State of Minnesota v. Raenard Romalle Douglas

• Court: Supreme Court of Minnesota
• Decided: December 24, 2025
• Docket: A240385
• Status: Published

Opinion

STATE OF MINNESOTA

IN SUPREME COURT

A24-0385

Court of Appeals Thissen, J. Dissenting, Procaccini, Moore, III, JJ.

State of Minnesota,

Respondent, vs. Filed: December 24, 2025 Office of Appellate Courts Raenard Romalle Douglas,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, Elisabeth M. Johnson, Assistant Scott County Attorney, Shakopee, Minnesota, for respondent.

Anders J. Erickson, Johnson Erickson Criminal Defense, Minneapolis, Minnesota, for appellant.

SYLLABUS

The good-faith exception to the exclusionary rule does not apply to a warrantless

vehicle search based solely on the smell of marijuana that occurred before we issued our

opinion in State v. Torgerson, 995 N.W.2d 164 (Minn. 2023), which held that the odor of

1 marijuana alone is insufficient to create probable cause to search a vehicle under the

automobile exception to the warrant requirement.

Reversed and remanded.

OPINION

THISSEN, Justice.

During a traffic stop of appellant Raenard Romalle Douglas, a law enforcement

officer conducted a warrantless search of the vehicle based solely on the smell of

marijuana. While searching the vehicle, the officer found ammunition in a safe located

inside a briefcase in the backseat. At the time, Douglas was prohibited from possessing

ammunition. He was subsequently charged with possessing ammunition as an ineligible

person in violation of Minn. Stat. § 624.713, subd. 2(b). Douglas moved to exclude the

ammunition at trial, arguing that the officer’s warrantless search of the vehicle violated his

constitutional right to be free from an unreasonable search.

In State v. Torgerson, 995 N.W.2d 164, 166 (Minn. 2023), we held that “the odor

of marijuana emanating from a vehicle, alone, is insufficient to create the requisite probable

cause to search a vehicle under the automobile exception to the warrant requirement.”

Under this decision, the search of Douglas’s vehicle was unconstitutional. But the search

of Douglas’s vehicle occurred before we issued our decision in Torgerson. Respondent

State of Minnesota argues that the ammunition is therefore admissible under the good-faith

exception to the exclusionary rule. We disagree and hold that the good-faith exception to

the exclusionary rule does not apply.

2 FACTS

On October 27, 2019, at approximately 11:42 p.m., an officer with the Savage

Police Department observed a vehicle traveling on the road without a front license plate

and with a suspended object hanging from the rearview mirror. The officer stopped the

vehicle and identified the driver as Douglas. Douglas provided the officer with identifying

information and proof of insurance. A records search revealed that the Commissioner of

Public Safety had cancelled Douglas’s license as inimical to public safety under Minn. Stat.

§ 171.04, subd. 1(10).

The officer asked Douglas to step out of the car. He informed Douglas that he would

be searching the vehicle because there was “a very strong odor of marijuana coming out of

the car.” The officer later testified that he searched the vehicle because he smelled burnt

marijuana. He provided no other reason for the search. The officer did not observe any

marijuana or paraphernalia in plain view before searching the vehicle. Further, he never

articulated—either at the time of the search or in his later testimony—what evidence he

was searching for in the vehicle.

During the search, the officer observed multiple burnt “roaches”—a name for the

end of a marijuana cigarette—throughout the vehicle. The officer found a safe inside a

leather briefcase in the backseat of the car. After unsuccessfully seeking Douglas’s consent

to search the safe (Douglas claimed he did not know how to open the lock), the officer

broke the safe open with a multi-tool and found ammunition inside. The officer then ran a

search of Douglas’s criminal history and discovered that he had previously been convicted

of a crime of violence, which made Douglas ineligible to possess ammunition. See Minn.

3 Stat. § 624.713, subd. 1(2). The officer arrested Douglas, and the State charged him with

(1) possessing ammunition as an ineligible person in violation of Minn. Stat. § 624.713,

subd. 2(b); and (2) driving after cancellation–inimical to public safety in violation of Minn.

Stat. § 171.24, subd. 5.

On September 23, 2023, we released our opinion in State v. Torgerson. In

Torgerson, we held that “the odor of marijuana emanating from a vehicle, alone, is

insufficient to create the requisite probable cause to search a vehicle under the automobile

exception to the warrant requirement.” 995 N.W.2d at 166. 1 Douglas subsequently moved

to suppress the evidence obtained during the search of his vehicle and dismiss the charge

of possession of ammunition by an ineligible person. The district court granted the motion.

Relying on Torgerson, the district court concluded that the odor of marijuana alone was

insufficient to create probable cause to search the vehicle and that the good-faith exception

to the exclusionary rule did not apply.

The State appealed the district court’s pretrial order dismissing the possession

charge. In a split decision, the court of appeals reversed the district court’s order, holding

that the good-faith exception to the exclusionary rule that we articulated in State v.

Lindquist, 869 N.W.2d 863 (Minn. 2015), applied to the search of Douglas’s vehicle. State

v. Douglas, 12 N.W.3d 751, 763–64 (Minn. App. 2024). The dissent, in contrast,

1 We note that over four years passed between the search of Douglas’s vehicle and our decision in Torgerson. The record shows that Douglas’s case went to trial in November 2021, but the jurors failed to reach a unanimous verdict on either the ineligible person in possession of ammunition charge or the driving after cancellation charge. Douglas’s retrial has been delayed multiple times for various reasons. Douglas moved to suppress the ammunition following the mistrial and before retrial.

4 maintained that there was no binding appellate precedent at the time of Douglas’s arrest

that would have authorized the officer’s search. Id. at 764 (Ross, J., dissenting). Douglas

petitioned this court for further review of the court of appeals decision.

ANALYSIS

We are asked to decide whether the good-faith exception to the exclusionary rule

applies to a warrantless vehicle search based solely on the odor of marijuana that occurred

before we held in Torgerson that the odor of marijuana alone is insufficient to establish

probable cause for such a search. The State bears the burden of establishing an exception

to the warrant requirement. State v. Ture, 632 N.W.2d 621, 627 (Minn. 2001). 2

The United States and Minnesota Constitutions protect individuals against

unreasonable searches and seizures. U.S. Const.. amend. IV; Minn. Const.. art. I, § 10.

The exclusionary rule prohibits evidence obtained in violation of an individual’s

constitutional rights from being used in a criminal proceeding against the victim of the

illegal search or seizure. Mapp v. Ohio, 367 U.S. 643, 656–57 (1961); State v. Malecha,

3 N.W.3d 566, 571 (Minn. 2024).

The ammunition found in the vehicle that Douglas was driving was obtained in

violation of the constitutional protections against unreasonable searches and seizures. The

only reason the officer provided for the search was that he smelled marijuana coming from

2 When the State seeks appellate review of a pretrial order, it must show that the ruling has a critical impact on the State’s ability to prosecute the case. Minn. R. Crim. P. 28.04, subd. 2(2)(b); State v. Underdahl, 767 N.W.2d 677, 681 (Minn. 2009). The court of appeals determined that the district court’s decision to suppress the ammunition in Douglas’ vehicle and dismiss the possession of ammunition by an ineligible person charge had a critical impact. No one challenges that decision.

5 the vehicle. In Torgerson, we reaffirmed that, before searching an automobile without a

warrant, law enforcement must determine that the totality of the circumstances indicates

that there is a fair probability that the search will lead to contraband or evidence of a crime.

995 N.W.2d at 173. The odor of marijuana is one circumstance that an officer may

consider in their totality of the circumstances assessment, but there is no bright-line rule

that the odor of marijuana on its own is sufficient to create the requisite probable cause to

justify a warrantless search. Id. As the district court aptly noted, the officer who searched

Douglas’s vehicle did not identify any circumstances besides the smell of marijuana to

justify his search.

The State concedes that the officer’s search was unlawful but asks us to allow the

ammunition obtained to be admitted at trial under the good-faith exception to the

exclusionary rule. We decline to do so.

A.

The U.S. Constitution and the Minnesota Constitution protect individuals against

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. The

exclusionary rule prohibits evidence obtained in violation of the Fourth Amendment from

being used in a criminal proceeding against the victim of the illegal search or seizure.

United States v. Calandra, 414 U.S. 338, 347 (1974); Mapp, 367 U.S. at 655 (applying the

exclusionary rule to the states). The good-faith exception to the exclusionary rule

precludes suppressing illegally obtained evidence where an officer acts in good faith on the

reasonable belief that their conduct is lawful. United States v. Leon, 468 U.S. 897, 913

(1984).

6 We have adopted the good-faith exception in one limited circumstance. It applies

only if binding precedent specifically authorized the officer’s behavior; “[l]aw enforcement

cannot extend the law to areas in which no precedent exists or the law is unsettled.” 3

Lindquist, 869 N.W.2d at 876–77 (citation omitted) (internal quotation marks omitted).

In Lindquist, law enforcement facilitated a warrantless blood draw on Lindquist,

who was suspected of driving while intoxicated. Id. at 865. At that time, our precedents

in State v. Shriner and State v. Netland held that the dissipation of alcohol from blood

created a single-factor exigency permitting a warrantless search of blood from a driver

suspected of driving while intoxicated. Shriner, 751 N.W.2d 538, 549–50 (Minn. 2008);

Netland, 762 N.W.2d 202, 213 (Minn. 2009). Notably, the warrantless searches in Shriner

and Netland would not have been constitutional in the absence of the rule we adopted; the

per se-exigency rule was necessary to the outcome of those cases. The results of

Lindquist’s blood draw showed that she had an alcohol concentration of .23 approximately

two hours after driving, and she was convicted of driving while impaired. Lindquist,

3 By contrast, the United States Supreme Court has adopted several good-faith exceptions to the exclusionary rule. See, e.g., Leon, 468 U.S. at 922 (1984) (objectively reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 350–52 (1987) (objectively reasonable reliance on subsequently invalidated statute); Arizona v. Evans, 514 U.S. 1, 14–15 (1995) (objectively reasonable reliance on erroneous information concerning an arrest warrant); Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984) (objectively reasonable reliance on a warrant later held invalid because of a clerical error). As a matter of state constitutional law, we have repeatedly rejected arguments to adopt additional good-faith exceptions in Minnesota. Malecha, 3 N.W.3d at 573, 579 (stating that we independently determine whether constitutional remedies, such as exclusion, apply under the Minnesota Constitution and declining to adopt the Evans good-faith exception); see also State v. Zanter, 535 N.W.2d 624, 634 (Minn. 1995) (declining to adopt the Leon good-faith exception); Lindquist, 869 N.W.2d at 877 (declining to decide whether the good-faith exception should apply in other circumstances).

7 869 N.W.2d at 865. While Lindquist was appealing her case, the U.S. Supreme Court

issued its decision in Missouri v. McNeely, 569 U.S. 141, 165 (2013), which held that

metabolization of alcohol in the bloodstream does not create a per se exigency justifying a

warrantless blood draw for individuals suspected of driving while intoxicated. McNeely

directly overruled our holdings in Shriner and Netland.

Even though, under McNeely, Lindquist’s warrantless blood draw was

unconstitutional, we determined that the results of the blood test could still be admitted at

trial based on the good-faith exception to the exclusionary rule. Lindquist, 869 N.W.2d at

877–78. 4 We held that the exception applies where an officer acts in objectively reasonable

4 Four years before our decision in Lindquist, the U.S. Supreme Court applied the good-faith exception under similar circumstances in Davis v. United States. 564 U.S. 229 (2011). In that case, police officers lawfully arrested Davis during a traffic stop, handcuffed him, and placed him in the back of a patrol car before searching his vehicle. Id. at 235. During the search, police found a revolver inside Davis’s jacket located in the passenger compartment. Id. Davis was subsequently convicted in federal court of possession of a firearm by a convicted felon. Id. The Eleventh Circuit upheld the search under its precedent in United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996). Davis, 564 U.S. at 235. In Gonzalez, police arrested Gonzalez and handcuffed him. 71 F.3d at 822. Afterward, an officer searched a closed black leather case found in the glove compartment of Gonzalez’s vehicle and discovered a firearm. Id. Building on the Supreme Court’s decision in New York v. Belton, 453 U.S. 454, 462–63 (1981) (upholding a warrantless vehicle search as a valid search incident to arrest), the Eleventh Circuit adopted a bright-line rule that an arresting officer may conduct a warrantless search of the passenger compartment as well as any containers found in that area of a vehicle when an occupant has been lawfully arrested. Id. at 825– 26. The broad rule the Eleventh Circuit articulated in Gonzalez was necessary to its decision in that case because the police conducted their vehicle search after Gonzalez was handcuffed and they opened closed containers in a closed glove compartment as part of their search. Id. at 822. While Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009). Gant held that police may only search a vehicle incident to a lawful arrest “if the arrestee is within reaching distance of the passenger compartment at the time

8 reliance on binding appellate precedent, even when that precedent is subsequently

overruled. Id. at 876. Therefore, because the officer who facilitated the blood draw on

Lindquist acted in good-faith reliance on the bright-line rule set forth in Shriner and

Netland, the exclusionary rule did not require that the results of the blood test be

suppressed. Id. at 878–79.

In Lindquist, we expressly emphasized the narrowness of our holding. Id. at 876–

77. We stated that the good-faith exception is narrowly focused, applying only if “binding

precedent . . . specifically authorize[d] the behavior” and, as noted above, that “[l]aw

enforcement cannot ‘extend the law’ to areas in which no precedent exists or the law is

unsettled.” Id. (emphasis added) (citing Davis, 564 U.S. at 250 (Sotomayor, J.,

concurring)).

B.

We now turn to the circumstances that the State contends, and the court of appeals

concluded, warrant applying the Lindquist good-faith exception in this case. The court of

appeals determined that its 1984 precedential decision 5 in State v. Pierce, 347 N.W.2d 829,

of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S. at 351. Gant altered the broad reading of Belton that law enforcement had “widely accepted.” Id. at 349–50, 349 n.11. More importantly, Gant expressly overruled the bright-line rule set forth in Gonzalez. Davis, 564 U.S. at 239–40. After Gant, it was clear that the search in Davis that was lawful under Gonzalez was now unlawful. Id. The Supreme Court, however, upheld the search in Davis under the good-faith exception to the exclusionary rule. Id. at 249. For the first time, the Court held that the exclusionary rule does not apply when an officer conducts a search in objectively reasonable reliance on binding appellate precedent. Id. at 232. 5 The parties agree that “binding appellate precedent” includes precedential decisions from the court of appeals when there is no decision from our court on the matter. We presume for purposes of our analysis that the parties are correct.

9 833 (Minn. App. 1984), justifies applying the limited Lindquist good-faith exception in

Douglas’s case. Douglas, 12 N.W.3d at 763.

In Pierce, a sheriff’s deputy lawfully stopped Pierce’s vehicle and noticed a strong

smell of alcohol coming from inside the car. 347 N.W.2d at 831. In addition to the smell

of alcohol, the deputy saw an open case of beer in the backseat with some cans missing, a

metal tab from a can lying on the vehicle’s passenger-side floor, and a drinking glass on

the floor. Id. The deputy also knew that Pierce was on probation and was not supposed to

be drinking or possess beer. Id. In light of all these considerations, the deputy concluded

that he had probable cause to search Pierce’s vehicle for an open bottle violation and did

so. Id. During the search, the deputy found a pistol for which Pierce did not have a permit.

Id. The deputy called an investigator to the scene, who obtained a warrant to more

thoroughly search the vehicle based on probable cause that Pierce had committed theft and

vandalism at a nearby logging camp, crimes for which he was later charged. Id.

Pierce moved to suppress the evidence obtained from the search. The district court

denied the motion and the court of appeals affirmed. Id. at 834. The court of appeals

explained its decision as follows:

In the course of conducting this legal stop, the deputy recognized the appellant and knew him to be on probation. He knew also that Pierce was not supposed to be drinking or to be in possession of beer. The deputy noticed the smell of beer or alcohol coming from the car as appellant got out. He also noticed an open case of beer in the car with cans missing and a metal can tab on the floor. This constituted separate probable cause, allowing the deputy to search the car for evidence of an ‘open bottle’ violation under the automobile exception to the warrant requirement. Minn.[ ]Stat. § 169.122 (1982). See State v. Liljedahl, 327 N.W.2d 27, 30 (Minn.[ ]1982); State v. Willis, 320 N.W.2d 726, 728 (Minn.[ ]1982). It has long been held that the detection of odors alone, which trained police officers can identify as being

10 illicit, constitutes probable cause to search automobiles for further evidence of crime. City of St. Paul v. Moody, 309 Minn. 104, 244 N.W.2d 43 (Minn.[ ]1976); State v. Wicklund, 295 Minn. 403, 205 N.W.2d 509 (Minn.[ ]1973).

Id. at 833 (emphasis added). The State urges that the emphasized statement is “binding

appellate precedent” and that the officer who searched Douglas’s vehicle acted in

objectively reasonable reliance on that precedent.

In determining whether the deputy’s warrantless search and the investigator’s

subsequent search of Pierce’s vehicle were lawful, the court of appeals in Pierce identified

several circumstances, in addition to the odor of alcohol, that provided the officer with

probable cause to search the vehicle. Id. These included the deputy’s knowledge that

Pierce was on probation and not supposed to be drinking or in possession of beer, the open

case of beer with cans missing in the back seat, and the metal tab from a can on the floor.

Id. That approach is consistent with our longstanding precedent that the totality of the

circumstances is the proper framework for assessing probable cause to search a vehicle.

See State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016) (“Probable cause is an objective

inquiry that depends on the totality of the circumstances in each case.”); State v. Yahnke,

336 N.W.2d 299, 300 (Minn. 1983) (“[T]he totality-of-the-circumstances analysis . . . has

traditionally informed probable cause determinations.”); Illinois v. Gates, 462 U.S. 213,

233 (1983). The court of appeals’ additional point that odor alone justified the search was

11 either a statement in support of the court’s totality-of-the-circumstances assessment or an

alternative reason supporting the finding of probable cause. Pierce, 347 N.W.2d at 833. 6

Even if we consider the statement in Pierce to be an alternative holding, rather than

a statement supporting the court’s totality-of-the-circumstances assessment, relying on

Pierce to justify applying the Lindquist good-faith exception to the search of Douglas’s

vehicle is problematic. The officer’s assumption—that he had authority to search

Douglas’s vehicle solely because he smelled marijuana—was not based on binding

appellate precedent for two reasons.

First, Pierce did not “specifically authorize” the search in question, as Lindquist

requires. Lindquist, 869 N.W.2d at 876. While Pierce addressed whether probable cause

existed to search a vehicle based on the odor of alcohol, the officer in this case searched

Douglas’s vehicle based on the odor of marijuana. As we observed in State v. Ortega,

770 N.W.2d 145, 149 n.2 (Minn. 2009), and emphasized in Torgerson, 995 N.W.2d at 172,

174–75, after 1976 possession of marijuana is not necessarily a criminal offense. Driving

6 As in Pierce itself, the cases on which the Pierce court relied to support this alternative basis for finding probable cause—State v. Wicklund and City of St. Paul v. Moody—were not decided based on the detection of odors alone. See Torgerson, 995 N.W.2d at 171–72 (discussing Wicklund, Moody, and other decisions in that line of cases). The officers who conducted the search in Wicklund relied on their observation that the defendant was “making furtive motions, as though he were attempting to hide something,” as well as the odor of burnt marijuana. 205 N.W.2d at 510–11. Moreover, the search in Wicklund was of a person rather than a vehicle. Id. at 511. In Moody, the officer relied on heavily fogged windows and a citizen’s report of suspicious behavior in addition to smell to justify the vehicle search. 244 N.W.2d at 44. We said as much in Torgerson. 995 N.W.2d at 171 (“[T]he circumstances informing the officer’s probable cause determination [in Moody] consisted of considerably more than just the odor of paint fumes . . . .” (emphasis added)).

12 on a public highway with an open bottle, however, was plainly a criminal offense under all

circumstances when Pierce was decided. Compare Minn. Stat. § 152.027, subds. 3–4

(2018) (criminalizing possession of more than 1.4 grams of marijuana in a motor vehicle

as a misdemeanor and classifying possession of a small amount of marijuana as a petty

misdemeanor), 7 with Minn. Stat. § 169.122 (1982) (criminalizing without qualification

drinking, consuming, or possessing intoxicating liquor or nonintoxicating malt liquor). 8

Thus, in Pierce, the totality of the circumstances, including the odor of alcohol, provided

probable cause to investigate a possible criminal offense. 347 N.W.2d at 831. It stretches

Pierce’s facts and holding too far to assert that they “specifically authorize” a search based

solely on the odor of marijuana. 9 Accordingly, the statement in Pierce that the smell of

7 The Legislature repealed sections 152.027, subdivisions 3 and 4, in 2023. Act of May 30, 2023, ch. 63, art. 6, § 73(b), 2023 Minn. Laws 2685, 2900. 8 During oral argument, the State asserted that in State v. Hodgman, 257 N.W.2d 313 (Minn. 1977), decided after the Legislature reduced the penalty for possessing small amounts of marijuana in 1976, we continued to endorse the position that the odor of marijuana alone would constitute probable cause for a warrantless vehicle search. Citing Wicklund, we said in Hodgman that “[o]nce [the officer] smelled the marijuana, [he] had probable cause to arrest defendant and conduct a full search of both defendant and the car.” Id. at 315. But the focus of Hodgman was the officer’s credibility and whether the officer’s testimony was consistent with what he was actually able to see. Id. at 314. Further, the officer in Hodgman not only smelled the odor of burned marijuana but also saw a plastic pill bottle containing small paper folds in an ash tray and knew, based on his training and experience, that this was how people typically carried narcotics. Id. Hodgman is distinguishable from the case here, where the officer’s credibility is not in question and his only justification for searching Douglas’s vehicle was the smell of marijuana. 9 Notably, neither the officer nor the State has ever expressly identified the crime that Douglas was suspected of committing before the officer searched the vehicle. He was ultimately charged with possessing ammunition as an ineligible person and driving after cancellation; Douglas was never charged with a marijuana offense.

13 alcohol alone provides probable cause to search a vehicle for a possible open bottle offense

addresses a materially different situation from whether the smell of marijuana alone

provides probable cause to search a vehicle for some unidentified crime.

Second and more important, in the time between the court of appeals’ decision in

Pierce and the search of Douglas’s car in 2019, we issued opinions that unsettled the notion

that the smell of marijuana alone was sufficient to justify a vehicle search. Our analysis in

those cases rested on the fact that for several decades, both before and after Pierce, we

routinely and repeatedly held that we look to the totality of the unique circumstances of

each case to assess whether a warrantless search was justified. See, e.g., Torgerson,

995 N.W.2d at 173; Lester, 874 N.W.2d at 771; State v. Perkins, 582 N.W.2d 876, 878

(Minn. 1998); State v. Gallagher, 275 N.W.2d 803, 808 (Minn. 1979).

For example, in State v. Burbach, 706 N.W.2d 484, 489 (Minn. 2005), we held that

the odor of alcohol emanating from a vehicle is not a per se justification for law

enforcement to search a vehicle for open containers of alcohol. We rejected the State’s

argument that there is a bright-line rule that the odor of alcohol always justifies a

warrantless vehicle search. Id. Instead, we recognized that individuals have a substantial

privacy interest in motor vehicles under the Minnesota Constitution and any bright-line

rule would not comport with that constitutional right. Id. Our decision in Burbach called

into question the statement in Pierce that “detection of odors alone . . . constitutes probable

cause to search automobiles.” Pierce, 347 N.W.2d at 833; see also Torgerson, 995 N.W.2d

at 172–73 (analyzing Burbach).

14 Four years after Burbach, we again cast doubt upon the reliability of Pierce’s

statement regarding odors alone. In Ortega, we examined whether an officer had sufficient

probable cause to search Ortega, a vehicle passenger, after noticing the odor of marijuana

emanating from the vehicle. 770 N.W.2d at 148–50. Relying partially on State v.

Wicklund, the court of appeals held that the odor provided the officer probable cause to

search Ortega’s person. Id. at 149 n.2; State v. Ortega, 749 N.W.2d 851, 854 (Minn. App.

2008). We disagreed.

While we upheld the search of Ortega on other grounds, we distinguished the search

from that in Wicklund on the basis that, at the time officers searched Wicklund, possession

of any amount of marijuana was a criminal offense. Ortega, 770 N.W.2d at 149 n.2. 10 We

stated that, after the Legislature decriminalized the possession of a small amount of

marijuana in 1976, “probable cause to suspect that a person possesses a non-criminal

amount of marijuana, in and of itself, does not trigger the search-incident-to-arrest

exception to the warrant requirements of the Fourth Amendment.” Id. (citing State v.

Martin, 253 N.W.2d 404, 405–06 (Minn. 1977) (holding that an arrest based on probable

cause for possessing a small amount of marijuana was unconstitutional and, as a result, so

was a search incident to that arrest)). Like Burbach, our decision in Ortega unsettled any

notion of a bright-line rule that the odor of alcohol or marijuana is itself sufficient to create

probable cause for a warrantless search.

10 As we observed in note 6, supra, in Wicklund, the vehicle search was supported by circumstances beyond the odor of marijuana.

15 We recognize that Ortega involved the warrantless search of an individual

passenger incident to arrest, whereas Pierce addressed the search of a vehicle under the

automobile exception to the warrant requirement. 11 Nonetheless, the reasoning in Ortega

applies with equal force in the context of a vehicle search based on a suspicion that

evidence of criminal activity will be found. In Ortega, the odor of marijuana could have

resulted from a person possessing a non-criminal amount of marijuana—an amount that

would not justify arrest—and therefore the odor alone could not provide probable cause

for a search incident to arrest. 770 N.W.2d at 149 n.2. For the same reason, the odor of

marijuana alone does not justify a vehicle search because non-criminal amounts of

marijuana do not provide probable cause to believe that criminal amounts of marijuana will

be found in a vehicle. See Torgerson, 995 N.W.2d at 171 n.9, 175 (discussing Ortega). In

his dissent from the court of appeals opinion in this case, Judge Ross observed: “[I]t was

clear by 2009 that binding appellate precedent held that the odor of marijuana alone does

not establish probable cause for a warrantless search of a vehicle because the odor may be

11 We have said that probable cause to arrest an individual (and thus search them incident to arrest) is distinct from the probable cause required to search a vehicle. See, e.g., Ortega, 770 N.W.2d at 149 n.2 (“[A]lthough ‘probable cause to arrest’ satisfies the search-incident-to-arrest exception to the Fourth Amendment warrant requirement when an arrest is made, ‘probable cause to search’ does not necessarily trigger an exception to the warrant requirement or lead to the conclusion that the search was otherwise reasonable.”); In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (“[P]robable cause to search and probable cause to arrest are distinct. . . . Whereas probable cause to search requires police to have a reasonable belief that incriminating evidence is in a certain location, probable cause to arrest requires police to have a reasonable belief that a certain person has committed a crime.” (citations omitted)); see also Chambers v. Maroney, 399 U.S. 42, 49 (1970) (“[T]he search of an auto[mobile based] on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest[.]”).

16 evidence of only a noncriminal amount of marijuana.” Douglas, 12 N.W.3d at 767

(Ross, J., dissenting). At the very least, even if the sentence in Pierce suggesting a bright-

line rule that detecting odors of illicit substances alone provides probable cause to search

a vehicle was an independent alternative holding, our decisions in Burbach and Ortega

called into question whether the statement remained good law—if it ever was.

The dissent fears that relying on what it characterizes as the “nuances and

distinctions” raised in Burbach and Ortega places too heavy a burden on police officers.

As we discuss more fully in Part C, we appreciate the concern but conclude that the focus

is misplaced. We also emphasize, however, that Burbach and Ortega are the law and not

mere nuances that may be readily dismissed. Further, the State bears the burden to establish

any exception to the warrant requirement. Ture, 632 N.W.2d at 627. And as we reiterated

in Torgerson, we have long held that police officers must determine probable cause in each

individual circumstance based on the totality of the circumstances. 995 N.W.2d at 173.

The incentive and default for police officers and those who train them in close, uncertain,

or doubtful circumstances should be to err on the side of staying within that constitutional

perimeter.

The situation we faced in Lindquist was different. Our decision in Lindquist relied

on Shriner and Netland, in which we had established a bright-line rule that the police

conduct at issue (a warrantless search of a suspected intoxicated driver’s blood) was

permissible and, before the U.S. Supreme Court invalidated Shriner and Netland, we had

never controverted that rule. Lindquist, 869 N.W.2d at 877–79. To apply a good-faith

17 exception to the exclusionary rule in this case would expand the exception beyond the

narrow limitations we established in Lindquist.

C.

The State argues that we should expand our decision in Lindquist to include the

circumstances here because suppressing the evidence found during the search of Douglas’s

vehicle would have no deterrent value. We disagree.

We have stated that the purposes of the exclusionary rule in Minnesota include

deterring police misconduct and other unlawful government conduct, as well as preserving

judicial integrity and providing a remedy for violations of the Minnesota Constitution. See

Malecha, 3 N.W.3d at 575, 577 & n.4; cf. Michigan v. Tucker, 417 U.S. 433, 446–47

(1974) (stating the primary rationale for the federal exclusionary rule is to deter police

misconduct). We also recognize that police work is difficult and the line between a

constitutional and an unconstitutional search is not always clear. Nonetheless, the right to

be free from unreasonable and warrantless government intrusion is one of the most

fundamental protections our constitution guarantees to Minnesotans. We reiterate the

longstanding constitutional rule that law enforcement should assess whether probable

cause exists for a warrantless search after considering the totality of the circumstances in

each case. See Torgerson, 995 N.W.2d at 173. We conclude that the rule we adopt today

will serve to encourage those who train police officers to focus those officers on assessing

the totality of the circumstances in each unique case rather than trying to suss out of our

case law single, per se justifications for searches that may not otherwise be permissible

under the totality of the circumstances.

18 D.

The State also points out that the court of appeals, in several nonprecedential

decisions, has cited or quoted the dicta from Pierce that “the detection of odors alone,

which trained police officers can identify as being illicit, constitutes probable cause to

search automobiles for further evidence of crime.” 347 N.W.2d at 833. In many of those

cases, the court of appeals specifically identified circumstances beyond the odor of

marijuana that supported the warrantless searches at issue. 12 We have identified only a

handful of nonprecedential court of appeals decisions after our decisions in Ortega and

Burbach upholding warrantless searches of vehicles where the smell of marijuana was the

only basis used to justify searches—and most of those cases were decided after the 2019

12 See, e.g., State v. Torgerson, No. A22-0425, 2022 WL 6272042, at *2 (Minn. App. Oct. 10, 2022) (“We do not reach the issue of whether the odor of marijuana, alone, is enough to establish probable cause . . . .”); State v. Waltz, No. A21-0603, 2022 WL 829252, at *4 (Minn. App. Mar. 21, 2022) (“While we do not disagree with the state’s summary of the law, we note that the factual circumstances here included more than an odor of marijuana.”); State v. Jackson, No. A16-1456, 2017 WL 3222526, at *4 (Minn. App. July 31, 2017) (“As a threshold matter, we note the search was not based on the odor [of marijuana] alone . . . .”); State v. Mattison, No. A15-1423, 2016 WL 5345529, at *4 (Minn. App. Sep. 26, 2016) (officer smelled marijuana and observed vehicle occupants acting in a manner suggesting they were under the influence of a controlled substance); State v. Clay, No. A14-1567, 2015 WL 4523693, at *1 (Minn. App. June 29, 2015) (in addition to the smell of marijuana, officer observed an unlabeled prescription bottle in the car and noted the defendant “appeared nervous” after being asked if he had any marijuana); State v. Dickenson, No. A13-1516, 2014 WL 2807676, at *1 (Minn. App. June 23, 2014) (police dog alerted officers to the trunk of the vehicle); State v. Carter, No. A08-0625, 2009 WL 1118902, at *2–3 (Minn. App. Apr. 28, 2009) (in addition to the smell of marijuana, officer saw defendant taking actions consistent with the sale of narcotics, smoke coming from the window of the vehicle, and three cell phones and money in the defendant’s lap); In re Welfare of R.T., No. A08-0441, 2009 WL 67313, at *1 (Minn. App. Jan. 13, 2009) (officer received report that a group of males were possibly smoking marijuana in a parking lot and, upon arrival, observed a blunt in the center console of the car).

19 search in this case. See State v. Browder, No. A19-1908, 2020 WL 3172848, at *2 (Minn.

App. June 15, 2020); State v. Hunter, No. A19-1429, 2020 WL 1983310, at *4 (Minn. App.

Apr. 27, 2020); State v. Skotte, No. A19-0713, 2020 WL 996742, at *2–3 (Minn. App.

Mar. 2, 2020); State v. Kalberg, No. A16-0566, 2017 WL 1210110, at *1–2 (Minn. App.

Apr. 3, 2017).

Notably, the State does not claim that these nonprecedential decisions from the court

of appeals are “binding appellate precedent.” This is consistent with the clear language in

the Rules of Civil Appellate Procedure: “Nonprecedential opinions . . . are not binding

authority except as law of the case, res judicata or collateral estoppel . . . .” Minn. R. Civ.

App. P. 136.01, subd. 1(c). We agree and hold that nonprecedential decisions are not

“binding appellate precedent” for purposes of the Lindquist good-faith exception to the

exclusionary rule.

Rather, the State asserts that these nonprecedential decisions are evidence of some

level of consensus in the legal community (before we issued our decision in Torgerson)

that the odor of marijuana alone could justify a vehicle search. 13 Although our review of

13 The dissent makes a similar argument that the court of appeals’ decisions to designate later related cases—most of which, like Pierce, did not consider the odor of marijuana as the sole circumstance in a probable cause determination—as nonprecedential shows that the court of appeals considered Pierce to be a “binding and settled rule of law.” First, we observe that this was not a unanimously held belief among members of the court of appeals. See Douglas, 12 N.W.3d at 767 (Ross, J., dissenting). Further, as noted, most court of appeals decisions did not rely solely on the principle that the odor of marijuana alone is sufficient to provide probable cause to search a vehicle. Supra note 11. Finally, we cannot know—here or in any case—why the court of appeals chooses a certain designation for its cases. Although there are factors each court of appeals panel may consider in designating the form of an opinion, see Minn. R. Civ. App. P. 136.01,

20 those cases does not suggest as strong a consensus as the State argues, we also do not

suggest that individual police officers—including the officer in this case—had no basis for

believing that the smell of marijuana created a bright-line exception to the general rule that

courts assess the propriety of a vehicle search under the totality of the circumstances.

Indeed, if anything, we take full responsibility for failing to step in earlier than our decision

in Torgerson to clearly state that it is not the law in Minnesota that the odor of marijuana

alone provides probable cause to support a warrantless search of a vehicle.

But consensus in the legal community about what a decision means is not the

standard for determining whether the Lindquist good-faith exception to the exclusionary

rule applies. Instead, the Lindquist exception is limited to the narrow contours we

identified in that case: It applies only when law enforcement acts in objectively reasonable

reliance on subsequently reversed binding appellate precedent which articulates a rule that

specifically authorized the officer’s conduct under the circumstances addressed in the

precedential case and the rule has not been unsettled by subsequent decisions. 869 N.W.2d

at 876–77. The Lindquist rule does not apply in this case, and we decline to expand the

narrow good-faith exception we adopted in Lindquist.

subd. 1(b), there is no statement published with each opinion explaining why the opinion is either precedential or nonprecedential. The court of appeals’ decision to designate a case as nonprecedential does not transform a non-binding principle of law into a binding principle of law.

21 CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and

remand to the district court for further proceedings consistent with this opinion.

22 DISSENT

PROCACCINI, Justice (dissenting).

I respectfully dissent. The good-faith exception to the exclusionary rule applies

“when law enforcement acts in objectively reasonable reliance on binding appellate

precedent.” State v. Lindquist, 869 N.W.2d 863, 876 (Minn. 2015). In State v. Pierce, the

court of appeals plainly stated in a published and precedential decision that “the detection

of odors alone, which trained police officers can identify as being illicit, constitutes

probable cause to search automobiles for further evidence of crime.” 347 N.W.2d 829, 833

(Minn. App. 1984). That rule of law was a holding (not dicta), which remained good law

for nearly 40 years until State v. Torgerson, 995 N.W.2d 164 (Minn. 2023). Because I

would conclude that the police officer in this case was objectively reasonable in adhering

to the rule of law stated in Pierce, I would apply the good-faith exception to the

exclusionary rule recognized in Lindquist and affirm the court of appeals.

To start, I am not convinced by Douglas’s argument that the rule of law stated in

Pierce is “dicta.” Instead, I would conclude that Pierce held that “the detection of odors

alone, which trained police officers can identify as being illicit, constitutes probable cause

to search automobiles for further evidence of crime.” 347 N.W.2d at 833.

“Statements and conclusions based on the facts and legal issues before the court . . .

are not dicta.” Ries v. State, 920 N.W.2d 620, 635 n.8 (Minn. 2018); accord State ex rel.

Foster v. Naftalin, 74 N.W.2d 249, 266 (Minn. 1956); Olson v. Lesch, 943 N.W.2d 648,

657 n.6 (Minn. 2020). The paragraph in Pierce containing the disputed language sets forth

D-1 a rule of law and applies it to the facts presented. 347 N.W.2d at 833. The issue of law in

Pierce was whether an officer had probable cause to search an automobile. Id. And one

of the facts presented was that the officer smelled contraband. Id. at 831. The language at

issue was based on a fact (the smell of contraband) and a legal issue (whether the officer

had probable cause), both presented in the case. Because the disputed language in Pierce,

347 N.W.2d at 833, was “based on the facts and legal issues before the court,” it was not

dicta. Ries, 920 N.W.2d at 635 n.8; see also Naftalin, 74 N.W.2d at 266 (explaining that

when “two or more issues are before the court and are argued by counsel, and the court

places its decision on both even though a decision on one issue might have been sufficient

to dispose of the case, the decision is equally binding as to both issues”). The language in

Pierce amounted to an alternative holding, as the court seems to acknowledge, and not

dicta. It was therefore binding appellate precedent when it was issued.

But even if the rule of law stated in Pierce were dicta, it would be the kind of dicta

to which we afford much greater weight. We have recognized two distinct kinds of dicta:

“obiter dicta” and “judicial dicta.” State v. Rainer, 103 N.W.2d 389, 396 (Minn. 1960).

An obiter dictum is, literally, “something said in passing.” Dictum, Black’s Law Dictionary

(12th ed. 2024). Statements labeled “obiter dicta” are “expressions in a court’s opinion

which go beyond the facts before the court.” Naftalin, 74 N.W.2d at 266. Statements are

“judicial dicta” (and not obiter dicta) if “what was said bears directly upon the theory upon

which the decision proceeded and upon an issue of law treated as decisive.” Rainer,

103 N.W.2d at 396.

D-2 We afford different weight to obiter dicta and judicial dicta. Id. Obiter dicta are

“not binding in subsequent cases.” Naftalin, 74 N.W.2d at 266. On the other hand, because

a judicial dictum is not merely a statement made in passing, but instead is an “expression

emanating from the judicial conscience and the responsibilities that go with it,” it is

“entitled to much greater weight than [a] mere obiter dictum and should not be lightly

disregarded.” Rainer, 103 N.W.2d at 396. We are not alone in drawing this distinction

and affording greater weight to judicial dicta. See Charles W. Tyler, The Adjudicative

Model of Precedent, 87 U. Chi. L. Rev. 1551, 1566 & n.84 (2020) (noting that Minnesota

is among several states, including Arizona, Illinois, and Maryland, which make similar

distinctions and treat judicial dicta as “authoritative”).

If we were to consider the language in Pierce to be dicta, it would be judicial dicta

and not obiter dicta. As discussed above, the court’s statement in Pierce that the odor of

contraband alone was sufficient to authorize an automobile search did not “go beyond the

facts before the court.” Naftalin, 74 N.W.2d at 266. To the contrary, that language bore

directly on the facts presented (namely, the fact that the officer smelled contraband) and

the key issue in the case (whether the search was supported by probable cause). Pierce,

347 N.W.2d at 833. That the court acknowledged additional factual bases for probable

cause in Pierce does not mean that its statement regarding the legal standard did not “bear[]

directly upon the theory upon which the decision proceeded . . . .” Rainer, 103 N.W.2d at

396. Because the rule of law in Pierce is—at a minimum—judicial dicta, our case law

instructs that courts should give it “much greater weight,” id., and we should not treat it as

D-3 something other than binding appellate precedent for the purpose of applying the good-

faith exception under Lindquist.

Of course, to say that the rule of law in Pierce was binding appellate precedent when

it was issued in 1984 is not to say that it remained so until Torgerson. But I am

unconvinced that intervening cases overruled Pierce. The court of appeals itself treated

the language in Pierce as a valid rule of law until we issued our decision in Torgerson.

Since 1984, when the court of appeals decided Pierce in a published and precedential

opinion, the court of appeals cited that opinion no fewer than 18 times for the rule of law

that the odor of marijuana alone was a sufficient basis for a police officer to search an

automobile. 1 See Rainer, 103 N.W.2d at 396 (explaining that dicta can “be[] strengthened

and acquire[] additional weight by reason of . . . recognition and repetition”).

1 State v. Waltz, No. A21-0603, 2022 WL 829252, at *4 (Minn. App. Mar. 21, 2022) (“[U]nder current Minnesota law, the smell of marijuana provides probable cause for a vehicle search.”); State v. Browder, No. A19-1908, 2020 WL 3172848, at *2 (Minn. App. June 15, 2020) (“Odor, including that of marijuana, has been held to supply sufficient probable cause to search a vehicle.”); State v. Hunter, No. A19-1429, 2020 WL 1983310, at *3–4 (Minn. App. Apr. 27, 2020) (concluding that “the district court should have concluded that the Belle Plaine officers had probable cause to search Hunter’s car” based on “the odor of marijuana coming from Hunter’s car”); State v. Skotte, No. A19-0713, 2020 WL 996742, at *2–3 (Minn. App. Mar. 2, 2020) (“The smell of burnt marijuana is sufficient probable cause to justify a vehicle search.”); State v. Beaulieu, No. A18-0203, 2018 WL 6442115, at *2–3 (Minn. App. Dec. 10, 2018) (“There is published caselaw stating that the odor of marijuana coming from a vehicle establishes probable cause to search the vehicle.”); State v. Boettcher, No. A17-0043, 2018 WL 414120, at *2 (Minn. App. Jan. 16, 2018) (“The smell of marijuana can provide probable cause for a vehicle search.”); State v. Jackson, No. A16-1456, 2017 WL 3222526, at *4 (Minn. App. July 31, 2017) (“[T]here is published caselaw from [the court of appeals] stating that the odor of marijuana emanating from a vehicle establishes probable cause to search the vehicle.”);

D-4 It is true that the court of appeals designated each of these later opinions as

unpublished or nonprecedential. 2 But the decision to designate those cases that way shows

that the court of appeals considered itself to be restating a binding and settled rule of law—

rather than establishing a new one—each time it pronounced that the smell of marijuana

alone was sufficient to authorize an automobile search. See Minn. R. Civ. App. P. 136.01,

State v. Kalberg, No. A16-0566, 2017 WL 1210110, at *1 (Minn. App. Apr. 3, 2017) (“We have long observed that the odor of marijuana provides an officer with probable cause to search a vehicle.”); State v. Mattison, No. A15-1423, 2016 WL 5345529, at *3 (Minn. App. Sep. 26, 2016) (“The smell of marijuana provides an officer with probable cause to search a vehicle . . . .”); State v. Clay, No. A14-1567, 2015 WL 4523693, at *3 (Minn. App. June 29, 2015) (“The odor of marijuana provides an officer with probable cause to search a vehicle . . . .”); State v. Dickenson, No. A13-1516, 2014 WL 2807676, at *3 (Minn. App. June 23, 2014) (“We conclude that the district court did not err by holding that the smell of burnt marijuana from Dickenson’s vehicle established probable cause to conduct a warrantless search of the vehicle . . . .”); State v. Carter, No. A08-0625, 2009 WL 1118902, at *2 (Minn. App. Apr. 28, 2009) (“[T]he odor of burned marijuana inside a stopped motor vehicle provides probable cause to search the vehicle and its occupants.”); State v. Allinder, No. A08-0068, 2009 WL 304879, at *3 (Minn. App. Feb. 10, 2009) (“The detection of illicit odors alone by trained police officers constitutes probable cause to search automobiles for further evidence of crime.”); In re Welfare of R.T., No. A08-0441, 2009 WL 67313, at *2–3 (Minn. App. Jan. 13, 2009) (“[D]etection of an odor of marijuana would establish probable cause to search . . . .”); State v. Torres, No. C5-02-1704, 2003 WL 1908166, at *3 (Minn. App. Apr. 22, 2003) (concluding that “the officer had probable cause to search the vehicle” based on “the fact that the officer smelled marijuana”); State v. Moore, No. C9-00-1894, 2001 WL 1083717, at *2 (Minn. App. Sep. 18, 2001) (concluding that the officer “had probable cause to search the car” based on the fact that the officer “smelled the odor of marijuana”); State v. LaBore, No. C2-00-1929, 2001 WL 682857, at *2 (Minn. App. June 19, 2001) (“Smelling burnt marijuana provides probable cause for a search of a car.”); State v. Kattaria, No. C6-97-2358, 1998 WL 481899, at *3 (Minn. App. Aug. 18, 1998) (“[T]he odor of marijuana in appellant’s car constituted probable cause for police to search his automobile for further evidence of a crime.”). 2 I do not quibble with the conclusion that an unpublished or nonprecedential case of the court of appeals on its own is insufficient to constitute binding appellate precedent under Lindquist.

D-5 subd. 1(b) (setting out considerations for designating an opinion as precedential, including

whether the opinion “establishes a new principle or rule of law or clarifies existing

caselaw” or rather “applies settled principles or controlling precedent”); see also State v.

Beaulieu, No. A18-0203, 2018 WL 6442115, at *2 (Minn. App. Dec. 10, 2018) (“There is

published caselaw stating that the odor of marijuana coming from a vehicle establishes

probable cause to search the vehicle.” (emphasis added)). Of course, we are not bound by

the way that the court of appeals views its own opinions, but expecting police officers (or

those who train them) to split such hairs is a tall order.

Moreover, although our decisions in State v. Burbach, 706 N.W.2d 484 (Minn.

2005), and State v. Ortega, 770 N.W.2d 145 (Minn. 2009), may have cast some doubt as

to the relevant rules of law, they did not overrule Pierce or render its holding something

other than binding appellate precedent. As the court acknowledges, we did not clearly state

that the rule in Pierce was not the law in Minnesota until Torgerson. See Torgerson,

995 N.W.2d at 166.

Burbach provided clarity as to whether the smell of alcohol could serve as the sole

basis for a search, 3 but the Pierce rule was not cabined to the smell of alcohol. By its own

terms, Pierce swept more broadly to “odors” that “trained police officers can identify as

being illicit.” 347 N.W.2d at 833. Indeed, Pierce relied on our decisions in City of St. Paul

v. Moody, 244 N.W.2d 43 (Minn. 1976), and State v. Wicklund, 205 N.W.2d 509

(Minn. 1973)—neither of which were about alcohol. See Pierce, 347 N.W.2d at 833.

3 See Burbach, 706 N.W.2d at 489 (rejecting the State’s argument for “a bright-line rule that the odor of alcohol always justifies a vehicle search” (emphasis added)).

D-6 Moody involved a police officer who stopped a car and smelled “a strong odor of paint

fumes” from inside the car. 244 N.W.2d at 44. And Wicklund was about the smell of

marijuana. 205 N.W.2d at 511. We did not expressly clarify the limits of those decisions

until Torgerson. 995 N.W.2d at 171–72. And before Torgerson, our case law generally

applied Moody and Wicklund as the court of appeals did in Pierce. 4 Accordingly, although

Burbach did clarify that the odor of alcohol does not by itself justify a vehicle search, we

did not abrogate the general rule stated in Pierce that there are some odors that, by

themselves, provide probable cause to search a car. We simply held that, without more,

alcohol was not one of those odors. Burbach, 706 N.W.2d at 489.

Ortega provides a similarly weak basis for concluding that Pierce was abrogated

before Torgerson. Ortega involved a search incident to arrest, not a search of a vehicle.

770 N.W.2d at 148–50. As the court acknowledges, the vehicle and search incident to

arrest exceptions to the warrant requirement are separate doctrines, with distinct standards

and case law. See Torgerson, 995 N.W.2d at 171 n.9. The closest Ortega came to

addressing the issues presented here was in a footnote, where we described our holding in

Wicklund. Ortega, 770 N.W.2d at 149 n.2. We noted that, at the time Wicklund was

4 See, e.g., State v. Schultz, 271 N.W.2d 836, 837 (Minn. 1978) (citing Wicklund for the proposition that “the odor of marijuana” justified a “warrantless search of the passenger compartment for marijuana pursuant to the so-called motor vehicle exception to the warrant requirement”); State v. Hodgman, 257 N.W.2d 313, 315 (Minn. 1977) (citing Wicklund for the proposition that the odor of marijuana gave the officer “probable cause to arrest defendant and conduct a full search of both defendant and the car” (emphasis added)); State v. Veigel, 304 N.W.2d 900, 901–02 (Minn. 1981) (citing Wicklund and Moody for the proposition that discovery of “a pipe which smelled of burned marijuana” gave rise to “probable cause to believe that the vehicle contained controlled substances and that therefore a warrantless search was valid under the motor-vehicle exception”).

D-7 decided, possession of any amount of marijuana was criminal. Id. Although we reasoned

that the marijuana smell in Wicklund justified the search because it “provided the officer

probable cause to believe Wicklund possessed a criminal amount of marijuana,” we did

not overrule Wicklund or Pierce, nor did we otherwise state that odor of an illicit substance

alone could never provide probable cause for a vehicle search. See id.

And although we may have intended to clarify the law, it is unreasonable to expect

that police officers appreciated our intent when the courts did not. See Beaulieu, 2018 WL

6442115, at *3 (“Ortega does not stand for the proposition that a police officer lacks

probable cause to search a vehicle based on the smell of marijuana alone.”); State v. Levy,

No. A13-2358, 2014 WL 4176082, at *2–3 (Minn. App. Aug. 25, 2014) (stating that

“[c]aselaw does not support applying the caution noted in Ortega to a search conducted

under the automobile exception to the warrant requirement” and concluding that “probable

cause to search for marijuana existed based on the odor of burnt marijuana coming from

the car”); State v. Dickenson, No. A13-1516, 2014 WL 2807676, at *3 (Minn. App.

June 23, 2014) (same).

At the end of the day, relying on these nuances and distinctions places a heavy

burden on police officers and misses what seems to be a critical point: For nearly four

decades, the court of appeals, believing itself to be bound by Pierce, stated with mantralike

consistency the rule of law authorizing police officers to search an automobile upon

smelling marijuana. The court of appeals stated so unanimously in every case, 5 it stated so

5 See supra note 1.

D-8 before and after this court decided Burbach and Ortega, 6 and it stated so in cases where

the challenged searches were premised solely on a whiff of marijuana. 7 The decision to

clarify the law in Torgerson, 995 N.W.2d at 171–73, did not erase the four decades of

contradictory court of appeals precedent that came before it. 8

Lindquist stands for the unremarkable propositions that police officers should be

able to rely on appellate decisions and that their work “should not be rejected as a result of

appellate judge error.” 869 N.W.2d at 869. Police officers “are not endowed with

omniscience.” City of St. Paul v. Vaughn, 237 N.W.2d 365, 368 (Minn. 1975). They

should be able to rely on the court of appeals when it states a rule of law, and their work

6 See supra note 1 (listing eighteen total cases: four cases decided before Burbach and Ortega; three cases decided after Burbach but before Ortega; seven cases decided after Burbach and Ortega but before police searched Douglas’s vehicle; and four cases decided after the search but before Torgerson). 7 See Browder, 2020 WL 3172848, at *2; Hunter, 2020 WL 1983310, at *4; Kalberg, 2017 WL 1210110, at *1–2; Kattaria, 1998 WL 481899, at *3. 8 To be sure, we deny petitions for further review for all sorts of reasons, and “our decisions to deny further review . . . do not constitute an endorsement of the reasoning of the court of appeals or the result reached in those cases.” Goodyear Tire & Rubber Co. v. Dynamic Air, Inc., 702 N.W.2d 237, 245 (Minn. 2005). But it is worth noting that we had numerous opportunities to address this issue and clarify the law before Torgerson. See Skotte, 2020 WL 996742, at *2, rev. denied (Minn. May 19, 2020); Beaulieu, 2018 WL 6442115, at *3, rev. denied (Minn. Feb. 19, 2019); Boettcher, 2018 WL 414120, at *2, rev. denied (Minn. Mar. 28, 2018); Jackson, 2017 WL 3222526, at *4, rev. denied (Minn. Oct. 17, 2017); Kalberg, 2017 WL 1210110, at *1, rev. denied (Minn. June 20, 2017); Mattison, 2016 WL 5345529, at *3, rev. denied (Minn. Dec. 27, 2016); Carter, 2009 WL 1118902, at *2, rev. denied (Minn. June 30, 2009); Moore, 2001 WL 1083717, at *2, rev. denied (Minn. Nov. 26, 2001); LaBore, 2001 WL 682857, at *2, rev. denied (Minn. Aug. 15, 2001); Kattaria, 1998 WL 481899, at *3, rev. denied (Minn. Oct. 20, 1998).

D-9 should not be rejected if they fail to parse case law with a more discerning eye than the

courts themselves.

* * *

Because the rule of law stated in Pierce was binding appellate precedent and

remained so until Torgerson, I would conclude that the police officer who conducted the

search here acted in objectively reasonable reliance on that precedent. I would therefore

apply the good-faith exception recognized in Lindquist and affirm the decision of the court

of appeals.

For these reasons, I respectfully dissent.

MOORE, III, Justice (dissenting).

I join in the dissent of Justice Procaccini.

D-10