CHICAGO, Ill., December 5, 2024 – The Illinois Supreme Court has ruled that the smell of raw cannabis is sufficient cause for police to search a vehicle without a warrant, even though marijuana is legal in the state. However, the court upheld its previous decision that the smell of burnt cannabis alone does not justify a search.
This latest decision, stemming from the 2020 case People v. Molina, highlights the legal nuances of cannabis possession and transportation in Illinois.
The Case: Raw Cannabis in a Vehicle
The ruling originated from a state trooper’s 2020 stop of a vehicle on Interstate 88 in Whiteside County. The officer testified to detecting the smell of “fresh cannabis,” prompting a search that uncovered several joints and cannabis stored in containers that were not “odor-proof.”
Under Illinois law, cannabis must be transported in sealed, child-resistant, and odor-proof containers that are not easily accessible to the driver. Violations of this law, such as transporting cannabis in non-compliant containers, remain illegal despite marijuana’s legalization.
The circuit court initially granted a motion to suppress the evidence, arguing that the smell alone was insufficient for probable cause. However, the Illinois Supreme Court reversed that decision in a 4-2 ruling, asserting that the smell of raw cannabis likely indicates non-compliance with the odor-proof container requirement.
Majority Opinion: Raw vs. Burnt Cannabis
Justice P. Scott Neville Jr., writing for the majority, argued that the odor of raw cannabis is a strong indicator of illegal transport under Illinois law.
“The odor of raw cannabis strongly suggests that the cannabis is not being possessed within the parameters of Illinois law,” Neville stated.
The court drew a distinction between raw and burnt cannabis:
- Raw cannabis: Suggests current possession in a vehicle, potentially outside the legal parameters.
- Burnt cannabis: Suggests prior use but does not directly implicate current legal violations unless accompanied by other suspicious factors, like erratic behavior or open containers.
The court emphasized that the distinction is grounded in the legal differences between possession and consumption laws.
Dissent: “Defies Logic”
Justice Mary K. O’Brien, dissenting, criticized the inconsistency in the court’s treatment of raw and burnt cannabis.
“It makes no sense to treat raw cannabis as more probative when the odor of burnt cannabis may suggest recent use,” O’Brien wrote.
She argued that both odors carry a “low degree of suspicion” since cannabis is legal in many situations. O’Brien expressed concern that the ruling perpetuates stigma against cannabis users, despite the state’s efforts to normalize marijuana use.
She also noted that the smell of raw cannabis could cling to clothing or hair without indicating a violation.
Legislative Debate: Calls for Change
The ruling comes amid legislative efforts to address cannabis transportation laws.
- Senate Bill 125: Proposed by Sen. Rachel Venture (D-Joliet), seeks to prevent both raw and burnt cannabis odors from serving as probable cause for searches.
- House Bill 1206: Introduced by Rep. Curtis Tarver (D-Chicago), aims to replace the “odor-proof” requirement with a standard of “secured, sealed, or resealable, and child-resistant” containers.
These measures highlight ongoing debates about balancing public safety with the rights of cannabis users in Illinois.
Context: Legalization and Regulation
While Illinois legalized recreational cannabis in 2020 and has permitted medical use since 2014, stringent rules govern its possession and transportation:
- Consumption: Smoking or using cannabis in a moving vehicle is illegal, similar to alcohol.
- Transportation: Cannabis must be stored in compliant containers when on highways.
The Illinois Supreme Court’s ruling underscores the complexities of integrating cannabis legalization with traditional enforcement practices.
