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We just can’t get enough cannabis, can we? At least the Illinois Supreme Court can’t.
Perhaps we should clarify that.
A few weeks ago, we discussed the Illinois Supremes’ ruling that the smell of burnt cannabis, standing alone without any other factors, cannot be used by police to search a stopped motorist’s car.
Remember, to conduct any searches without a court-issued search warrant, police must have a reasonable suspicion criminal activity has or is occurring. And because smoking cannabis has been legalized under Illinois law, and because the smell can linger long after its use, the mere fact burnt cannabis is smelled, by itself, is not indicative that illegal possession of cannabis has occurred.
But what about the smell of raw, unburnt cannabis?
In another case hot off the legal presses, the Illinois Supreme Court ruled by a 4-2 majority that the smell of raw cannabis can give rise to a reasonable suspicion of its illegal transportation and thus permit a car search.
What’s the diff, you ask?
Remember, that while possession of cannabis by folks 21 and older is now generally legal under Illinois law, it can’t be transported in a vehicle on an Illinois roadway unless it’s in an odor-proof container.
So, if Marshal Earp pulls you over for alleged speeding and gets a whiff of raw cannabis, he now has a reasonable suspicion cannabis is in the car and not in an odor-proof container. That’s because the court ruled that when the odor of raw cannabis comes from a vehicle while on an Illinois roadway, it is almost certain the cannabis is being possessed in violation of the odor-proof container requirement.
Unlike the odor of burnt cannabis, said the court, 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. And Marshall Earp and all his cohorts are trained in identifying and distinguishing the difference in the odiferous emanations of raw weed and burnt weed.
In noting the difference in smelling burnt cannabis, the justices said that if the driver does not seem impaired, the smell of burnt cannabis does not carry the same indications of when, where and how the weed may have been burned. As discussed above, that smell can linger a long, long time on someone or in a place. Indeed, it could have been used in the car but before it went onto the highway.
But what if the raw weed was being packed into the odor-proof container in the car right before travel, and its scent is still wafting about? The dissenting justices noted it makes no sense that the smell of raw weed is more probative of a possible illegal transportation of cannabis than burnt weed.
The Illinois Supremes have taken us through the weeds of weed-searching a car. But like everything else, nothing is sealed for good in the law of search and seizures. Some legal observers, including the two dissenting justices, are smelling the strong order of absurdity in this weedy ruling.
The General Assembly just might need to caulk over this stinky rule of law with new legislation, thus sealing it away for good.
”}]] We just can’t get enough cannabis, can we? At least the Illinois Supreme Court can’t. Read More
