Joints are seen at Cresco Labs in Joliet on Dec. 17, 2019. (Zbigniew Bzdak/Chicago Tribune)
The smell of raw cannabis is grounds for police to search a vehicle, the Illinois Supreme Court ruled Thursday.
The decision runs counter to the court’s previous ruling that the smell of burnt cannabis by itself is not sufficient reason for a vehicle search.
The two rulings create a situation in which, though it is illegal to smoke pot in a vehicle, drivers are protected from a search based only on the smell of burnt cannabis, but are not protected from a search based on the smell of raw marijuana.
The ruling came in the case of Vincent Molina, of Moline, who was a passenger in a vehicle that was stopped by a state trooper for speeding on I-88 in Whiteside County, near the Iowa border, in December 2020.
After the trooper said he smelled raw cannabis coming from the open window of the car, he searched it and found several marijuana joints in the center console, and cannabis in a sealed box in the glove compartment.
Molina was charged with misdemeanor possession because he wasn’t transporting the cannabis in the proper container. The trial court ruled the search was not justified because possession of small amounts of marijuana has been legal in Illinois since the beginning of 2020. The appeals court reversed the ruling.
The case was combined at a high court hearing with the case of Ryan Redmond, in which the court ruled that the smell of burnt cannabis by itself was not grounds for a search. While it’s illegal to smoke pot in a private vehicle, the court suggested that the smell of burnt cannabis could come from smoking before getting into the car.
“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,” the court wrote in the Molina case. “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.”
Justice Mary K. O’Brien, joined by Chief Justice Mary Jane Theis, wrote a strong objection to the 4-2 ruling. Justice Lisa Holder White did not take part in the vote.
“I dissent from the majority opinion simply to point out the absurdity of this inconsistency,” O’Brien wrote. “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. If the crime suggested by the odor of burnt cannabis is not sufficient for probable cause, then certainly the crime suggested by the odor of raw cannabis cannot be either.”
Defense attorney James Mertes said he would appeal the decision to the U.S. Supreme Court.
“This means that the privacy rights of motorists in Illinois have been turned over to the police officer’s sense of smell,” Mertes said. “While we certainly respect the decision of the court, we share the view of the dissenters that this creates a constitutional absurdity.”
State lawmakers previously removed the requirement for storing pot in an odor-proof container in a vehicle from the law legalizing weed, but they did not remove that requirement from the vehicle code. The state Supreme Court suggested that those laws should be made consistent.
“I have always understood that the issues at stake are much more important than just my case,” Molina said in a statement through his lawyer. “I am discouraged by the Illinois Supreme Court’s decision, but I am encouraged to now ask that this matter be decided by the United States Supreme Court.”
“We are pleased that the court has provided needed clarification of the law,” the office of Illinois Attorney General Kwame Raoul said in a brief statement.
