted Torgerson's motion, suppressed the evidence, and dismissed the complaint. The State appealed. The court of appeals affirmed the district court's suppression order. Because we conclude that the odor of marijuana emanating from a vehicle, alone, is insufficient to create the requisite probable cause to search a vehicle under the automobile exception to the warrant requirement, we affirm.

FACTS

On July 5, 2021, just before 10 p.m., a Litchfield Police Officer stopped a motor vehicle because the light bar mounted on the vehicle's grill had more auxiliary driving lights than permitted by Minnesota statute. See Minn. Stat. § 169.56 (2022) (providing the auxiliary light law). The officer approached the vehicle and asked the driver, Adam Lloyd Torgerson, for his license and registration. Torgerson, his wife, and his child were in the vehicle. 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.

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.

The State charged Torgerson with one count of possession of methamphetamine paraphernalia in the presence of a minor in violation of Minn. Stat. § 152.137, subd. 2(a)(4) (2022), and one count of fifth-degree possession of a controlled substance in violation of Minn. Stat. § 152.025, subd. 2(1) (2022).

Torgerson moved to suppress the evidence obtained from the vehicle search and dismiss the complaint, arguing that the officers illegally expanded the traffic stop into a search without the requisite probable cause. The district court held a contested omnibus hearing and the parties stipulated to one exhibit—the body-worn camera footage from each officer—and the court heard testimony from both officers and Torgerson's wife.

At the suppression hearing, the first officer testified that he "could smell a strong odor of burnt marijuana" emanating from the vehicle and that Torgerson denied possessing any marijuana. He also recalled telling the second officer that he "could smell marijuana and it wasn't rolling out of the vehicle," which he explained meant that he could not smell the marijuana odor before approaching the vehicle. The first officer ranked the strength of the odor as a five on a scale from one to ten. He also claimed that he could recognize the difference between the odor of burnt and unburnt marijuana, describing that "for [him]," burnt marijuana has "more of like a skunkier smell, more strong smell." The second officer testified that he is trained on the odor of marijuana and that he "could immediately [smell] the odor of burnt marijuana coming from inside the vehicle." ¹ The odor "was strong enough that [he] immediately recognized it when [he] got to the window." "It definitely wasn't the faintest" odor of marijuana he had ever smelled, but "it definitely wasn't the strongest." Neither officer could recall seeing any indicia that Torgerson was impaired.

After the hearing, the district court ordered that all the evidence obtained as a result of the search be suppressed and dismissed the complaint. The district court made findings of fact consistent with the testimony—both officers smelled the odor of marijuana emanating from Torgerson's vehicle, the officers justified the vehicle search solely on that odor of marijuana, neither officer observed any indicia of impairment, and neither officer saw any contraband or substances in plain view. ²

The district court explained that Minnesota case law does not permit vehicle searches solely because adult passengers smell like alcohol, see State v. Burbach , 706 N.W.2d 484 (Minn. 2005), and analogized that the same analysis should apply to the odor of marijuana, given that possession of a certain amount of marijuana is a non-criminal petty misdemeanor, see Minn. Stat. §§ 152.027, subd. 4(a), 152.01, subd. 16 (2022). Consequently, the district court determined the items found in the search of Torgerson's vehicle were fruit of the poisonous tree because they were seized during an illegal search and, therefore, should be suppressed.

The State appealed. The court of appeals affirmed the district court's suppression order. State v. Torgerson , No. A22-0425, 2022 WL 6272042, at *1 (Minn. App. Oct. 10, 2022). The court of appeals asserted that it did not "reach the issue of whether the odor of marijuana, alone, is enough to establish probable cause." Id. at *2. The court of appeals explained that the officers did not witness Torgerson drive unsafely or erratically, did not recall Torgerson displaying any indicia of impairment, nervous or evasive behavior, or furtive movements, and did not see any drug paraphernalia in plain view in the vehicle. Id. at *3.

We granted the State's petition for further review.

ANALYSIS

This case requires us to assess the parameters of the probable cause test as it applies to automobile exception cases involving the odor of marijuana, and then to apply the test to Torgerson's motions to suppress evidence and dismiss the complaint. ³ We address each issue in turn.

I.

We review a district court's probable cause determination as it relates to a warrantless search de novo. State v. Lester , 874 N.W.2d 768, 771 (Minn. 2016) ("We review de novo a trial court's determination of probable cause as it relates to a warrantless search"); see also State v. Harris , 590 N.W.2d 90, 98 (Minn. 1999) (holding that when facts are not in dispute, this court reviews a suppression order de novo to determine whether police articulated an adequate basis for the search).

Both the United States Constitution and the Minnesota Constitution protect against "unreasonable searches and seizures." U.S. Const. amend. IV ; Minn. Const. art. I, § 10. "[S]earches conducted outside of the judicial warrant process are per se unreasonable" unless "one of the well-delineated exceptions to the warrant requirement" applies. State v. Munson , 594 N.W.2d 128, 135 (Minn. 1999). One of these well-delineated exceptions, the automobile exception, permits police to "search a car without a warrant, including closed containers in that car, if there is ‘probable cause to believe the search will result in a discovery of evidence or contraband.’ " Lester , 874 N.W.2d at 771 (quoting State v. Search , 472 N.W.2d 850, 852 (Minn. 1991) (citing United States v. Ross , 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) )).

"Probable cause requires something more than mere...