State of Minnesota,

1

STATE OF MINNESOTA

IN SUPREME COURT

A22-0425

Court of Appeals McKeig, J.
Dissenting, Gildea, C.J., Anderson, J.

State of Minnesota,

Appellant,

vs. Filed: September 13, 2023
Office of Appellate Courts
Adam Lloyd Torgerson,

Respondent.

________________________

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.

2

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.

________________________
S Y L L A B U S
1. The odor of marijuana is one of the circumstances in the totality of
circumstances analysis that should be considered in determining if there is a “fair
probability” that contraband or evidence of a crime will be found in the location searched.
2. Because it is undisputed that there were no other circumstances supporting
the probable cause determination in this case other than the odor of marijuana emanating
from the vehicle, there was not a fair probability that the search would lead to the discovery
contraband or evidence of a crime, and therefore the evidence obtained during the search
must be suppressed.
Affirmed.
O P I N I O N
M
CKEIG, 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
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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
4

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.
5

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

1 The record does not describe the training the officers received on detecting the odors
of marijuana.

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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

2 The district court made a number of factual findings and conclusions of law that
were not based on the record. The court of appeals rejected the factual findings and legal
conclusions that were unsupported by the record or not meaningfully tied to the factual
findings. See State v. Torgerson, No. A22- 0425, 2022 WL 6272042, at *3 (Minn. App.
Oct. 10, 2022). The court of appeals also noted that the district court’s memorandum was
“filled with statements that could reasonably cause a reader to question the [district] court’s
impartiality.” Id. Consequently, the court of appeals rejected the district court’s
“gratuitous comments.” Id. at *4. The court of appeals’ rejection of those findings and
conclusions was not appealed and, therefore, is not before our court.

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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).

3 In the alternative, the State asks this court to apply the good- faith exception to the
exclusionary rule as articulated in State v. Lindquist, 869 N.W.2d 863, 871 (Minn. 2015),
if the court determines that probable cause was lacking. However, the State failed to raise
this argument to the court of appeals or the district court, so the argument is forfeited, and
we decline to consider it. See Steward v. State, 950 N.W.2d 750, 756 (Minn. 2020) (“An
issue is not properly before our court when it is raised ‘[f]or the first time in [a party’s]
brief to our court.’ ” (quoting State v. Campbell, 814 N.W.2d 1, 4 n.4 (Minn. 2012))). The
State did not challenge the district court’s determination that the doctrine of the poisonous
tree required the suppression of the State’s remaining evidence outside of its probable cause
and Lindquist exception arguments.
8

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 (1982))).
“Probable cause requires something more than mere suspicion but less than the
evidence necessary for conviction.” State v. Williams, 794 N.W.2d 867, 871 (Minn. 2011).
“Probable cause is an objective inquiry that depends on the totality of the circumstances in
each case.” Lester, 874 N.W.2d at 771. This is a “ ‘common-sense, nontechnical’ concept
that involves ‘the factual and practical considerations of everyday life on which reasonable
and prudent [people], not legal technicians, act.’ ” Id. (quoting State v. Lee, 585 N.W.2d
378, 382 (Minn. 1998) ). Even so, a warrantless search of a vehicle “ ‘must be based on
objective facts that could justify the issuance of a warrant by a magistrate and not merely
on the subjective good faith of the police officers.’ ” Munson, 594 N.W.2d at 136 (quoting
Ross, 456 U.S. at 808). Probable cause is a fluid concept that takes its “substantive content
from the particular contexts in which [probable cause is] being assessed.” Lee, 585 N.W.2d
at 382. It “exists when there is a ‘fair probability that contraband or evidence of a crime
9

will be found in a particular place.’ ” Onyelobi v. State, 932 N.W.2d 272, 281 (Minn. 2019)
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
The State argues that there is established precedent from our court and the United
States Supreme Court that clearly holds the odor of marijuana, alone, is sufficient to
support probable cause to search a vehicle under the automobile exception. Conversely,
Torgerson argues that under the totality of circumstances test, the odor of marijuana, alone,
cannot create the requisite probable cause to search a vehicle under the automobile
exception.4
Before addressing the parties’ arguments and the relevant caselaw relating to the
probable cause standard, we review Minnesota’s legal landscape surrounding marijuana.
A.
Minnesota statutes list “[m]arijuana, tetrahydrocannabinols, and synthetic
cannabinoids” as a category of “Schedule I” controlled substances “ [u]nless specifically
excepted.” Minn. Stat. § 152.02, subd. 2(h) (2022) (emphasis added). 5 Consequently,

4 Torgerson also argues that the State failed to meet its burden to prove that reasonable
suspicion supported expansion of the traffic stop. This argument was not presented to
either the district court or the court of appeals. Consequently, the argument is forfeited and
we decline to address the issue. See Steward v. State, 950 N.W.2d 750, 756 (Minn. 2020)
(“An issue is not properly before our court when it is raised ‘[f]or the first time in [a party’s]
brief to our court.’ ” (quoting State v. Campbell, 814 N.W.2d 1, 4 n.4 (Minn. 2012))).

5 The State contends that all marijuana is contraband under this statutory definition.
This argument is unavailing given that the statute itself explicitly states that “specifically
excepted” forms of marijuana are not Schedule I controlled substances. See Minn. Stat.
§ 152.02, subd. 2(h)(1)–(2). We also note that the State does not argue chapter 152 is
preempted by federal law, so we decline to address the issue.
10

marijuana that is “excepted” is not a controlled substance. Minnesota statutes had three
exceptions to this controlled substances category at the time of Torgerson’s arrest.6
The first exception is industrial hemp. The aforementioned controlled substances
category generally includes “marijuana,” and “tetrahydrocannabinols,” but not “industrial
hemp” as defined in statute. Minn. Stat. § 152.02, subd. 2(h)(1)–(2). Marijuana is defined
as “all parts of the plant of any species of the genus Cannabis.” Minn. Stat. § 152.01, subd.
9 (2022). Industrial hemp is defined as “the plant Cannabis sativa L. and any part of the
plant . . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent
on a dry weight basis.” Minn. Stat. § 18K.02, subd. 3 (2022). Industrial hemp is derived
from a cannabis plant but contains a lower amount of tetrahydrocannabinol, or THC. 7
The second exception is medical cannabis under Minnesota’s medical cannabis
registry program. See Minn. Stat. § 152.22–.37 (2022). Under this program, “[t]here is a

6 While not relevant to Torgerson’s case because he was charged in 2021, House Bill
100, H.F. 100 (93rd Minn. Leg. 2023) was signed by the Governor in 2023; this bill
addresses legalization and regulation of the personal adult use, possession, and
transportation of cannabis and related marijuana products in Minnesota. Act of May 30,
2023, ch. 63, 2023 Minn. Laws __. Given that this law was not in effect at the time of
Torgerson’s arrest and, consequently, cannot impact the outcome of Torgerson’s case, we
do not discuss this change in the law and instead rely on and review the law in effect at the
time of Torgerson’s arrest.

7 The State argues State v. Dixon—which discussed the distinction between marijuana
and hemp—supports its argument. Yet, Dixon is distinguishable because the court’s
holding had nothing to do with the legality of a warrantless search. 981 N.W.2d 387,
389–95 (Minn. 2022) (holding that the defendant’s admission that the material seized in a
traffic stop was marijuana was enough to survive a motion to dismiss for lack of probable
cause when the defendant moved to dismiss because there was no proof the material seized
was marijuana rather than hemp).

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presumption that a patient enrolled in the registry program . . . is engaged in the authorized
use of medical cannabis.” Minn. Stat. § 152.32, subd. 1(a). Medical cannabis is defined
as “any species of the genus cannabis plant” delivered in specific forms delineated by
statute. Minn. Stat. § 152.22, subd. 6(a).8 The program provides that use or possession of
medical cannabis is not a violation of the law for patients enrolled in the program. Minn.
Stat. § 152.32, subd. 2(a). Consequently, there are citizens who are lawfully permitted to
possess and use medical cannabis, meaning medically approved cannabis is not contraband
for those patients.
Finally, Minnesota’s criminal statutes provide that possession of a “small amount”
of marijuana is a petty misdemeanor. Minn. Stat. § 152.027, subd. 4(a) (2022). Small
amount means 42.5 grams or less. Minn. Stat. § 152.01, subd. 16 (2022). Additionally,
possession of less than 1.4 grams of marijuana in a car is a petty misdemeanor. See Minn.
Stat. § 152.027, subd. 3 (providing that possession of over 1.4 grams of marijuana in a
vehicle is a misdemeanor). A petty misdem eanor is an “offense which is prohibited by
statute” but “does not constitute a crime.” Minn. Stat. § 609.02, subd. 4a (2022).
Possession of marijuana, consequently, is not always a crime.

8 These forms include, but are not limited to, liquid/oil form, a vaporized delivery
method, and combustion with use of dried raw cannabis. Minn. Stat. § 152.22, subd.
6(a)(1),(3),(4). The ability for patients to legally combust or smoke dry cannabis was not
enacted until May 2021 and did not become effective until March 1, 2022, after
Torgerson’s arrest. Act of May 21, 2021, ch. 30, art. 3, § 29, 2021 Minn. Laws 400, 461–
62 (codified as amended at Minn. Stat. § 152.22, subd. 6 (2022)).
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B.
Having reviewed the intricate legal landscape surrounding cannabis use and
possession in Minnesota at the time of Torgerson’s arrest, we consider the decisions—both
from our court and others—that the parties claim bear on the probable cause issue here as
it relates to the odor of marijuana.
The State cites a series of prior decisions for the proposition that the odor of
marijuana, alone, is sufficient to support probable cause to search a vehicle under the
automobile exception. These cases, however, do not reach as far as the State claims. The
State argues that the City of St. Paul v. Moody, 244 N.W.2d 43, 44 (Minn. 1976) (per
curiam) supports its argument that an odor alone can create probable cause. Moody,
however, involved a phone call to police reporting suspicious behavior of people in an
illegally parked car with heavily fogged windows. Id. When the passengers opened a door
to talk to police, the officers smelled a strong odor of paint fumes and then searched the
vehicle and found evidence of paint sniffing and a firearm. Id. We determined the strong
odor of paint fumes created probable cause to believe the occupants had been sniffing paint.
Id. Consequently, the circumstances informing the officer’s probable cause determination
consisted of considerably more than just the odor of paint fumes, including suspicious
behavior by the vehicle’s occupants and an illegally parked vehicle.9

9 Torgerson points out that most case law on whether the odor of marijuana creates
probable cause (including Moody) is based on State v. Wicklund, 205 N.W.2d 509 (Minn.
1973) (per curiam), superseded by statute¸ Minn. Stat. § 152.15, subd. 2(4) (1976), as
recognized in State v. Ortega, 770 N.W.2d 145, 149 n.2 (Minn. 2009). This court
considered the impact that the odor of marijuana has in a probable cause determination in
13

The State next argues that State v. Schultz, 271 N.W.2d 836 (Minn. 1978) (per
curiam), supports its argument that probable cause to search under the automobile
exception can be supported solely by the odor of marijuana. We find this argument
unpersuasive. The “sole issue” before our court in Schultz was whether the district court
judge, acting as a fact finder at an omnibus hearing, resolved a factual dispute about
evidence relating to the appellant’s motion to suppress on Fourth Amendment grounds. Id.
at 837. The officer claimed that he could smell marijuana while standing by the driver’s
window, and the marijuana was wrapped in plastic bags inside grocery bags placed on the
floor by the passenger’s feet. Id. Appellant admitted that the marijuana could be smelled
through the plastic bags and grocery bags but denied that the marijuana’s odor was
detectible from where the officer was standing. Id.

Wicklund, but Wicklund involved a search of a person incident to arrest, not the search of
an automobile. See Wicklund, 205 N.W.2d at 510–11 (holding officers had probable cause
to search the defendant incident to arrest after a traffic stop of a slow-moving and erratically
driven car with oddly-acting passengers engaged in furtive movements because the officers
could smell the odor of marijuana emanating from the car and could see beer cans in the
back seat). Also, as we clarified in Ortega, 770 N.W.2d at 149 n.2, Wicklund was
superseded by statute; specifically, Minn. Stat. § 152.15, subd. 2(4) (1971) was amended
in 1976 to provide that possession of a small amount of marijuana was only a petty
misdemeanor. Ortega, 770 N.W.2d at 149 n.2. Like Wickland, Ortega is distinguishable
from the present case because it involved the search of a person incident to arrest rather
than a search under the automobile exception. Id. at 147–49; see Chambers v. Maroney, 399 U.S. 42, 49 (1970) (holding that “the search of an auto[mobile] on probable cause
proceeds on a theory wholly different from that justifying the search incident to an arrest”
because the right to search a vehicle is dependent not on cause to arrest, but on the
reasonable cause the officer has to believe that the automobile has illegal contraband).
14

In other words, the di sputed issue at the omnibus hearing was whether the officer
was truthful when he testified that he smelled marijuana. Id. We stated, “[i]f he did, then
the officer properly conducted a warrantless search of the passenger compartment for
marijuana pursuant to the so-called motor vehicle exception to the warrant requirement.”
Schultz, 271 N.W.2d at 837 (citing Wicklund, 205 N.W.2d 509). We explained that “at a
pretrial suppression hearing the trial court acts as finder of facts, deciding for purposes of
admissibility which evidence to believe and whether the state has met its burden of proof.”
Id. (citation omitted) (internal quotation marks omitted). Although the district court did
not think it was his function to act as a fact finder on the disputed issue, the district court
did issue formal written findings after the omnibus hearing that resolved the disputed
question about whether the officer was truthful, and “we [would] not go behind those
findings,” so we affirmed the appellant’s conviction. Id.
Our per curiam opinion in Schultz did not decide the legitimacy of the district
court’s probable cause determination. Moreso, the opinion contained very few details
about the factual circumstances surrounding the stop of appellant’s vehicle. Our comment
in Schultz about probable cause also relied on Wicklund , 205 N.W.2d 509, which we
recognized as superseded by Minn. Stat. § 152.15, subd. 2(4) (1976), because possession
of a small amount of marijuana was decriminalized. See Ortega, 770 N.W.2d at 149 n.2.
Furthermore, as discussed in depth above, the legal framework surrounding marijuana has
changed since 1978 —both hemp and medical marijuana were legal at the time of
Torgerson’s arrest.
15

The State argues that State v. Schinzing, 342 N.W.2d 105 (Minn. 1983), supports its
argument that the odor of marijuana, alone, creates probable cause to search because the
odor of alcohol justified a search under the automobile exception. In Schinzing, an officer
observed a vehicle driving erratically, stopped the vehicle, and determined the driver and
passengers were under 21. Id. at 106–07. The officer smelled the odor of alcohol coming
from inside the car and, when asked, the passengers admitted they drank alcohol. Id. at
107. The officer searched the vehicle for open containers, which he found with marijuana
paraphernalia. Id. We determined the officer’s search of the passenger compartment of
the vehicle was supported by probable cause given the odor of alcohol emanating from the
underage passengers and their admission to drinking. Id. at 109. Schinzing involved more
than just the odor of alcohol in the circumstances contributing to the probable cause
determination, including erratic driving and the passengers’ admission to underage
drinking.
Instead, we find State v. Burbach, 706 N.W.2d 484 (Minn. 2005), to be more
instructive than the cases relied on by the State. In Burbach, we determined that the odor
of alcohol emanating from an adult passenger at a traffic stop did not provide reasonable
suspicion of an open-container violation that would allow expansion of a traffic stop. Id.
at 489. In Burbach, the officer pulled the vehicle over for speeding and smelled alcohol,
but the adult passenger claimed the alcohol odor came from him, and while the officer
testified that the driver’s nervousness suggested intoxication, the officer also determined
that the driver did not smell of alcohol or show any other signs of intoxication. Id. at 486.
The officer still requested and received consent to search the vehicle and found contraband.
16

Id. at 487. We explained that the officer’s request for consent was an improper intrusion
because it was not supported by reasonable articulable suspicion of additional criminal
activity. Id. at 491. Burbach is helpful to our analysis here because it shows that reasonable
suspicion—which requires a lesser showing than probable cause—did not exist when the
only evidence of wrongdoing was the odor of alcohol. See State v. Timberlake,
744 N.W.2d 390, 393 (Minn. 2008) (explaining that the “reasonable suspicion standard is
not high” and that the “standard is less demanding than probable cause” (citation omitted)
(internal quotation marks omitted)).
Additionally, in Burbach, we clarified our holding in Schinzing, 342 N.W.2d 105.
In Burbach, the State argued that the Schinzing holding articulated “a bright-line rule that
the odor of alcohol always justifies a vehicle search.” 706 N.W.2d at 489. We explained
that the required constitutional analysis in these cases “must be ‘individualized’ and viewed
under ‘the totality of the circumstances’ of each case.” Id. So, the odor of alcohol in
Schinzing had to be examined in the light of that particular context, which importantly
included the underage passengers who could not legally drink alcohol. Id.
This review of relevant precedent confirms that the totality of the circumstances test
utilized in a probable cause determination is meant to be applied anew in each case based
on the unique circumstances present. See, e.g., Lester, 874 N.W.2d at 771 (“Probable cause
is an objective inquiry that depends on the totality of the circumstances in each case .”
(emphasis added)). 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 shied
17

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.
But nor do the rulings of the district court and court of appeals in this case in
suppressing the evidence go so far as to draw a bright-line rule in the other direction that
probable cause cannot exist if there is any legal explanation for the marijuana odor—a
proposition that is inconsistent with our precedent. Instead, consistent with our precedent,
the probable cause analysis calls for the odor of marijuana to be one of the circumstances
considered as part of the totality of the circumstances in assessing whether there is a fair
probability that contraband or evidence of a crime will be found in a particular place. See
State v. Carter, 697 N.W.2d 199, 204– 05 (Minn. 2005) (“When examining whether a
search was supported by probable cause, the ultimate question is whether there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
(citation omitted) (internal quotation marks omitted)). Therefore, under our precedent, the
odor of marijuana should be considered along with the totality of any other circumstances
to determine whether there is a fair probability that a search will yield contraband or other
evidence that marijuana is being used in a criminally illegal manner. In other words, 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, which, under
the legal landscape set forth in part I.A. and at the time of the search here, means more than
a small amount of marijuana, that is not hemp, and is not being used under the medical
cannabis registry program.
18

This inquiry is consistent with and reinforced by the Colorado Supreme Court’s
2016 decision in People v. Zuniga, 372 P.3d 1052, 1057 (Colo. 2016), in which it was
asked to review what “role . . . the odor of marijuana can play in the totality of the
circumstances test in light of the fact that possession of one ounce or less of marijuana is
now allowed under Colorado law.” In Zuniga, an officer pulled a vehicle with Iowa plates
over, noted a heavy odor of marijuana upon approaching the vehicle, and observed that the
two men in the car were overly nervous, sweating, and had delayed response times when
answering questions; the men also gave inconsistent stories about why they were in
Colorado; and a drug sniffing dog alerted that there may be drugs in the vehicle. Id. at
1054–55. The officer searched and found a duffel bag with a pound of marijuana in the
vehicle. Id. at 1055. The Colorado law at issue, Amendment 64, provided that it was
neither unlawful nor an offense under Colorado law for people over 21 to possess an ounce
or less of marijuana, but it was criminal to knowingly possess more than one ounce of
marijuana. Id. at 1057. Consequently, similar to the law in Minnesota, “Colorado law
ma[de] certain marijuana-related activities lawful and others unlawful.” Id. The Colorado
Supreme Court explained that the odor of marijuana is properly included in a totality of the
circumstances analysis “and the possibility of an innocent justification merely affects a
fact’s weight and persuasiveness, not its inclusion in the analysis.” Id. at 1058.
We find the Colorado Supreme Court’s analysis persuasive and in line with our
precedent. Consequently, we hold that the odor of marijuana may be considered as part of
the probable cause calculus. Specifically, the odor of marijuana is one of the circumstances
in the totality of circumstances analysis that should be considered in determining if there
19

is a “fair probability” that contraband or evidence of a crime will be found in the location
searched. Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Gail, 713 N.W.2d 851, 858
(Minn. 2006).10
II.
We now apply this rule to Torgerson’s case. The facts relating to the vehicle stop
are undisputed, so we review de novo whether the totality of the circumstances established
a fair probability that contraband or evidence of a crime would be found in Torgerson’s
vehicle. See State v. Flowers, 734 N.W.2d 239, 248 (Minn. 2007) (“When the facts are not
in dispute, our review is de novo, and we must determine whether the police articulated an
adequate basis for the search or seizure at issue.”).
It is undisputed that the only indication that evidence of a crime or contraband may
be found in Torgerson’s vehicle was the odor of marijuana emanating from the vehicle.
The first officer testified that he “could smell a strong odor of burnt marijuana” emanating

10 An amicus brief filed by the ACLU cited to relevant data and studies that illustrate
the reasons the odor of marijuana, alone, should not create probable cause to search,
contrary to the dissent’s contention. For example, according to the Minnesota Medical
Cannabis Dashboard, the number of people permitted to possess medical cannabis is
around 40,000 people, and that number is expected to double or triple. Data were also
presented on the related but distinct issue of how often contraband or evidence of a crime
is found in a motor vehicle when the odor of marijuana emanates from it. For example, a
study reviewing traffic stops in Philadelphia, which analyzed 25,000 stops, revealed that
the police documented an odor of marijuana in 3,300 of those stops, but only uncovered
contraband in 9.4% of those cases. This study means the odor of marijuana only led to the
discovery of any contraband 1 of 10 times and suggests that the smell of marijuana does
not necessarily lead to a “fair probability” that a crime is occurring. Finally, the amicus
brief noted that the probability that the odor of marijuana will lead to the discovery of
contraband or evidence of crime is further lessened by the fact that cannabidiol (CBD)
cigarettes also produce the odor of burnt cannabis and can be legally possessed.
20

from the vehicle, that he could not smell the odor before approaching the vehicle, and that
the odor’s strength ranked as a five on a scale of one to ten. The second officer testified
that he “could immediately [smell] the odor of marijuana coming from inside the vehicle,”
the odor “was strong enough that [he] immediately recognized it when [he] got to the
window,” and that the odor “definitely wasn’t the faintest” marijuana odor he had ever
smelled, but “it definitely wasn’t the strongest.” Neither officer articulated any other
circumstance contributing to their probable cause analysis. There was nothing in
Torgerson’s actions to give suspicion that he was under the influence while driving, no
drug paraphernalia or other evidence to indicate that the marijuana was being used in a
manner, or was of such a quantity, so as to be criminally illegal, and no evidence showing
that any use was not for legal medicinal purposes. In the absence of any other evidence as
part of the totality of the circumstances analysis, 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.
In this case, the officers relied solely on the medium-strength odor of marijuana
when determining there was a fair probability that contraband or evidence of a crime would
be found in Torgerson’s vehicle—the very bright-line rule for probable cause advanced by
the State and which we have rejected. Accordingly, we affirm the court of appeals decision
that the district court properly suppressed the evidence obtained as result of the search of
Torgerson’s vehicle.
21

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.
D-1
D I S S E N T

GILDEA, Chief Justice (dissenting).
The question in this case is whether there was probable cause to search Adam Lloyd
Torgerson’s car after the police officers noticed the odor of marijuana emanating from the
car. “Probable cause exists when there is a ‘fair probability that contraband or evidence of
a crime will be found in a particular place. ’ ” Onyelobi v. State, 932 N.W.2d 272, 281
(Minn. 2019) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). This is not a high
standard. See State v. Harris , 589 N.W.2d 782, 790 (Minn. 1999) (“The evidence
necessary to support a finding of probable cause is significantly less than that required to
support a conviction.”). It does not require certainty or even a preponderance of the
evidence. See Florida v. Harris, 568 U.S. 237, 243–44 (2013). Rather, fair probability is
a “ ‘common-sense, nontechnical concept’ that involves ‘the factual and practical
considerations of everyday life.’ ” State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016)
(quoting State v. Lee, 585 N.W.2d 378, 382 (Minn. 1998)). Applying that common-sense
standard here, I conclude there was probable cause for the police to search Torgerson’s car.
Accordingly, I dissent.
The majority agrees that the odor of marijuana may be considered in determining
whether there is a fair probability that contraband or evidence of a crime will be found in
a motor vehicle. Supra at 17-19. But according to the majority, such an odor by itself fails
to establish a fair probability that contraband or evidence of a crime will be found in a
vehicle. Supra at 20. I disagree.
D-2
When the officers searched Torgerson’s vehicle on July 5, 2021, possession of
certain amounts of marijuana by certain people was a crime. See generally Minn. Stat.
ch. 152 (2022); supra at 9–11. And except for people with medical authorization,
possession of all marijuana was prohibited by statute. See Minn. Stat. § 609.02, subd. 4a
(2022) (“ ‘Petty misdemeanor’ means a petty offense which is prohibited by statute, which
does not constitute a crime.”); Minn. Stat. § 152.027, subd. 4(a) (making unlawful
possession of “a small amount of marijuana” a petty misdemeanor); id., subd. 3 (making it
a misdemeanor to have more than 1.4 grams of marijuana “within the area of the vehicle
normally occupied by the driver or passengers”); Minn. Stat. § 152.01, subd. 16 (defining
“small amount” of marijuana as 42.5 grams or less); see Robinson v. State, 152 A.3d 661,
680 (Md. 2017) (“Decriminalization is not the same as legalization.”). Thus, all
marijuana— except for medical marijuana—was contraband. Robinson, 152 A.3d at 682
(“ ‘[C]ontraband’ means goods that are illegal to possess, regardless of whether possession
of the goods is a crime.”). Because marijuana is contraband in Minnesota, the smell of
marijuana coming from inside a car would lead a reasonable and prudent person
considering the factual and practical considerations of everyday life to conclude that there
likely will be marijuana in the car. Accordingly, there was probable cause to search the
car.
Other courts have recognized this common-sense application of the probable cause
standard. For example, the Wisconsin Supreme Court, in State v. Secrist, explained that
“a common sense conclusion when an officer smells the odor of a controlled substance is
that a crime has probably been committed.” 589 N.W.2d 387, 394 (Wis. 1999) (emphasis
D-3
added). That court recently reaffirmed the conclusion in State v. Moore, 991 N.W.2d 412,
417 (Wis. 2023), rejecting the defendant’s argument that “the odor of marijuana cannot be
unmistakable when there are innocent explanations for it—such as the odor of CBD, a legal
substance that [the defendant] stated his vape pen was used for.” The Ohio Supreme Court
reached a similar conclusion in State v. Moore, 734 N.E.2d 804, 808 (Ohio 2000),
explaining that “if the smell of marijuana, as detected by a person who is qualified to
recognize the odor, is the sole circumstance, this is sufficient to establish probable cause.”
The Wyoming Supreme Court has also concluded that the odor of burnt marijuana by itself
establishes probable cause to search a motor vehicle. Ray v. State, 432 P.3d 872, 878 (Wyo.
2018). Finally, the rule is the same in the federal courts. United States v. Downs, 151 F.3d
1301, 1303 (10th Cir. 1998) (“The smell of burnt marijuana would lead a person of ordinary
caution to believe the passenger compartment might contain marijuana.” (quoting United
States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993))); see United States v. Williams,
955 F.3d 734, 737 (8th Cir. 2020) (“We have repeatedly held that the odor of marijuana
provides probable cause for a warrantless search of a vehicle under the automobile
exception.”); United States v. Smith , 789 F.3d 923, 929 (8th Cir. 2015) (declining t o
“distinguish between a faint smell and a strong smell in determining whether the marijuana
odor is enough to prolong a stop”); United States v. Wald, 216 F.3d 1222, 1226 (10th Cir.
2000) (noting “the common-sense proposition that the smell of burnt marijuana is
indicative of drug usage”).
Moreover, even accepting the majority’s premise that possession of some amount
of marijuana was legal, the Fourth Amendment does not require a police officer to know
D-4
with certainty that the vehicle contains an illegal amount of marijuana. Instead, it simply
requires a fair probability that the car contains an illegal amount of marijuana, or evidence
of an illegal amount of marijuana. The Supreme Court has rejected efforts to attach “some
general, numerically precise degree of certainty” to probable cause. Illinois v. Gates, 462 U.S. 213, 235 (1983). The required analysis “does not deal with hard certainties, but
with probabilities.” Id. at 231 (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))
(emphasis added). Our analysis should not include “ ‘[f]inely tuned standards such as proof
beyond a reasonable doubt or by a preponderance of the evidence;’ ” all that is required is
a “ ‘fair probability.’ ” Florida v. Harris, 568 U.S. 237, 243–44 (2013) (quoting Illinois v.
Gates, 462 U.S. 213, 235, 238 (1983)); State v. Harris, 589 N.W.2d 782, 790 (Minn. 1999)
(“The evidence necessary to support a finding of probable cause is significantly less than
that required to support a conviction.”). In other words, the inquiry is not whether it was
more likely than not that Torgerson had illegal marijuana in his vehicle, the inquiry is
whether—after noticing the smell of marijuana coming from the vehicle on both the
driver’s and passenger’s sides—a reasonable person would co nclude that there was a fair
probability that there was an illegal amount of marijuana in the vehicle. I would conclude
that there is.
In sum, the smell of burnt marijuana suggests that someone smoked marijuana in
the car. Common sense tells us that when a person has recently smoked marijuana in their
car, there is a fair chance that more marijuana for personal use will be in the car.1 See State

1 The majority relies on State v. Burbach, 706 N.W.2d 484, 489 (Minn. 2005). We
said there that “[t]o allow a vehicle search solely because an adult passenger smelled of
D-5
v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) (stating that “innocent activity might
justify the suspicion of criminal activity”). Under the marijuana laws at the time that
Torgerson was pulled over, there was a fair probability that an illegal amount of marijuana,
or evidence of an illegal amount of marijuana, would be found in a vehicle from which
police officers detected the odor of burnt marijuana. For the foregoing reasons, I dissent.

ANDERSON, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.

alcohol would be to pe rmit highly speculative searches against a large group of entirely
law-abiding motorists, including designated drivers.” Burbach is not helpful here because
the police ruled out the driver as the source of the alcohol smell and the passenger in the
car ad mitted to drinking alcohol elsewhere and then getting in the car. Here, the
information the police had suggests that someone smoked marijuana while in the car.