Emily Toms*
On August 1, 2023, Minnesota became the twenty-third state to legalize recreational marijuana for adults over age twenty-one.1 While there remains a long road ahead as the state implements regulations for selling cannabis products, Minnesotans of legal age can possess, use, and grow marijuana in their homes effective immediately.2 This change will impact a variety of legal topics, spanning from criminal law to employment law.3 One area of impending change is the ability for police officers to use the odor of marijuana as a constitutional basis to expand the scope of a traffic stop. Currently, the odor of marijuana alone is sufficient to establish probable cause to search the passenger compartment of a vehicle and its occupants.4 This longstanding rule, first established in State v. Wicklund, survived several other marijuana-related amendments such as a 1976 amendment that decriminalized “small amounts” of marijuana5 and a 2014 amendment that legalized marijuana for medical use.6 Now that marijuana possession and use by all adults over the age of twenty-one is legal, is change coming?
Looking first to the parameters for marijuana use and possession under the new law, there are at least three avenues for expanding the scope of a traffic stop based, at least in part, on the odor of marijuana. First, Minnesotans are still prohibited from driving while under the influence of marijuana.7 Therefore, the odor of burnt marijuana emanating from a vehicle, alongside indications of intoxication, will likely continue to furnish a basis for expanding the scope of a traffic stop to investigate potential intoxication. Second, similar to open container laws for alcohol, the law prohibits possession of marijuana in motor vehicles if the marijuana has been opened or removed from its original packaging.8 These requirements do not apply if the marijuana products are contained within the trunk of the vehicle or another area that is not typically occupied by passengers.9 Therefore, if an officer smells unburnt marijuana, it may lead to an inference that the packaging has been opened and is being transported in violation of the open package law. This inference would be better supported if the officer could see unpackaged marijuana products in the passenger compartment, but it is unclear whether that would be necessary to support expansion and a search of the vehicle. Finally, the new law establishes a limit on the quantity of cannabis products that a person can possess outside their home. It is a petty misdemeanor to possess more than two ounces but not more than four ounces of cannabis flower outside the home.10 Possession of over four ounces outside the home is a crime punishable by a fine or imprisonment.11 Here, a traffic stop could be expanded if an officer smells unburnt marijuana and sees marijuana in a quantity greater than two ounces. Although possession of two to four ounces of cannabis flower is a petty misdemeanor, and therefore not a crime,12 existing caselaw establishes that the presence of a noncriminal amount of marijuana creates a reasonable suspicion that more marijuana could be found.13
In all three scenarios, it is unlikely that the odor of marijuana, without more, will be sufficient to establish probable cause or reasonable articulable suspicion, but it may continue to serve as a factor in the calculation. As of 2021, although seventeen states and Washington D.C. have legalized marijuana for recreational use, only ten have explicit caselaw or statutory guidance for the use of marijuana odor in establishing probable cause or reasonable articulable suspicion.14 All of the states with case law or statute based rules post-legalization have found that the odor of marijuana alone is insufficient, but states vary about whether the odor of marijuana can contribute to a probable cause or reasonable articulable suspicion analysis.15 In Colorado, one of two states to legalize recreational marijuana in 2012, “the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination.”16 Some states have entirely eliminated marijuana odor from the calculus, deciding that the odor of marijuana cannot be considered at all in the probable cause analysis. In Connecticut, the statute legalizing adult use marijuana specifically provides that the odor of cannabis or burnt cannabis “does not constitute in part or in whole probable cause or reasonable suspicion and shall not be used as a basis to support any stop of a person or motor vehicle.”17
Case law in Minnesota will need to develop to determine whether the odor of marijuana can be used as a factor for probable cause or reasonable articulable suspicion. However, one thing seems to be clear: the longstanding precedent in Wicklund and Ortega has likely come to an end and the odor of marijuana alone will likely be insufficient to establish probable cause to expand the scope of a traffic stop.
* Emily Toms, J.D. Candidate, University of St. Thomas School of Law Class of 2024. Managing Editor, University of St. Thomas Law Journal.
1 Factbox: U.S. States Where Recreational Marijuana Is Legal, Reuters (June 1, 2023), https://www.reuters.com/world/us/us-states-where-recreational-marijuana-is-legal-2023-05-31/.
2 Adult-Use Cannabis: What Cities Need to Know, League of Minnesota Cities (June 12, 2023), https://www.lmc.org/resources/adult-use-cannabis-what-cities-need-to-know/#Q1.
3 See, Rebecca Bernhard, Jennifer Service, & Micayla Bitz, Minnesota Has Gone “All In” on Marijuana Legalization —What Does This Mean for Employers?, Quirky Questions, (July 5, 2023), https://www.quirkyemploymentquestions.com/_other/general/minnesota-has-gone-all-in-on-marijuana-legalization-what-does-this-mean-for-employers/ (explaining the employment law implications of marijuana legalization).
4 State v. Wicklund, 205 N.W.2d 509, 511 (Minn. 1973).
5 Minn. Stat. § 152.027, subd. 4. (2022) (repealed 2023); See, State v. Ortega, 749 N.W.2d 851, 854 (Minn. Ct. App. 2008) (finding that the decriminalization of small amounts of marijuana did not eliminate the ability to use the odor of marijuana as a basis for expanding a stop).
6 Minn. Stat. § 152.21 (2023).
7 Minn. Stat. § 192A.555 (2023).
8 Minn. Stat. § 169A.36, subd. 3 (2023).
9 Id. at subd. 6(b).
10 Minn. Stat. § 152.0263, subd. 4(a).
11 See,Minn. Stat. § 152.0263, subds. 1-3 (outlining the penalties for possession of four ounces through ten kilograms of marijuana outside of the home).
12 Minn. Stat. § 609.02, subd. 4a.
13 See Ortega, 749 N.W.2d at 854.
14 2021 State Analysis Chart: Probable Cause to Stop and Search Based on the Smell of Cannabis Alone, Marijuana Policy Project (2021), https://www.mpp.org/assets/pdf/issues/criminal-justice/2021.11.19%20State%20Analysis%20Chart.pdf.
15 See id.
16 People v. Zuniga, 372 P.3d 1052, 1059 (Colo. 2016).
17 Conn. Gen. Stat. § § 54-33p (2023).
University of St. Thomas Law Journal 
Leave a comment