This opinion is nonprecedential except as provided by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
                                       A23-0251

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                 Jhonathan Jontae Robinson,
                                         Appellant.

                                  Filed January 22, 2024
                                  Reversed and remanded
                                        Ede, Judge

                                  Scott County District Court
                                   File No. 70-CR-21-3109

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

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

         Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Ede,

Judge.

                             NONPRECEDENTIAL OPINION

EDE, Judge

         In this direct appeal from a judgment of conviction for possession of a pistol without

a permit and obstruction of legal process, appellant seeks reversal by challenging the denial

of his motion to suppress evidence and to dismiss the charges. Appellant asserts that the
district court erred by determining that the smell of marijuana, alone, provided sufficient

probable cause for law enforcement to search his vehicle without a warrant. Alternatively,

appellant asks that we reverse his concurrent 365-day gross misdemeanor jail sentences

and remand for resentencing because the maximum sentence for a gross misdemeanor is

now 364 days. Because we conclude that police lacked probable cause to search appellant’s

vehicle, we reverse and remand.

                                           FACTS

Underlying Charges

         In February 2021, respondent State of Minnesota charged appellant Jhonathan

Jontae Robinson with possession of a pistol without a permit, in violation of Minnesota

Statutes section 624.714, subdivision 1a (2020), a gross misdemeanor; obstruction of legal

process, in violation of Minnesota Statutes section 609.50, subdivision 1(2) (2020), a gross

misdemeanor; and possession of over 1.4 grams of marijuana in a motor vehicle, in

violation of Minnesota Statutes section 152.027, subdivision 3 (2020). 1 These charges

arose from a traffic stop and the subsequent search of a vehicle that Robinson was driving.

Pretrial Proceedings

         Robinson moved the district court to suppress “all evidence discovered as a result

of the stop” and “the search of [Robinson]’s vehicle.” He also moved the court to dismiss

the charges, maintaining that “there is insufficient legal evidence to find probable cause to

believe [that he] committed the offenses charged.” Following contested omnibus hearings,



1
    The state later dismissed the marijuana possession charge.

                                              2
the district court denied Robinson’s motion. The relevant and undisputed facts, as set forth

by the district court in its findings of fact, conclusions of law, and order denying

Robinson’s motion, are as follows.

         A police officer conducted a traffic stop of a vehicle traveling 68 miles per hour in

a 55 mile-per-hour zone. Law enforcement later identified the driver of the vehicle as

Robinson. The officer smelled an odor of marijuana coming from Robinson’s vehicle and

returned to her squad to call for backup to assist with a search. About eight to ten minutes

later, the officer returned to Robinson’s vehicle, told him that she smelled marijuana, and

explained that she intended to conduct a search. Robinson denied that his vehicle smelled

like marijuana and refused to allow law enforcement to search. Another officer arrived and

observed that Robinson was upset and that Robinson repeatedly refused law enforcement

requests that he exit the vehicle. While physically removing Robinson from the vehicle,

the second officer “hit his hand.” Robinson then told the officers that there was a firearm

inside the vehicle. Police found a loaded handgun in the center console and a container of

a green substance that tested positive for marijuana. After advisement of his Miranda 2

rights, Robinson told law enforcement that the firearm and marijuana belonged to him.

There was no evidence and no finding by the district court that Robinson displayed any

signs of driving impairment. Nor was there any evidence or finding by the district court

that law enforcement observed contraband in plain view inside Robinson’s vehicle.




2
    See Miranda v. Arizona, 

 (1966).

                                               3
         In denying Robinson’s motion to suppress, the district court determined that there

was an objective legal basis for the traffic stop based on the initial officer’s observation

that Robinson’s vehicle was traveling at 68 miles per hour in a 55 mile-per-hour zone. The

district court also determined that, once the initial officer had stopped Robinson and law

enforcement “detected the odor of marijuana inside the vehicle,” there was “sufficient

probable cause for the officers to search the vehicle and any container therein that may

reasonably contain evidence of criminal activity related to the marijuana odor, including

the center console, where the officers discovered the firearm and marijuana substance.”

And because the “motion to dismiss was premised on the success of the motion to

suppress,” the court likewise denied Robinson’s motion to dismiss.

Jury Trial and Sentencing

         The matter proceeded to a jury trial. The jury found Robinson guilty of both counts,

and the district court sentenced Robinson to concurrent 365-day jail sentences.

         This appeal follows.

                                         DECISION

         On appeal, Robinson challenges the district court’s denial of his motion to suppress

and to dismiss. Robinson argues that police lacked probable cause to search his vehicle

based on the smell of marijuana alone. The state counters that the odor of marijuana is

sufficient to establish probable cause for the vehicle search and that, in the alternative, we

should affirm based on the Lindquist 3 good-faith exception. We agree with Robinson.



3
    See State v. Lindquist, 

 (Minn. 2015).

                                              4
       The United States and Minnesota Constitutions prohibit “unreasonable searches and

seizures” by the government. U.S. Const. amend. IV; Minn. Const. art. 1, § 10. “Generally,

evidence seized in violation of the constitution must be suppressed.” State v. Jackson, 

, 177–78 (Minn. 2007). A warrantless search or seizure is presumptively

unreasonable unless it falls within a well-recognized exception to the warrant requirement.

See State v. Licari, 

 (Minn. 2003); State v. Milton, 

 (Minn. 2012). The state bears the burden of proving that an exception to the warrant

requirement applies. See Licari, 

.

       Under the automobile exception to the warrant requirement, “the police may search

a car without a warrant, including closed containers in that car, if there is probable cause

to believe the search will result in a discovery of evidence or contraband.” State v. Lester,

 (Minn. 2016) (quotation omitted). Probable cause requires more than

“mere suspicion but less than the evidence necessary for conviction.” State v. Williams,

 (Minn. 2011) (citing State v. Horner, 

 (Minn.

2000)).

       “When reviewing a district court’s pretrial order on a motion to suppress evidence,

we review the district court’s factual findings under a clearly erroneous standard and the

district court’s legal determinations de novo.” State v. Gauster, 

(Minn. 2008) (quotation omitted). “When facts are not in dispute . . . , [appellate courts]

review a pretrial order on a motion to suppress de novo and determine whether the police

articulated an adequate basis for the search or seizure at issue.” Williams, 

 (quotation omitted). And we apply de novo review to a district court’s determination


                                             5
that a warrantless search is supported by probable cause. See Lester, 

(citing State v. Munson, 

 (Minn. 1999)).

       While this appeal was pending, the Minnesota Supreme Court held that marijuana

odor cannot serve as the sole basis to support probable cause for a vehicle search. See State

v. Torgerson, 

, 175 (Minn. 2023). In Torgerson, “the only indication that

evidence of a crime or contraband may be found in [the appellant’s] vehicle was the odor

of marijuana emanating from the vehicle.” 

. No officer expressed any other

circumstance contributing to their probable cause determination. See 

. The police

did not suspect that the appellant was driving under the influence, nor was there any

evidence of drug paraphernalia. See 

       The Torgerson court reasoned that “the odor of marijuana should be considered

along with the totality of any other circumstances to determine whether there is a fair

probability that a search will yield contraband or other evidence that marijuana is being

used in a criminally illegal manner.” 

. “In other words, for probable cause to arise,

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 . . . .” 

 The supreme court

therefore affirmed the suppression of evidence seized via the search of the appellant’s

vehicle, holding that, “[i]n the absence of any other evidence as part of the totality of the

circumstances analysis,” marijuana odor, “on its own, is insufficient to establish a fair

probability that the search would yield evidence of criminally illegal drug-related

contraband or conduct.” 

.




                                              6
       As in Torgerson, the sole basis for the search here was the odor of marijuana coming

from Robinson’s vehicle. The district court based its conclusion that there was “sufficient

probable cause for the officers to search the vehicle and any container therein that may

reasonably contain evidence of criminal activity related to the marijuana odor, including

the center console,” on the fact that law enforcement “detected the odor of marijuana inside

the vehicle.” There was no evidence or findings that Robinson displayed any signs of

impairment, nor was there any evidence or findings that contraband was in plain view.

Without other evidence as part of the totality of the circumstances analysis, the marijuana

odor, on its own, was insufficient to establish a fair probability that the search of

Robinson’s vehicle would yield evidence of criminally illegal drug-related contraband or

conduct. See 

 Because the odor of marijuana alone could not support probable cause for

law enforcement to search Robinson’s vehicle, the district court erred in denying

Robinson’s motion to suppress and to dismiss on that basis. See 

.

       Maintaining that binding appellate precedent at the time of the incident recognized

that the odor of marijuana coming from a vehicle established probable cause for a vehicle

search, the state alternatively argues that we should affirm based on the Lindquist good-

faith exception. See Lindquist, 

. This argument is unavailing. In

Torgerson, the state similarly asked for application of Lindquist on appeal, but the supreme

court deemed that argument forfeited because the state failed to raise it before the district

court. See Torgerson, 995 N.W.2d at 168 n.3. Here, the state likewise failed to assert the

Lindquist good-faith exception in the district court proceedings. Consistent with

Torgerson, we deem the state’s Lindquist argument forfeited. See id.; see also Roby v.


                                             7
State, 

 (Minn. 1996) (recognizing that appellate courts “generally will

not decide issues which were not raised before the district court”).

       Torgerson also defeats the merits of the state’s argument that, contemporaneous to

the search in this case, existing caselaw recognized that marijuana odor in a vehicle was

sufficient to establish probable cause: “Our precedent . . . shows that we have shied away

from bright-line rules regarding probable cause and we have never held that the odor of

marijuana (or any other substance), alone, is sufficient to create the requisite probable cause

to search a vehicle.” 995 N.W.2d at 173. As a result, even if the state had not forfeited the

argument, Lindquist does not apply here. See Lindquist, 

 (explaining

that “the good-faith exception adopted here applies only when law enforcement officers

act pursuant to binding appellate precedent”; “the binding precedent must specifically

authorize the behavior”; and “[l]aw enforcement cannot extend the law to areas in which

no precedent exists or the law is unsettled” (quotation omitted)).

       Citing Wong Sun v. United States, 

 (1963), Robinson maintains that we

“must” reverse his convictions without remand, asserting that the district court erred by not

suppressing “his act in response to being told that his car would be searched and to get out

of the car” and “the firearm” as “fruit of the poisonous tree.” The state makes no argument

as to the “fruit-of-the-poisonous-tree” doctrine, and the district court did not address that

issue in its findings of fact, conclusions of law, and order denying Robinson’s motion.

       When the district court has made no findings of fact on an issue, an appellate court

is in no position to review it. See State v. Wicklund, 

 (Minn. 1972).

Because the district court did not address the merits of Robinson’s fruit-of-the-poisonous-


                                              8
tree claim, we decline to do so for the first time on appeal. Accordingly, we reverse and

remand this case to the district court with instructions to reopen the omnibus hearing as

necessary to make a reasoned decision on the validity of Robinson’s fruit-of-the-

poisonous-tree claim. 4

       Reversed and remanded.




4
  Because we reverse on other grounds, we do not address Robinson’s alternative argument
that we reverse his concurrent 365-day gross misdemeanor sentences and remand for
resentencing.

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