Opinion
A22-1296
02-12-2024
State of Minnesota, Respondent, v. Jacob Richard Lindekugel, Appellant.
371 Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Hennepin County District Court File No. 27-CR-21-16
371 Keith Ellison, Attorney General, St. Paul, Minnesota; and Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rebecca Ireland, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Frisch, Presiding Judge; Wheelock, Judge; and Halbrooks, Judge.
OPINION
Halbrooks, Judge [*]
On remand following the Minnesota Supreme Court's decision in State v. Torgerson, 995 N.W.2d 164 (Minn. 2023), appellant argues that the district court erred by denying his motion to suppress evidence from a warrantless vehicle search because police did not have probable cause to conduct the search based on the smell of marijuana alone or under the totality of the circumstances. Because we conclude that police had probable cause to search appellant's vehicle under the totality of the circumstances, we affirm.
FACTS
On July 3, 2023, we affirmed the district court's denial of appellant Jacob Richard Lindekugel's motion to suppress evidence obtained during a warrantless search of Lindekugel's vehicle, concluding that the search was supported by probable cause based on the smell of marijuana alone and under the totality of the circumstances. State v. Lindekugel, No. A22-1296, 2023 WL 4307726, at *1 (Minn.App. July 3, 2023), vacated in part (Minn. Oct. 17, 2023) (Lindekugel I). On August 1, 2023, Lindekugel filed a petition for further review by the supreme court.
On September 13, 2023, the supreme court issued its decision in Torgerson and held that the smell of marijuana alone does not provide police with probable cause to conduct a warrantless vehicle search but rather is a circumstance which should be considered when determining whether probable cause existed at the time of the search. 995 N.W.2d at 173-74.
On October 17, 2023, the supreme court granted Lindekugel's petition for further review, vacated section II of our decision in Lindekugel I, and remanded the case for reconsideration in light of Torgerson. We reinstated Lindekugel's appeal on October 24, 2023, and ordered supplemental briefing on the impact of Torgerson. The relevant facts of this case are set forth in our first opinion. See Lindekugel I, 2023 WL 4307726, at *1-3.
DECISION
Lindekugel argues that police did not have probable cause to search his vehicle in light of Torgerson and asks us to reverse the district court's denial of his motion to suppress evidence obtained during the search. We review de novo a district court's probable-cause determination. State v. Lester, 874 N.W.2d 768, 771 (Minn. 2016).
The United States and Minnesota Constitutions prohibit "unreasonable searches and seizures" by the government. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. A warrantless search is presumptively unreasonable unless it falls within a well-recognized exception to the warrant requirement. State v. Milton, 821 N.W.2d 789, 798-99 (Minn. 2012). The state bears the burden of proving that an exception to the warrant requirement applies. State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003). Evidence obtained during an unlawful search must be suppressed. State v. Jackson, 742 N.W.2d 163, 177-78 (Minn. 2007).
The state defended the warrantless search of Lindekugel's vehicle under the "automobile exception" to the warrant requirement. Lindekugel I, 2023 WL 4307726, at *5. This exception provides that law enforcement may search a vehicle "if there is probable cause to believe the search will result in a discovery of evidence or contraband." Lester, 874 N.W.2d at 771 (quotation omitted). "Probable cause requires something more than mere suspicion but less than the evidence necessary for conviction." State v. Williams, 794 N.W.2d 867, 871 (Minn. 2011). Probable cause exists when the facts and circumstances are sufficient for a reasonably prudent person to conclude that a vehicle contains contraband. Lester, 874 N.W.2d at 771.
Determining whether probable cause exists is an "objective inquiry that depends on the totality of the circumstances in each case." Id. The totality of the circumstances is a "common-sense, nontechnical concept that involves the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act." Id. (quotation omitted). "[T]he totality of the circumstances includes reasonable inferences that police officers draw from facts, based on their training and experience, because police officers may interpret circumstances differently than untrained persons." Id. Accordingly, we "give due weight to reasonable inferences drawn by police officers and to a district court's finding that the officer was credible and the inference was reasonable." Id. (quotation omitted).
The supreme court recently clarified how courts should weigh the smell of marijuana when determining whether a warrantless vehicle search was supported by probable cause. Torgerson, 995 N.W.2d at 173. In Torgerson, the supreme court rejected the argument that police have probable cause to search a vehicle for contraband based on the smell of marijuana alone. Id. Instead, the supreme court affirmed its "relevant precedent" and explained that "the totality of the circumstances test utilized in a probable-cause determination is meant to be applied anew in each case based on the unique circumstances present." Id. With regard to the smell of marijuana, the supreme court held that "the probable cause analysis calls for the odor of marijuana to be one of the circumstances considered as part of the totality of the circumstances in assessing whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. The supreme court clarified that:
[F]or probable cause to arise [based on the smell of marijuana], the totality of the circumstances must give rise to a fair probability that the marijuana is being possessed or used in a criminally illegal manner, which, under the legal landscape [in effect in July 2021], means more than a small amount of marijuana, that is not hemp, and is not being used under the medical cannabis registry program. [Id.
The search at issue in Torgerson occurred on July 5, 2021. 995 N.W.2d at 166. The search at issue here occurred on July 8, 2021. Lindekugel I, 2023 WL 4307726, at *1. Therefore, the same laws were in effect at the time of both searches. Accordingly, the supreme court's review of "Minnesota's legal landscape surrounding marijuana" and its related holdings are relevant to this case. See Torgerson, 995 N.W.2d at 166, 169-71, 173.
Applying this standard to the facts in Torgerson, the supreme court held that police did not have probable cause to conduct a warrantless search of Torgerson's vehicle because "the only indication that evidence of a crime or contraband may be found . . . was the odor of marijuana emanating from the vehicle," and this evidence alone was "insufficient to establish a fair probability that the search would yield evidence of criminally illegal drug-related contraband or conduct." Id. at 174-75.
In Lindekugel I, we concluded that police had probable cause to search Lindekugel's vehicle based on the smell of marijuana alone and under the totality of the circumstances. 2023 WL 4307726, at *5-6. Regarding the totality of the circumstances, we stated:
We also note that the officer had probable cause to search Lindekugel's vehicle under the totality of the circumstances. The officer saw an occupied truck, with its interior lights on, "straddling [two] parking lanes" after bar close in a high-crime area. When the officer approached the truck, he saw Lindekugel hide a short "glass or plastic clear thing" which appeared to be a smoking device. The officer also observed that Lindekugel was exhibiting signs of impairment-namely, slow and slurred speech. Finally, the officer saw what appeared to be plastic baggies on the floor beneath the passenger's seat and observed that one of the baggies appeared to contain marijuana. Based on these facts and circumstances, the district court did not err by concluding that the officer had probable cause to search Lindekugel's vehicle. See Lester, 874 N.W.2d at 771.Id. at *6 (footnote omitted).
In light of Torgerson, we agree with Lindekugel that we erred by concluding that police had probable cause to search his vehicle based on the smell of marijuana alone. See 995 N.W.2d at 173. But we disagree that police lacked probable cause to search his vehicle under the totality of the circumstances.
As a preliminary matter, Lindekugel appears to argue that, whenever the smell of marijuana is one of the circumstances present at the time of a search, there must be a fair probability that the defendant used or possessed marijuana specifically in a criminally illegal manner for probable cause to exist. In making this argument, Lindekugel reads Torgerson too narrowly.
Lindekugel is correct that Torgerson states: "for probable cause to arise [based on the smell of marijuana], the totality of the circumstances must give rise to a fair probability that the marijuana is being possessed or used in a criminally illegal manner." Id. But we read this language as clarifying how courts should weigh the smell of marijuana when it is the sole or primary circumstance present at the time of the search-not when it is one of several circumstances present at the time of the search. See id.
This reading is reinforced by the supreme court's principal holding in Torgerson: that "the probable cause analysis calls for the odor of marijuana to be one of the circumstances considered as part of the totality of the circumstances in assessing whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. (first emphasis added). This reading is also supported by the supreme court's subsequent holding that the smell of marijuana alone was "insufficient to establish a fair probability that the search [of Torgerson's vehicle] would yield evidence of criminally illegal drug-related contraband or conduct." Id. at 175 (emphasis added). Thus, the relevant question is not whether the totality of the circumstances gave rise to a fair probability that Lindekugel used or possessed marijuana in a criminally illegal manner, as Lindekugel contends, but rather whether these circumstances gave rise to a fair probability that Lindekugel committed a crime or possessed contraband in general. See id. at 173.
Based on the totality of the circumstances, we conclude that there was a fair probability that a search of Lindekugel's vehicle would produce contraband or evidence of a crime. As we explained in Lindekugel I, the circumstances present at the time of the search were: (1) the officer's observation of an occupied vehicle, with its interior lights on, "straddling [two] parking lanes" after bar close in a high-crime area; (2) the officer's observation that Lindekugel hid a short "glass or plastic clear thing" which appeared to be a smoking device; (3) Lindekugel's signs of impairment, including slow and slurred speech; (4) the officer's observation of what appeared to be plastic baggies on the floor beneath the passenger's seat; and (5) the officer's observation that one of the baggies appeared to contain marijuana. 2023 WL 4307726, at *6. These circumstances demonstrate that there was a fair probability that evidence of drug-related contraband or conduct would be found in Lindekugel's truck. See, e.g., State v. Ortega, 749 N.W.2d 851, 853-54 (Minn. 2009) (holding that police had probable cause to conduct a warrantless vehicle search based on defendant's nervous and evasive conduct and defendant's possession of a small amount of marijuana); State v. Gallagher, 275 N.W.2d 803, 808 (Minn. 1979) (holding that police had probable cause to conduct a warrantless vehicle search based on the occupants' "furtive gestures" and indicia of impairment); State v. Nace, 404 N.W.2d 357, 360-61 (Minn.App. 1987) (concluding that police had probable cause to conduct a warrantless vehicle search based in part on the presence of rolling papers and marijuana in plain view in the passenger compartment and the defendant's admission to smoking marijuana), rev. denied (Minn. June 25, 1987); State v. Lembke, 509 N.W.2d 182, 184 (Minn.App. 1993) (explaining that the incriminating nature of a plastic bag was apparent because, although "[a] bag has many legitimate uses[,] [a]n officer may . . . rely on trained intuition and observations drawn from his experience"). Accordingly, we discern no error in our prior conclusion that police had probable cause to search Lindekugel's vehicle under the totality of the circumstances, and we affirm the district court's denial of Lindekugel's motion to suppress evidence seized during the search. See Torgerson, 995 N.W.2d at 173; Lester, 874 N.W.2d at 772-73.
Lindekugel raises three arguments to support his assertion that our totality-of-the-circumstances analysis in Lindekugel I was erroneous in light of Torgerson. We consider each argument in turn.
Lindekugel first contends that we "summarily judg[ed] that an item 'appear[ing] to contain marijuana' in Lindekugel's truck contributed to probable cause" without considering which "particularized facts suggest[ed] that the item was criminally illegal for Lindekugel to possess." The state asserts that we appropriately considered the officer's "plain-view observation of what appeared to be marijuana" because, at the time of the search, "possessing any more than 1.4 grams of marijuana in a motor vehicle . . . constituted a criminal misdemeanor offense." We agree with the state.
At the time of the search of Lindekugel's vehicle, possession of more than 1.4 grams of marijuana in a motor vehicle was a criminal misdemeanor. Minn. Stat. § 152.027, subd. 3 (2020). And, as the state notes, 1.4 grams is "much, much less than a 'small amount'" of marijuana under the relevant statute. See Minn. Stat. § 152.01, subd. 16 (2020) (defining a "[s]mall amount" of marijuana as "42.5 grams or less"). The officer's observation of a substance appearing to be marijuana therefore was relevant to our totality-of-the-circumstances analysis. See Torgerson, 995 N.W.2d at 173. Lindekugel's argument to the contrary is not persuasive.
Lindekugel next contends that we failed to consider the "particularized circumstances" surrounding the smell of marijuana, including Lindekugel's alleged license to use and possess tetrahydrocannabinol (THC) cartridges. The state notes that we "did not cite the THC cartridges as contributing to probable cause in any way" and argues that the other circumstances present at the time of the search were sufficient to support probable cause, regardless of whether Lindekugel legally possessed the cartridges. Again, we find the state's argument persuasive.
In Lindekugel I, we did not consider the smell of marijuana or the THC cartridges in our totality-of-the-circumstances analysis. 2023 WL 4307726, at *6. Instead, we concluded that the other circumstances present at the time of the search provided police with probable cause to search Lindekugel's vehicle. Id. Thus, Lindekugel's assertion that our totality-of-the-circumstances analysis was deficient because we failed to consider the circumstances surrounding Lindekugel's possession of the THC cartridges is unavailing.
To the extent that Lindekugel argues that we erred by failing to consider the smell of marijuana and the THC cartridges in our totality-of-the-circumstances analysis because these circumstances undermine our probable-cause determination, we are not persuaded. Even if we had considered these circumstances and they weighed against probable cause, the other circumstances present at the time of the search showed that there was a fair probability that searching Lindekugel's vehicle would produce contraband or evidence of a crime. See e.g., Ortega, 749 N.W.2d at 853-54; see also State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989) ("[I]nnocent activity might justify the suspicion of criminal activity."). Therefore, any error in our failure to consider the smell of marijuana and the THC cartridges in our totality-of-the-circumstances analysis is harmless and must be ignored. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) ("Although error may exist, unless the error is prejudicial, no grounds exist for reversal.").
Finally, Lindekugel contends that we improperly considered information developed during the search, "such as locating a pipe and then surmising that Lindekugel had been holding that pipe when he had first approached the car." The state argues that our totality- of-the-circumstances analysis relied on the circumstances present at the time of the search-not on information learned during or as a result of the search. Once again, we agree with the state.
In our totality-of-the-circumstances analysis, we relied on, in relevant part, the officer's observation that Lindekugel attempted to hide a short glass or plastic object when the officer approached Lindekugel's vehicle. The officer made this observation before he searched Lindekugel's vehicle, as the officer's body-worn camera footage reveals. In this footage, the officer approaches Lindekugel's vehicle, tells Lindekugel that he saw him holding an item, and asks Lindekugel if the item was a vape. A few minutes later, the officer again states that he saw Lindekugel holding an item and asks if that item was a pipe. Both of these exchanges occurred before the officer searched Lindekugel's vehicle. Thus, Lindekugel's assertion that we improperly considered information that was developed during the search is not persuasive.
Affirmed.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.