August 18, 2017
How traveling with knives ruins everything.
The week of August 14, 2017, did not leave us with case law that will change the world. The MNSC put out a case that said a downward departure is okay for playing a minor role in a crim sex case. They also wrote about Batson challenges, which we have covered here before. So we are going to talk about weed smoke. Oh, weed smoke. The very smell that gives law enforcement officers carte blanche to search your Honda Civic with a spoiler. This case is called, State v. Hughes, A16-1481. And while it is unpublished, it seems to clarify an issue that had been wafting, like the smell of..well…marijuana. So here are the facts of Hughes.
Before I do that, I am going to get down non-sequitur lane. Hughes makes me think of Howard Hughes. Who makes me think of Howard the Duck. Who makes me think of my trial this week when the prosecutor talked about Howard the Duck. Which nothing resonates more with juries than 1980’s box office bombs. But back to Mr. Hughes. Hughes got pulled over for failing to signal his turn. The officer spoke to M.B. and when he did smelt a strong odor of marijuana coming from inside the vehicle. He could not tell where it was coming from because it was poltergeist marijuana. The officer did call for backup. Hughes was a passenger said he owned the vehicle and he did not have an insurance card in the vehicle. The officer asked M.B. about the marijuana smell and he said M.B. became very nervous or totally paranoid. M.B. eventually handed the officer a baggie of marijuana. Then he admitted he had knives on him. Multiple knives? What is he, a ninja turtle? The officer found some meth and a marijuana pipe during the search along with the knives. I can’t get past the multiple knives. M.B. was told to knifeless-ly sit on the curb. The officer then turned his attention to Hughes. The officer conducted a pat search on Hughes. The officer found a hard case which eventually revealed contained meth, a meth pipe, and some marijuana. Hughes tried to suppress the evidence. The DC denied the request. He entered into a Lothenbach stipulated fact trial, which leads us to this appeal.
Writing the opinion, Chief Justice Cleary, denied Hughes’s argument but provided valuable nonprecedential guidance on searching occupants in a car when cops smell weed. Justice Cleary was a tad bit more articulate. The Chief Justice said the DC erred because said, the smell of marijuana emanating from a vehicle, on its own, does not provide probable cause to arrest the vehicle’s occupants and conduct a full search incident to arrest. In forming the opposite conclusion, the DC relied on State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978), State v. Piece, 347 N.W.2d 829, 833 (Minn. App. 1984), and State v. Ortega (Ortega I), 749 N.W.2d 851, 854 (Minn. App. 2008).
However, Schultz the MNSC held the smell of weed allows police probable cause to search the vehicle under the “motor vehicle exception, but not arrest and search the occupants. 271 N.W.2d at 837. Piece said the same thing. Ottega I was no longer good case law.
The court affirmed this court’s decision in Ortega I in State v. Ortega (Ortega II), 770 N.W.2d 145, 151-52 (Minn. 2009), it did so on very different grounds. In a footnote, the supreme court disapproved of this court’s reasoning in Ortega I. 770 N.W.2d at 149 n.2. The supreme court clarified that
(1) an odor of marijuana providing probable cause that a person possesses a noncriminal amount of marijuana does not, in and of itself, create probable cause to trigger a search incident to arrest, and
(2) while “probable cause to arrest” satisfies that search- incident-to-arrest exception, “probable cause to search” does not necessarily trigger an exception to the warrant requirement or lead to the conclusion that a search of a person was otherwise reasonable. Id. (noting that 1976 Minn. Laws ch. 42, § 1, at 101-02 (codified at Minn. Stat. § 152.15, subd. 2(5) (1976)) reduced possession of a small amount of marijuana from a criminal offense to a petty misdemeanor).
Therefore, because a small amount of marijuana is now a petty misdemeanor unless you have more than 42.5 grams, officers can search the car because of the smell, but without more, they do not have probable cause to search a person. They also cannot call it a search incident to arrest because you cannot arrest someone for a petty misdemeanor. A petty misdemeanor is by definition a noncriminal because you cannot go jail for one only pay a fine.
However, Hughes loses because the officer had other safety concerns to conduct a Terry search. It was 2:00 A.M., Hughes was really nervous and the driver of the car had multiple knives. Plural. Like “Edward Scissorhands.” So topical reference there too just like Howard. But the lesson here is clear. For whatever reason, people use cars as mobile pharmacies. So if you are incapable of leaving your drugs at home, tell the officer that smell of weed, if not enough for them to search you to find your meth pipe.
