Marijuana odor not probable cause for a police search: Court

Recreational marijuana is legal now in Minnesota for adults, and a recent Minnesota Court of Appeals ruling has upheld the precedent that its odor can't be used as probable cause for police officers to perform a search without a warrant.

The initial charges stem from an incident that involved possession of a pistol before recreational marijuana was legalized in Minnesota.

In February 2021, Jhonathan Jontae Robinson was charged with possession of a pistol without a permit, violating Minnesota law, following a traffic stop for driving 68 mph in a 55 mph zone. He was also charged with obstruction of legal process, and possession of over 1.4 grams of marijuana in a motor vehicle.

During the course of the stop, a police officer was said to have, "smelled an odor of marijuana coming from Robinson’s vehicle."

Robinson initially denied that his vehicle smelled like marijuana, and refused to allow law enforcement to perform a search. 

After allegedly refusing commands from two officers involved in the stop, Robinson was physically removed from the car – at which point police found a loaded handgun in the center console and the marijuana.

Prior to the discovery, there was no evidence, and later no findings by the district court, that Robinson displayed any signs of impairment while driving. There was also no evidence that law enforcement observed contraband in plain view before they found it.

A district court initially determined that once law enforcement stopped Robinson and "detected the odor of marijuana inside the vehicle," there was "sufficient probable cause for the officers to search the vehicle and any container that may reasonably contain evidence of criminal activity related to the marijuana odor."

Jury decision, Robinson's defense

A jury eventually found Robinson guilty of firearm and marijuana possession, and he was sentenced to concurrent 365-day jail sentences.

During his defense, Robinson argued to suppress all evidence discovered during the traffic stop and search of his vehicle. He also argued to dismiss the charges due to insufficient probable cause for police to search his car.

The district court in which he was charged ultimately denied both motions.

Robinson appealed the decision, arguing that the district court was wrong in determining that the smell of marijuana alone provided probable cause for law enforcement to search his vehicle without a warrant.

Through his appeal, he asked the court to reverse his concurrent 365-day gross misdemeanor jail sentences, and asked for a re-sentencing because the maximum sentence for a gross misdemeanor is now 364 days. 

In the Appellate Court opinion, written by Judge Keala C. Ede, the court ultimately agreed with Robinson, concluding that police lacked probable cause to search his vehicle.

Citing several legal precedents, the Appellate Court judges wrote that, "Probable cause requires more than mere suspicion, but less than the evidence necessary for conviction," while agreeing that, "the United States and Minnesota Constitutions prohibit ‘unreasonable searches and seizures’ by the government."

While Robinson’s appeal was pending, the Minnesota Supreme Court ruled in 2023 that marijuana odor can’t be the basis to support probable cause for a vehicle search, ruling in part that, "For probable cause to arise, the totality of the circumstances must give rise to a fair probability that the marijuana is being possessed or used in a criminally illegal manner… In the absence of any other evidence… Marijuana odor on its own is insufficient to establish a fair probability that the search would yield evidence of criminally illegal drug-related contraband or conduct."

The Appellate Court ruling ultimately chose to "reverse and remand" Robinson’s case to the district court, with instructions to reopen its hearing.