Lab Tests on Marijuana Not Needed to Survive Probable Cause Challenge

“Can you get my case thrown out?” People often ask their criminal defense lawyer that question. They want the magic to happen. They do not even want the case to get to trial. Find the technicality. Get it dismissed. And, let’s bounce.

As an attorney, the first meaningful stage to make the dismissal magic happen is in the pre-trial stages. These pre-trial hearings are often called an Omnibus Hearing in Minnesota courts for felony cases and pre-trial hearings or evidentiary hearings for misdemeanor matters. One of the most popular motions to file at this stage is a motion to dismiss for lack of probable cause. If the court grants that motion, then your case is dismissed. If you lose, then you still have the right to go to trial.

Recently, the Minnesota Supreme Court reviewed a district court decision to grant a motion to dismiss for lack of probable cause in State v. Dixon. In that case, the defendant was stopped for a traffic violation. The approaching officers claimed to smell an odor of marijuana from the car. The defendant admitted to smoking marijuana earlier in the day and said he had a small amount in the car. Officers searched the car and found 58.93 grams of marijuana. The marijuana was also field tested which detected THC. After being read his Miranda rights, the defendant admitted to possessing the marijuana. The prosecution later charged the defendant with Fifth Degree Possession of a Controlled Substance for having more than 42.5 grams of marijuana.

In Minnesota, controlled substances often do not get tested by the Minnesota Bureau of Criminal Apprehension (BCA) in a laboratory setting until a case is scheduled for trial. As the field test, which is often referred to as a NIK (narcotics identification kit) test, by itself is not sufficient proof that the substance is as alleged at trial. Knowing this, defense attorneys challenged that the defendant in Dixon had an uncorroborated confession because the substance was not tested by the BCA yet, and probable cause was lacking for the charge. The district court agreed and suppressed the results and dismissed the Fifth Degree Possession charge. The district court judge reasoned that the law know distinguishes legal hemp from marijuana and the mere presence of THC is no longer automatically criminal and therefore a NIK test is insufficient for probable cause.

The prosecution appealed the decision to the Minnesota Court of Appeals. The court of appeals reversed the district court by highlighting how low of a standard probable cause is to reach. The court can use reliable hearsay in probable cause evaluations and other circumstantial evidence. The defendant then took the case to the Minnesota Supreme Court. The supreme court agreed that the defendant’s confession that the marijuana was his did not need to be corroborated by a lab test of the marijuana to survive a probable cause challenge. The Supreme Court noted that the defendant’s admission alone would survive a motion to dismiss for probable cause, even though it would not sustain a conviction by itself.

Probable cause hearings are often referred to as Florence Hearings in Minnesota. At a Florence Hearing, evidence including reliable hearsay, can be submitted to the district court judge as a record to support legal arguments on why probable cause does, or does not, exist. This evidentiary record often includes police reports, the complaint, and audio and video recordings. Sometimes, a contested probable cause hearing will include testimony from witnesses. At the conclusion of the hearing, the judge can listen to arguments from the prosecution and defense and possibly receive written legal arguments later. The judge then issues a decision. If the judge rules for the defense and dismisses the charge(s) for lack of probable cause, then the magic happened.

Robert H. Ambrose is a criminal defense lawyer and DWI attorney in Minnesota. Minnesota. Super Lawyers named him Super Lawyer this year and a Rising Star the previous six years before that. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Twin Cities; Criminal Defense Attorney St. Paul MN; and Criminal Appeals Lawyer Minnesota.