This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Ricky Jay Torres,
Le Sueur County District Court
File No. K4-01-429
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas J. Christian, Le Sueur County Attorney, 88 South Park Avenue, Le Center, MN 56057 (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On May 6, 2001, Kasota Police Chief Michael Carson observed a car fail to stop and signal a turn at a stop sign. Carson pulled the car over and approached the vehicle. When appellant, the driver, rolled down his window, Carson smelled a strong odor of marijuana. Carson obtained identification from all the car’s occupants. When asked for proof of insurance, appellant opened the glove box to look for an insurance card. Carson observed what he believed to be drug paraphernalia inside the glove box. Specifically, he saw a gray cylinder-shaped object with a tube extending from the side, a green bowl on the top, and the upper portion wrapped in gray tape. Carson believed this was a device that is used to smoke marijuana. Appellant claimed he did not know whom the device belonged to, stating it was in the car when he bought it a few days before.
Carson had all the occupants exit the vehicle and empty their pockets. He then went to retrieve the object he had seen earlier from the glove box. When doing so, he noticed a black purse on the floor by the passenger seat. The purse was open and a bag filled with a green leafy substance was at the top of the open purse. Next to the bag was what appeared to be a sunglass case, which contained a pipe that could be used to smoke marijuana. In the back seat under a newspaper, Carson found a battery-operated digital scale, which was missing its 9-volt battery (a 9-volt battery was found in appellant’s pocket). In the trunk, Carson found a water bong and a half-pound “brick” of marijuana.
The preceding factual account comes solely from Carson’s signed police report. At the omnibus hearing, held on August 28, 2001, Mr. Nerud, counsel for appellant, stated:
My belief is that the officer made his best case in the police reports and that we would ask the Court to look at the police reports and reports from which the complaint emanated. My client does not intend to offer any testimony in rebuttal. We believe the officer’s chosen words reflected his misconduct.
Accordingly, we treat Carson's account of the events as true.
Appellant moved to suppress the evidence found in his car and the district court denied his motion. After his motion was denied, appellant pleaded guilty, rather than entering a Lothenbach stipulation. Technically, the plea of guilty waived any challenge to the omnibus order regarding evidence. Nonetheless, appellant requests that we address his case on the merits. The state agrees, stating that “since there were references to Lothenbach at appellant’s guilty plea, and since there were also statements at his guilty plea to the effect that appellant believed that he was following the proper procedure set forth in Lothenbach” we should treat this case as if the proper Lothenbach procedure was followed, in the interests of judicial economy. We thank the state for its candor. We agree and will address the suppression order on its merits.
The district court denied appellant’s motion to suppress the marijuana found in appellant’s car. Appellant argues that Carson did not have probable cause based on the smell of marijuana emanating from the vehicle and the drug-smoking pipe he saw in the glove box. He argues that most Minnesota cases have required circumstances other than the mere existence of a pipe-like device or the odor of marijuana to sustain probable cause.
We review the trial court's determination of probable cause relating to warrantless searches de novo. State v. Demry, 605 N.W.2d 106, 108 (Minn. App. 2000), review denied (Minn. Mar. 28, 2000). Under the "motor vehicle exception," police may conduct a warrantless search of an automobile if they have "probable cause for believing that [the] vehicles are carrying contraband or illegal merchandise." United States v. Ross, 456 U.S. 798, 808, 102 S. Ct. 2157, 2164 (1982) (quotation omitted). Probable cause exists when there are facts and circumstances that would lead a reasonably prudent person to believe the vehicle contains contraband. State v. Johnson, 277 N.W.2d 346, 349 (Minn. 1979). Even if the search is supported by probable cause, the scope of the search and any detention of the subjects must be reasonable. State v. Munson, 594 N.W.2d 128, 135-36 (Minn. 1999).
Appellant cites a variety of cases where arrests and searches incident to arrest were held to be justified. He argues that because his situation is not factually identical to those cases, the search of his car was therefore not justified. We disagree. Appellant's conclusion does not necessarily follow from his premise. The cases he cites do not establish a set of facts that is a minimum that is required to establish probable cause; instead, they say that, under the facts present there, probable cause existed. Also flawed is appellant’s argument that “[i]f a person cannot be arrested for possessing a small amount of marijuana, it follows that the odor of marijuana cannot be used to establish probable cause that contraband exists in a motor vehicle.” This argument survives neither precedent nor scrutiny. In State v. Doren, we stated:
Doren argues that the marijuana odor at this point was of burned marijuana and it is not illegal to smoke marijuana. But an officer reasonably might suspect that not all of the marijuana had been consumed and that some of it remained for later use.
State v. Doren, 654 N.W.2d 137, 142 (Minn. App. 2002) (emphasis added). Likewise, in State v. Hanson, we held that a custodial arrest was proper when police observed a "small amount" of marijuana because the amount could not be reasonably ascertained prior to the arrest. State v. Hanson, 488 N.W.2d 511, 512 (Minn. App. 1992).
If the smell of burnt marijuana provides a suspicion that unused marijuana remains, the smell of marijuana provides a reasonable suspicion that marijuana is present. As respondent points out, this case is similar to State v. Schultz, 271 N.W.2d 836 (Minn. 1978). There, an officer smelled marijuana that was wrapped in plastic hidden in grocery bags behind the driver’s seat. Id. at 837. The district court held this search valid, believing the officer’s testimony that he smelled marijuana. On appeal, the Minnesota Supreme Court stated:
The disputed factual issue at the omnibus hearing in this case was whether the officer investigating a possible motor vehicle violation by defendant smelled the odor of marijuana emanating from the passenger compartment. If he did, then the officer properly conducted a warrantless search of the passenger compartment for marijuana pursuant to the so-called motor vehicle exception to the warrant requirement.
Id. at 837 (emphasis added) (citation omitted). The court then affirmed, holding it was a credibility issue whether the officer smelled the drugs. Id. As well, this court has stated:
It has long been 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.
State v. Pierce, 347 N.W.2d 829, 833 (Minn. App. 1984) (citing City of St. Paul v. Moody, 309 Minn. 104, 244 N.W.2d 43 (1976) and State v. Wicklund, 295 Minn. 403, 205 N.W.2d 509 (1973)) (emphasis added).
In this case, appellant does not dispute the fact that the officer smelled marijuana. Appellant made the decision not to present any rebuttal testimony or cross-examine the officer, instead relying solely on the officer’s account of the incident. We conclude the officer had probable cause to search the vehicle. The officer testified he smelled marijuana in the car, and that, taken together with the totality of the circumstances, was sufficient.