“Even the claim of smelling cannabis can be discretionary. Honestly, it can be made up sometimes when officers are being less than honest because there’s no way to challenge it.”
By Dilpreet Raju, Capitol News Illinois
The Illinois Supreme Court heard arguments Wednesday as to whether the smell of cannabis alone is grounds for police officers to search a vehicle, marking a test of the state’s 2020 recreational marijuana legalization law.
The court heard two consolidated cases of individuals who were in vehicles that were searched after an officer used the smell of cannabis as probable cause.
In People v. Redmond, defendant Ryan Redmond was pulled over by Illinois State Police for an unsecure license plate and driving three miles per hour over the speed limit, court records show. Upon smelling cannabis, the officer searched the vehicle and found about one gram of cannabis in the center console. He later charged Redmond with a misdemeanor for failure to transport cannabis in an odor-proof container, according to court documents.
The other case, People v. Molina, involved defendant Vincent Molina, who was a passenger in the vehicle when an Illinois State Police trooper smelled cannabis and searched the car, finding a small box of rolled joints, according to court records. Molina told the trooper he had a medical marijuana card prior to the search, the records state. Molina was charged with unlawful possession of cannabis by a passenger in a motor vehicle for not storing the cannabis in an odor-proof container.
Lawyers for Molina and Redmond argued the smell of cannabis alone should not be probable cause to search a vehicle given that the substance is no longer illegal in Illinois.
But Attorney General Kwame Raoul’s office argued the law requires drivers to transport cannabis in an odor-proof container. Thus, the presence of cannabis odor is grounds for a search, even if the passenger is possessing an amount under the legal limit or has a medical marijuana card.
“It remains illegal to use cannabis in a vehicle and to transport cannabis in a vehicle in a container that is not odor-proof,” a November brief filed by Raoul reads. Thus, “the odor of cannabis—whether in raw or burnt form—continues to provide police with probable cause to search.”
Mitchell Ness, assistant attorney general, continued the argument before the Supreme Court on Wednesday.
“Cannabis is no longer contraband in every circumstance, but that doesn’t absolve the person from following the laws that are in place,” he said.
Chief Justice Mary Jane Theis said the central matter of the cases was roadway safety.
“The concern here is the safety of the public driving down the highway and impaired drivers,” Theis said at the oral arguments. “We’re concerned about drunk drivers, and we’re concerned about high drivers.”
Nationwide and state-level chapters of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers filed a brief in support of Molina and Redmond, writing that allowing the odor of cannabis as cause for searching a vehicle will lead to biased enforcement against Black and Latino Illinoisans.
“There is a decades-long pattern of police in this state using pretext like cannabis odor to disproportionately stop and search Black and Latino drivers,” the brief reads. Illinois’ stop and search policy “unfairly subjects (Black and Latino drivers) to at-will intrusions of their privacy and relegates them to second-class citizenry.”
The organizations argued the legalization of cannabis means its presence is not indicative of contraband or crime.
Alexandra Block, director of the ACLU of Illinois’ criminal legal systems and policing project and co-author of the brief, told Capitol News Illinois a probable cause must be objective, not “malleable.”
“Even the claim of smelling cannabis can be discretionary. Honestly, it can be made up sometimes when officers are being less than honest because there’s no way to challenge it. You can’t see (a smell) on a body worn camera,” Block said.
Because such accusations are unchallengeable in court, the results “are often coming out worse for drivers of color,” she said.
In People v. Molina, a trial court determined the odor of cannabis alone could not be cause for search since the odor of cannabis could be found on medical patients who grow their own marijuana plants or workers at cultivation centers and dispensaries. The ruling was reversed by an appellate court before the case was consolidated with Redmond’s and brought to the Illinois Supreme Court.
Other top courts across the country have faced the same question, most recently in Minnesota, where the state’s supreme court ruled the odor of cannabis, in the absence of any other evidence, is not enough “that the search would yield evidence of criminally illegal drug-related contraband or conduct.”
Last spring, the Wisconsin Supreme Court ruled the smell of marijuana is enough for police to search a vehicle.
Most state supreme courts—like those in Delaware, New Jersey, Pennsylvania and Vermont—have all determined the scent of cannabis is not enough for police to initiate a stop and search.
The Maryland General Assembly passed a law last year prohibiting warrantless searches caused by the odor of cannabis.
Last year, Sen. Rachel Ventura (D-Joliet) introduced a bill that would amend the Illinois Vehicle Code and establish the odor of cannabis, raw or burnt, alone “shall not constitute probable cause” to search vehicles or persons. While the bill stalled last year, Ventura told Capitol News Illinois in June she’d consider reviving the measure depending on how the court cases play out.
The Supreme Court’s decision is expected later this year.
This story was first published by Capitol News Illinois.
Capitol News Illinois is a nonprofit, nonpartisan news service covering state government. It is distributed to hundreds of newspapers, radio and TV stations statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation, along with major contributions from the Illinois Broadcasters Foundation and Southern Illinois Editorial Association.
Photo elements courtesy of rawpixel and Philip Steffan.
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