‘Constitutional Absurdity’: Raw Marijuana Smell, Not Aroma of Burnt Pot, Justifies Vehicle Searches, Illinois’s Top Court Rules

Police officers in Illinois can conduct warrantless searches of vehicles based solely on the smell of raw cannabis, thanks to a decision by the Illinois Supreme Court on Thursday.However, the 4-2 ruling creates somewhat of an odd standard, as the same court ruled in September that officers cannot conduct a search based on the smell of burnt marijuana alone. While recreational marijuana is legal in the state for people over 21, it is illegal to smoke pot in a vehicle. If drivers are transporting pot, it is supposed to be stored in an odor-proof container.The court’s ruling centered on the case of Vincent Molina, a passenger in a car that was stopped in Illinois in 2020. A state trooper said he smelled raw cannabis wafting out of the car window and conducted a search, during which joints were discovered in the vehicle’s center console. A sealed box of marijuana was also found in the glove compartment. Mr. Molina was charged with misdemeanor possession because the cannabis was not kept in an odor-proof container. A trial court determined the search was not justified. However, an appellate court reversed the decision, and the case went to the Illinois Supreme Court, the state’s highest court. The judges on the Illinois Supreme Court said in their Thursday ruling, “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 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,” the ruling added. Justice Mary O’Brien dissented from the opinion and was joined by the chief justice, Mary Jane Theis. There are seven justices on the court; one didn’t participate in the decision. “I dissent from the majority opinion simply to point out the absurdity of this inconsistency,” Justice 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.”An attorney for Mr. Molina, James Mertes, told the Chicago Tribune he plans to appeal the decision to the U.S. Supreme Court in Washington, D.C.“This means that the privacy rights of motorists in Illinois have been turned over to the police officer’s sense of smell,” Mr. Mertes said. “While we certainly respect the decision of the court, we share the view of the dissenters that this creates a constitutional absurdity.”The “constitutional absurdity” points to a seeming incongruity in what provides grounds to search a vehicle due to cannabis possession. In September, Illinois’s high court ruled 6-0 that officers cannot conduct a search solely because they smelled burnt cannabis. Justice Scott Neville Jr. wrote in that opinion, “The laws on cannabis have changed in such a drastic way as to render the smell of burnt cannabis, standing alone, insufficient to provide probable cause for a police officer to search a vehicle without a warrant.”The court said officers may cite the scent of burnt cannabis as justification for a search if there are other factors involved, such as a driver not stopping for a while. Courts in other states, such as Kansas, Massachusetts, Minnesota, and Pennsylvania, have also ruled that the smell of burnt cannabis alone does not justify a search. Law enforcement advocates in Illinois raised concerns about prohibiting officers from using the scent of burnt cannabis to conduct a search. The executive director of the Illinois Chiefs of Police Association, Kenny Winslow, asked if officers would be able to search a car in a situation where a police dog reacts to the smell of a drug, but the officer does not know if the dog is detecting cannabis or cocaine. However, the director of the Criminal Legal System and Policing Project at the ACLU of Illinois, Alexandra Block, says officers should not use the scent of burnt or raw cannabis to justify a search. “It perpetuates the incentive for police officers to make pretextual traffic stops,” Ms. Block told the Sun. She also said the scent of cannabis alone does not provide evidence of someone violating the law. Illinois lawmakers in the state Senate passed a bill in 2023 that would have prevented officers from using the scent of burnt or raw cannabis alone to conduct a search. However, momentum for the bill stalled, and it did not receive a vote in the House.

‘Constitutional Absurdity’: Raw Marijuana Smell, Not Aroma of Burnt Pot, Justifies Vehicle Searches, Illinois’s Top Court Rules

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