(Credit: Elsa Olofsson / Pixabay)
A whiff of raw cannabis is enough for a police officer to search a vehicle, the Illinois Supreme Court decided in an opinion filed Thursday, even though marijuana is legal in the state.
It’s the opposite of the conclusion justices reached in a September ruling in a case involving the smell of burnt cannabis.
The disparity — that the smell of unsmoked marijuana is justification for a warrantless search, while the smell of smoked pot is not — “defies logic,” Justice Mary K. O’Brien wrote in her dissent.
The latest ruling stems from a 2020 stop by a state trooper of a car speeding on I-88 in Whiteside County, in the far western part of the state. When he approached the car, the trooper testified that he smelled the “odor of fresh cannabis” and so conducted a search, ultimately finding what the judges describe as “several rolled joints in a small cardboard box in the center console” and “suspected cannabis in a clear plastic container with an attached and sealed lid in the glove box.”
In the People v. Molina, a circuit court granted a motion from the car’s passenger, Vincent Molina, to suppress that evidence, arguing that “the odor of raw cannabis, without more” is not sufficient to establish probable cause to search a vehicle.
But a state appellate court, and now Illinois’ high court, reversed that finding based on provisions in the 2019 state law that legalized recreational marijuana. The law stipulates when cannabis is being transported in a car, it must be in a sealed, child-resistant “odor-proof” container that’s not easily accessible to the driver.
The 4-2 majority opinion, written by Justice P. Scott Neville Jr., hones in on the “odor-proof” container requirement.
“(A)lthough cannabis may no longer be contraband in all circumstances, ‘users must possess and use cannabis in accordance with’ our laws,” Neville wrote, with a reference to case law. “An officer trained to distinguish between burnt and raw cannabis, smelled the odor of raw cannabis coming from the vehicle, and the officer’s training and experience would create at least a reasonable belief or fair probably that raw cannabis was in the vehicle stored in a container that was not odor-proof.”
If a police officer can smell raw cannabis, it is “almost certain” that the cannabis is not in an odor-proof container, which is a violation of state law, Neville reasoned.
“In short, while cannabis is legal to possess generally, it is illegal to possess in a vehicle on an Illinois highway unless in an odor-proof container,” he wrote.
The opinion goes on to explain how that differs from a law enforcement officer smelling burnt cannabis.
“The odor of burnt cannabis suggests prior or current cannabis use, and the odor of raw cannabis suggests that cannabis is currently possessed in the area where the odor is detected,” Neville wrote. “Different laws are implicated based on those inferences.”
Adults have been able to legally use cannabis for medical purposes in Illinois since 2014. Recreational has been legal since 2020, but it has been – and remains – illegal to use, smoke or consume cannabis in a moving car, similar to alcohol.
Neville wrote that, as the court decided in the Redmond case from September, an officer smelling smoked marijuana is similar to if an officer smells another legal intoxicant — alcohol — on vehicle passengers.
The smell of alcohol alone is not enough to justify a warrantless search of the car; that’s only justifiable if other circumstances come into play, like if police witness a driver or passenger trying to conceal or destroy potential evidence, or if the officer spots open liquor bottles or a driver with erratic behavior that indicates a lack of sobriety.
But if the officer smells raw cannabis, Neville wrote, the legal provision at play is whether it’s being transported in an odor-proof vessel in accordance with the law.
“The two distinct odors cannot be treated as equals in a probable cause analysis,” the opinion reads. “The odor of raw cannabis strongly suggests that the cannabis is not being possessed within the parameters of Illinois law. And, unlike the odor of burnt cannabis, the odor of raw cannabis coming from a vehicle reliably points to when, where, and how the cannabis is possessed — namely, currently, in the vehicle, and not in an odor-proof container.”
The court held that potential scenarios like someone smelling of raw cannabis because they work at a dispensary are not a reason to deny warrantless searches, given that it’s not up to police to rule out potential explanations of innocence.
In her dissent, O’Brien took pains to “point out the absurdity of this inconsistency” and said that raw cannabis should be treated the same as burnt cannabis — an officer must do more than smell the aroma of marijuana, in any form, to have legal grounds to search a car.
“It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use, whereas the odor of raw cannabis does not suggest consumption,” she wrote. “If the crime suggested by the odor of burnt cannabis is not sufficient for probably cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.”
She referenced the Redmond case, in which she said the court concluded that “Illinois cannabis law has evolved and that the use and possession of cannabis has been legalized in numerous situations” such that, like alcohol, the smell of cannabis alone should not automatically presume a criminal offense has been committed.
“Because cannabis, both raw and burnt, is legal notwithstanding multiple restrictions, there is a low degree of suspicion that attaches to its odor,” the dissenting opinion reads.
O’Brien also disputed the majority’s assumption that a waft of raw cannabis automatically means someone’s breaking the law by transporting marijuana in something besides an odor-proof canister.
O’Brien wrote that it’s a matter of “common sense” that “organic matter smells” and “can easily permeate one’s hair and clothing.”
“So common sense would indicate that a sober person can come into contact with an alcoholic beverage through drinking it or having some spill on his clothing and that odor would remain with him for a period of time,” she wrote. “The same is true of raw cannabis. A person coming into contact with raw cannabis, through touch or simple proximity, or possible by opening and resealing an odor-proof container, would also carry that odor with him for a period of time.”
By giving “greater weight” to restrictions on the transportation of raw cannabis over burnt, “the result, whether intentional or not, is to continue to stigmatize the use of cannabis” despite Illinois lawmakers clear objective to legalize it, O’Brien wrote.
One of Illinois’ seven Supreme Court justices, Lisa Holder White, did not take part in the decision. Court documents do not indicate a reason.
There have been attempts in the General Assembly to loosen regulations on transporting marijuana.
A measure (Senate Bill 125) by state Sen. Rachel Venture, D-Joliet, would establish that the smell of cannabis — whether raw or burnt — would not itself constitute probable cause for law enforcement to search a vehicle or a person, while a proposal introduced by state Rep. Curtis Tarver, D-Chicago, (House Bill 1206) would remove the “odor-proof” requirement, mandating only that when on a highway, drivers and passengers must keep cannabis in a “secured, sealed or resealable, and child-resistant container.”
Neither measure advanced during the legislative session.
Contact Amanda Vinicky: @AmandaVinicky | [email protected]
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