Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers

The smell of marijuana emanating from a vehicle during a traffic stop was once enough for a police officer to conduct a search of a car and everyone in it.

But a decision by the Minnesota Supreme Court shortly after marijuana was legalized that prevents officers from using cannabis odor as the only reason for a vehicle search has put that practice to an end, and Minnesota lawmakers recently enshrined the ruling into law. 

The language codifying the decision is one of many provisions included in the judiciary and public safety supplemental budget bill passed by the Legislature and signed into law by Gov. Tim Walz at the end of the session in late May. The package includes millions of dollars in grants for services targeting crime victims, as well as changes to statutes ranging from traffic stop reform to law enforcement training requirements.

This month, MinnPost is highlighting a specific provision each week. 

No more searches for cannabis odor only

The new language states that a law enforcement officer’s perception of the odor of cannabis cannot be used as the “sole basis” to search a vehicle or any of its contents, the driver or any of the passengers in the car. The original bill the language came from – Senate File 3938, authored by DFL Sen. Clare Oumou Verbeten of St. Paul – was more robust, banning officers from asking drivers to consent to warrantless searches during traffic stops.

Related | Minnesota police can no longer ask why a driver thinks they’ve been pulled over

The change in statute was inspired by a September ruling by the Minnesota Supreme Court, where a 5-2 majority ruled that the smell of marijuana alone doesn’t justify an officer’s vehicle search. Oumou Verbeten said in an interview that codifying the decision in law was essential due to the court’s ability to later overturn it.

“We’ve seen it with other really important issues, whether we’re talking about reproductive rights or voting rights, the court can come back and reverse their decision,” she said. “It’s important for us to have this be a part of our strategy to try to pass legislation and codify these rights and other things that are important to us, and not just rely on the courts.”

Targeting racial disparities was also a concern, Oumou Verbeten said. According to a 2020 report by the American Civil Liberties Union, between 2010 and 2018, Black and white residents used marijuana at similar rates, but Black people were 3.64 times more likely to be arrested for marijuana use.

The legalization of marijuana in Minnesota went into effect on Aug. 1 last year, and individuals 21 and older can now possess up to two ounces of marijuana flower, 800 milligrams of edibles and eight grams of concentrated THC. When it comes to vehicles, however, cannabis use is similar to alcohol in that it is illegal to use or be under the influence of marijuana while driving, and drivers and passengers cannot have open or unsealed packages or containers in the vehicle.

When cannabis possession and use were still illegal, officers would routinely use the smell of marijuana emanating from a vehicle as a reason to conduct a search because it gave them probable cause, said Mike Hanson, director of the Minnesota Department of Public Safety’s Office of Traffic Safety. But after the decision by the court, and now after the change in law, officers need more evidence before conducting a search or conducting a field sobriety test.

“That could be an interview with the driver, or there could be observations of evidence in the car that are in plain view that indicate that marijuana was just recently used in the vehicle,” Hanson said. “So instead of just smelling the odor of marijuana and then conducting the search, the officer has to put more work into building the pieces that make that probable cause puzzle come together to then justify the search.”

According to Mike Monsrud, assistant executive director of the Minnesota Peace Officer Standards and Training (POST) Board, there are no mandated cannabis-related learning objectives for law enforcement since legalization and no plans to institute required trainings. But, he said, all schools that teach the Professional Peace Officer Education Program are required to update their curriculum to align with state law, and state licensing test questions have been updated to conform with new requirements.

Currently, there is only one POST Board-approved training course related to marijuana.

Beyond odor, other indicators will be key for determining whether a driver is under the influence, said Sgt. Tyler Milless, coordinator of the Minnesota State Patrol’s Drug Recognition Evaluators (DRE). That could include dilated pupils, bloodshot eyes, eyelid flutters or relaxed inhibitions, and enough of those signs could lead to a standardized field sobriety test.

“We think about it the same way we think about alcohol – what we’re worried about is impairment,” Milless said. “In our realm of traffic safety, our biggest concern is making sure citizens get home or to their location in a safe manner.”

Going forward, the state is currently administering an oral fluid test pilot program, which is a roadside test that involves an officer collecting oral fluid from a driver suspected of being under the influence. The test, which can identify up to six different substances in about five minutes, is used in 26 other states and is aimed at helping officers more quickly determine whether a driver has used a substance other than alcohol.

The pilot program, which is completely voluntary at the moment, began in January and has since completed 271 attempts. The results of the pilot program will be compiled into a report for the Legislature, which Hanson said he hopes will permanently fund going forward to keep impaired drivers off the roads.

“We still have a significant problem on Minnesota roads with impaired drivers, whether it’s alcohol, whether it’s cannabis, or whether it’s a combination thereof, or something else,” Hanson said. “It’s really all about saving lives because impaired drivers are responsible for more than a third of our fatalities every year, so anything we can do to keep an impaired driver off the road is a good public safety strategy.”

Editor’s note: Mohamed Ibrahim wrote this story for MinnPost.com. Ibrahim is MinnPost’s environment and public safety reporter.

This article first appeared on MinnPost and is republished here under a Creative Commons license.

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