The Illinois Supreme Court ruled last week that the smell of raw cannabis in a vehicle provides police with probable cause to conduct a search. This decision comes after a previous ruling that the odor of burnt cannabis does not grant such authority, creating a nuanced distinction for both motorists and law enforcement regarding legal cannabis possession.
Justice P. Scott Neville, a Democrat, explained in the majority opinion that the smell of burnt cannabis indicates past or current use, while the scent of raw cannabis implies that it is presently possessed in the vehicle. This distinction involves different legal implications.
The court’s 4-2 ruling confirmed that an Illinois State Police trooper acted legally when he searched a car in which Vincent Molina was a passenger after pulling over the driver for speeding on Interstate 88 in Whiteside County in December 2020. The trooper reported smelling raw cannabis, prompting him to search the vehicle, where he discovered multiple joints in a cardboard box and cannabis in a sealed plastic container in the glove box. Molina was subsequently charged with a misdemeanor for illegal possession.
An initial circuit court ruling favored Molina, deeming the search unreasonable under Illinois law, which permits individuals over 21 to possess recreational cannabis. However, both an appellate court and the Illinois Supreme Court overturned this ruling, emphasizing that cannabis must be stored in a “sealed, odor-proof, child-resistant cannabis container” while in a vehicle and kept “reasonably inaccessible” during transit.
Justice Neville noted that the trooper made a “reasonable inference” from the smell that the cannabis was being illegally possessed. He pointed out that while cannabis is legal to possess, it cannot be transported in a vehicle unless it meets specific legal requirements. The odor of raw cannabis strongly suggests that it is not being carried in accordance with Illinois law.
In a separate unanimous ruling in September, with Justice Lisa Holder White abstaining, the court concluded that the smell of burnt cannabis does not indicate a crime and does not provide probable cause for a vehicle search. In that case, although a state trooper found a gram of cannabis, the driver showed no signs of impairment, leading the court to rule that the search was unjustified.
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