                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2358

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                 Jacob Robert Levy,
                                    Respondent.

                                Filed August 25, 2014
                                      Reversed
                                    Willis, Judge

                          Washington County District Court
                             File No. 82-CR-13-1736


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Peter Orput, Washington County Attorney, Robin M. Wolpert, Assistant County
Attorney, Stillwater, Minnesota (for appellant)

Daniel S. Adkins, The Adkins Law Group, Chartered, Minneapolis, Minnesota (for
respondent)


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

Willis, Judge.




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                        UNPUBLISHED OPINION

WILLIS, Judge

       In this appeal from a pretrial order suppressing controlled substances and drug

paraphernalia found in a duffle bag in the trunk of respondent’s car, the state argues that

the district court erred by determining that the odor of burnt marijuana coming from the

driver’s side window of the car did not establish probable cause to search the duffle bag

in the trunk. We reverse.

                                         FACTS

       While on patrol on the afternoon of May 7, 2013, Cottage Grove Police Officer

Matthew Foucalt stopped a car after seeing it make an erratic lane change and clocking it

at 50 miles per hour in a 35-mile-per-hour zone. Respondent Jacob Robert Levy was

alone in the car. While standing next to the open driver’s window, Foucalt noted an

intense odor of burnt marijuana. When Foucalt asked how much marijuana was in the

car, Levy’s hands began to shake, and he looked away from Foucalt and stumbled over

his words. Levy denied that there was marijuana in the vehicle. Foucalt told Levy that

probable cause existed to search the car’s interior for marijuana and instructed Levy to

get out of the car. Levy stated that he was not consenting to a search. Foucalt informed

Levy that he intended to conduct the search based on probable cause and was not seeking

consent.

       Foucalt searched the inside of the car but found no marijuana or other contraband

there. Officers Michael McCormick and Terry Raymond came to assist, and McCormick

began searching the car’s trunk. McCormick found a duffle bag in the trunk; he removed


                                            2
it from the trunk and unzipped it. The duffle bag contained controlled substances and

drug paraphernalia.

       Levy was arrested and charged with four counts of controlled-substance crime.

He filed a motion to suppress the evidence found in the duffle bag and dismiss the

charges against him. Following a contested omnibus hearing, the district court issued an

order granting Levy’s motion to suppress. The district court concluded that the odor of

burnt marijuana coming from the driver’s side window of the car provided probable

cause to search the car’s interior but that, when the search of the interior did not result in

the discovery of any contraband, probable cause did not exist to expand the scope of the

search to the trunk. This appeal follows.

                                      DECISION

       On appeal from a pretrial order suppressing evidence, the state must clearly and

unequivocally show that the suppression will have a critical impact on the state’s ability

to successfully prosecute the defendant and that the suppression was erroneous. State v.

Zais, 805 N.W.2d 32, 35-36 (Minn. 2011).

       “[T]he standard for critical impact is that the lack of the suppressed evidence

significantly reduces the likelihood of a successful prosecution.” State v. Edrozo, 578

N.W.2d 719, 723 (Minn. 1998) (quotation omitted). The suppression order will have a

critical impact on the state’s ability to successfully prosecute Levy because, without the

evidence found in the duffle bag, there is no basis for any of the charges against him. See

State v. Miller, 659 N.W.2d 275, 278 (Minn. App. 2003) (“[I]t is clear that the likelihood




                                              3
of conviction of possession of drugs is significantly reduced without the drugs.”), review

denied (Minn. July 16, 2003).

       An appellate court independently reviews the undisputed facts to determine

whether, as a matter of law, the district court erred in granting a pretrial motion to

suppress evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); see also State v.

Ortega, 770 N.W.2d 145, 149 (Minn. 2009) (stating that an appellate court reviews legal

determinations de novo).

       Both the United States and Minnesota Constitutions guarantee the right to be free

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

§ 10. Warrantless searches are per se unreasonable unless they fall within a specific

exception.   State v. Search, 472 N.W.2d 850, 852 (Minn. 1991).            The automobile

exception to the warrant requirement provides that police may search a vehicle without a

warrant if probable cause exists to believe that the search will uncover evidence or

contraband. Id. “[P]robable cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity, the significant fact being not

whether particular conduct is innocent or guilty, but the degree of suspicion that attaches

to particular types of noncriminal acts.” State v. Holiday, 749 N.W.2d 833, 843 (Minn.

App. 2008) (quotation omitted).

       We recognize that possession of a small amount of marijuana has been a

noncriminal offense since 1976. 1976 Minn. Laws ch. 42, § 1, at 101-02 (currently

codified as Minn. Stat. § 152.027, subd. 4 (2012)). In Ortega, the supreme court noted

that the odor of burnt marijuana that justified the search of a passenger in a pre-1976 case


                                             4
provided probable cause to believe that the passenger “possessed a criminal amount of

marijuana as possession of any amount of marijuana was a crime under then-existing

law.” 770 N.W.2d at 149 n.2. The supreme court cautioned that probable cause to search

a person does not necessarily trigger an exception to the warrant requirement. Id.

       Caselaw does not support applying the caution noted in Ortega to a search

conducted under the automobile exception to the warrant requirement. That exception is

based in part on “a person’s reduced expectation of privacy in a vehicle.” State v.

Bauman, 586 N.W.2d 416, 422 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).

In State v. Schinzing, while searching a car’s passenger compartment for open containers

of alcohol, an officer found a stone used to hold a marijuana cigarette and a marijuana-

cigarette butt. 342 N.W.2d 105, 107 (Minn. 1983) (applying 1982 law). The supreme

court held that, if the officer lawfully discovered the stone and marijuana-cigarette butt,

probable cause existed to search the car’s trunk. Id. at 111. The court explained:

              The recent case of United States v. Ross, 456 U.S. 798, 102 S.
              Ct. 2157 (1982), is instructive on this issue. In that case the
              Court held that, under the motor vehicle exception to the
              warrant requirement, police officers “may conduct a search of
              a vehicle that is as thorough as a magistrate could authorize in
              a warrant ‘particularly describing the place to be searched.’”
              456 U.S. at 800, 102 S. Ct. at 2159. Explaining the
              application of this principle, the Court stated: “A lawful
              search of fixed premises generally extends to the entire area
              in which the object of the search may be found and is not
              limited by the possibility that separate acts of entry or
              opening may be required to complete the search. Thus, a
              warrant that authorizes an officer to search a home for illegal
              weapons also provides authority to open closets, chests,
              drawers, and containers in which the weapon might be found.
              A warrant to open a footlocker to search for marijuana would
              also authorize the opening of packages found inside. A


                                             5
                 warrant to search a vehicle would support a search of every
                 part of the vehicle that might contain the object of the
                 search. . . .” 456 U.S. at 820-21, 102 S. Ct. at 2170-71.

Id. at 110-11.

       Levy asserts that Schinzing held that “if a lawful discovery of contraband has

occurred in a motor vehicle, then police have probable cause to believe that a further

search of the vehicle might result in the discovery of more drugs or other contraband.”

Levy is correct that in Schinzing, the discovery of contraband, specifically a stone used

for holding a marijuana cigarette and a marijuana-cigarette butt, established probable

cause to search the car’s trunk. But in Schinzing, the officer did not initially have

probable cause to search for marijuana. Rather, the odor of alcohol coming from the car

established probable cause to search the passenger compartment for open containers of

alcohol. Id. at 109. At that point, probable cause to search the trunk did not exist

because it is not illegal to carry open containers of alcohol in the trunk. Id. In this case,

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

coming from the car, and the car’s trunk was a place where marijuana could be found.

       Levy also argues that, even if the odor of raw marijuana justifies a search beyond

the passenger compartment, the odor of burnt marijuana does not because “the object of

the search was burnt marijuana.” Schinzing does not support the distinction that Levy

urges. Like the odor of burnt marijuana here, the contraband found in Schinzing that

justified expanding the scope of the search to the trunk were items indicating that

marijuana could have been smoked in the car. The Ross rationale, followed by Schinzing,




                                             6
also supports the conclusion that the search of the duffle bag was legal. We therefore

conclude that the district court erred by suppressing the evidence found in the duffle bag.

       Reversed.




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