State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-2019

State of Minnesota,
Respondent,

vs.

Donte Marquez Henry,
Appellant.

Filed December 8, 2025
Affirmed
Bentley, Judge

Sherburne County District Court
File No. 71-CR-23-1398

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Dawn R. Nyhus, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bentley, Presiding Judge; Wheelock, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
BENTLEY, Judge
Appellant Donte Marquez Henry challenges the district court’s denial of his motion
to suppress evidence seized after police decided to conduct a warrantless search of his car.
2
Specifically, he asserts that the police lacked probable cause to search and that the district
court erred in denying the motion. We affirm.
FACTS
The following facts derive from the evidence admitted at a contested omnibus
hearing on Henry’s motion to suppress. The evidence included officer testimony and
footage from the officer’s body-worn and squad-car cameras.
An officer with the Becker Police Department noticed a car without its lights on
leaving a gas station at night. The officer followed the car and observed that its lights came
on but that its right brake light did not function properly. The officer initiated a stop, and
the driver pulled over.
When the officer approached the car and began speaking with the driver through an
open window, he smelled what he described as a “very strong odor” of “fresh marijuana.”
The driver, identified as Henry, told the officer that his driver’s license was revoked. At
that time, the officer asked Henry, “How much weed do you have in here?” In response,
Henry picked up a small, ceramic container with a screw top from the center console and
said that he had a medical marijuana card. The officer then asked, “That’s not your medical
container, is it?” Henry explained that it was an odor-blocking container. The officer told
Henry that it was not working well because he could smell the marijuana as soon as the
window was rolled down.
While Henry looked for his medical marijuana card, the officer asked Henry to give
him the marijuana container. After opening and inspecting the marijuana, the officer noted
it was “already all ground up.” The officer observed that the container did not meet
3
Minnesota packaging requirements, a misdemeanor offense. See Minn. Stat. § 169A.36,
subd. 3 (Supp. 2023).
The officer then asked Henry to pull into a nearby parking lot and followed behind
him in the squad car. After running Henry’s information through dispatch, the officer
confirmed that Henry’s license had been revoked, “learned that [he] had several felony
convictions for different violent crimes so that he was prohibited from possessing . . . any
kind of firearms and ammunition,” and saw that he was subject to supervised release. The
officer also observed that, as a condition of Henry’s supervised release, “he was prohibited
from using or possessing mood-altering substances.”
When the officer reapproached the car, Henry showed him his medical marijuana
card on his phone. The officer asked Henry to step out of his vehicle. He informed Henry
that his marijuana was not packaged in compliance with the law, asked about his probation
status, and mentioned that he is not allowed “to have mood-altering substances.” Henry
stated that he had permission from his parole officer to have marijuana and offered to call
her to confirm. The officer then asked if he would find anything else in the car, and Henry
explained there were “cones” for packing marijuana. At that moment, the officer told Henry
that he was going to search the car and asked if he would “find any surprises?” Henry said
yes and informed the officer that he had a gun on his chest. The officer then placed Henry
in handcuffs and retrieved the firearm from inside Henry’s jacket.
After the officer secured Henry in the back of the squad car, Henry’s car was
searched. The search revealed “a soft-sided holster with an additional 9mm magazine”
between the driver’s seat and center console and half of a box of ammunition in the back
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seat. An inspection of the firearm retrieved from Henry’s jacket showed that it was loaded
and its serial number appeared to have been removed.
Respondent State of Minnesota charged Henry with possession of a firearm or
ammunition by an ineligible person, in violation of Minnesota Statutes section 624.713,
subdivision 1(2) (2022 ), with reference to section 624.713, subdivision 2(b), and with
driving after revocation, in violation of Minnesota Statutes section 171.24, subdivision 2
(2022). Henry moved to suppress the evidence that was seized after the officer announced
he would search the car. The district court held a contested omnibus hearing on the motion
during which the officer testified. After the hearing, the district court denied the motion.
The district court found the officer’s testimony credible. It also concluded that the
officer had reasonable, articulable suspicion that there would be additional contraband
beyond the marijuana in noncompliant packaging to support expansion of the initial traffic
stop. And the district court determined that the officer had probable cause to search Henry’s
car. In its analysis, the district court misstated that a Minnesota Supreme Court decision,
State v. Torgerson, 995 N.W.2d 164 (Minn. 2023), discussed below, had not yet been
decided at the time of Henry’s stop. Later in its analysis, however, the district court
determined that, even if Torgerson applied, the officer had probable cause.
Henry waived his right to a jury trial and stipulated to the state’s case to preserve
his right to appeal the dispositive suppression ruling under Minnesota Rule of Criminal
Procedure 26.01, subdivision 4. The district court found Henry guilty on both counts. It
sentenced Henry to 60 months’ imprisonment on the firearm-possession conviction and
90 days’ imprisonment on the driving-after-revocation conviction.
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Henry appeals the firearm-possession conviction.
DECISION
We first address the scope of the issues on appeal. Henry’s primary argument is that
the smell of marijuana alone was the basis for the officer’s announcement that he would
search the car, which led to Henry’s confession about the gun. Applying the supreme
court’s decision in Torgerson, he maintains that the smell of marijuana was insufficient to
establish probable cause. He also contends that the district court’s probable-cause
determination must be reversed because the district court’s order demonstrates that the
district court had a mistaken belief that the stop took place before Torgerson was decided,
when the stop occurred after that decision was filed.
Alternatively, for the first time in his reply brief, Henry argues that a separate
constitutional violation occurred when the officer first asked Henry about marijuana in his
car. Because Henry did not make this argument in his motion to suppress or in his initial
brief on appeal, the issue is forfeited, and we decline to review it on the merits. See
Fontaine v. Steen, 759 N.W.2d 672, 676 (Minn. App. 2009) (stating that “issues not raised
or argued in appellant’s brief cannot be raised in a reply brief”); see also State v. Marsh,
931 N.W.2d 825, 829 (Minn. App. 2019) (declining to reach an issue raised for the first
time on appeal of a motion to suppress and recognizing that “this court’s review is
expressly limited to the pretrial ruling by the district court”).1

1 We take no position on whether, under the law applicable at the time of this traffic stop,
the smell of marijuana alone would have established reasonable, articulable suspicion to
expand the stop to ask about controlled substances in the vehicle. See State v. Babineau,
23 N.W.3d 396, 408 n.3 (Minn. App. 2025) (noting that, with respect to the holding that
6
We therefore consider only the issues raised in Henry’s initial brief. We first address
the argument that the officer lacked probable cause to search the car. We then consider
whether the district court’s order must be reversed because of the district court’s mistaken
belief that the stop occurred before the Torgerson decision was filed.
I
Both the United States and Minnesota Constitutions guarantee the “right of the
people to be secure in their persons, houses, papers, and effects” from “unreasonable
searches and seizures.” U.S. Const. amend. IV; Minn. Const. art. I, § 10. “A search
conducted without a warrant issued upon probable cause is generally unreasonable” under
both the Fourth Amendment and a rticle I, section 10. State v. Flowers, 734 N.W.2d 239,
248 (Minn. 2007). But under the automobile exception to the warrant requirement, police
may conduct a warrantless search of a vehicle, including closed containers in that vehicle,
“if there is probable cause to believe the search will result in a discovery of evidence or
contraband.” State v. Barrow, 989 N.W.2d 682, 685 (Minn. 2023) (quotation omitted).
“Probable cause is an objective inquiry that depends on the totality of the circumstances in
each case,” which “includes reasonable inferences that police officers draw from facts,
based on their training and experience.” State v. Lester, 874 N.W.2d 768, 771 (Minn.
2016). Appellate courts review a district court’s factual findings underlying its probable-

the odor of marijuana alone does not support reasonable suspicion, “[o]ur holding is
expressly tied to Minnesota’s legal framework for cannabis possession in existence at the
time of the charged offense” and “[w]e express no opinion as to whether subsequent
changes to Minnesota’s cannabis laws might warrant a different outcome”).
7
cause determination for clear error and the district court’s application of the probable-cause
standard to those facts de novo. State v. Lopez, 778 N.W.2d 700, 703 (Minn. 2010).
Henry maintains that the officer lacked probable cause to search because the search
was based on only the smell of marijuana, contrary to Torgerson. The state responds that a
probable-cause determination was supported by more than the marijuana smell, including
that the officer observed that Henry was in possession of marijuana contained in
noncompliant packaging, in violation of Minnesota Statutes section 169A.36,
subdivision 3. As background for our analysis, we provide a brief overview of the
Torgerson decision and the statutory packaging requirements that were in effect at the time
of the search.
In Torgerson, the supreme court held that, “[i]n 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 probable cause justifying a
warrantless vehicle search. 995 N.W.2d at 175. At the time of Torgerson’s arrest, marijuana
was listed as a Schedule I controlled substance under Minn. Stat. § 152.02, subd. 2(h)
(2022). Id. at 169. But Minnesota law provided three exceptions that made marijuana
possession noncriminal. See id. at 169-70 (explaining the three exceptions). Therefore, the
court concluded that possession of marijuana was “not always a crime.” Id. at 170.
After the stop in Torgerson occurred, but before the stop in this case, a law came
into effect that sets forth packaging requirements for marijuana possessed in a vehicle, with
violations amounting to a misdemeanor. See Minn. Stat. § 169A.36, subds. 3, 5
(Supp. 2023). Subdivision 3, provides:
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Possession; crime described. It is a crime for a person
to have in possession, while in a private motor vehicle on a
street or highway, any cannabis flower, [or] a cannabis
product . . . that:
(1) is in packaging or another container that does
not comply with the relevant packaging requirements in
chapter 152 or 342;[2]
(2) has been removed from the packaging in
which it was sold;
(3) is in packaging that has been opened or the
seal has been broken; or
(4) is in packaging of which the contents have
been partially removed.[3]

2 Medical cannabis must be packaged

in compliance with the United States Poison Prevention
Packing Act regarding child-resistant packaging and
exemptions for packaging for elderly patients, and label
distributed medical cannabis with a list of all active ingredients
and individually identifying information, including:
(i) the patient’s name and date of birth;
(ii) the name and date of birth of the patient’s registered
designated caregiver or, if listed on the registry verification,
the name of the patient’s parent or legal guardian, if applicable;
(iii) the patient’s registry identification number;
(iv) the chemical composition of the medical cannabis;
and
(v) the dosage.

Minn. Stat. § 152.29, subd. 3(c)(5) (2022). Personal-use cannabis must be

(1) prepackaged in packaging or a container that is
child-resistant, tamper-evident, and opaque; or
(2) placed in packaging or a container that is plain,
child-resistant, tamper-evident, and opaque at the final point of
sale to a customer.

Minn. Stat. § 342.62, subd. 2(a) (Supp. 2023).

3 The packaging requirements do not apply to packages in the trunk of a vehicle or, if there
is no trunk, to packages in any area not normally occupied by the driver or passengers. See
Minn. Stat. § 169A.36, subd. 6(b) (Supp. 2023).
9

Turning to the probable-cause question, Henry relies heavily on Torgerson, arguing
that the officer’s search was based “solely” or “primarily” on the smell of marijuana and is
therefore unlawful. See Torgerson, 995 N.W.2d at 174-75. In support of this position,
Henry directs the court to the officer’s testimony and argues that the marijuana smell was
the “entire basis” for the officer’s search. He further argues that , under Torgerson, there
must be evidence that the marijuana was “being used in a manner, or was of such a quantity,
so as to be criminally illegal” and not for medical purposes, and that no such evidence
exists here. Lastly, he refutes that the other bases cited by the district court —Henry’s
probation status, criminal history, revoked license, and noncompliant marijuana
packaging—establish probable cause. None of these arguments persuades us that the
district court erred.
Assessing probable cause is an “objective inquiry,” in which courts need not, and
should not, rely on the subjective beliefs or motivations of an individual officer. Lester,
874 N.W.2d at 771; see also State v. Koppi, 798 N.W.2d 358, 363 (Minn. 2011) (“The
actual, subjective beliefs of the officer are not the focus in evaluating reasonableness.”).
We note that our reading of the record differs from Henry’s characterization of the officer’s
testimony. Based on our review, the testimony does not support Henry’s claim that the
smell of marijuana alone was the entire basis for his search. Rather, the officer affirmed on
cross-examination that “the entire basis” to search was “that small container of marijuana,”
which on its face references the physical package containing the marijuana rather than its
odor. But even assuming the officer did testify that the search was based on the smell alone,
10
it was proper for the district court in conducting the objective inquiry to look beyond that
testimony to the totality of the circumstances including, but not limited to, the smell of
marijuana.
The totality of the circumstances provides a sufficient basis to establish probable
cause at the time the officer announced the search. First, in addition to smelling an odor of
marijuana, the officer observed the packaging violation under Minnesota Statutes section
169A.36, subdivision 3. That fact distinguishes this case from Torgerson. During the stop
in Torgerson, there was no visible marijuana and, at that time, there was no law specifically
governing the packaging of marijuana in a vehicle. See State v. Babineau, 23 N.W.3d 396,
413-14 (Minn. App. 2025) (Connolly, J., concurring) (noting that “the marijuana laws have
now changed since Torgerson” and “[t]he statutory scheme in place” at the writing of that
decision, including the packaging requirements, “is quite different”).
The known packaging violation is relevant to the probable-cause determination
because it gave the officer reason to believe there may be other packaging violations in the
car. In that sense, we find this case indistinguishable from caselaw holding that an officer
who sees an open container of alcohol in a vehicle has probable cause to search the vehicle
for further evidence of open container violations. See State v. Alesso, 328 N.W.2d 685,
686, 688 (Minn. 1982) (stating that a police officer “could have searched the car for other
evidence relating to the open-bottle violation” after observing the driver and passenger of
a car drinking from cups that the police officer believed contained alcohol); State v.
Ellanson, 198 N.W.2d 136, 137 (Minn. 1972) (concluding search of glove compartment
was reasonable based on violation of open-bottle law); State v. Collard, 414 N.W.2d 733,
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735-36 (Minn. App. 1987) (concluding that a police officer had probable cause to search a
vehicle when he observed an open container of alcohol in plain view, even when there was
no sign that the driver had been drinking), rev. denied (Minn. Jan. 15, 1988).
The packaging violation also distinguishes this case from the case State v. Burbach,
706 N.W.2d 484 (Minn. 2005), that Henry cites. In Burbach, the supreme court held that
the smell of alcohol coming from a passenger in the vehicle was not enough on its own to
justify a search of the vehicle. 706 N.W.2d at 489. That case was instructive in Torgerson
because it was undisputed that the only basis for the search was the smell of burnt
marijuana, 995 N.W.2d at 174-75, but that is not so here. The officer did not initiate a
search until after he was shown the noncompliant marijuana packaging and learned of
Henry’s criminal history and supervised release status. We therefore conclude that Burbach
is inapposite to the circumstances of this case.
Second, the totality of the circumstances also includes the officer’s testimony that
the marijuana odor was “very strong” and that it is “quite a frequent occurrence” that he
would smell marijuana and be provided a “smaller amount of marijuana” but “then . . . do
a search of the vehicle and discover either additional marijuana that would make it
potentially a felony or other drugs that would be a more serious offense.” Officers are
permitted to make such reasonable inferences when determining probable cause and are
not required to believe an innocent explanation. See State v. Hawkins, 622 N.W.2d 576,
580 (Minn. App. 2001) (“The fact that there might have been an innocent explanation for
[the defendant’s] conduct does not demonstrate that the officers could not reasonably
believe that [the defendant] had committed a crime.”). The officer here was not required to
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believe Henry’s claim that the marijuana was for medical use. The officer also observed
that the container “did not appear to be a medicinal container” and testified that in the past
he has been told “many times” that something is medical marijuana when it was not.
Third, an individual’s criminal history may be considered as one factor relevant to
probable cause under a totality-of-the-circumstances analysis. See State v. Hochstein, 623
N.W.2d 617, 623 (Minn. App. 2001) (considering “appellant’s prior criminal record” in its
probable-cause analysis); State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996)
(concluding that “the trial court properly considered [Lieberg’s criminal history] as one
factor in the totality of relevant circumstances”). But see State v. Carter, 697 N.W.2d 199,
205 (Minn. 2005) (cautioning that “a criminal record . . . is best used as corroborative
information and not as the sole basis for probable cause” (quotations omitted)). Here,
Henry’s two previous convictions for controlled-substance offenses have some probative
value and contribute to the totality of the circumstances. See Hochstein, 623 N.W.2d at 623.
Considering the totality of the circumstances here—the presence of marijuana in
noncompliant packaging, the strong odor of marijuana, the officer’s training and
experience, and Henry’s criminal history— the officer had probable cause to search the car
at the time he announced his intent to do so, leading to Henry admitting to possession of
the gun. Thus, the district court did not err in denying the motion to suppress evidence of
the firearm and other items found in the car after a search.4

4 Henry also argues that the order on the motion to suppress should be reversed because
the officer did not have reasonable, articulable suspicion of criminal activity to expand the
scope of the stop when the officer asked Henry to step out of the car and conducted a
search. We disagree. First, a police officer may order a driver to exit their vehicle during a
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II
Henry separately argues that the district court clearly erred by finding that the search
here occurred before the supreme court’s decision in Torgerson. He maintains that, because
the “district court’s analysis rests on basic factual and legal errors,” it should be reversed.
Although the state concedes that the district court erred in that finding, it argues that the
error was not prejudicial because the district court analyzed the facts under both pre- and
post-Torgerson standards. We agree with the state that the district court’s mistake does not
warrant reversal.
It is undisputed that the district court erred in finding “that the vehicle search in this
case was conducted pre-Torgerson.” The Torgerson decision was released in
September 2023, 995 N.W.2d at 164, whereas the stop in this case took place nearly two
months later i n November 2023. The district court also mischaracterized the controlling
law when it concluded that details omitted in the police report about the strength of the
marijuana smell “would have been virtually irrelevant under existing case law at the time
of the search” and that, at the time of Henry’s stop, “the odor of marijuana alone was
enough to justify a warrantless search.” But the district court did not stop with the pre-
Torgerson analysis. It provided an additional, alternative analysis under Torgerson, taking
into consideration the totality of the circumstances beyond the smell alone. After

lawful traffic stop “without an articulated reason.” State v. Askerooth, 681 N.W.2d 353,
367 (Minn. 2004). Second, any argument that the officer lacked reasonable, articulable
suspicion to search the car is subsumed by our analysis that the search was supported by
probable cause. See State v. Timberlake, 744 N.W.2d 390, 393 (Minn. 2008) (stating that
the reasonable suspicion standard is “less demanding than probable cause”).
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considering the totality of the circumstances, the district court said it would reach the same
conclusion whether or not it was applying Torgerson, stating “[e]ven after the ruling in
Torgerson, [the officer] still had probable cause to search, as there were other factors
outside the smell of marijuana that indicated he may find evidence of other crimes in
[Henry’s] vehicle or on his person.”
For the reasons explained, we are persuaded that the totality of the circumstances
supports the district court’s probable-cause determination. For that reason, the district
court’s mistake as to the timing of the stop was harmless and we see no basis to reverse the
district court’s decision. See Minn. R. Crim. P. 31.01 (“Any error that does not affect
substantial rights must be disregarded.”).
Affirmed.