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North Star Law Group PLLC
1295 Bandana Blvd. N
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St. Paul, MN 55108
(651) 330-9678

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Whatcha doing on Monday?

Home|Newsletter|Whatcha doing on Monday?
September 21st, 2023
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Note from Jen Randolph Reise

September 21, 2023

It's hard to believe it, but Oct. 1 is right around the corner - and that is Minnesota's next compliance deadline! Businesses selling hemp-derived products must register with OCM by this deadline.

We're co-sponsoring an event on Monday to celebrate the hemp-derived industry and get everyone working together as we move into this next phase of compliance. There's an informational panel (with yours truly!), networking, and fun together in Minneapolis Cider Company's beautiful event space. I hope to see you there!

I'm also excited to share that North Star Cannabis Law is growing! Attorney Matt Overcast has joined us, and brings a wealth of cannabis and mushroom knowledge, as well as reach into Missouri. Welcome, Matt!

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Join us on Monday to celebrate the hemp-derived industry (and remember to register by October 1)

Oct. 1 is the deadline for all sellers of Hemp-derived THC products to register with Minnesota's Office of Cannabis Management. Businesses who do not register by October 1st will no longer be able to legally sell these products! OCM is taking a broad view that all retailers and manufacturers that sell to the public (such as breweries that make hemp-THC beverages) must register, and out-of-state manufacturers that sell online or to businesses in Minnesota must also register.

The registration is free and fairly painless. At the same time, it begins the compliance process for hemp-derived THC businesses in Minnesota. In other words, it is time for this industry to pay attention.

I need your help getting this message out to the many retailers selling these products who may not be paying attention. To get free info, business owners can sign up at: https://northstarlaw.com/landing/mn-hemp-derived-cannabis-compliance/ Please share the link with your distributors / contacts / favorite liquor store so they can continue to sell these products!

Send an email with this link
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News of Note:

The Aroma of Change: Minnesota Supreme Court Rules Cannabis Odor, ALONE, is Insufficient to Support Probable Cause Under the Automobile Exception


Background:

In recent years, the legalization of cannabis has been a hot topic of debate and controversy in many states across the United States. As more states move towards decriminalization or even full legalization, questions arise regarding how this impacts law enforcement and their ability to search vehicles based on the odor of cannabis (i.e., marijuana [1]).

For Minnesotans, the recent decision in State v. Torgerson sheds some light on this issue. In this case, the Minnesota Supreme Court considered whether the odor of cannabis alone was sufficient to establish probable cause under the automobile exception to the Fourth Amendment's warrant requirement.

The automobile exception allows law enforcement to search a vehicle without a warrant if they have probable cause to believe that evidence of a crime will be found. However, the question in this case was whether the odor of cannabis ALONE was enough to establish probable cause.

It is worth noting that the facts presented in Torgerson predate the August 1, 2023, legalization of adult use in Minnesota under H.F. 100. During that time, per Minnesota state law, possession of cannabis was limited to low THC hemp products by adults age consumers, 21 or older, or medical cannabis by qualified patients under the state's medical program.

More Required!

In its decision, the Minnesota Supreme Court held that the odor of cannabis alone is not enough to establish probable cause under the automobile exception. The court reasoned the odor of cannabis alone does not necessarily indicate criminal activity because cannabis is now legal for medical use in Minnesota and decriminalized in specific amounts and circumstances. The Court noted that other factors may contribute to the smell of cannabis in a vehicle, such as odors from previous use or possession. Therefore, law enforcement must have additional evidence or circumstances to establish probable cause beyond just the scent of cannabis.

How much evidence or circumstances, in addition to the mere presence of cannabis odor, is required to tip the scales toward probable cause under a totality of the circumstance's inquiry? Probable cause requires that the totality of the circumstances give rise to a fair probability that cannabis is being possessed or used in a criminally illegal manner.[2]

These additional supplementary details hinting at criminal activity may be as basic as those that suggest some degree of "suspicious behavior" on the part of the driver or passengers, such as being "illegally parked with heavily fogged windows" [3], or drivers and occupants who are "excessively anxious, perspiring, displaying delayed response times when questioned, or providing inconsistent accounts to law enforcement." [4] Therefore, although the scent of cannabis cannot be the sole factor to establish probable cause, the ability of officers to uncover other evidence or construe a driver or passenger's conduct as "suspicious" to fulfill a "fair probability" that cannabis is being "possessed or used illegally" is likely a relatively easy bar for law enforcement to satisfy to establish probable cause. In the end, the legal community must await another probable cause test case to gauge the necessary quantity and significance of the additional factors needed where the scent of cannabis is detected.

With Minnesota's August 1st legalization of adult-use under H.F. 100, adults, age 21 and over, may now possess up to two ounces of cannabis flower on their person and two pounds at their residence. Therefore, if facts like those in Torgerson were relitigated today, the argument that cannabis odor alone is insufficient to support probable cause is much stronger under Minnesota's adult-use law.

Rolling it up:

In sum, the Torgerson decision is significant because it recognizes that the legalization and decriminalization of cannabis have changed the landscape regarding law enforcement searches. It acknowledges that the mere presence of cannabis or its odor does not automatically indicate criminal activity, an acknowledgment long overdue!

However, Minnesota cannabis consumers need to understand that driving under the influence and using cannabis in motor vehicles remains a crime under H.F.100. Additionally, the Torgerson decision only applies to Minnesota and, while persuasive, may not be binding in other states.

Overall, this case highlights the evolving nature of cannabis laws and how they impact law enforcement practices. As more states continue to legalize or decriminalize cannabis, it will be interesting to see how courts across the country address the issue of probable cause and the odor of cannabis in the context of vehicle searches.

FOOTNOTES:

[1] Marijuana is defined as "all parts of the plant of any species of the genus Cannabis." Minn. Stat. § 152.01, subd. 9 (2022). Industrial hemp is defined as "the plant Cannabis sativa L. and any part of the plant . . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." Minn. Stat. § 18K.02, subd. 3 (2022). For context, it is helpful for the Reader to understand that Marijuana and Industrial Hemp are part of the same species and that their odors are indistinguishable. Additionally, although the Torgerson ruling uses the term marijuana repetitively as a means for legal distinction, this Author deliberately employs the term cannabis, which is more precise for the article's subject matter and sidesteps the derogatory and discriminatory connotations associated with and origins of the term "marijuana".

[2] State v. Torgerson, p. 17.

[3] City of St. Paul v. Moody, 244 N.W.2d 43, 44 (Minn. 1976)

[4] People v. Zuniga, 372 P.3d 1052, 1057 (Colo. 2016).

 

More Upcoming Events

Drop by North Star's table at the Legacy Cup on Saturday, September 30th and get some of our new merch! Hope to see you there.

Jen Reise will also be talking about starting a cannabis business in Minnesota at a 3 PM panel in the education tent.

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Questions? Ready for a strategy session for your business?

Schedule time with Jen in the next 2 weeks at this link, or call her at (651) 384-2819 or e-mail at jen@northstarlaw.com.

Jen's Calendly: Up to 30 min meeting
 
 
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Nothing in the above newsletter should be considered as legal advice. Please consult with your attorney 1:1 for personalized advice on your legal issues.

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