This opinion is nonprecedential except as provided by
                       Minn. R. Civ. App. P. 136.01, subd. 1(c).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-1326

                                  State of Minnesota,
                                     Respondent,

                                           vs.

                               Marco Deangulus Austin,
                                     Appellant.

                                  Filed June 17, 2024
                                       Reversed
                                   Connolly, Judge

                             Ramsey County District Court
                               File No. 62-CR-22-300

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Joseph McInnis, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Connolly, Presiding Judge; Larson, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           NONPRECEDENTIAL OPINION

CONNOLLY, Judge

       Appellant challenges his conviction of unlawful possession of a firearm, arguing

that the district court erred by denying appellant’s motion to suppress evidence that was

seized in a search of appellant’s vehicle based on the odor of marijuana and the presence

of a granule of suspected marijuana. We reverse.

                                         FACTS

       In August 2021, Officer B. stopped appellant Marco Austin because the tint of his

car windows appeared too dark. Officer B. testified that appellant appeared nervous and

was sweating when he was stopped. Appellant, in a t-shirt and gym shorts with an

electrolyte drink next to him, explained that he was coming from the gym. Officer B. also

testified that it is not uncommon for motorists he detains to appear nervous, that appellant

did nothing that could be considered suspicious, and that there was no indication that he

was impaired by marijuana or anything else. Officer B. then summoned another officer,

and Officer T. arrived.

       The officers searched appellant’s vehicle and found two handguns in a backpack on

the back seat. Neither had been stolen. The owner of the car, appellant’s significant other

D.S., was licensed to carry a concealed firearm and was the documented original purchaser

of one gun. The DNA of appellant and two other people was on one gun; his DNA and

that of three others was on the other gun. D.S.’s DNA was not collected.

       Appellant was charged with four counts of possession of a firearm or ammunition

by an ineligible person. At the hearing on appellant’s motion to suppress the evidence


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obtained by searching the car, Officer B. testified that he could smell a “strong odor of

unburnt marijuana” and could see green, leafy crumbs all over the floorboard and

marijuana particles among the loose change and dirt at the bottom of the console. The

officers’ photograph of the floor shows dirt, debris, and a granule no larger than a grain of

rice that might have been marijuana, surrounded by smaller particles. Appellant was

locked in a squad car; he was not asked about the odor or the granule.

       Officer B. testified that: his only reason for expanding the traffic stop was the smell

of marijuana; he had smelled marijuana every day for four years since he began working

as a police officer; he was not aware of whether marijuana and hemp looked the same; and

he had received training at some time on marijuana but none on hemp or cannabidiol (CBD)

products. He also said that he did not recall whether he had been trained to recognize hemp

or CBD but possibly had been, but revised this testimony later, saying “We’re trained on

marijuana. That is it.” and testified further that any training he had was “a long time ago.”

Asked how he knew that the particles on the car floor were marijuana, he said he did not

examine the granule but just smelled marijuana coming from the car. He said he saw a

substance he believed to be marijuana on the floorboard but did not recall whether he had

actually found and documented the “alleged marijuana flake” he had seen. Officer B.

answered “correct” when asked if he was claiming that “there [was] a strong odor [of

marijuana] but the amount of marijuana found, or what [he] believed to be marijuana, was

so little that [he] couldn’t even collect it.” He answered “no” when asked if he tested

anything he found in the vehicle and said he thought what he saw was marijuana because




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of the smell. Both officers testified that they thought the strong marijuana they smelled

came from the granule on the floor.

       Officer T. testified that he did not find any significant quantity of marijuana in the

car but found “just the crumbs”; he did not recall if, having spotted what he thought was

flakes of marijuana, he asked appellant if he had any illegal marijuana or any legal

marijuana in the car. When asked if he observed appellant doing anything that would have

given him probable cause to search the vehicle other than the “claimed discovery of the

odor of marijuana and the belief of the [flakes] on the floorboard being marijuana,” Officer

T. said it was not his traffic stop, and the only thing he saw was the marijuana. He answered

in the negative when asked if he had any training on distinguishing the smell of illegal

marijuana from that of hemp or CBD products, if any of the crumbs he saw were collected

and tested, and if he could say with 100 percent certainty what the content of the crumbs

and flakes was. He answered in the affirmative when asked if he had had “no personal

training or experience discerning the difference between those [legal marijuana] products

and the illegal marijuana that [he] claim[ed appellant] had” and if “the sole basis of [the]

search of [appellant’s] vehicle [was] the claimed odor of marijuana and belief that green

crumbs on the floorboard were marijuana.” The parties later stipulated that hemp and

marijuana smell the same.

       Appellant’s motion to suppress the evidence on the ground that the officers lacked

probable cause to search his vehicle was denied, and he pleaded guilty to Count 1 of the

complaint. He later filed a motion to withdraw his guilty plea. The motion was granted,

and he submitted Count 1 for a stipulated-evidence trial. The district court found appellant


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guilty of possession of a firearm by an ineligible person, and he was sentenced to 60 months

in prison.

       Three months later, the supreme court released State v. Torgerson, 

,

175 (Minn. 2023) (holding that, when the only indication that evidence of a crime or

contraband in a vehicle is the medium-strength odor of marijuana emanating from the

vehicle, the evidence “is insufficient to establish a fair probability that the search would

yield evidence of criminally illegal drug-related contraband or conduct”).

       On appeal, appellant alleges that the evidence to support the search of his vehicle

was insufficient and should have been suppressed.1

                                        DECISION

       This court “undertake[s] a de novo review to determine whether a search or seizure

is justified by reasonable suspicion or by probable cause.” State v. Burbach, 

 (Minn. 2005) (citation omitted).

       For an officer to search a vehicle without a warrant, circumstances must show that

there is a fair probability that contraband or evidence of a crime will be found in the car.

State v. Yarbrough, 

 (Minn. 2014). To search a car for marijuana

after smelling it, the totality of the circumstances must indicate a fair probability that the

car contains a criminal amount of marijuana. Torgerson, 995 N.W.2d at 169. Possession

of less than 1.4 grams of marijuana in a car was then a petty misdemeanor, not a crime.



1
 In lieu of a brief, respondent State of Minnesota filed a letter with this court stating that,
based on Torgerson, the state “agrees the expansion of the traffic stop was not supported
by sufficient probable cause . . . [and] appellant’s conviction should be reversed.”

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, subd. 3 (2020) (providing that possession of more than 1.4 grams

of marijuana in a car is a misdemeanor).2 While the odor of marijuana is a factor to be

considered in assessing probable cause for a search, the odor by itself “is insufficient to

establish a fair probability that the search would yield evidence of criminally illegal drug-

related contraband or conduct.” Torgerson, 995 N.W.2d at 175.

       Here, there was no support for the search of the vehicle other than the odor of

marijuana. Officer B. testified that his only reason for stopping the vehicle was the dark

tint of the window, which would not indicate criminally illegal contraband or conduct, and

his only reason for expanding the stop and searching the vehicle was the odor of marijuana.

Officer T. testified that the sole basis of the search was the odor of marijuana and the

crumbs on the floor that he assumed were marijuana because of the odor, but were never

collected or tested. Under Torgerson, the search of appellant’s vehicle was not supported

by adequate probable cause, the evidence found during the search should have been

suppressed, and his conviction is reversed.

       Reversed.




2
 The statute also provides two other noncriminal forms of marijuana: industrial hemp and
medical marijuana. The district court addressed only industrial hemp.

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