Minneapolis, MN — Last month, the Minnesota Supreme Court issued a landmark ruling in Torgerson v The State of Minnesota that the odor of marijuana on its own does not establish probable cause for police in Minnesota to search vehicles.

Criminal defense attorney and 2008 University of St. Thomas Law School graduate Shauna Kieffer authored the amicus brief (pdf) on behalf of the Minnesota Association of Criminal Defense Lawyers defending the lower court’s ruling. She sat down with Unicorn Riot to discuss this decision, outlining the implications it will have on the people of Minnesota.

“The data showed that over 1,000 Black and East African men had their vehicles searched for contraband, where none was found. What had been the justification to do that?”

Shauna Kieffer, Criminal Defense Attorney

In 2021, Adam Torgerson and his family (who are all white) were driving in Meeker County late at night when they were stopped by Litchfield Police for a light malfunction, which according to Kieffer was a valid reason for the traffic stop. But when the two officers approached the vehicle they claimed they smelled marijuana. Torgerson denied having weed in the car. According to Kieffer, the cops claimed that that was grounds for “probable cause” and that was their sole reason for searching Torgerson’s car, whose wife and child were also inside.

During the search, officers did not find any weed but they did find a small amount of methamphetamine contraband and paraphernalia. Torgerson was charged with possession of methamphetamine paraphernalia in the presence of a minor and fifth-degree possession of a controlled substance.

Torgerson’s attorneys moved to suppress the evidence. They argued that the odor of marijuana alone was insufficient evidence to amount to a probable cause search of the vehicle. The district court granted Torgerson’s motion and dismissed the complaint.

Kieffer said that in 2021 the district court ruled that because medical marijuana, hemp, and small amounts of marijuana were legal, the contraband obtained from the police search was illegal and inadmissible in court.

“It should be treated the same way that Minnesota treats alcohol,” she said. “You can’t expand the search of a vehicle based on the smell of alcohol alone, so you shouldn’t be able to expand the search of a vehicle based on marijuana alone. Ultimately the court of appeals and the Minnesota Supreme Court agreed.”

Kieffer emphasized that the smell of cannabis can still be used as a factor for cops to search your car, it just can’t be the only factor. It can still be used to expand a traffic stop if there are other factors, she explained.

She said she uses “99 Problems,” a Jay-Z song, when she’s teaching a group that’s learning about the subject.

“Well, I ain’t passed the bar, but I know a little bit.

Enough that you won’t illegally search my shit.”

Jay-Z, 99 Problems

When a cop pulls someone over it’s not because of the smell of weed, Kieffer said, but before Torgerson, the smell of weed did give cops the reason to search a vehicle.

“One of the reasons I like to use the song ‘99 Problems’ to illustrate the expansion of stops is: the stop starts because of speeding. And then it escalates to ‘Can I look into your glove box? Can I look into your trunk?’ And Jay-Z says, ‘You’ll need to get a warrant for that,’ and he’s correct.”

Shauna Kieffer, Criminal Defense Attorney

Kieffer told Unicorn Riot that in order for a cop “To expand a stop, each incremental intrusion, you need to have justification. You can’t just go on a fishing expedition,” she said. “And that comes from the Supreme Court case Arizona v Gant.” 

Impacts From Landmark Decision

Kieffer said the Torgerson ruling will likely affect Minnesotans broadly. People with past felonies for marijuana convictions could have convictions and criminal points reduced. It will likely impact sentencing guidelines as well, she said. But one of the biggest impacts it will have is on racial disparities in everyday traffic stops.

Before the Torgerson decision, cops could use the smell of marijuana to justify a vehicle search during a traffic stop, which was ripe for abuse. Often these extralegal searches lead to seizures of cash, cars, and other properties by authorities. A recent report released by the state auditor revealed that Minnesota police confiscated over $9 million in cash and other valuables from individuals in 2022. More than one third of total seizures last year or $3.1 million was taken from people who were not convicted of crimes, the Minnesota Reformer reported.

Kieffer cited research demonstrating that these probable cause marijuana searches were systematically used in Minneapolis as a pretext to target Black men. She said this ruling “gets rid of the ability … not that an officer would ever do this, but to pretend that there was the smell of marijuana. … Well we’ve got body worn cameras. We don’t have body worn cameras that have scent equipped with them,” Kieffer said.

“… Minneapolis police department records … showed over 1,000 Black and East African men were stopped in the city of Minneapolis in a one year period from 2019 to 2020 that had their vehicles searched where [no] contraband was found. That wasn’t cited in the Minnesota Supreme Court brief, but I’d like to think that it gave them some pause about the impact of this ruling.”

Minnesotans impacted by marijuana convictions can contact the attorney general’s office for inquiries into record expungement. Minneapolis based non-profit law firms the Legal Rights Center and Volunteer Lawyers Network both offer free expungement assistance to low-income residents.

Cover image via Flickr / Mark Guim (CC).

About the author: Marjaan Sirdar is a South Minneapolis based freelance journalist. He is the host of the People Power Podcast and author of the investigative series, 21st Century Jim Crow in the North Star City: How Target Corp., the City of Minneapolis, and Hennepin County, Created a Domestic Spy Program That Rolled Back Civil Rights On its Black Population, published by Unicorn Riot. You can follow him on Twitter @peoplepowerpod1.

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